Planning and Development Act 2024
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Planning injunctions in relation to unauthorised development | ||
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351. (1) Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of an enforcement authority or any other person, whether or not the person has an interest in the land or maritime site, by order (in this Part referred to as a “planning injunction”) require any person to do or not to do, or to cease to do, as the case may be, anything that the court considers necessary and specifies in the order to ensure, as appropriate, the following, namely— | ||
(a) that the development is not carried out or continued, | ||
(b) that, in so far as is practicable, any land or maritime site is restored to the condition that it was in before the commencement of the development, or | ||
(c) that the development is carried out in accordance with— | ||
(i) any permission granted for that development and any conditions to which the permission is subject, or | ||
(ii) in the case of a certificate issued by— | ||
(I) the Dublin Docklands Development Authority under subparagraph (ii) of paragraph (a) of subsection (7) of section 25 of the Dublin Docklands Development Authority Act 1997 , or | ||
(II) the Custom House Docks Development Authority under paragraph (b) of subsection (6) of section 12 of the Urban Renewal Act 1986 , | ||
the planning scheme (in respect of which the development was certified to be consistent) made under that Act and any conditions to which the certificate is subject. | ||
(2) When making an order under subsection (1), the court may order any person to carry out such works (including works consisting of the restoration, reconstruction, removal, demolition or alteration of any structure or other feature) as it directs. | ||
(3) (a) An application for an order under this section shall be by motion and the court may, when considering the matter, make such interim or interlocutory order (if any) as it considers appropriate. | ||
(b) Notwithstanding paragraph (a), an application for an order under this section may be made in proceedings instituted other than under this section, and the court may make such interim or interlocutory order (if any) as it considers appropriate on foot of any motion brought within those proceedings. | ||
(c) An application by an enforcement authority under this section shall not be stayed or adjourned by reason of the making of an application for permission or an application for a declaration under section 10 . | ||
(d) Subject to paragraph (c), an application by an enforcement authority under this section may be stayed or adjourned where the court is satisfied that special circumstances (which shall be stated in the order granting the stay or adjournment) exist to warrant such stay or adjournment, and any such stay or adjournment shall be subject to— | ||
(i) such conditions as the court considers are likely to discourage any delay by the applicant or respondent in relation to the progression of any application for— | ||
(I) permission, or | ||
(II) a declaration under section 10 , | ||
and | ||
(ii) such other conditions as the court considers appropriate in all of the circumstances. | ||
(e) The court may grant a stay on the execution of a final order made upon an application by an enforcement authority under this section where it is satisfied that special circumstances (which shall be stated in the order) exist to warrant such stay, and any such stay shall be subject to— | ||
(i) such conditions as the court considers are likely to discourage any delay by the applicant or respondent in relation to the progression of any application for— | ||
(I) permission, or | ||
(II) a declaration under section 10 , | ||
and | ||
(ii) such other conditions as the court considers appropriate in all of the circumstances. | ||
(f) Conditions referred to in paragraph (d) or (e) may include conditions requiring the cessation or restriction of the development to which the application relates. | ||
(g) In any application for a planning injunction, the onus of proving— | ||
(i) the existence of any permission, or | ||
(ii) that the development in respect of which the application is made is exempted development, | ||
shall be on the respondent. | ||
(h) An application made under this section shall not be refused by reason only of any grant of permission made after the commencement of the proceedings, unless the court is satisfied that— | ||
(i) by virtue of the grant of permission and the implementation of, and compliance with, the permission, and | ||
(ii) having regard to all the circumstances of the case, | ||
an order under this section would not serve any useful purpose. | ||
(4) (a) Rules of court may provide for an order under this section to be made against a person whose identity is unknown. | ||
(b) Rules of court made for the purposes of section 160 of the Act of 2000 shall be deemed to have been made for the purposes of this section as well as the said section 160, and accordingly such rules shall have effect in relation to this section and references therein to the said section 160 shall be construed as including references to this section. | ||
(5) (a) The Circuit Court shall have jurisdiction to hear and determine an application under this section— | ||
(i) where the market value of the land to which the application relates does not exceed €3,000,000, and | ||
(ii) in any other case, where all parties to the application sign such form of consent to such jurisdiction as may be prescribed by rules of court. | ||
(b) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for any circuit in which land to which the application relates is situated (in whole or in part). | ||
(c) The Court may, for the purposes of paragraph (a), determine whether the market value of the land or maritime site to which the application relates would or would not exceed €3,000,000. | ||
(d) Where an application under this section is made to the Circuit Court and it is determined by the judge of the Circuit Court that the market value of any land to which the application relates exceeds €3,000,000 and a form of consent referred to in paragraph (a) has not been signed by all of the parties to the application, the judge of the Circuit Court may, on the application of any party or of his or her own motion, make— | ||
(i) an order transferring the proceedings to the High Court, and | ||
(ii) such order as to the costs of the proceedings incurred in the proceedings in the Circuit Court as appears to him or her to be proper, | ||
