Development control and exempted development in Ireland

Irish Development Control & Exempted development

1. Introduction

The basic purpose of this material is to introduce the main aspects of development control planning.

The basic concept underpinning the planning code is that permission must be obtained from a planning authority before commencing development. Development is defined as: the carrying out of any works on, in, over or under land (building, demolition, alteration) or the making of any material (i.e. significant) change in the use of any structures or other land. You should note that land in this context includes buildings and land covered with water.

Exemptions are given in respect of certain categories of development. Exempted development is development for which permission is not required. Categories of exempted development are set out in Section 4 of the 2000 Planning and Development Act. The purpose of these exemptions is to avoid controls on developments of a minor nature; say, agricultural, council/Borough/Urban District development, maintenance of roads, services, interior work, forestry and woodlands, etc.

We look here at planning applications and at exemptions.

2. The application

Part IV of the 2001 Planning and Development Regulations deals with the procedural aspects of obtaining permission from the planning authority. An application may be made for: (1) outline permission, (2) permission, (3) or if outline permission has already been granted, approval, and (4) retention or continuance.

Outline permission is an agreement in principle by the planning authority that development of a specific nature and extent may be carried out but it does not, in itself, authorise the carrying out of works. Prior to full consent being given, detailed plans must be submitted to the planning authority and an approval obtained before commencing development. Together, outline permission and an approval equate to a full permission. The slower route is generally chosen by applicants who are concerned that their proposal is unlikely to be granted (either as proposed or at all) and, consequently, are reluctant to spend money on having detailed plans prepared until the ascertain the attitude of the planning authority.

In the context of being unsure whether or not to apply for permission at all, two points should be noted:

1. Under the 2000 Act, any person may seek a declaration from the planning authority on the question of whether a particular activity constitutes development/exempted development. This declaration must be made within four weeks. Such a person can request An Bord Pleanála to review this declaration within four weeks of the planning authority decision. Alternatively, the planning authority may itself refer any question to An Bord Pleanála. Beyond this, if the situation is uncertain, developers should seek legal advice on the matter.

2. pre-application discussions, introduced formally in section 247 of the Planning and Development Act 2000, may help to identify the issues involved and possible ways of addressing the potential difficulties. Such discussions do not commit the planning authority to making any particular decision.

Interestingly, it is not necessary for the applicant to own the site on which an application is made. However, particulars of the applicant’s interest must be given as part of the application and, if he is not the owner, the applicant must state the name and address of the owner and have the consent of a person with sufficient legal interest to carry out the proposed development.

Notice of intention to apply for planning permission is made in two ways: (1) By way of a notice erected on site; and (2) a newspaper notice (in an approved newspaper). The newspaper notice must be published during the two week period before an application is made and maintained in position for at least one month. The contents of both types of notice are specified in the Regulations and include the applicant’s name, the nature of the application (outline, full, approval, etc) and the nature and extent of the development, where the application may be viewed and the cost of making a submission/observation. These requirements are intended to ensure that neighbours and the general public know of proposed developments so they can make representations to the planning authority and if necessary, later, appeal to An Bord Pleanala.

Additional requirements designed to facilitate public participation are contained in the regulations. The planning authority must prepare a weekly list giving details of each application received. This list is available in the offices of the planning authority and in all public libraries. It is available to councillors and on payment of a fee, to any person on request. All planning applications can be inspected at the offices of the planning authority during the period in which the planning application is being assessed. Three days after the planning authority gives its decision, reports prepared by or for the authority in the course of assessing the application are also available for inspection (section 38 of the Act). Copies of documents are available for purchase on payment of a specified fee not exceeding the reasonable cost of making such a copy.

The contents of a planning application are set out in the regulations. Certain planning applications must be accompanied by an Environmental Impact Statement (such instances are listed in Part 10 of the Planning and Development Regulations and the relevant law covering EIS here is section 176 of the Act) and all applications must be accompanied by a fee (the fee will be listed on the application form). The wrong fee will see your application returned. There are some fee exemptions for voluntary organisations.

A planning application may be withdrawn, by notice in writing, at any time before the giving of the decision of the planning authority in respect of the application.

Try having a look on-line at a few County Council websites on which you’ll find planning application forms.

