Report on Multi-Unit Developments - Law Reform Commission

geared sufficiently to cover outstanding problems. As a result, the Commission
welcomes the guidance in the 2008 Circular issued by the Department of
Environment, Heritage and Local Government, which states:
―It is a matter for the planning authority to determine both the level of
security and the type of security that will be required for each
residential development. The amount of the security, and the terms
on which it is required to be given, must enable the planning
authority, without cost to itself, to complete the necessary services to
a satisfactory standard in the event of default by the developer.‖ 61
1.48 Even where development bonds are properly geared, administrated
and enforced, the Commission considers it desirable for there to be a range of
enforcement mechanisms open to planning authorities. It seems that
development bonds are widely used only as an enforcement mechanism of last
resort. The Commission agrees that this is an appropriate strategy and that
planning authorities should retain flexibility depending on the nature and
severity of non-compliance with the planning permission. Where there is
widespread and serious non-compliance within a given planning permission,
this is likely to be highlighted through the periodic inspections throughout the
construction and completion of a development which the Department‘s 2008
Circular has recommended. 62 The Commission agrees that this strategy, along
with a wider culture of enforcement and consequent compliance is imperative
for the future sustainability of developments in general, including multi-unit
developments. The Commission now turns to discuss a range of other available
enforcement mechanisms.
(2) Refusal of planning permission for past failure to comply
1.49 Section 35 of the Planning and Development Act 2000 allows
planning authorities to refuse planning permission for past failures to comply
with planning conditions by the developer, or by a company related to or
controlled by the developer. 63 It states:
―Where...the planning authority is satisfied that a person or company
to whom this section applies is not in compliance with the previous
permission, or with a condition to which the previous permission is
61
Department of Environment, Heritage and Local Government, Annex to Circular
Letter PD 1/08: Framework for a Comprehensive Taking in Charge Policy
February 2008, paragraph 3.5.
62
See the discussion at paragraph 3.6 of the Circular.
63
Section 35(7)(c) and (d) of the 2000 Act apply the concepts of ―related‖ and ―
control‖ from ss.26(3) and 140(5) of the Companies Act 1990).
36