Irish planning appeals – An Bord Pleanala
In this material we consider the role of appeals in the planning process. The purpose of this lecture is to introduce the main aspects of appeals and then to illustrate planning practice via a visiting lecturer from An Bord Pleanala. Next year you will build on what we learn here.
1. Planning powers
2. Main Characteristics of the Planning Appeal System
3. The composition of the Board
4. Determining appeals
The basics
Any person may appeal against a grant or refusal of planning permission. The appellate authority, An Bord Pleanala is a statutory corporation, established by section 3 of the 1976 Planning Act to determine appeals, references and certain proposals by local authorities to acquire land compulsorily, road schemes and other matters.
Its planning powers are provided under section 26 of the 1963 Planning Act and section 37 of the 2000 Planning Act. The Board is also responsible for dealing with appeals under the Building Control Act, 1990; the Local Government (Water Pollution) Acts, 1977 and 1990; and the Air Pollution Act, 1987.
Main Characteristics of the Planning Appeal System
There are three main characteristics of the system, which are questioned from time to time:
· The system is independent,
· The system is designed to be fair and impartial, and
· The system is open.
Let’s see why I might claim these things:
The main criticism of the Board you hear colloquially, and this is true of
The composition of the Board
I want to dwell for a second on how the Board is composed; this is again to highlight its impartiality; an impartiality or independence which is, unsurprisingly, questioned by those who lose appeals.
Section 104 of the 2000 Act provides for the Board to consist of a chairperson and, 7 ordinary members, all of who are full time, salaried office holders. However, the Minister may at any time increase this – at present there is a chairperson and 11 members in a Board of on average, in 2002, 124 staff.
The Chairperson is appointed by the Government from a list of candidates selected by an independent committee in accordance with section 105 of the 2000 Act, chaired by the President of the High Court. The Government is generally required to make the appointment from among not more than three persons selected by that committee and found by them to be suitable for appointment. The Chairperson of the Board normally holds office for seven years and may be re-appointed for a second or subsequent term of office provided he or she is Chairperson at the time of the re-appointment.
Six of the members are appointed by the Minister for the Environment and Local Government from among persons selected by six groups of organisations prescribed by Regulations and representative of professional, environmental, development, local government, rural and local development and general interests. The other member is appointed by the Minister from among the officers of the Minister who are established civil servants. These members normally hold office for a term of five years and may be re-appointed for a second or subsequent term provided that the person concerned is an outgoing member at the time of the re-appointment.
All Board members are precluded by statute from holding any other office or employment and they must declare all interests relating to the development of land.
It has its own website: http://www.pleanala.ie and is located on
Determining appeals
When an appeal is made to the Board, it is normally required to determine the application as if it had been made to it in the first place.
In determining individual appeals, the Board acts in a quasi-judicial role in accordance with the principles of natural justice. Unlike most planning appeal systems in
There is no political interference in decisions by the Board in individual cases. Under section 144 of the 2000 Planning Act, it is unlawful to communicate with any member of the Board, an employee or a consultant engaged by the Board for the purpose of influencing improperly his/her consideration of an appeal or a Board decision. There are also legal obligations on members of the Board, employees and consultants to declare certain interests. The Board's procedures are such that no single person, be it Board member, inspector or other person can ensure what the Board's decision will be in a particular appeal. The quorum for the Board meeting is three members and all members normally attend a Board meeting where a particularly complex or sensitive case is involved. In considering an appeal all submissions on the file are considered together with the inspector's report (including recommendation). The Board gives due consideration to the report, but the decision may be at variance with the recommendation; in 2001, the Board accepted the general thrust of the inspector's recommendation in 91% of cases. Under the 2000 Planning Act, in any case where the Board’s decision is different in relation to the granting or refusing of permission, the Board must state in its decision order the main reason for not accepting the recommendation of the Inspector.
The Board is empowered to contravene the provisions of a development plan, but it seldom sees the need to exercise this power. However, in any case where a planning authority decides to refuse permission on the grounds that the proposed development would materially contravene the provisions of the development plan, the Board may only grant permission on appeal in certain circumstances e.g. where the proposed development is of strategic or national importance. The Board will, in appropriate cases, take account of public policy on major issues since the Board is required by section 143 of the 2000 Act to have regard to relevant policies and objectives of Ministers, planning authorities and certain other public authorities. Where policy on economic development and job creation is a material consideration in an appeal, it is the Board's practice to refer to these factors in its decision, but such factors are a material consideration in exceptional cases only. The Board tries to strike the appropriate balance between environmental and economic considerations in determining appeals.
