Office of the Ombudsman responds to Residents’ Complaint

The following is the response of the Office of the Ombudsman to the complaint by local residents about Galway City Council’s handling of the enforcement process in relation to the illegally erected signage at Pearse Stadium.

 

In summary it says that the Council failed to carry out the mandated actions in the time frames laid down in legislation, but this was not due to malpractice by the Council. There were extenuating circumstances, in that there were two unsuccessful applications for retention and an unsuccessful attempt to have the work declared exempt from requiring planning permission by the GAA. And because of recent changes among the Trustees of the Pearse Stadium Committee it took further time to find out who the new trustees were. The Ombudsman says that due to the unusual delay that the Council should have offered an explanation as to why it could not answer our queries.

 

An Enforcement Notice issued on 21 January 2020 requested the full removal of the advertisement signs and associated support structures within 28 days of receipt date of the Enforcement Notice. The file was again due for review on 19 February 2020 at which time the matter would be referred to the Council’s legal team to commence legal proceedings if the Enforcement Notice was not complied with in full.

 

As of the 11/03/2020 the enforcement notice has not been complied with. The GAA remain in definance of the law of the land, of the authority of the City Council, and of the wishes of their nearest neighbours.

 

The full response of the Ombudsman is as follows:

 

I write to you about your complaint to this Office on behalf of residents of Rockbarton Road, Rockbarton Green and Reveagh Road concerning Galway City Council in relation to planning enforcement.

 

Having examined the matter, I regret to inform you that I am only in a position to partially uphold your complaint. I have set out the reasons for the decision below.

 

Summary of Complaint

You say unauthorised signage was erected on 3 August 2018 and the residents made a planning enforcement complaint to the Council later that month. You say on 18 February 2019, residents emailed the Council noting further works were taking place on the signage and requesting clarification as follows:

  • Whether or not the process mandated by section 152 of the Planning & Development Act 2000 (as amended) has been conducted in accordance with the requirements of the act

  • What enforcement proceedings have been initiated

  • Has a time limit been set for compliance

  • In the event of failure to comply what potential sanctions would be enforced.

You say residents again requested these clarifications and the Council only replied on 30 April 2019 saying the developer had applied for retention permission but not addressing the points raised above. You say the Council also refused to allow residents sight of the planning enforcement file and Section 5 declaration file.

You are dissatisfied with the way the Council has handled the planning enforcement complaint and would like it to take enforcement action with a view to removing the unauthorised signage which has been in situ for over a year.

 

Council’s Reports

On receipt of your complaint, I requested a report from the Council. As I was not satisfied with some of the information received I sought additional information. I have outlined below details of the reports for your information.

 

Background

The Council says:

Following receipt of a complaint on 17 August 2018 from you an inspection was carried out by the Planning Enforcement officer on 10 September 2018 which found four signs erected on the Rockbarton Road Terrace within the Pearse Stadium. These signs were located on the terrace and the distance from the signage to the boundary wall of Rockbarton Road varied from 17m to 27m.

 

Why was there a delay in issuing a Warning Letter within 6 weeks

The Council says:

Delays were encountered from the date of the initial inspection in relation to the issuing of a Warning Letter. Further investigations were required to try and establish the current Trustees of the Pearse Stadium to ensure the relevant notices were served on a legal entity as this would be crucial for any legal proceedings to be initiated. Contact was made with the Galway County Board office by telephone, drawing their attention to the unauthorised development and the Planning Enforcement officer was advised that the matter was being addressed by the Engineer for the Galway County Board. Information was also sought with regard to the current trustees of the stadium as a number of trustees had recently changed.

 

Planning application

The Council says:

Subsequently, a planning application was lodged (Planning Ref. 19/114) to address the unauthorised signage on 18 April 2019 and this was refused planning permission on 11 June 2019. Correspondence issued on 29 July 2019 to Galway County Board drawing their attention to the refusal of planning permission and the requirement to remove the signage and also advising that a further inspection would be carried out and enforcement proceedings would continue if the signs remained in place.

 

The Council says:

Although an application for retention of planning permission is not a defence to a prosecution under planning legislation, it is the experience of the Planning department that cases for unauthorised development coming before the district court are adjourned by the court to allow a decision issue on the said planning application.

Section 5 declaration

The Council says:

A formal application for a Declaration of Exempted Development (Ref. P/CD/18/19) was lodged on 2 August 2019 and a decision issued on 15 August 2019 from the Planning department stating that the provision of four independent signs on the eastern terrace is not considered exempted development.

 

Warning Letter

The Council says:

A Warning Letter dated 21 November 2019 was served on the Secretary of the County Board Executive, Pearse Stadium, Rockbarton Road and also The Secretary of The Foundation Members of the Pearse Stadium Company Limited by Guarantee, Pearse Stadium Sales Office, Dr, Mannix Road, Salthill, Galway requesting the removal of the 4 unauthorised signs immediately and giving the required 4 week period for submissions to the file under planning legislation. An Enforcement Notice issued on 21 January 2020.

 

Enforcement Notice

The Council says:

Correspondence issued to you in November 2019 and January 2020 advising of the service of the Warning letter and Enforcement Notice. It should be noted that copies of the actual Warning letters and Enforcement Notices are not issued to complainants but can be made available on request.

 

The Council says:

The current position on site following a recent inspection on 9 January 2020 found that while the signage was removed, the structural elements of the signage remain in place. The Enforcement Notice issued on 21 January 2020 requests the full removal of the advertisement signs and associated support structures within 28 days of receipt date of the Enforcement Notice. The file is again due for review on 19 February 2020 at which time the matter will be referred to its legal team to commence legal proceedings if the Enforcement Notice is not complied with in full.

