Residents of Estates Need Certainty On Ownership Of Green Spaces – Cllr
Writes Leo McMahon
Amazingly, open spaces in private housing estates taken in charge by Cork County Council are in most cases, still legally owned by the original developer or landowner, Cllr Seamus McGrath (FF) has learned.
Against the background of a section of green at an estate in Carrigaline being offered for sale, the local councillor had a motion at a recent meeting in County Hall seeking legal clarity in general and based on the response he received, warned that the current situation posed serious problems for residents wishing to make alterations to greens in order to facilitate additional parking and access for emergency vehicles.
His motion read: ‘to seek clarity on the legal ownership of open space green areas in residential estates taken in charge by the council. If, as seems in most cases, ownership remains with an original landowner or developer, what certainty do residents have that such an area will remain open and accessible?
The motion from the former county mayor went on: ‘Who pays for the public liability insurance in such cases and is it possible for the legal owner to sell such an area of ground? In older estates where the original planning permission does not specify the exact open space area, but where one is clearly established on the ground, can such an open space be protected for residents in the same manner as one defined in a planning permission?’
In a report, director of services for planning, John O’Neill, replied that the council was responsible for roads, footpaths, car parks, surface water drainage infrastructure and open spaces in estates that are taken in charge and since January 1st, 2014, Irish Water was responsible for water main and foul sewage infrastructure.
‘Prior to enactment of the 2000 Planning and Development Act, a ‘Deed of Dedication’ was provided by a developer/landowner dedicating areas to public use. An accompanying map defined these areas. Post enactment of the Act, the developer provided an ‘As Constructed’ lay out outlining the areas to be taken in charge, including open spaces.
‘Whereas it is of course possible that title of lands may be transferred to third parties, in practice, any potential purchaser would presumably carry out due diligence to ensure that the lands under purchase could be developed or otherwise.
‘Any areas defined as open space cannot be altered without the planning permission. Any attempt to privatize public open space would be the subject of enforcement proceedings under the 2000 Act. It should be noted that going forward, the transfer of title of common areas forms part of the taking in charge process where there is a developer to nominate a solicitor to act on their behalf’, Mr. O’Neill added.
Cllr. McGrath said he was disappointed with the response. ‘Green areas in residential estates serve a vital purpose. Obviously, they provide badly needed recreational areas and also improve their appearance. Residents generally pay for the maintenance of these green areas and very often the council undertakes work there, such as removing dangerous trees and so on. The council also pays for the public liability insurance. Yet, despite all this, legal ownership generally remains with the original landowner/developer.
‘The response I received also confirms that it is possible for the owner to legally transfer the ownership to a third party, in other words, sell the green area. There is currently an example of this in Carrigaline where a green area is on the market. This is quite shocking and the protection afforded to residents to ensure that the green areas remain for their benefit is far from strong enough,’ said Cllr McGrath.
‘While it is highly unlikely that planning permission would be granted on such green areas, the only way for the residents to have proper protection is for the council to take ownership of the green areas once an estate is taken in-charge. The report I received states that going forward this will happen, but that is not good enough for existing residential areas.
Cllr. McGrath requested that the issue be examined through the Special Policy Committee on planning and this was agreed at the council meeting. ‘We must find a way to transfer the land retrospectively so residents have the full protection they deserve,’ he stated.
He also raised the issue at a more recent meeting of Carrigaline-Ballincollig Municipal District arising out of a motion from Cathaoirleach Mary Rose Desmond (FF) asking for the council to either clean up or give waste land at the back of an estate in Grange, Douglas to residents and to allow for a reduction in the size of the open space to facilitate more parking and access for emergency vehicles in the interests of health and safety.