Board grants Strategic Housing Development of lands to the east of St. Paul’s College, Sybil Hill Road, Raheny, Dublin 5

An Bord Pleanála has granted permission, subject to 24 conditions, for the proposed development comprising 536 residential dwelling units (104 no. houses and 432 no. apartments), as submitted by Crekav Trading GP Limited at lands to the east of St. Paul’s College, Sybil Hill Road, Raheny, Dublin 5. The full planning application can be reviewed at www.stpaulsshd.ie/

The application was submitted to An Bord Pleanála on 22nd December 2017 under section 4 of the Planning and Development (Housing) and Residential Tenancies Act 2016 and decided on 3rd April 2018.  The Board's Planning Inspector recommended a grant and the Board agreed with this.

The application process included pre-application consultation with An Bord Pleanála and Dublin City Council.

There were 1102 submissions lodged to the Board. Most of these were objections. This decision will shine a strong light on what many will feel is the downside of the new Strategic Housing Development process under which a small number of unelected individuals can make a decision, in the face of enormous opposition, which impacts in hundreds of individuals and families.

The key documents relating to the Board’s decision are available as follows:

Board Order
Board's Direction
Inspector's Report

Much of the controversy around this decision lies with the zoning of the lands. In Dublin City Development Plan 2016-2022, they are zoned Objective Z15 Institutional & Community which seeks to ‘protect and provide for institutional and community uses and to ensure that existing amenities are protected’.  Residential development is ‘open for consideration’ under this zoning objective.

Those Dublin City Council's councillors who voted to adopt the current Development Plan will need to explain why they did so given that it has facilitated the development of lands many thought were protected from development.

Communities across the country need to start asking questions about the zonings of the green spaces, playing pitches and institutional lands in their areas when plans are being drafted by their local authority.

It is also clear that there is a need to stop selling land to religious orders as time and again it ends up being developed. Here the problem is that St. Paul’s playing fields are not in Dublin City Council ownership as the land was sold to the Vincentians in three separate transactions in 1952, 1953 and 1959 without restrictive covenants.

There will be a total loss of 6 pitches as a result of the proposed development- 3 x soccer pitches, 2 x rugby pitches and 1 x GAA pitch.  This loss is not just to a school, but to the community. While I acknowledge the loss of the playing pitches within St. Paul’s to the wider community. Outside of school times and when not required by the school, agreements were in place for their use by community groups/local sports clubs.  Detailed submissions were made to the Board by both private individuals and sports clubs outlining the structure which was in place until relatively recently, the pitches involved, the sports involved, the numbers using them, hours of use and the like.

It is notable that the Chief Executive report of Dublin City Council recommended a refusal of permission. That report however acknowledged that the Board may grant and set out area of the scheme it felt should be amended. But the fact is, has this planning application been made to Dublin City Council, it would have been refused. The Board may subsequently have granted it, but that would have been on appeal. The objectors to this scheme now have no appeal option. The Strategic Housing Development process has removed any appeal option leaving communities like those in Raheny with nowhere to turn when a planning decision they strenuously oppose is made. This, obviously, is why these measures were introduced.

Rare butterfly at site of planned Ennis development disappears

THE DEPARTMENT of the Environment says the disappearance of a rare and protected butterfly from a site outside Ennis, earmarked for a €50 million retail park, is a matter of serious concern to be investigated by its heritage branch.

In a late bid to prevent Clare County Council from granting planning permission for the retail park proposal by Galway developer Stephen Harris, the department has lodged a fresh objection on environmental grounds, recommending that "planning permission not be granted".

The department's submission follows the developer's lodgement of a report last month with the planners stating that colonies of the protected Marsh Fritillary butterfly were now extinct at the 48-acre site.

Populations of the butterfly were moved in autumn 2004 to the site now earmarked for the retail park to make way for the Ennis bypass. This was done by the bypass contractors, Gama Construction Ltd.

A planning application for the retail park was lodged in 2006. The presence of the butterfly on the site resulted in the Department of the Environment lodging an initial submission with the council to state that the development would be contrary to the aims of the EU habitats directive.

