When do you need retention permission?

If you built without the permission you needed, or departed from your approved plans, you may need retention permission for the work already done. A grant is not guaranteed, and applying does not pause enforcement: if you have received a warning letter, take it and your property records to a planning consultant or solicitor.

What retention permission is

A common case is a mobile home or cabin placed on site to live in during a build; see living on site while you build before you do.

Retention permission is planning permission for work already carried out without the consent it needed. Section 32 of the Planning and Development Act 2000 requires permission for development that is not exempt, including permission to retain unauthorised development. That covers work built without permission and work that departs from a grant.

Self-builders usually meet it in three ways:

• a house or extension built without permission;
• a house built differently from the grant (a larger footprint, moved siting, changed levels);
• a purchase where the previous owner’s work has no permission, which a solicitor or lender flags.

First, check it really needs retention

Some work is exempted development and never needed permission. Check the applicable limits and your original grant before spending on an application. Your council can issue a section 5 declaration on whether the specific work is exempt. Give it an accurate description and drawings of what was built; a general description of an extension will not resolve a question about its actual size or use.

How the application works

You use the normal application forms, site notice and newspaper notice, with the development described as work to be retained. The public can make submissions, and the normal decision and appeal route applies. Section 34(12C) applies the permission regulations and section 34 to retention, with the necessary changes and subject to the environmental restrictions below. See how to apply for planning permission and the fee.

When the council must refuse to consider it

The council must refuse to consider a retention application if it decides that either of these was or is required for the development (section 34(12)):

• an environmental impact assessment;
• an appropriate assessment (for sites that may affect protected habitats).

It must return the application with any fee and give you reasons (section 34(12B)). Establish whether either restriction applies before paying for an application that cannot be considered.

Section 34(12A) excludes two kinds of work from the environmental impact assessment question: work within a house’s curtilage, the grounds belonging with and serving it, for purposes incidental to living there; and modifications to a building’s exterior. Check that your work fits those statutory categories. This does not remove the separate appropriate-assessment restriction.

What it costs

Budget for a higher application fee than for permission before building. These rates are from Clare County Council’s fee schedule, following Schedule 9 of the Planning and Development Regulations 2001. Check your own council’s current schedule before paying.

Work	Retention fee
New house	€195, or €2.50 per m² of gross floor space, whichever is greater
House extension or alteration	€102, or €2.50 per m² of gross floor space, whichever is greater

The minimums are three times the standard €65 house and €34 extension fees; larger floor areas can cost more. For example, a 200 m² house built without permission would cost €500 at that rate: 200 × €2.50, which exceeds the €195 minimum. The schedules cap a retention fee at €125,000.

The application fee is only part of your budget. Ask for a quote for measured drawings, application preparation and any specialist evidence needed for the actual departures from permission. Give the planner your original grant and approved drawings alongside the survey, so the quote covers the right work.

Why a council might say no

Retention is not a formality. The council assesses the development as if it were a fresh application, against the development plan, the rural housing policy for your area, road safety, wastewater and flood risk. A house that would have been refused will usually still be refused, and having built it is not a planning reason to grant it. If it is refused you can appeal, and the usual four-week deadline applies (see objections and appeals). Because neighbours can make submissions on a retention application just as they can on any other, a long-running dispute can resurface here.

Does the seven-year rule fix the problem?

Expiry of an enforcement period does not itself grant permission. Section 157(4) limits warning letters, enforcement notices and prosecution under that Part of the Act, but the starting dates differ:

• Without a permission, the ordinary seven-year period runs from commencement of the development.
• Where permission was granted, it runs from expiry of the permission’s appropriate period, including an extension under section 42.
• Proceedings concerning a condition about the use of land may begin at any time. This is not a blanket exception for every breached condition. Special quarrying and peat-extraction rules also exist.

Do not calculate immunity from the date you finished building. Have a planning consultant or solicitor assess the development, permission and enforcement history. These starting points alone cannot determine your deadline or legal position.

Retention does not pause enforcement. Under section 162, neither applying for retention nor obtaining it automatically stops enforcement action. A later application or grant is not a prosecution defence in the circumstances specified there, including after a warning letter. Deal with the enforcement correspondence as well as the planning application.

Three situations to check with your planner

Built larger than granted. A house was approved at 180 sq. m and finished at 215 sq. m with a bigger garage. Have a planner identify the departures that require retention. A clearly described application for the work “as built” may be needed; the fee is calculated on the floor area for which retention is sought, so ask your council whether it wants the whole house or only the additional area in the description.

Previous owner’s extension. You are buying a house with a rear extension and no permission. Check first whether the extension was exempted development. If permission is missing, ask your solicitor how it should be resolved before you commit; a price reduction does not secure a retention grant.

Missed a condition. The grant required a particular wastewater system and a different one was installed. Have the condition and installed system assessed together. Ask your planner and wastewater designer what application or remedial work is needed; do not assume all condition breaches have the same enforcement time limit.

Before you apply

1. Establish exactly what was built, with a measured survey, and compare it with any permission and its conditions.
2. Check whether the work was exempted development, and consider a section 5 declaration from the council if unsure.
3. Check the environmental impact assessment and appropriate assessment position, especially near protected sites.
4. Seek pre-planning advice on the proposal and supporting evidence; it does not guarantee a grant.
5. Prepare the application as normal, with site notice, newspaper notice and fee, describing the development “to be retained”.
6. Allow for a possible further-information request and appeal before relying on a grant.

Common mistakes

• Assuming the passage of time has fixed the title. It has not.
• Describing the application loosely so the fee or the scope is wrong, then having to start again.
• Leaving a gap until a sale is under way, when there is no time to wait for a decision.
• Applying for permission for a change and carrying on building before the decision. That is how new unauthorised development arises.

If a council’s warning letter has already arrived, reply within the time it gives and take advice from a planning consultant or solicitor.

Next

If the permission you already hold has run out, see how long planning permission lasts.