and any order made or act done in the course of such proceedings before their transfer to the High Court shall be valid unless discharged or varied by order of the High Court. | ||
(e) In this subsection “market value” means, in relation to land or a maritime site, the price that would have been obtained in respect of the unencumbranced fee simple were the land or maritime site to have been sold on the open market— | ||
(i) in the year immediately preceding the bringing of the application concerned, and | ||
(ii) in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land or maritime site. | ||
(6) (a) An application under this section to the Circuit Court shall— | ||
(i) in respect of development or proposed development situated, or proposed to be situated, wholly or partly in the nearshore area of a coastal planning authority and subject to subparagraph (ii), be made to a judge of the Circuit Court for a circuit that adjoins that nearshore area, and | ||
(ii) in respect of development situated, or proposed development situated, or proposed to be situated, wholly or partly in the nearshore areas of more than one coastal planning authority, be made to a judge of the Circuit Court for a circuit adjoining any such nearshore area. | ||
(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section in relation to a development or proposed development referred to in paragraph (a) where the aggregate amount of the levy or levies payable under Chapter 7 of Part 4 of the Maritime Area Planning Act 2021 in respect of the maritime area consent granted to the person who carried out or proposes to carry out the development does not exceed €500,000. | ||
(c) An application under this section, in respect of development situated, or proposed development situated, or proposed to be situated, wholly or partly in the nearshore area of a coastal planning authority, shall be made to the High Court if that development or proposed development was, or is intended to be, carried out by or on behalf of a person who is not the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the development or proposed development. | ||
(d) An application under this section, in respect of development situated, or proposed development situated, or proposed to be situated, wholly in the outer maritime area, shall be made to the High Court. | ||
(e) Where an application under this section is made to the Circuit Court and it is determined by the judge of the Circuit Court that the aggregate amount of the levy or levies payable under Chapter 7 of Part 4 of the Maritime Area Planning Act 2021 in respect of the maritime area consent granted to the person who carried out, or proposes to carry out, the development does not exceed €500,000, the judge of the Circuit Court may, on the application of any party or of his or her own motion, make an order transferring the proceedings to the High Court, and make— | ||
(i) an order transferring the proceedings to the High Court, and | ||
(ii) such order as to the costs of the proceedings incurred in the proceedings in the Circuit Court as shall appear to him or her to be proper, | ||
and any order made or act done in the course of such proceedings before their transfer to the High Court shall be valid unless discharged or varied by order of the High Court. | ||
(7) (a) The court shall order a person who is the subject of an order under subsection (1) to pay to the enforcement authority or to any other person the costs and expenses of the proceedings concerned, unless it is satisfied that there are special and substantial reasons for not so ordering. | ||
(b) Where costs or expenses are required to be paid to the enforcement authority in accordance with an order under paragraph (a), they shall include— | ||
(i) costs or expenses reasonably incurred by the enforcement authority in relation to the investigation of the matter to which the order under subsection (1) relates, and | ||
(ii) costs incurred in relation to that investigation in respect of the remuneration and other expenses of employees, consultants and advisers. | ||
(c) An order under paragraph (a) may contain such terms and conditions (if any) relating to the payment of such costs and expenses as the court considers appropriate. | ||
(d) The court may at any time before, or during the course of, the consideration of an application under this section determine an application made under section 7 of the Environment (Miscellaneous Provisions) Act 2011 . | ||
(8) Subject to paragraph (b) of subsection (3), where an application under this section is commenced in the High Court in circumstances where the Circuit Court had jurisdiction to hear and determine the application, and an order is made in favour of the applicant (either by the High Court or by the Circuit Court following a remittal of the application)— | ||
(a) the applicant shall not be entitled to recover more costs than he or she would be entitled to recover if the application were made and determined in the Circuit Court, | ||
(b) the judge concerned may, if in all the circumstances he or she thinks it appropriate to do so, make an order for the payment to the respondent in the proceedings by the applicant of an amount not exceeding whichever of the following the judge considers appropriate— | ||
(i) the amount, measured by the judge, of the additional costs as between party and party incurred in the proceedings by the respondent by reason of the fact that the proceedings were not commenced and determined in the Circuit Court, or | ||
(ii) an amount equal to the difference between— | ||
(I) the amount of the costs as between party and party incurred in the proceedings by the respondent as measured by the Legal Costs Adjudicators of the High Court or, if the proceedings were heard and determined in the Circuit Court, the appropriate county registrar, and | ||
(II) the amount of the costs as between party and party incurred in the proceedings by the respondent as measured by the Legal Costs Adjudicators of the High Court or, where the proceedings are heard and determined in the Circuit Court, the appropriate county registrar according to a scale that he or she considers would be appropriate had the application been heard and determined in the Circuit Court. | ||
(c) A person who has been awarded costs under paragraph (a) of this subsection may, without prejudice to his or her entitlement to recover the costs from the person against whom they were awarded, set off the whole or part thereof against any costs in the proceedings concerned awarded to the latter person against the first-mentioned person. |