3. The decision

The planning authority has a rigid time frame for giving its decision. It is precluded from making any decision within 5 weeks of receipt of a planning application. This provision is designed to ensure that members of the public are not prevented from participating in the planning process by precipitant decision making. On the other hand, if the applicant has not received a decision (permission or refusal) within 8 weeks of submitting a valid application, he is regarded as having received an unconditional permission, which is normally (though not statutorily) referred to as a default permission. This 8 week period can be extended by a request for additional information (or by an AI as planners call it). It can also be extended by a request for an EIS or through the consent of the applicant. Additional information may be asked for only once. Although clarification can be sought in respect of an unclear submission. There is no mechanism for shortening the 5 week minimum period.

Public involvement - Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application.

Applications for planning permission while assessed by individual planning officers are decided by the manager, acting in an executive capacity, and conditions are usually attached to the grant of permission. In considering an application the manager is restricted to considering:

(i) the provisions of the development plan,

(ii) the provisions of any special amenity area order relating to the area,

(iii) any European site (archaeological and natural heritage and the conservation ) or other area prescribed for the purposes of section 10(2)(c),

(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,

(v) the conditions which will be placed on any permission,

(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder, e.g. an EIS.

Note: Under the 1992 Environmental Protection Agency Act 1992 and the Waste Management Act 1996 where an application under this section relates to development which comprises an activity for which an integrated pollution control licence or a waste licence is required, a planning authority cannot be taken into consideration by the planning authority (because the control of emissions and waste arising from the activity is a function of the Environmental Protection Agency).

Although deciding on individual applications is an executive function, the elected representatives are given a statutory role if it is the intention of the planning authority to consider granting permission for a development which would materially contravene the development plan or any Special Amenity Area Order. Prior public notice must be given by the planning authority, any objection must be taken into account by the councillors and a resolution passed (Under the 1991 Local Government Act). Revocation or modification of an existing permission is also a reserved function (under section 44 of the Act) and such a resolution may only be passed if the development to which the permission relates no longer conforms with the provisions of the development plan. It must specify in the decision the provisions of the development plan to which the permission no longer conforms, and the main reasons and considerations on which the decision is based. There is a detailed procedure to follow, if you are interested see section 44.

The reserved powers of elected members have been thoroughly abused in the past, under section 4 of the 1955 City and County Management (Amendment) Act they could by resolution require the manager to decide a decision in a particular way (usually a grant!). The frequency with which this was used and the spuriousness of some of the grounds advanced by members and the allegations of bribery brought the planning system into disrepute in the 1980s and we still feel its repercussions now through the Flood now the Mahon tribunal, which even has its own website: http://www.flood-tribunal.ie/

The practice developed of having controversial section 4 resolutions passed by councillors outside of the electoral area in question, who’d escape retribution at the polls. The 1991 Local Government Act modified section 4 of the 1955 Act by requiring a planning section 4 resulting to be signed by at least three quarters of the members of the electoral area concerned and passed by three quarters of the council. This has curbed the abuses, which we now know were greedy.

Planning permission ensures for the benefit of the land or structure and passes to any new owner of the land, except where otherwise provided by the permission, for example, a condition may restrict occupancy to certain people with a need to live in a rural area, we see this now on many applications for one off rural housing – you must be, say, a son or a daughter of a local and work and live in the area. A planning permission normally expires after five years from the grant of permission (section 40 of the Act), although a longer permission may be may be specified (section 41). The time limit refers to the completion, not the commencement of the development. If work has not commenced, the permission lapses, or withers, while if work has started but is not finished, it may be possible to extent the duration or life of the permission. Planning authorities are statutorily obliged to grant an extension of a planning permission (you should apply once you are into the last year of the permission, not before) where the applicant satisfies certain requirements (there is a procedure outlined for this process in the regulations). In particular, substantial works must have been carried out during the life of the permission. The meaning of substantial is not defined in the legislation or regulations but case law Frenchurch Properties vs Wexford County Council 1992 has indicated that what constitutes substantial works must be decided in the context of the circumstances and that no rule of thumb (40/50% etc) may apply. The general public is not given any role in considering applications to extend the duration of planning permissions.

Note: section 42 of the regulations allows a further application for extension of planning permission and again there is a procedure involved.

A record of planning applications and decisions is kept by each planning authority and is available for public inspection. Known as the planning register, it incorporates a map and copies of any entry may be obtained for a fee (see section 7 of the Act for more details on the register).

4. Exempted development

We have seen how the principle behind the planning system is that you have to get planning permission in respect of the development of land. There are two basic categories of development: carrying out of works and a material change of use. The statutory definition of works is wide. Including …any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal and, in relation to a protected structure or proposed protected structure, includes any act or operation involving the application or removal of plaster, paint, wallpaper, tiles or other material to or from the surfaces of the interior or exterior of a structure.

