The Gazette 1980

GAZETTE

JULY-AUGUST

Conveyancing Notes

HOUSES CONSTRUCTED BY DIRECT LABOUR:

PRACTICE OF THE IRISH PERMANENT

BUILDING SOCIETY

It will be of interest to members to know the

requirements of the Irish Permanent Building Society

where a house is constructed by direct labour.

The Society requires that the erection of the premises

be supervised by an Architect or Engineer, who, on

completion of the premises, will complete a Declaration

verifying:

A. That the house was built in accordance with the

plans and specifications.

B. That he supervised the erection of the premises

and verifies that same have been completed to

his satisfaction.

C. That the Building Conditions of the Planning

Permission have been complied with in full.

D. That the cost of erection of the premises,

including the site cost of £X is not less than £Y.

A Declaration in the above form, supported by the

usual Architect's/Engineer's Declaration required for new

houses would satisfy the Society's requirements. The

Society will rely on the Declaration to verify the price

(construction costs plus site cost), and will not require

production of invoices from the Applicant or his Solicitor

in respect of construction costs, cost of materials, etc.

Supervision need not be continuous but a minimum of

five inspections is felt essential so long as they include an

inspection of foundations and, at completion, of roof

timbering.

It sometimes happens that potential Borrowers do not

advise the Society that the premises will be erected by

direct labout and consequently do not find out about the

need for this supervision until too late. Members acting

for clients purchasing or taking transfers of sites might

consider warning clients about this requirement to avoid

difficulty at a later state.

LAPSE OF PLANNING PERMISSION

The attention of the Conveyancing Committee has

been drawn by Mr. Michael O'Connell of Tralee to the

position which will arise under Section 29 of the Local

Government (Planning and Development) Act 1976 on

and after the 1st November 1981. Section 29 is the

Section which provides that Planning Permission will

lapse five years after the date of Section 29 coming into

operation or the date of the granting of the permission,

which ever is the later, subject to certain minor

exceptions.

Accordingly on the 1st day of November 1981 the

fifth anniversary of the Section coming into operation a

number of Planning Permissions will lapse.

The point that Mr. O'Connell has brought to the

attention of the Committee is that an outline permission

granted prior to the 1st day of November 1976 will lapse

on the 1st day of November 1981 even if there is a

subsequent approval in existence or there is an application

pending for an approval or for a full permission. In his

book "Planning and Development Law" at page 24 Mr.

E. M. Walsh explains the position as follows:

"Outline permission, permission and approval — These

are the three forms of application which it is possible to

make to a Planning Authority and the distinction between

them should be clearly understood. Section 24 of the

Planning Act 1963 forbids development (other than

exempted development) without a permission. Section 25

entitles the Minister to make Regulations which provide

for outline permissions for development subject to the

subsequent approval of the Planning Authority. There are

therefore two types of permission, namely, Outline

Permission and (full) Permission. A Permission is

complete in itself because the applicant submits to the

Planning Authority the details necessary to enable it to

consider his application in all its aspects. This may

involve the presentation of detailed drawings at a cost of

thousands of pounds. When Permission is granted the

planning process is complete and the development can

proceed. An Outline application is an application for

permission in principle. The applicant wants to know

whether or not the development which he contemplates is

acceptable before he becomes involved in the considerable

expense of preparing detailed drawings. It is rather like an

application for a declaratory Order under Section 15 of

the Intoxiating Liquor Act 1960 where an applicant

wants to avoid the expense of building a public house

before applying for a licence for it. An outline application

can be confined to a site plan and a request for permission

to build a house on the site. If Outline Permission is

granted then the applicant feels free to incur the expense

of preparing detailed plans and when there are conditions

attached to the Outline Permission he makes his plans

conform to the conditions. Before any development is

commenced there must be a permission. It can be an

Outline Permission or a Permission. If it is an Outline

Permission there must be a subsequent Approval. Outline

Permission plus Approval equals Permission."

It follows therefore that an applicant should understand

what it is necessary to apply for. At the outset the first

decision must be to apply for Outline Permission or

Permission. If Outline Permission is applied for and

obtained then the follow-through application should be for

Approval. The printed form of application provided by

most Planning Authorities sets out at its head the words

"Outline Permission", "Permission" and "Approval"

and the applicant is expected to strike out the words

which are not appropriate. No branch of planning law has

given rise to greater confusion and misunderstanding that

the distinction between these three forms of planning

application. Very often an Outline Permission is followed

by an application for Permission which frees the Planning

Authority from any restraints imposed by the existence of

the Outline Permission. Sometimes an application for

Approval is made which travels outside the limits of the

Outline Permission and which can therefore be properly

rejected. The distinctions are clear-cut and the importance

of understanding them cannot be over-stated.

Practitioners are advised to consider carefully the

differences between permissions and approvals.

A further point of concern under Section 29 is that,

again with some minor exceptions, where development

has been commenced but has not been completed at the

expiry of the five year period the permission will cease to

have effect as regards so much of the development as has

not been completed.