COMHAIRLE CONTAE ÁTHA CLIATH THEAS
SOUTH DUBLIN COUNTY COUNCIL

MEETING OF LUCAN AREA COMMITTEE

Tuesday, January 25, 2011

MOTION NO. 21

MOTION: Councillor D. Keating

That this Committee requests the Manager to agree to take in charge the open space as part of Mount Andrew Court and Mount Andrew Rise, and that the Manager would agree to initiate the necessary procedures under Section 180 of the Planning and Development Act 2000 for the taking in charge of this land in keeping with my previous representations on behalf of local residents in Mount Andrew Court and Mount Andrew Rise, and that if agreed by the elected members the Manager would then agree to meet the residents of Mount Andrew Court and Mount Andrew Rise again as part of this process.

REPORT:

Section 180 (as amended) states (inter alia):

Where a development for which permission is granted under section 34 or under Part IV of the Act of 1963 includes the construction of 2 or more houses and the provision of new roads, open spaces, car parks, sewers, watermains or drains, and the development has been completed to the satisfaction of the planning authority in accordance with the permission and any conditions to which the permission is subject, the authority shall, where requested by the person carrying out the development, or, subject to subsection (3), by the majority of the owners of the houses involved, as soon as may be, initiate the procedures under section 11 of the Roads Act, 1993 .

In general terms, in order for the provisions of Section 180 to be carried out, the holding of a plebiscite to ascertain the views of the majority of the owners of the houses involved in the development, is required. On receipt of a request for services to be taken in charge the Council would arrange such a plebiscite. The Council therefore cannot initiate this process, it must emanate from the owners of the units in question, possibly initially in the form of a petition.

The Council has not operated this procedure under Section 180 of the Planning and Development Act 2000 (as amended by the Planning and Development (Amendment) Act, 2010) and therefore there is a need to clarify the practical implications of how the matter might proceed.

For example the amended Section 180 states that the plebiscite must involve the owners of the houses involved. The Council would therefore require owners participating in the plebiscite to provide documentary proof their ownership of the home. Under the previous Section 180 the provisions of said section could be operated following a plebiscite from the majority of qualified electors. This matter was easier to verify with reference to the electoral register.

In addition, there are more significant legal concerns in respect of this particular development in the context of utilizing Section 180. The development in question was carried out by Maplewood Homes and the relevant permission contains a condition requiring the establishment of a management company for the maintenance of services on the site. It is our understanding that such a management company exists (Mount Andrew Management Company Ltd.) and that one of its functions is the maintenance of the open space.

This planning permission was granted with the expectation that the open space (among other services) in relation to the part of the development in question were to be managed and maintained through a management company. The open spaces in question were permitted on that basis.

To alter this situation now could represent a breach of the conditions of the planning permission and it is most likely that, to alter the situation, a new planning application altering/removing a condition in relation to management of the open space, would be required.

On the basis that the management company, membership of which is ordinarily enshrined in the contract to purchase, acquires such areas to be held in trust for the purchasers, the planning application would most likely have to be lodged by the legal owners of the open space, which, in the normal scenario of such managed developments, would be the Management Company.

Finally, the permission was granted and the development carried out on the basis of these open spaces being subject to the care of a management company. The Parks Department has advised that, while the areas are completed in line with the planning permission, the areas are small and intensive and require small machinery and large labour inputs to maintain them, and were permitted on the basis that such areas are appropriate for a managed environment rather than for taking in charge.

Given the number and complexity of the issues raised above, the Planning Department will seek the legal and other advices required and report back to the members.