The Gazette 1985

INCORPORATED LAW SOCIETY OF IRELAND

Vol. No. 79 No. 9

November 1985

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. •

What's A 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