Ken Bond of University College Cork, an expert employed by Mr Harris, drew up a report on the Marsh Fritillary and found populations of the only butterfly protected under the EU habitats directive at the site in 2006 and 2007.

However, Mr Bond said, in the report lodged last month with the council, it was his opinion that the butterfly had become extinct there due to heavy grazing last autumn and winter, combined with flooding over the past three winters.

The disappearance of the butterfly removes one of the few remaining planning hurdles for a development that has been in the planning process for two years.

The department said: "The apparent recent loss of an important population of the Marsh Fritillary, which is possibly linked to the failure of mitigation measures associated with the nearby Ennis bypass, is a matter of serious concern that has yet to be investigated and pursued by the National Parks and Wildlife Service."

It added that the reports provided did not address adequately the serious concerns raised in respect of key nature conservation issues at the site.

"A flood assessment of the site and the proposed development, taking into account cumulative effects of other development, is lacking," it said.

"The proposed development will result in significant biodiversity losses in terms of wetland habitats of ecological value and invertebrate populations, including permanent losses or local extinction of the EU habitats directive species, Marsh Fritillary."

The Irish Times

www.buckplanning.ie

Carlow Council slaughters application for abattoir

SLAUGHTERHOUSE was refused planning permission by Carlow County Council last week after residents vehemently objected to the building. The proposed abattoir would have been situated in Rathornan, Leighlinbridge. Furious residents feared that their properties would have been devalued if the slaughterhouse went ahead.

Local man Gerald Cullen along with Darren O’Gorman applied to the council on November 20, 2006, to build a “purpose-built shed for usage as a slaughter facility for cattle, sheep and pigs”. They also sought permission for “a new entrance, security palisade, fencing and associated ancillary works”.

Over 45 residents attended a meeting in July to voice their upset at the proposed abattoir. They claimed that if the abattoir went ahead it could pose a pollution hazard if effluent from the building seeped into the nearby Rathornan river.

They also claimed that the slaughterhouse would be built on a narrow secondary road and lorries going to and from the abattoir would become a traffic hazard. Along with this the affected residents were extremely concerned that if the slaughterhouse were to go ahead it would cause house prices in the area to plummet.

After reviewing the application, Carlow County Council agreed with the Rathornan residents and refused to give planning permission.’

“The proposed development, by reason of its nature and location, would be prejudicial to the residential amenities of this rural area, would increase the risk of a traffic hazard, would militate against the preservation of the area’s rural environment, and would be more suitable to an edge of town location,” the council stated in its official refusal.

Despite their jubilation at the council’s decision, the residents warn that they will oppose any developer attempting to seek planning permission for an abattoir in the area or any development, which they feel would devalue their property or create a nuisance in the area.

Mairead Wilmot
© Carlow Nationalist

Developer says rival broke €4m pact over planning

DEVELOPERS building rival shopping centres made a €4m pact not to object to planning permission against each other's plans.

However, now one of them is trying to stop €3m of that being paid because an objection has been placed against their development.

The High Court heard yesterday that the two firms - Galway-based Talebury Properties Ltd and Parolen Ltd of Ashbourne, Co Meath - were developing rival shopping centres in Drogheda, Co Louth, in 2003.

Declan McGrath, counsel for Talebury of Kitty Hall, Edward Hall, Co Galway, said the company had found out that Parolen had lodged a number of objections and appeals to various applications for planning permissions which Talebury had made to Drogheda Borough Council.

Agreement

Both developers had on August 21, 2003 entered into a written agreement in which Parolen said it would withdraw its existing appeals and objections.

The company also agreed it would not initiate any future objections or encourage or help anyone else to do so.

In consideration for the undertakings, Talebury had agreed to give Parolen two payments which would be guaranteed by Anglo Irish Bank Corporation plc.

Mr McGrath told Ms Justice Mary Laffoy that the first had guaranteed €1m by AIB on behalf of Talebury within 60 days of the date of the agreement, August 21, 2003.

Guarantee

This amount had been duly drawn down by Parolen. The agreement had further provided for a second guarantee to be given in the sum of €3m which would be available for draw-down on the fourth anniversary of the agreement - August 21, 2007.

Mr McGrath said Talebury was seeking an injunction restraining Anglo Irish Bank from paying out on foot of the €3m guarantee pending completion of the legal proceedings before the court.

