As part of the changes to planning legislation, government is proposing to remove the requirement for developers to obtain the landowner’s consent when applying to develop land which is not theirs, leaving only the obligation for the owner to be notified.

As reported in the press, the government is justifying this change by referring to a recent court sentence in a case of disputed ownership of a shaft from where the developer was proposing to pass a chimney flue.

The manner by which Mepa deals with matters relating to ownership declaration has often been raised by this office.

This is because, in my view, Mepa is applying the wrong procedure in relation to issues involving the declaration of ownership submitted in the planning application.

When an objection is received citing incorrect submission of information relating to ownership, Mepa invariably takes the position that matters relating to disputes on ownership are outside its remit as such disputes lie within the competence of the courts. This reasoning is correct in cases where a dispute arises but Mepa should at least form a prima facie opinion on the basis of proof of ownership submitted by both parties, by requiring both the objector and the applicant to submit their proof.

When both parties respond accordingly, then Mepa would be correct in not taking further cognisance of the case, but what if the objector’s claim is not contested?

A recent case handled by this Office dealt with a complaint by a landowner who one day discovered that a permit had been obtained by third parties to carry out development on her land.

In this case, not only had she not given her consent, but she was not even notified of the application. She requested Mepa to invoke the provisions of article 77 in that false and misleading information had been submitted on ownership.

Mepa’s stock response was that ownership matters lay within the competence of the courts and they do not have a material bearing on the decision and concluded that the board found no basis in invoking article 77 of the Environment and Planning Act 2010.

Landowners’ rights to protection against abusive practices need to be respected

My conclusions and recommendations were that what Mepa should have done before deciding on the objection should have been “… to request the applicant to submit proof of ownership from her part in view of this contestation, since it only had complainant’s evidence while there was no evidence submitted by the applicant.

“Had this procedure been followed and applicant complied by submitting proof which prima facie appeared genuine then the situation would have changed in that the issue to be decided would have been one of establishing which evidence was the most reliable, and that would have then been the point where the matter would have had to be referred to the courts for determination.

“On the other hand, should the applicant not have submitted evidence, then Mepa could not abdicate its responsibility by discarding the claim so lightly. Otherwise, what is the significance of the provisions of Article 68(3)?

“The premature dismissal of the complaint will not save Mepa from legal action since the complainant would be justified in having recourse to the courts against Mepa for failing to take action in applying Article 68(3). Likewise, any prima facie assessment of conflicting evidence as suggested above could also end with legal action by the aggrieved party. However in this case Mepa could at least prove that it had taken steps to verify the ownership issue as far as prudently possible.”

The court sentence referred to earlier unequivocally stated that: “The court considers it the Authority’s obligation not to consider any application for development where there is no doubt or contestation on the fact that the applicant is not the owner of the land and where the owner is objecting.”

Mepa is therefore obliged to consider such facts forming part of the application, irrespective of whether they have a material bearing or not on the outcome.

In this particular case there was a further twist to the story since the objection was submitted quite a while after the permit was issued, naturally because the landowner was never notified.

The issue therefore became one of false and misleading information since the applicant had declared that she was the owner.

It was even more important, in the circumstances, to recall the application for a prima facie assessment.

In the light of this important court decision Mepa should review its policy in handling issues of ownership in terms of Article 68(3). Regardless of whether or not ownership information has a material bearing on planning issues, the fact that a false declaration was made with regards to the ownership should be sufficient to invoke Article 77.

Likewise, the government should reconsider its proposal to remove the requirement for developers to obtain the landowner’s consent when applying to develop land that is not theirs.

Landowners’ rights to protection against abusive practices need to be respected.

Architect David Pace is Commissioner for Environment and Planning at the Office of the Ombudsman.

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