With developers back in business and construction on the rise, independent councillor Gerry Flynn has called on Clare County Council to ensure safeguards so that builders complete previous obligations before being granted new commencement notices.
According to the Shannon councillor, the recent crash has left the local authority with the responsibility of completing a large number of unfinished developments.
He now wants the council, “to be mindful of applications from developers with outstanding work… not to validate Commencement Notices until all outstanding obligations are met.”
However acting director for Economic Development, Brian McCarthy, said the local authority is legally obliged to validate a commencement notice where there is compliance with the Building Control Amendment Regulations.
He explained that the statutory validation of a commencement notice does not allow for consideration of whether or not a developer has failed to fulfil his obligations in respect of previous planning permissions.
Mr McCarthy also stated that Section 35 of the Planning and Development Act 2000, does make provision for refusal of a permission for past failures to comply.
However, he acknowledged that the process may be lengthy, is costly from a legal perspective and therefore is very rarely used by local authorities.
According to Mr McCarthy, Clare County Council has been actively reducing the number of estates not yet taken in charge in the last number of years. The current figure stands at just under 200 residential developments.
As regards these legacy issues, he said that in most cases the developer is no longer active so the council must rely on receivers/bondholders and their agents to address the completion of these developments.
While the council does assume responsibility for estates where bond monies have been paid, in many cases this is insufficient and presents difficulties in terms of resolving issues and completing the estates to a satisfactory standard.
Referring to more recent permissions for developments, Mr McCarthy said the council is adopting a more proactive Taking in Charge policy that requires a certification procedure to be put in place by the developer.
This will help ensure that future developments will be completed in accordance with the conditions of planning permission and to the standard required for Taking in Charge.
In addition, the local authority is reviewing its bond process and may require increased security in future to limit the council’s exposure in cases where developers fail to fulfil their obligations with regard to outstanding works and the residents who live in these developments.
Commenting on his motion and the reply, Cllr Flynn said the council must be mindful that up to 200 estates have yet to be taken in charge by the council. He asked Mr McCarthy to expand on how many times Clare County Council implemented S35 of the Planning Act?
Cllr Flynn said it is unacceptable to hear excuses for not implementing the legislation particularly at a time when Clare County Council cannot cope with the extent of unfinished estates.
Cllr Flynn challenged the local authority about whether it is serious about addressing this anomaly given that a large number of people are now saddled with huge mortgages and end up living in unfinished estates for up to 20 years.
If the local authority is unable to use enforcement powers, Cllr Flynn insisted that legislation must be put in place to provide safeguards for house buyers.
“Who protects those purchasers who can find themselves living in unfinished estates for many years? I think Government policy favours developers to a large extent and also facilitates the dragging out of the taking in charge process,” said Cllr Flynn.
His namesake, Cllr Johnny Flynn described the proposal as timely given that construction activity is on the increase and there is a risk that the lessons of the past have not been learned.
Cllr Flynn said it appears that when it comes to safeguards, people have more statutory protection when buying a kettle than purchasing a family home.
He claimed a lot of building developers who left the pitch and are no longer working in the sector, while others have tried to remain on the pitch because they don’t like to lose control over water infrastructure and roads so that they can carry out further development in the future.
Fianna Fáil councillor Pat Hayes noted that the council is presently reviewing the bond process, he hopes that in future the system would reflect the cost of the actual development being proposed.
Following up on the comments, Brian McCarthy said that while he understands the sentiments expressed, the only legal recourse available is S35 of the Planning and Development Act which is rarely used by other local authorities and has not been used by Clare County Council.
In his summing up, Cllr Gerry Flynn noted that the message to purchasers of residential properties in estates is clear – the process is not strong enough to protect them.
While welcoming Mr McCarthy’s comments on review of the bond process, Cllr Flynn said it is incumbent on officials to ensure that councillors are kept up to date with any proposed changes in the public interest.