He said Talebury claimed Parolen had breached the agreement not to lodge further objection.

Edward McGovern, of Laurence Street, Drogheda, had in July last year appealed to An Bord Pleanala a planning permission granted by Drogheda Borough Council to Talebury regarding its lands.

Mr McGrath said it was Talebury's case that Parolen had either directly or indirectly initiated or encouraged the appeal.

He said there was no allegation of wrongdoing against Anglo Irish Bank Corporation and in no way was the reputation of the bank impugned by Talebury Properties Ltd.

Judge Laffoy, granting the injunction restraining the paydown of the €3m until all of the issues in the proceedings had been determined by the court, said that there was a huge conflict of fact in the evidence placed before her and that it was not the court's function at this stage to express any view on the merits of the case.

Ray Managh
Irish Independent

Residents object to new lakeside village plan

Several residents in Terryglass have lodged objections to the multi-million euro plan to develop an entire new village on a lakeshore site close to the existing village.
One of the objections submitted is in the names of thirteen local people who say the application is not compatible with the policies of the North Tipperary County Development Plan and should be refused.
The council, which is considering two separate applications in relation to the development, has sought further information from the developers on its plans prior to making a decision on the matter.
A Coolbawn based firm of planning consultants, Gerrard and Associates, in a submission on behalf of thirteen named residents of the area says the council failed to make documents in relation to the planning application available to the public for a full three weeks after they were received from the developers.
Because of this the firm submits that the council is in breach of the Planning and Development Act 2000. The firm asserts that the act states that the application must be available for inspection or purchase at the council offices during the prescribed time, which the local authority failed to do.
“The community in Terryglass had two weeks instead of the statutory five weeks to make their observations and submissions to the planning authority.”
Gerrard and Associates go on to accuse the council of putting the community of Terryglass at a disadvantage by not keeping its side of the contract.
The firm states that the community is further disadvantaged by the “unacceptable splitting” of the application. One planning application for the site has been submitted by a company called Gladedale Limited, while a second has been submitted by Gladedale Limited and CastleCourt Developments Ltd.
The proposed development is 1.5km from the core of Terryglass village. The new development was too far away to exist as an integral part of the existing village, residents contend.
The residents through Gerrard and Associates argue that the proposed development is not sustainable and is not an integrated tourism proposal. “...it is a proposal for a high density residential estate more suited to an urban setting in a town...there is no local demand for this type of residential development.”
The objection submitted on behalf of the residents goes on to state that Terryglass Castle, built in 1219, is on the proposed site.
They argue that it is unnecessary to accede to the developers’ plans to demolish buildings previously used for tourism purposes on the site.
The site also included a Special Area of Conservation and a Special Protection Area for Birds. The area was also a Natural Heritage Area.
The residents contend that the proposed development, which includes 60 residential units, is not in accordance with the Guidelines on Residential Density.
“The proposal in its present form is unsuitable for a small village such as Terryglass... The densities as proposed indicate holiday home investment development which will remain empty in winter or a residential development for commuters. Neither is sustainable in the context of lack of infrastructure and damage to the existing village, to the amenities of the nearby dwellings and damage to the natural environment.”
The objection prepared by Gerrard and Associates goes on to state that “the quality of design and layout is poor” and not in accordance with the Development Plan.
“Grafting the new to the old is a skill, which calls for greater integrity of purpose than we can observe here...None of the houses have satisfactory private space. The retail element of the proposal is unsustainable in this location and is incompatible with the retail strategy for County Tipperary.”
Peter Gleeson
© Nenagh Guardian

