The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND

Vol. No. 79 No. 9

November 1985

What's

n increasingly frequent difficulty which faces

auctioneers and solicitors acting for the vendors of

any kind of commercial investment property is that of

establishing the permitted use of some or all of the

premises for planning purposes. The strictness of our

planning control system, coupled with the absence of

any formal process of determining the existence of an

unchallengeable (if not formally permitted) use,

combines to leave practitioners in an unhappy position.

If a premises had, for example, office use only on 1st

October 1964 then, regardless of the subsequent use

zoning, that office use can continue unchallenged as

"established non-conforming use" as the jargon has it. If

the area then becomes zoned for residential use only one

might imagine that the premises could happily be

converted to residential use without planning

permission being sought. One would, however, be

wrong. Even though the use is precisely what the

planning authority intend, the change from an

"unapproved" but protected use to an approved use

needs permission. Such permission may, of course,

include conditions, and may also attract a third party

appeal. If permission is not sought for the residential use

then that use is not a permitted use and indeed there may

be no permitted use for the premises. It may not be

possible to revert to the office use because this may held

to have been "abandoned".

The word "may" has to be used because the difficult

doctrine of "abandonment" has not been considered

with any great frequency by the Irish Courts. The

English Courts have taken the view than an established

non-conforming use may be abandoned if there is a

conversion to another use or indeed, if that use ceases

and there is no use being made of the premises. The

English Courts have taken the view that an established

non-conforming use may be abandoned if there is a

abandoned. If, therefore, there has been a change to an

unlawful use it is possible to revert to the original

permitted use.

Evidence of an established non-conforming use may

not be particularly satisfactory—the ubiquitous "pre-

1963 Declaration" particularly if made in the late 1960s

and apparently therefore of considerable evidential

the use?

value, often turns out to be so vaguely worded,

particularly in relation to the number of flats or bed-

sitters in existence on 1st October 1964 or in relation to

the precise nature of the business carried on in

commercial premises, as to be virtually useless. If there

is no reliable declaration then at a 20-year remove the

collecting of the necessary evidence to establish the use

may well prove almost impossible.

It is not of course only on the occasion of a sale of

property that the question of the permitted use may

arise. Because of the provisions of Section 26 and 27 of

the Local Government 1976 Planning and Development

Act, the owner is at risk of having a warning notice

served by the planning authority requiring him to

discontinue the use, or worse still, having an application

brought to the High Court by the planning authority (if

he does not comply with the warning notice) or by some

local residents seeking an order to have the use

discontinued.

In the United Kingdom since 1971 there has been a

procedure available which solves the difficulty in many

cases. Under Section 94 of the 1971 Town & Country

Planning Act, the owner can apply for the issue of an

"established use certificate" to the local authority. If the

applicant can show that there was "established use" at

the end of 1964 (or at one or two less important relevant

dates) the planning authority will issue a certificate

which will free the premises from any enforcement

proceedings. Unfortunately, although our town

planning legislation draws largely on the English

legislation, no such provision has been included in any of

the three Acts that have been introduced here amending

our planning legislation since 1971.

It would be much more satisfactory if an owner were

able to ascertain with reasonable speed whether the

evidence which he was able to collect was sufficient to

justify the issuing of an established use certificate thus

clearing the way for any future sale or avoiding the risk

of proceedings under Section 26 and 27. If for instance,

as is the case in the English legislation, the use to which

the premises was being put at a date 7 years previously

were to be the determining factor evidence should be much

more readily available than use over 21 years ago.

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