The Board, where it determines the appeal as if it were made to it in the first instance, conveys its decisions on individual appeals by way of sealed orders, which must include reasons and considerations for the decisions.
Given the provision for a judicial review of a decision in an individual appeal, the Board does not engage in public discussions on the pros and cons of its decisions (you’ll not here a Bord planner talk of the M3).
Three days after a decision is made, the entire Board file may be inspected by any member of the public for at least five years. A copy of the Board Order and Direction and the Inspector’s report is also available on its website. Copies of any documents on the file may be purchased at the Board's offices.
Let’s look at how you would make an appeal!
1. Firstly: who may appeal?
- An applicant for planning permission (first party), and
- Any other person, body or interested group etc. who made submissions or observations in writing to the planning authority in relation to the planning application.
There are two exceptions to the requirement to have made prior submissions or observations: -
(1) a prescribed body who should have been notified by the planning authority, but wasn’t; and
(2) a person who owns adjoining land.
Appeals must be received by the Board within four weeks beginning on the date of the making of the decision by the planning authority (N.B. not the date on which the decision is sent or received). For example, if the decision of a planning authority is made on Wednesday2nd of a month, the last day for receipt of the appeal is Tuesday 29th of the same month.
These are strict statutory time limits. The Board has no discretion to accept late appeals, whether they are sent by post or otherwise. It is your responsibility to ensure that the appeal or other material is delivered or posted in time for delivery within the appropriate period. An appeal or other material posted within the permitted period but received outside it will be invalid.
Every appeal must be made in writing and must be sent by post to An Bord or delivered by hand to an employee of the Board at the Board’s offices during office hours.
The appeal must be fully complete from the start – you are not permitted to submit any part of it at a different time, even within the time limit.
The appeal must include:
· Yours or your agent’s own name and address.
· The subject matter of the appeal - you must give sufficient details to enable the Board to identify the planning application which is the subject of the appeal (e.g. a copy of the planning authority decision, or details of nature and the site of the proposed development, or the name of the planning authority and the planning register reference number shown of the decision you are appealing).
· The grounds of appeal and supporting material and arguments. The Board cannot take into consideration any grounds of appeal or information submitted after the appeal (except information specifically requested by the Board) and it cannot consider non-planning issues; grounds of appeal should not, therefore, include such issues. The correct fee must be paid.
· Finally, in the case of a third party appeal, the acknowledgement by the planning authority of receipt of the submission or observation made by the person to the planning authority is required at application stage to show that the submission or observation was made at that stage.
If the appeal does not meet all the legal requirements, it will be invalid and cannot be considered by the Board.
There are three types of decision which cannot be appealed.
· There is no appeal to the Board where a planning authority is granted authorisation by the Courts to refuse permission on the basis of past failures of a developer or a related person to comply with a previous permission.
· There is no appeal to the Board against a decision to grant permission based on aspects of the decision which was decided in the outline permission.
· Generally, there will be no appeal to the Board in relation to financial contributions from
Where an appeal has already been made, another person can become an “observer” and make submissions or observations on the appeal in writing (there is a fee and a list of criteria which must be included – non-planning issues are ignored). The time limit for such submissions or observations is four weeks from the receipt of the appeal by the Board. (Note: if an EIA is submitted, this is advertised in newspapers and observers have four weeks to make submissions; or where additional notices are required four weeks stands).
Should the appeal (or all the appeals where there is more than one) be withdrawn by the person who made it, the decision of the planning authority will stand and any submissions/observations will lapse.
Invalid appeals or observations/submissions may be re-lodged, with another fee, if they are on time, correctly made and include all relevant documentation. Where the time limit has not expired for re-lodging a fresh appeal or observation, the Board does not guarantee that it will notify appellants or “observers” in sufficient time that would allow a fresh appeal or observation to be made within the statutory time limit.
Any party to the appeal (not an “observer”) may request an oral hearing provided the correct non-refundable fee is paid in addition to the appeal fee. The appellant must make the request within the period for lodging the appeal but, where a party to an appeal other than an appellant is sent a copy of an appeal, he/she may make the request within four weeks from the date the copy is sent to him/her. If you request an oral hearing, you still must state your grounds of appeal in full and comply with the other legal requirements when lodging your appeal.
