‘Minor’ illegalities on partly ODZ buildings can now be regularised, allowing properties to be sold

Properties located at the edge of the development zone already established by a permit but which contain illegalities protruding into ODZ will be able to regularise their position.

The regularisation process is defined in a legal notice issued on Friday and the illegalities, even if they are in breach of existing policies, can be sanctioned at a fee of up to €1.2 million, depending on the size of the ODZ area.  

The new rules will effectively enable owners who presently cannot sell these properties because of long standing illegalities to put them back on the market.

According to PA official Joseph Scalpello, from the Planning Authority's Policy Directorate, most of these cases involve infringements of sanitary regulations regarding internal heights and the dimensions of internal yards and backyards.

But in a press briefing the PA official confirmed that illegalities like ODZ swimming pools and surrounding paved areas larger than the 75sq.m not permitted by existing policies can also be regularised. Presently the PA can only sanction developments conforming to policy.

Any illegalities that can be regularised through the scheme must be located within the curtilage of the existing building. Moreover, curtilage is defined as the site area established in the original permit for properties established after 1967. All pre-1967 properties are considered to be legally established.

Regularisation only if original site plans are presented

This means that someone who owns a dwelling located in the development zone but had later paved a surrounding field they own but which was not included in the site plan of the original permit, will not be able to regularise the ODZ development.

But one major problem will be determining the curtilage of pre-1967 properties or once developed in the 1970s and 1980s where plans are not always available. Scalpello made it clear that no regularisation can take place if the original plan is not found. 

While partly ODZ properties and those located in rural settlements established in the local plan will be eligible under the new scheme, properties entirely located in the ODZ will not be eligible. Illegalities must predate aerial photos taken in 2016 which means that any subsequent illegalities cannot be regularised.

Regularisation is not automatic with the final decision being taken by the Planning Commission responsible for the regularisation scheme enacted in 2016 which was limited to illegalities in the development zone. This board is currently chaired by architect Elizabeth Ellul who until 2020 chaired the board responsible for ODZ permits, before being transferred to the regularisation board amidst controversy on the interpretation of ODZ policies.

As is already the case with the regularisation scheme for properties in the development zone, applications will be published and submitted for a consultation period during which the public can present objections.

But crucially unlike what happens in normal development applications, consultation with the Environment and Resources Authority and with the Superintendence for Cultural Heritage is not automatic but will be at the discretion of the case officer or the Planning Commission.

The commission can still refuse to approve the request for regularisation in cases where the illegalities are deemed to constitute an injury to amenity and when the use of the development is not in conformity with current planning policies. For example, one cannot use the scheme to regularise a commercial activity where this is not allowed.

Heftier fees

The regularisation of ODZ illegalities will come at a heftier price than that for the regularisation of illegalities within development zones.  The regularisation of unroofed development like pools and paved areas will range from €400 for properties with an ODZ area of less than 25sq.m to € 989,000 for properties with an ODZ area of over 10,000sq.m.

For roofed developments like gazebos and tool sheds, regularisation will cost between €450 for properties with an ODZ area of 25sq.m up to €1.2 million for properties with an ODZ area of more tha 10,000sq.m. The tariffs do not reflect the size of the illegality but the total area in the property which is ODZ.

Although the proposed changes were issued for public consultation in November last year, no major changes were made to the original draft except for the determination of the tariffs.