Under the Planning and Development Act 2000, as amended (the Act), all development, unless specifically exempted under the Act or the associated Regulations, requires planning permission.
Any development that is carried out without planning permission or that does not comply with the terms of a planning permission is unauthorised development and may be subject to enforcement action by a planning authority. Responsibility for enforcement action in relation to any breach of the planning code is a matter for individual planning authorities and extensive enforcement provisions are provided for in Part VIII of the Act.
It is a matter for the relevant planning authority to decide on a case-by-case basis, within the legislative and policy framework, whether permission would be granted for development on a site with an unauthorised development. Unauthorised development does not establish use on a particular site. Where unauthorised development exists on a particular site and the site owner proposes to undertake further development on the site in question, the owner of the site or property could submit an application for retention permission to regularise the unauthorised development alongside the planning application for the proposed new development.
However, a planning authority cannot accept an application for retention permission if the development concerned, before it commenced, would have required one or more than one of the following:
- An Environmental Impact Assessment (EIA);
- A determination as to whether EIA is required; or
- An appropriate assessment under the Habitats Directive.
It is only in cases where none of the above circumstances apply that a planning authority can accept an application for retention permission.
If the planning authority approves both applications, they may require the subsequent demolition of the existing development. Demolition of the development may also be required if the planning authority refuses permission and the unauthorised development commenced less than seven years ago. In addition, the lodging of an application for retention permission or the granting of that permission does not prevent the planning authority from pursuing enforcement action if the unauthorised development took place within the previous seven years.
It should be noted that the fact that a person has made an application for retention permission is not a defence to a prosecution for unauthorised development and a development carried out without planning permission, or in breach of planning conditions, remains unauthorised unless and until retention permission is granted. In this connection, section 162(3) of the Act provides that no enforcement action under the Part VIII enforcement provisions of the Act shall be stayed or withdrawn by reason of an application for retention of unauthorised development.