Unauthorised Use – Does the Seven Year Rule save you or not?

Author: Paddy Smyth

October 10, 2018

What is it again?

The so called “7 Year Rule” derives from Section 157(4) of the Planning and Development Act, 2000 which says that the local authority may not serve an enforcement notice or take proceedings for an unauthorised development after 7 years have commenced since the unauthorised development commenced.

The question arises as to where that leaves unauthorised use. That is, can you rely on the 7 Year Rule in respect of a material change of use to a property for which no “change of use” permission was obtained.

Yes:

  • Unauthorised use under Section 2 of the 2000 Act amounts to unauthorised development.
  • As set out above, enforcement action cannot be commenced for unauthorised development after seven years have passed since the unauthorised development commenced.

It follows then that enforcement action for unauthorised use cannot be commenced after seven years from the commencement of the unauthorised use.

But…

Beware section 157(4)(b) of the 2000 Act which provides that irrespective of the time that has elapsed, enforcement action can still be taken where a person has failed to satisfy a planning condition concerning the use of land.

There is a degree of divergence between practitioners and some argue that the effect of section 157(4)(b) of the 2000 Act is that one can never safely rely on the Seven Year Rule when unauthorised use is the issue.

This goes beyond the wording of s157(4)(b) and we submit that so long as an unauthorised use does not contravene a specific condition in a planning permission, then reliance on the Seven Year Rule is not precluded by s157(4)(b).

Of course it should always be borne in mind that the Seven Year Rule under Section 157 does not result in an unauthorised development becoming authorised – it is simply a matter of planning enforcement with the local authority in effect becoming statute barred. Equally, it does not apply to a contravention of the Building Regulations and in this context it is important to note that a material change of use of itself amounts to material alteration which requires the procurement of a Fire Safety Certificate, although with respect to Fire Safety Certificates there is the “withering provision” under Section 17(6) of the Building Control Act, 1990 which provides protection from summary criminal proceedings being brought for failure to procure a FSC after five years.

Another potentially damaging consequence that is not alleviated by the Seven Year Rule is that for the purposes of calculating compensation payable under a CPO, no account shall be taken of any value attributable to any unauthorised use or works.

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