In Bluebell, Councillor Calls Out Unauthorised Construction

There are two semi-detached houses on the Naas Road that are bigger than their neighbours, and the skip in the front garden shows they’ve been gutted. They’re numbers 80 and 82.

At last week’s meeting of the council’s South Central Area Committee, independent Councillor Paul Hand put forward a motion to condemn “the illegal development” of these houses, “and the site owner’s continued and flagrant disregard for the planning process”.

He asked that “legal action be taken against the site owner to rebuild and reinstate the houses as they were”. Local residents had flagged the unauthorised development with him, he said.

The site owner was not available to comment, after being contacted several times. The chartered surveyors connected with the project declined to comment.

At last week’s meeting, several other councillors chimed in with concerns, some noting that the owner had applied for a retention order at the end of last month. (That’s when you build something and then ask for permission after you’ve done it.)

“I remember developers using retention orders to carry out urban vandalism,” said Sinn Féin Councillor Daithí Doolin, adding that he wants to see what the planning department plans to do with “rogue” developers.

People Before Profit Councillor Hazel de Nortúin said that, to her knowledge, Dublin City Council is aware of the planning-permission violations at the property, and that the developer seems to have “no fear” of council fines.

“It shouldn’t be allowed to happen,” she said.

Before and After

Hand is from Bluebell and says he remembers the old houses that used to be there on that road (pictured here in May 2017 on Google Maps).

“I know that the properties were destroyed as I was shown pictures by the neighbours,” he says.

According to Hand’s motion, the property developer has “violated the planning acts and constructed a dwelling without planning permission, contravened the city development plan and regional planning guidelines”.

In 2007, the council granted planning permission to alter and extend numbers 80 and 82 Naas Road, which included “two-storey extensions to the side and rear of both properties and conversion of the attic space for use as habitable spaces”.

In 2012, an extension was granted to this planning permission.

In early 2017, a subsequent application to alter and extend the properties was refused. The extensions proposed were “excessive in scale”, and would set a precedent for “similar substandard development”, the planning file says.

In May 2018, the developer applied for planning retention for construction as outlined in the original 2007 permission that had lapsed.

“The planning regulations are too weak in this country,” says Hand. “It is common for developers to build without planning permission and to then apply for retention. The same is true of the building control, the regulations are not strong enough.”

In March 2014, new building regulations came in, requiring an “assigned certifier” to watch over the construction process, and sign off to say new developments were up to standard, making them liable.

Previously, an employee of the developer could rock up at the end, and give their opinion that the development substantially complied with planning permission.

So, how is it possible that a development like this could be illegally built when a chartered surveyor, architect, or engineer must put their name to it, and declare that it sticks to the rules?

Deirdre Ní Fhlionn, a PhD candidate at Trinity College School of Law, explains that, “The Assigned Certifier has no role in signing off on planning permission,” but they “certif(y) compliance with the Building Regulations.”

If the same person designed the building, they might provide an opinion on compliance with planning permission, she says, but the certificate of compliance on completion is entirely separate from the question of compliance with planning permission.

Out of Sync

The planning and building-control systems operate under separate acts, says Ní Fhlionn, “and in some authorities, are dealt with by different departments. So it is possible for a development to have planning permission, and to have an opinion on compliance from a professional to that effect, but to be in breach of Building Regulations.”

Although they are both the responsibility of the same authority, says Ní Fhlionn, building and planning operate independently of one another, even though the two systems regulate development. “Planning regulates what you build, and building control regulates how you build it […] and the two systems are not designed to operate in sync.”

Ní Fhlionn explains that under the current system, it’s possible for a commencement notice to be served under building-control regulations, when the development is actually unauthorised by the planning system.

“For example a commencement notice under building control could be received by the local authority at a time when the planning permission for the development had expired,” she says.

It’s hard to say how widespread this is, says Ní Fhlionn. “Planning-enforcement statistics give some indication, but much building-control enforcement is done informally, and there is no centralised system for cataloguing non-compliant developments and enforcement data.”

Hand says he thinks it’s increasing in Dublin, and cites the case of the Presentation Convent in Terenure in 2006, when the developer had to rebuild the property.

A spokesperson for Dublin City Council was unable to comment, as the case is currently subject to legal proceedings.

They said that “appropriate enforcement action is taken by the Planning Enforcement Section where breaches of planning occur”.

The council gets about 1,500 complaints a year about unauthorised development, and more than 100 cases end up subject to legal proceedings, they said.