 

Access to files

The Council says:

In relation to the viewing of files by the public, Section 5 files can be made available for inspection in hardcopy at the planning office counter, but they are not available in softcopy. Access to Unauthorised Development files (enforcement files), though not publically available given the confidential nature of some of the documentation contained therein, can be requested through the Freedom of Information process.

 

Why the Council did not answer your four questions despite repeated requests to do so

The Council says:

As part of its current procedures in dealing with complaints, they are acknowledged on receipt and the relevant complaint is referred to the Planning Enforcement officer for investigation. During each process of the enforcement proceedings, the complainant is notified following the issuing of the relevant notice (Warning Letter and Enforcement Notice) advising them that the relevant notice has issued. If following a further inspection/investigation, the unauthorised development has not been addressed and legal proceedings are required, a Chief Executive order is prepared for signature by the relevant Director of Services and the complainant is again notified that the matter has been referred to its legal advisors to institute legal proceedings. Outside of the above, it is not normal practice to issue correspondence to the complainant by way of regular updates.

The Council says:

However, in this instance due to the unusual circumstances of the significant delay in establishing the legal identities which resulted in a lengthy process before the Warning Letter was issued, it is noted that a letter could have issued to you advising you that the Council was not in a position to issue a Warning Letter at this stage and the reasons why.

Any other information

The Council says that enforcement proceedings will continue until full compliance has been achieved and it will continue to notify you of further steps in the planning enforcement process.

 

The role of the Ombudsman

The Ombudsman may examine actions carried out by certain public sector providers, where there is evidence to suggest that maladministration (i.e., improper, incorrect or unfair administration) has occurred and the action complained of has had an adverse effect on the complainant. Where the evidence shows that maladministration and adverse effect have occurred, the Ombudsman may recommend that the body take a certain course of action to provide redress to the complainant. In the absence of evidence of maladministration and adverse effect, there is no basis for pursuing a complaint with a body.

At this stage, I should explain that local authorities have discretion, under the Planning and Development Act, 2000 (as amended) on whether to take enforcement action in cases of breach of planning legislation. In deciding to take such action they usually take account of the extent of non-compliance and the likelihood of successfully pursuing the matter through the courts. The role of the Ombudsman in cases like this is to consider whether the Council has used its discretionary powers in a reasonable manner.

 

The view of this Office

Warning Letter

It is clear that the Council did not issue the Warning Letter within 6 weeks of receiving the complaint as per the requirements of the legislation, i.e. as it did not consider the signage to be trivial or minor in nature. However, given the particular circumstances of this case, I am satisfied the Council has provided a reasonable explanation for the delay in doing so. Although, it did not issue a Warning Letter, the Council did put the developer on notice of the matter as evidenced by the two retention applications received (one invalid). Furthermore, I cannot find the Council’s position in respect of progressing any enforcement action where a retention application has been submitted by a developer to be unreasonable. Finally, from my examination of the file, I would note that as the Council could not obtain the names of the trustees, it decided to issue a Warning Letter on the two Secretaries referred to above.

Access to files

At the outset, you do not appear to have provided copies of correspondence requesting access to the section 5 declaration and enforcement files and the Council’s responses to same, if any. If these requests were made verbally then the Council has clarified that the Section 5 declaration file can be viewed at the public counter. Therefore, in the absence of correspondence from the Council stating something to the contrary, I do not propose to pursue this aspect of the complaint further. I would also add that as the Council was of the view that the works were not exempted development, it does not appear that you were adversely affected in relation to the matter regardless of what information was provided to you in respect of viewing this file.

In relation to viewing the enforcement file, I would note that Section 2 ofA Guide to Planning Enforcement in Ireland provides:

‘’ Generally speaking, all documentation relating to enforcement actions (including, for example, correspondence; planner’s report to the Manager; Manager’s decisions; representations made under section 152 of the Planning Act; warning letters; enforcement notices; notes on site visits, etc.) should be readily available to all parties directly involved and to the general public. Exceptions to this general approach arise where:

  • availability of documents could prejudice a possible court action

  • availability of documents would reveal the identity of complainants (in order to prevent possible intimidation);

  • the planning authority exercises a discretion that sensitive personal data should not be disclosed.’’

As such, the Guidelines afford the Council discretion in relation to allowing access to planning enforcement files. However, this does not preclude you from making a freedom of information request should you choose to do so. If you decide to make such a request and are subsequently dissatisfied with the Council’s decision you may contact the Office of the Information Commissioner which may be in a position to examine the matter – see link – https://www.oic.ie/

 

Customer service

I am satisfied that the Council should have provided a response to your four questions, i.e. explaining the reason for the delay in issuing the Warning Letter and providing you with the potential penalties for non-compliance – see section 156 of link – http://revisedacts.lawreform.ie/eli/2000/act/30/revised/en/html

Although the Council has now acknowledged that this should have happened, I will be requesting that it reviews its procedures in this regard to ensure that a similar situation does occur in future.

Conclusion

In summary, although I acknowledge you may be of the view that the Council unduly delayed dealing with this matter, based on the available information, I cannot find that it has provided unreasonable explanations given the particular circumstances of this case. I hope the above clarifies the position for you and I regret that, other than explain the position to you, I cannot be of further assistance to you on this occasion. Accordingly I am now closing your file.

Regards

Examinations Unit

 

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