Taken literally it would mean that for example a householder replacing roof tiles after a storm would require planning permission and have to go through he full planning permission procedure. Such a requirement would be unwarranted and certain types of minor development by private individuals have been given an exemption.

The planning code identified a second and very different category of exempted development on the basis of the identity of the person or body carrying it out. The underlying presumption here is that development undertaken by state or local authorities is undertaken in the interests of the common good (whatever that is) and therefore need not be subject to the same level of public scrutiny as development proposed for private benefit.

Exempted development rights arise from section 4 of the planning Act.

1. Section 4 (1) of the Act provides a list of exempted developments. The main points are:

· It exempts a planning authority from carrying out works in its own functional areas (and those doing it on contract for them) – roads, sewers, wires and to anyone carrying out maintenance on a building.

· Importantly, development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure - being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures is exempt.

· Development consisting of the use of any land for the purpose of agriculture and forestry and development consisting of the use for that purpose of any building occupied together with land so used (this gets quite complicated, as some agriculture and forestry developments do require permission and an EIS, e.g. more than 50 hectares of proposed forest or the use of uncultivated lands for intensive agriculture – for more on this there is a Dept of Environment explanatory leaflet).

Also…

2. Section 4 (2) of the Act enables the Minister to make regulations adding classes of exempt development to this list and in some cases to exempt changes of use within certain broad use categories (the use categories are contained in the 2001 regulations).

3. Section 4 (4) The Minister may prescribe development or classes of development which will not be exempted development in certain council areas, e.g. it may remove the exemption of a planning authority to get planning permission.

5. State authorities

Section 181 of the Act says the requirement to obtain planning permission doesn’t apply to state authorities (that is to a Minister of the Government or the Commissioners of Public Works) in some cases. That is, where the development is, in the opinion of the Minister, in connection with or for the purposes of public safety or order, the administration of justice or national security or defence.

The Minister can stipulate and has by regulation which class or classes of development apply. This is section 86 in the 2001 regulations. The regulations exempt a wide rage of state developments. The obvious ones like defence related developments, Garda developments, courthouses, and prisons. But then there are dodgy ones listed in Class V such as offices used for the business of Uachtarán na h-Éireann, Dáil Éireann, Seanad Éireann, the Department of the Taoiseach, the Office of the Tánaiste, the Department of Defence, the Department of Foreign Affairs, the Department of Justice, Equality and Law Reform, etc.

The regulations make provision for a procedure of consultation for these categories of exempted development. Having considered any objections received, the authority in question pre 2000 Act and 2001 regs, however, used to be able to carry out its proposal exactly as planned and there was no right of appeal to An Bord Pleanala, now there is if the development is over euro126,000 (OVERHEAD). (see: 2001 regulations, Part VIII (k) any development other than those specified in paragraphs (a) to (j), the estimated cost of which exceeds €126,000, not being development consisting of the laying underground of sewers, mains, pipes or other apparatus).

6. Local authorities

Under section 179 of the Act the Minister may prescribe a development or a class of development, undertaken by local authorities, to be exempt from the normal planning application procedure. Local authorities which are planning authorities; that is all local authorities except town commissioners, have always enjoyed exemption for development they carry out in their own districts. This avoids the absurdity of applying to themselves for planning permission. But importantly, a local authority is prohibited from effecting any development which contravenes materially its development plan.

That said, Section 81 of the Planning Regulations introduced a procedure for public notice and consultation in respect of a wide range of developments. The classes of development open to public scrutiny are laid out in the Planning Regulations.

In these cases, just like a private developer, the local authority must advertise its intention to develop in a newspaper circulating in the area and to erect a site notice. It must also notify all relevant bodies. The site notice must remain in place for four weeks from the date of the publication of the newspaper notice.

Plans and particulars of the proposed development must be made available for inspection during office hours at the offices of the local authority for 4 weeks beginning on the day of publication of the notice in a newspaper in accordance. Submissions or observations dealing with the proper planning and sustainable development of the area in which the development would be situated, may be made in writing to the local authority before 2 weeks after the closure of the inspection period (section 81 of the regulations).

A report must then be prepared for the elected members summarising objections and evaluating the proposal. This report must indicate whether it is now proposed to proceed with the development in question. When the report is submitted to the councillors, which is as soon as can be, they consider it and then, the proposed development may be carried out as recommended in the manager's report, unless the local authority, by resolution, decides to vary or modify the development, otherwise than as recommended in the manager's report, or decides not to proceed with the development. Whatever way, a resolution under must be passed not later than 6 weeks after receipt of the manager's report.