The Board has absolute discretion to hold an oral hearing with or without a request from a party and will generally only hold one where this will aid its understanding of a particularly complex case or where it considers that significant national or local issues are involved. The Board may also direct the holding of an oral hearing to determine whether an appeal is made with the sole intention of delaying development or of securing the payment of money, gifts, considerations or other inducement by any person. Oral hearings were held in 26 planning appeal cases in that year to assist the Board in particularly complex cases or where significant national or local issues were involved.
The next step!
The Board sends a copy of the appeal to the planning authority and, in the case of a third party appeal, to the developer. These have four weeks to submit their views. The Board cannot consider any views that are late and no party is allowed elaborate on his/her views in writing once they have been submitted to the Board.
How does the Board ensure fair play for all?
Where the Board considers it appropriate in the interests of justice, it can ask any party, observer or any other person or body to make submissions or observations on any matter that has arisen in the appeal. This will allow the Board, for instance, to seek comment on any significant new matter arising in the appeal. The Board also has powers to require any party or observer to submit any document, information etc. which it considers necessary. The Board will specify a time limit (minimum 2 weeks) for submission of the invited material and this limit will be strictly enforced.
Can the Board consider matters which have not been raised in the appeal?
Yes. Generally, the Board is required to consider the application, the subject of the appeal, afresh. Accordingly, all the relevant planning issues relating to the application are considered by the Board in its determination of the case whether or not they were raised by the planning authority, the parties or observers. If a new issue arises the parties and observers will be given an opportunity to comment on these.
Where an appeal relates to conditions only which are attached to a decision of a planning authority to grant permission and there is no other appeal, the Board may use its discretionary powers not to consider the application afresh but, instead, to issue directions to the planning authority to amend, remove or attach new conditions to the decision. Where it decides not to use its discretionary powers, the Board may either grant or refuse permission for the development even where conditions only are appealed.
Can the Board contravene the provisions of the local Development Plan?
The Board, while obliged to have regard to the provisions of a local development plan, may contravene its provisions in certain circumstances. In circumstances where the planning authority decides to refuse permission on the grounds that the proposed development materially contravenes the Development Plan, the Board may grant permission on appeal but only if it considers that –
· the proposed development is of strategic or national importance, or
· there are conflicting objectives in the Development Plan or the objectives are not clearly stated, insofar as the proposed development is concerned, or
· permission should be granted having regard to regional planning guidelines for the area, Ministerial guidelines, Ministerial policy directives, the statutory obligations of any local authority in the area, and any relevant policy of the Government, the Minister or any Minister of the Government, or
· permission should be granted having regard to the pattern of development and permissions granted in the area since the making of the Development Plan.
The Board can, of course, refuse permission for other reasons even where the proposed development would be in accordance with the provisions of the local Development Plan.
What is the time limit for deciding appeals?
The Board's objective is to dispose of appeals within 18 weeks. However, where the Board does not consider it possible or appropriate to reach a decision within 18 weeks (e.g. because of delays arising from the holding of an oral hearing), it will inform the parties of the reasons for this and must say when it intends to make the decision.
Will I be informed of the Board’s decision?
Yes. Generally, a decision will be made either-
· to grant permission/outline permission,
· to grant permission/outline permission with conditions, or
· to refuse permission/outline permission
and all parties and observers involved in the appeal will be notified. A copy of the Inspector’s Report, the Board’s Direction (e.g. whether to grant or refuse, what conditions, if any, should be attached to a permission, other instructions etc), and the Board’s decision order is posted on the Board’s website at www.pleanala.ie. The reasons and considerations for the Board’s decision will be included in the decision order and, in any case where the Board does not accept the Inspector’s recommendation in relation to granting or refusing permission, the main reasons for not accepting it.
Is the Board’s decision final?
Yes. Its validity may only be challenged by way of judicial review in the High Court within 8 weeks. The Court will not re-open the planning merits of the case and may only give leave to pursue the review process where it is satisfied that there are substantial grounds for contending that the Board's decision is invalid or ought to be quashed and that the person seeking the judicial review has a substantial interest in the matter.