Writer's holiday home row sparks An Taisce rift

A REGIONAL division of An Taisce said it was "thrown to the wolves" by its head office over the controversy surrounding plans by journalist Fintan O'Toole to quadruple the size of his holiday home.
Earlier this month, Mr O'Toole secured planning permission for his extended holiday home south of the Burren village of Ballyvaughan in Co Clare.
Clare County Council made its decision after An Taisce's Head Office withdrew an objection lodged against the development by the Clare Association, labelling the proposal "criminal".
As a result, An Taisce came under sustained attack and its then Director, Gavin Harte unreservedly apologised to Mr O'Toole and withdrew the objection.
Mr Harte said that the objection was lodged by the Clare Association without the knowledge or approval of Head Office.
But yesterday the Chairman of the Clare Association, Oliver Moylan said the apology should never have been issued from Dublin.
"We were virtually thrown to the wolves by Dublin. It was most unfair. All we got was abuse for it. We're not monsters. We're volunteers and there's only so much people can take.
"As chairman I would've received snide remarks on the street such as 'O'Toole sorted you out'. I don't need this. All of this causes personal stress.
"The Fintan O'Toole situation changed everything and the environment will suffer as a result."
Mr Moylan described the association's relationship with An Taisce's Head Office as "frosty".
Mr Moylan confirmed that the objection was written by an unidentified local man in Ballyvaughan, but was signed by the secretary of the Clare Association, Anny Wise. It was lodged when the council had a policy that An Taisce submissions could not be viewed until after a decision was made.
"We never, ever believed that the letter objecting to the O'Toole development would end up in the public domain," said Mr Moylan.
Asked to respond to Mr Moylan's comments, An Taisce's Heritage Officer, Ian Lumley would only say that the application was dealt with appropriately by the council and declined to comment further.
Gordon Deegan
© Irish Examiner

Hanafin's concern at objections to schools upgrading

It seems people even object to schools now. This by Sean Flynn in The Irish Times:

Minister for Education and Science Mary Hanafin has expressed concern about a new trend which has seen members of the public raise planning objections to new or upgraded school facilities. Until recently, she said, such objections were virtually unknown.
Ms Hanafin was speaking during a special briefing on the €32 billion education package in the new National Development Plan (NDP).
She said the objections raised - especially by those living in mature areas in Dublin and other major cities - was delaying the roll-out of some new school projects. She could understand people objecting to large-scale school developments providing for up to 1,000 pupils and the extra traffic this might generate.
However, she said, some applications for temporary accommodation like prefabs were drawing objections. "People are objecting to temporary accommodation which I cannot understand because it can offer an immediate response to the educational needs of children in their own community, " she said.
At present, the department is dealing with objections raised to school building plans in several counties including Kilkenny, Galway and Westmeath. Officials said objections usually come from long-established residents in well developed areas.
Meanwhile, the failure of the department's school-building programme to keep pace with rapidly developing areas in commuter towns in west Dublin, Kildare and Meath has been widely criticised.
Officials however said yesterday that new generic school designs and closer co-operation with local authorities would speed up the process. A series of meetings is ongoing between department officials and county managers to quicken the process of site-acquisition and planning.
Twenty-two sites have been purchased for school buildings in Dublin in the past year, most of them in rapidly growing areas.
More than €5 billion will be invested in school building and modernisation during the seven years of the NDP. Of this, €2.2 billion will go to primary schools, €1.6 billion to second-level with the balance made up of public private partnerships.
In all, there will be 100,000 additional places; this should meet the projected increase in the number of primary pupils over the next seven years.
The number of second-level pupils is also expected to increase dramatically from about 2012 but Ms Hanafin said there was sufficient surplus capacity in the second-level system to cope.

Coolmore stud opposes animal waste facility

From Irish Times:

