The following is a query a reader submitted to the Irish Times which Winters MD, Enda Mc Guane answered this week. Enda is a chartered planning and development surveyor and a member of the Society of Chartered Surveyors Ireland, scsi.ie.
Q. What options does a landlord have when served with a warning notice by the county council about six masts and antennae in the back garden of her house erected by an occupant of her house without planning permission? Following objections from residents, the county council has issued an enforcement order which the tenant says he will not comply with as masts are considered movable and do not require planning permission. The council disagrees with this. The tenant is not on the rental agreement and some of the masts are as high as the house itself.
The circumstances around your query are unusual, though it does support the guidance we give to landlords that residential letting is growing increasingly complicated and more challenging. There are several overlapping areas involved here, including tenancy law, planning law and the Multi-Unit Development (MUD) Act.
You indicate that the tenant who has erected the masts is not on the rental agreement. In the absence of information to the contrary, I will assume that you have a lease in place with a tenant and that this other person is either a partner of your tenant or a sublet.
Firstly, let’s explore the masts and the county council’s position. Not having seen the council’s letter, I assume it refers to Statutory Instrument No 31 of 2018 or the Planning and Development (Amendment) (No 3) Regulations 2018. These regulations amended the Planning and Development Act 2000 in relation to exemptions and descriptions of antennae and mast types. The local authority is responsible for the planning system and the enforcement of planning legislation.
A warning letter is putting you, the property owner, on notice that the local authority is aware that there may be unauthorised development being carried out on your property. Normally, you are given a four-week period to reply to the warning letter.
When a letter is issued the local authority is also required to carry out an investigation into the alleged unauthorised development. If the planning authority determines that unauthorised development has taken place, it must also determine whether the requirements of the warning letter have been met before taking further action.
This will normally take the form of an enforcement notice requiring you to rectify the situation. The time frame for a decision on further action is within 12 weeks of sending the warning letter. Non-compliance with an enforcement notice can lead to a court appearance with penalties for breaching planning as set out in the Planning and Development Act 2000, as amended.
While these penalties depend on the offence, they do include a criminal conviction and a fine and/or a prison sentence. So from your perspective as the property owner it’s important that you respond to the warning letter and engage with both the local authority and your tenant.
I would recommend you engage the services of a local chartered planning and development surveyor to inspect the masts to confirm my assumptions and to engage on your behalf with the local authority.
You also need to engage with your tenant immediately. You indicate that the person responsible for erecting the masts is not on the lease. How they have come to reside in the property will dictate their status. The differing types of occupancy are defined on the RTB website. Depending on their occupancy type and the status this concurs will dictate your approach to the individual concerned.
This will also be supported by the terms outlined in your lease. A standard residential letting agreement will contain clauses outlining what, if any works a tenant can undertake and usually there is a catch-all phrase designed to ensure the tenant does not do anything that could affect the insurance premium on the property. I would suggest that the erection of six masts and associated antennae would have a significant impact on a standard landlord insurance policy.
You need to review your lease and then formally in writing notify the tenant how their actions have breached the lease and give them a time frame to rectify this action. The RTB provides template documents to do this and to take the next steps towards termination of the breach is not rectified.
A moratorium on evictions has been in place since December 31st due to the impact of Covid-19; this is due to expire on April 15th. However, the protections don’t apply where a tenant has failed to comply with certain obligations, including antisocial behaviour; behaviour that invalidates a landlord’s insurance; use of the dwelling other than as a residential accommodation unit, without the landlord’s written consent; or behaviour that threatens the dwelling.
In addition, if this property is part of a larger development with an owners’ management company in place, then it is governed by the MUD Act and there will be “house rules” in place that give guidance and potentially prohibit additions of this nature.
Ultimately, as the property owner, you have responsibility for breaches of the house rules or the Planning Act so it’s very important that you address this issue. The situation is complex and as well as an experienced surveyor I would strongly recommend that you engage the services of a legal adviser so that you can review all your options.