It is not an appeal against a decision but a review of the manner in which the decision was made. A Supreme Court decision: O’Keefe vs An Bord Pleanala in 1993 stated: Under the provision of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions between the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board. The Court is not vested with that jurisdiction, not is it expe4cted to, nor can it, exercise discretion with regard to planning matters. Those who begin judicial review proceedings must go through a two stage process: (1) apply for judicial review within two months and they must prove substantial grounds, so many are refused, (2) if successful they have a substantive hearing at which the application or judicial review is fully argued and the court may quash the Board’s decision by an order of certiorari. If unsuccessful it is possible to appeal to the Supreme Court, but this will only be on a matter of exceptional public importance. It is much more difficult to have a decision on a planning application quashed than it is to challenge successfully any other decision of a local authority. This of course was the intention.
Can the Board dismiss appeals?
Yes. The Board has discretion to dismiss an appeal where it is satisfied the appeal is vexatious, frivolous or without substance or foundation or where the appeal is made with the sole intention of delaying development or of securing the payment of money, gifts, considerations or other inducement by any persons. The Board can also declare a planning application or an appeal withdrawn where it is satisfied it has been abandoned.
Can I withdraw my appeal?
Yes. An appeal can be withdrawn by an appellant and the planning application can be withdrawn by the applicant at any time prior to the determination of the case by the Board. Where an appeal is withdrawn (or all the appeals where there is more than one), the original decision of the planning authority takes effect. Where the planning application is withdrawn by the applicant, no permission can be granted by the planning authority in relation to the application.
How strict are the time limits?
So that the Board can determine appeals generally within 18 weeks, all the time limits are very strict and the Board has no discretion to extend the dates. This applies to the lodging of appeals, submission of comments by parties, the making of submissions and observations to the Board by others and, where invited by the Board, to additional submissions.
What if the offices of the Board are closed on the last day allowed?
When the last date for receipt of an appeal or other material falls on a weekend, public holiday or other day when the offices of the Board are closed, the latest date for receipt will be the next day on which the offices of the Board are open. The period from 24th December to 1st January inclusive (i.e. 9 days) is excluded for the purposes of calculation of all periods of time in relation to planning appeals.
Can the Board’s documents be inspected and purchased?
Three days after a decision is made, the entire Board file may be inspected by any member of the public for at least five years. A copy of the Board Order and Direction and the Inspector’s report is also available on its website. Copies of any documents on the file may be purchased at the Board's offices.
Files on appeals can be inspected by members of the public after the appeals are determined by the Board. These files can be inspected free of charge at the Board's offices on weekdays between
Can I apply to the Board for leave to appeal a decision of a planning authority?
A person with an interest in adjoining land (e.g. a landowner/occupier) who did not make submissions or observations to the planning authority in relation to the planning application may apply to the Board for leave to appeal within four weeks of a decision of a planning authority to grant permission. The Board may grant leave to appeal where the person shows that the decision of the planning authority to grant permission differs materially from the application because of the conditions imposed and the conditions imposed will materially affect his/her enjoyment of the land or reduce the value of the land.
Like a planning appeal, the person seeking leave to appeal must state his/her name and address, the grounds on which he/she is basing the leave to appeal, a description of his/her interest in the land and the correct fee.
Where a person is granted leave to appeal, the planning appeal must be received by the Board within two weeks of him/her receiving notification of leave to appeal and must otherwise comply with the requirements for lodging the planning appeal including a further fee. Details of fees are available from the Board or your local planning authority.
Can I refer the planning authority’s refusal to deal with a second planning application to the Board?
Where a decision of a planning authority in relation to a planning application is on appeal to the Board, a second application for the same development or development of the same description may not be made to the planning authority. Where a dispute arises as to whether an application is for the same development or development of the same description, the matter may be referred to the Board for a determination.
Main tasks
The determination of normal planning appeals is the principal task of the Board, accounting for 95% of the intake of cases in 2002.
In 2002, 39% of appeals formally decided were made by applicants who had been refused permission by the planning authority.
Applicants may also appeal against conditions proposed to be attached to permissions by planning authorities. These accounted for 10% of formally decided appeals.
Third parties usually appeal against decisions to grant planning permissions and occasionally against reasons given for refusal. These accounted for 51% of formally decided appeals. Any other person may make submission or observations in relation to an appeal that is before the Board, these are generally known as observers.
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