A planning application for a major new animal waste processing facility, which will process up to 250,000 tonnes of animal and organic waste a year into biodiesel, gas and fertiliser, is to be lodged with Tipperary South County Council later today.
In what is expected to be a long planning process, the proposed plant will be located at a controversial site of a disused rendering facility, which was also the location of an aborted attempt five years ago to build a meat and bonemeal incinerator.
The country's top stud farm group, Coolmore, is to object to the facility, which is being proposed close to its operations in south Tipperary. The site at Castleblake near Rosegreen between Cashel and Clonmel, is adjacent to Coolmore's Ballydoyle stables, which is operated by champion trainer Aidan O'Brien.
The development is being promoted by Green Organics Energy (GOE), a joint venture company owned by Dawn Meats, National Toll Roads subsidiary Bioverda, and National Byproducts owned by the Ronan family.
Yesterday, a spokeswoman for Coolmore, owned by millionaire businessman John Magnier, confirmed that Coolmore and Ballydoyle would be objecting to the facilities, but declined at this stage to comment on the details of the group's objections.
Coolmore and Ballydoyle combined with local activists to mount a successful campaign against a proposed incinerator for the site when it was granted planning permission in 2002.
National Byproducts, owned by the well-known local Ronan family, which operated a rendering facility at the site for 40 years, withdrew its proposals following a major publicity campaign and the instigation of a High Court case by Ballydoyle. Coolmore and Ballydoyle mounted the campaign because of concerns about the potential impact of the proposed incinerator on its stud farm and training operations.
The earlier campaign focused on the previous environmental record of the prior facility, which had been the subject of a number of prosecutions by the Environmental Protection Agency.
Yesterday, GOE said the proposed new plant would operate to strict standards laid down by the planning authorities and the EPA. If built, it will be one of the largest waste processing facilities in the country, and will process a similar amount of waste to that of an incinerator.
The plant will use a process of rendering to turn animal byproducts such as offal into biodiesel and other oils. A process of anaerobic digestion will also be used on a mixture of green waste and animal offal byproducts.
The resulting gas will be used to power a small electricity generation plant which will contribute 15 megawatts of electricity to the national grid. A further 20,000 tonnes of fertiliser will also be produced from the process.
John Mullins, speaking as the head of the GOE venture, said the Castleblake site had been chosen as it had "50 years' experience as an industrial site".
He said the whole process was aimed at generating products and energy from products that are now being incinerated.
Mr Mullins said local concerns about the facility were being taken on board and that the company had already undertaken wide consultation with local groups. "We've consulted with the local people, including politicians and the Coolmore interests as well," Mr Mullins said.
The Coolmore group is estimated to have a turnover in excess of €100 million. It is considered to be the most successful stud operations in the world, with its stallion Sadler's Wells having been champion sire on 14 separate occasions.

Donegal wind turbine planning appeal lodged

A decision to refuse planning permission for eight wind turbine generators to be erected next to the Tyrone/Donegal border has been appealed. An application for planning permission for the 70-foot turbines in bogland near Croaghnameal, east of Donegal town, was made by Eco Wind Power Limited. The location is around 2km from the border and around 20km from the nearest town in the north, Castlederg.

The north's Planning Service said it received notification from Donegal County Council that the refusal of planning permission was being appealed. Notification of the appeal posted by the Planning Service states that “the development is likely to have significant effects on the environment in Northern Ireland”. A spokesman for Donegal County Council said neighbouring authorities were routinely kept informed of such applications.

The application had been refused on the grounds of environment rather than scale. An appeal against the refusal was lodged on October 17 and the public invited to apply to inspect the appeal by contacting Donegal County Council.

An Taisce must use 'planning language'

The national chairman of An Taisce has warned the body's local associations to use "proper planning language" .

Frank Corcoran told the annual general meeting of the Kerry association of An Taisce in Killarney that more was expected of An Taisce than of others when making submissions on planning applications to local authorities and to An Bord Pleanala.

There had not been a problem with the Kerry association, Mr Corcoran said, and the quality of its submissions was very high.

However, referring to the incident where An Taisce unreservedly apologised to columnist Fintan O'Toole over a submission from the Clare association on the proposed extension to his house in Co Clare, Mr Corcoran said associations must "be cautious" and steer clear of emotional or exaggerated language, regardless of how strongly they felt.

"Just be careful to use the proper planning language in appeals," he said.

Workshops on planning language are to start shortly for An Taisce members, he said.

An Bord Pleanála generally was very pleased with the quality of referrals from An Taisce and 93 per cent of its appeals were upheld, he said. Submissions were written in the language of county development plans, Government policies and EU directives on habitat protection and conservation.

Development plan for Cork green belt

A new roundabout and proposed developments in the green belt alongside the Cork-Bandon road will not undermine the area's special zoning, the manager of Cork County Council, Maurice Moloney, has told The Irish Times.

The new roundabout at Garranedarragh, Bishopstown, is to be paid for by Castlelands Construction, a Cork-based development company owned by John Barry.

The company will gain access to nine hectares (22 acres) of land zoned for housing which it owns and which adjoins the green belt.