An obvious difficulty with this system of consultation is that it is not open to an independent appeal. However, the initial proposal is developed by the officials and the objections are considered by the elected members in a procedure which is similar to the adoption of development plans. A right of appeal to An Bord Pleanala has always been seen as conflicting with the powers of democratically elected local government. Be this as it may, just like state development – developments over euro126,000 can now be appealed to An Bord Pleanala.

7. General exemptions

Before we finish, I thought we’d briefly cover a few general aspects of exemptions.

· Agriculture and forestry received a complete exemption in respect of the use of land in the 1963 Act. However, since then it has been increasingly realised that both can give rise to environmental problems: visual intrusion, acidification of water, etc. Therefore, from a situation where forestry was exempt, it is now necessary to get planning permission “and” undertake an EIS for afforestation involving an area of over 50 hectares (or only 10 if the work involves replacing broadleafs with conifers). Land reclamation for agriculture for areas of over 100 hectares, certain deforestation projects, peat extraction of over 30 hectares, poultry farms of over 40,000 places, pig rearing installations of over 2000 places, etc. The point is that, for many, these exemptions are controversial and each time they are reviewed, they are tightened.

· Section 4 (1) h is also controversial. This is the part has led to a great deal of antagonism between neighbours over the years. Let’s see why (as documented in Berna Grist’s Introduction to Planning Law book)!

(h) development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which affect only the interior of the structure or which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures.

Whether or not the external appearance is affected for better or worse is not at issue here. The central question relates to the character of the structure and to whether the works are inconsistent with that structure. For example, the Supreme Court has indicated that the character of a terraced house is much more dominantly affected by its street appearance and that elements which go to make up the character of a structure are its shape, colour, design, ornamental features and layout. Relying on this definition, it was held that replacing Georgian sash windows with aluminium swing open windows was inconsistent with the character of Victorian houses on Belgrave Square in Dublin.

· The majority of exempted developments carried out by private individuals are those laid out in Schedule Two of the Planning Regulations 2001, that is, they are small structural works over which detailed control is considered unnecessary. Examples of the type of domestic exemptions which are provided for in the planning regulations are building a small extension (including a conservatory) or a front porch, converting a garage, erecting a greenhouse or garden shed and hard surfacing a part of the garden. You can also build a boundary wall around your house. Exactly what falls within and outside of the exemptions is very clear here. Detailed descriptions are given of each class of exempted building, together with the applicable conditions and limitations, and the works themselves are measurable and visible.

However, the schedules must be read together with Part II of the Regulations, in particular articles 9 and 10, because notwithstanding the fact that a particular development might fall exactly within the scheduled description, it loses its exempted status if any of the restrictions listed apply. Thus, for instance, permission must be obtained if the development would contravene a condition of a planning permission, involve a new access to a public road, create a traffic hazard, break a building line or involve works to a listed building, and so on.

· As set out earlier, a material change of use also constitutes development. The 2001 regulations create exemptions for certain changes of use. A number of use classes are set out in the second schedule, and development which consists of a change of use within any one of these classes does not require permission. Again, the exempted status is withdrawn if the development would contravene a condition of a planning permission, be inconsistent with a use specified in a permission or involve carrying out works other than those which are themselves exempted development.

· For example, under Class Two it is possible to change from a bank to a building society or solicitor’s office without obtaining planning permission, because these are all services principally offering services to visiting members of the public. A change of use from a shop to a direct service would require permission. A shop is a Class 1 activity and the other Class Two. The impact in planning terms of a shop is very different to that of a financial services office. The façade of a shop taken over, for example, but a building society will be changed from a display of goods for sale to a series of notices setting out interest rates etc. These businesses can afford shopping street rents but have a sterilising effect on shopping streets. Therefore, any such change of use must be subject to specific assessment in the light of the development plan and requires permission.

8. What happens in cases of dispute?

If a question arises as to what constitutes exempted development, the Act provides that the matter be referred to and decided by An Bord Pleanala. Unlike the position with a planning authority, where only the manner in which the Board reached its decision is open to judicial scrutiny, there is a right of appeal to the High Court against the Board’s determination of an exempted development reference. Planning authorities have no statutory role in deciding questions relating to exempted development although the staff of planning offices are usually prepared to offer guidance if queries are raised with them. Such advice is merely an opinion and doesn’t bind the authority to any subsequent course of action. The Board received few of these cases.

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