City Living: Getting permission to develop a garden site is complicated, says Edel Morgan.

The corner garden site is regarded by planners as a good way of increasing housing densities. and few are left in Dublin that haven't been built on.

You may find if you are building a house in your garden that planning controls are so tight that a special dispensation from the Pope is almost required to add the tiniest flourish or flounce that makes it stand out from neighbouring houses.

You may have been told by the planners in your local authority the house must be in the building line and of a similar design and brick colour to nearby houses.

Then you come across another corner development nearby that is not only out of the building line but is of a completely different design with clashing brickwork. How does that happen?

Does it depend on a planner's interpretation of the development controls? Or is it a case of the owner flouting the controls and hoping that enforcement proceedings are not taken by the local authority?

It could be a bit of both. When contacted, Dublin City Council issued the stock reply "each case is dealt with on its own merits and every effort is made to ensure a development is in keeping with the surrounding area".

However, some industry sources believe the varied professional backgrounds of local authority planners can lead to different interpretations of development controls. Some planners may be more disposed to a bit of architectural licence than others and a lack of any prior training in the construction industry may lead some to overlook elements that others strictly enforce.

Each planning authority has its own development plan in which issues like building lines, finishes, and impacts are all alluded to.

"In certain planning authorities, particularly rural ones, the issue of building lines etcetera is very often not as critical," says Michael O'Neill of O'Neill & Associates, "while one does rely on the experience and preferences of individual planners, in the main the issue of building line, side and back garden developments is normally included in the development plan.

"Of much more importance since 1999 are the residential density guidelines, issued by the DoE, which call for higher densities throughout the State, but particularly in urban areas, in areas close to public transport nodes, and on infill sites. This certainly explains the explosion in side garden developments. The building line issue is more subjective as is the brick finish issue."

Paul Farrell of Farrell Associates planning and environmental consultants says that although the Dublin City Development Plan is one of the most comprehensive and advanced technically "it can ultimately only give guidelines on corner housing".

He believes a little leeway in the design of a house is not necessarily a bad thing. "Planning practice can defeat architectural practice because it is loth to take on adventurous design and puts constraints in place to get conformity which may not always be the best thing. Architectural input into housing design in Ireland is low by international comparisons and even lower in corner sites."

How much a house's design departs from others on the street may be a value judgement on the part of the planner. In some cases the planner may be persuaded that an architectural statement has merit.

Good relations between your builder/architect and the planning department of your local authority may also have a bearing on how far you can push the design.

In some cases an incongruous design may be the result of the owners ignoring controls in the hope enforcement proceedings will not be brought against them. One source said that in his experience local authorities are "loth to make people take down building".

Dublin City Council's planning enforcement section receives around 1,200 to 1,300 complaints a year from the public about unauthorised commercial and residential developments.

Suburban complaints often relate to oversized domestic extensions and the conversion of houses into flats without planning permission, while those in the city centre tend to be about advertising billboards on buildings and changes of use without approval.

The penalty if an injunction is served will invariably be an order to remove or reduce a structure, as there is no facility under Section 160 of the act to impose a monetary fine.

If a defendant ignores a court order requiring them to demolish a structure they are in contempt of the High Court and could theoretically be sent to prison. Under the old regulations, action could not be taken if a building has been standing for more than five years. That has since been increased to seven years.

However some believe the severe penalties brought in under the Planning and Development Act 2000 which were intended to crack down on unauthorised building have actually served to discourage local authorities from taking action.

Under the regulations the local authority's discretionary powers have been taken away. In the past if an enforcement officer received a complaint, went to look at a building and assessed that it would get planning permission, they could invite the owners to make an application to regularise the situation.

Now if the owner applies to retain a structure, it won't stop the action: the case can't be adjourned until the application is decided either by the local authority or by An Bord Pleanála. Some believe this has left planners less inclined to advise in favour of enforcement, thus defeating the purpose of revising the Act.