Permission granted in 2005 by the council for this roundabout, following an application from the housing land's then owners, Rosbridge Properties, was overturned by An Bord Pleanala in December 2005.

Senior planner at the council Nicholas Mansergh had objected to permission for the roundabout, as he felt its main function would be to open up green belt land for development.

Christopher Gethin, an inspector from An Bord Pleanala, having reviewed the issue, reported that the principal issue was "the harm which would arise from the proposed development in terms of its effect on the green belt".

A new private hospital, an Enable Ireland facility and a park- and-ride facility, which are to be built in the green belt, are to be serviced by the new roundabout. However the inspector was of the view that the private hospital and park-and-ride developments should be located elsewhere.

Mr Gethin quoted Mr Mansergh's view that "building roads and sewers deep into previously inaccessible lands close to the edge of the city would be the most effective way of subverting" the green belt.

"It is my opinion that the appearance and the function of the green belt in this area is of outstanding importance, and the need to resist the enabling role of the roundabout in facilitating these damaging developments, is correspondingly important," Mr Gethin reported. An Bord Pleanála agreed and refused permission.

Mr Moloney told The Irish Times that Castlelands Construction contacted the council in early 2006. He and the county engineer met executives of Castlelands. The executives explained that Castlelands now controlled all the land that would be affected by the roundabout.

"They said 'we control the land and can we, in partnership with the council, look at it as a public and private project, a mix?'."

The council then proceeded by way of a part 8 procedure. This mechanism can be used when a proposed development "is by a local authority or on behalf of a local authority", Mr Moloney said. An aspect of the procedure is that once the permission is granted by the elected members of the authority, it cannot be appealed to An Bord Pleanála.

Castlelands's proposal to the council involved it paying for the roundabout and donating for the park-and-ride facility. The offer made it possible for the council to use the part 8 procedure because control of the land to be affected is needed if the procedure is to be used. The new roundabout will be built on public and privately held land.

Mr Moloney said the proposed project was publicised and then voted on and approved by the elected members in July. "The reality here is that a number of public and private concerns were going to merge and benefit."

He said it was not the case that nothing could be developed on green belt land. The Cork development plan allows for hotels and care institutions to be built on green belt land, as long as the character of the green belt was maintained, he said.

Mr Moloney said the "corporate view" within the council on the roundabout proposal was different to that of Mr Mansergh.

"The layout and development of these projects will mitigate against further development of the green belt."

He said the council has successfully resisted development of green belt land.

The hospital proposal comes from SMCMC Ltd, a company associated with James and Philip Sheehan, who are also involved in private hospital projects in Dublin and Galway.

Irish planning appeals - An Bord Pleanala

Irish planning appeals – An Bord Pleanala

Introduction

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 Tara-the M3/Ringiskiddy, is that it is an arm of Government, or, at least, does the Government’s bidding; but this requires some examination. Well, the Minister for the Environment and Local Government is empowered to issue general policy directives relating to planning and development and the Board is required to have regard to such directives. However, the law provides that this power does not enable the Minister to exercise any power or control in relation to any particular appeal. In 1976, it was accepted generally that the Board should be set up because political parties at the time agreed that an independent tribunal should deal with appeal decisions in an area as controversial and sensitive as land development. The Board is very conscious of the need to discharge this responsibility in a satisfactory manner.

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 Marlborough Street in Dublin City Centre.

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 Europe, third parties may make appeals under the Irish system. The proportion of such appeals is growing and in 2002, 50% of determined planning appeals involved third parties. 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.

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 Wednesday2^nd of a month, the last day for receipt of the appeal is Tuesday 29^th 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 10^th March 2004 or the date the local planning authority makes a development contribution scheme, whichever is the earlier. However, there will be appeals against special contribution conditions imposed by a planning authority and there will be appeals where a developer considers that the terms of the scheme were not properly applied.

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 24^th December to 1^st 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 10 a.m. - 12.30 p.m. and 2.30 p.m. - 4.30 p.m., except on public holidays and other days on which the offices are closed. Copies of any documents on these files can be purchased at the Board's offices during these hours for the reasonable cost of copying the documents. Further details concerning inspection and purchase of documents etc., are available from the Board and on its website, www.pleanala.ie

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.

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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