An Bord Pleanála College Green plaza hearing adjourned until tomorrow

The planning hearing on traffic arrangements in College Green has been adjourned until tomorrow to consider a complaint from a disability activist. Robbie Sinnott who is visually impaired complained that he did not get documents in an accessible format. Inspector Breda Gannon was told that Dublin City Council is to make them available. She adjourned the hearing until 9.30am. Meanwhile, Independent Cllr Mannix Flynn, an observer who opposes the plan, complained that he had not received all documents in the case specifically documents in a submission from Hanahoe Solicitors concerning Parliament Street.

Read the full story @ www.rte.ie

Court Ruling Leaves Land Use Uncontrolled

The High Court has confirmed An Bord Pleanala’s ruling in 2013 which dismissed a request to determine if industrial peat extraction required planning permission on raised bogs in the midlands because the owners are unknown.
The decision means that industrial peat extraction can continue indefinitely on  a 167 hectares raised bogs undergoing extraction at in County Westmeath in spite of comprehensive judgment on 8 February, 2018 which determined that industrial peat extraction requires planning permission.
In that judgement, Justice Meenan rejected the arguments of Bulrush Horticulture Ltd and Westland Horticulture Ltd. that planning permission was not required for their industrial peat extraction. The companies’ industrial extraction have been ongoing on 365 hectares of raised bogs in the northwest of Westmeath between Lough Derravaragh and Lough Sheelin.
The Court concluded that it was ‘very difficult to see how the “excavation” of peat can be anything other than “works” under the Planning Acts.’ The companies were the subject of referrals to An Bord Pleanala by Friends of the Irish Environment [FIE] in 2012. The companies informed the Court on Friday that they will be seeking leave to appeal these decisions to the Supreme Court.
These cases are considered landmark judgments in relation to the ongoing industrial extraction of peat from the raised midlands bogs which had to date been considered exempt from planning permission.
FIE based their test cases on site visits initiated in 2009 and a satellite survey of exposed peatlands commissioned by them from University College Cork in 2010. More than 126 sites of over 30 hectares were identified and substantially confirmed by a 2013 questionnaire sent to 19 local authorities by the Department of the Environment.
However, Justice Meenan dismissed the groups referral in this third case because the statutory provisions require that those affected by the determinations of An Bord Pleanala ‘have an opportunity to make observations or submissions as they may wish.’  ‘A determination that was once an exempted development is no longer exempt can have serious consequences for the owners/occupiers involved’, the High Court said.
During the referral by FIE to determine the planning status of the lands involved in this case, Westmeath County Council had submitted 13 land registry folios which indicated 9 parties involved with numerous subdivisions which ‘may have a different occupier engaged in the extraction of peat.’ Therefore the Court concluded that there was ‘inadequate information to determine the owner and ensure their landowners constitutional rights were not breached.’
FIE had argued that in cases where the ownership of land was uncertain, the Board had the statutory powers to obtain the necessary information, failing which provisions existed whereby notice could be given to the relevant persons by affixing a sign ‘in a conspicuous place on or near the land’.
Justice Meenan ruled that the Boards refusal to do so was not unreasonable, ‘given the situation that presents itself from the folio maps in question.’
In a statement, FIE said that ‘The impact of the industrial extraction of turf in the midlands on this scale has been devasting to wildlife and to water quality, destroying some of Ireland’s most valuable archaeological sites as well losing vast wetlands which act as sinks absorbing carbon to control climate change.’
‘The Courts decision gives a green light for these companies to continue this destruction without any assessment, conditions, or control, in spite of last month's ruling that the activity requires planning permission.’

Judgements:

9 March Judgment requiring land owners to be notified
8 February Judgment confirming planning permission required

Article by Tony Lowes of Friends of the Irish Environment

Dublin City Council to redevelop more than 6,000 flats

More than 6,000 units of Dublin city’s oldest and most dilapidated flat complexes are to be redeveloped under a 15-year plan to raise social housing standards across the city. Dublin City Council plans to regenerate more than 100 flat complexes, some of which were built more than 80 years ago, to improve the living standards of existing tenants and to increase the numbers of homes on its lands. All of the 6,391 flats are in blocks more than 40 years old, and some were built in the 1930s, including St Michan’s House and Chancery House near the Four Courts, Oliver Bond House in the south inner city and Pearse House on Pearse Street.

Read the full story @ The Irish Times

Supreme Court to sit in Limerick for the first time - to hear two planning cases

The Supreme Court will make history when it sits in Limerick on Monday for the first time. The three-day sittings represent only the second time the court has sat outside Dublin in its 87-year history. It previously sat in Cork in 2015. The court will hear two appeals related to planning issues during its sittings until Wednesday at the new Criminal Courts of Justice on Mulgrave Street. Eight Supreme Court judges will travel to Limerick for the occasion, to be marked by an address by the Chief Justice, Mr Justice Frank Clarke, at the courthouse on Monday morning. A five-judge court, comprising the Chief Justice, Mr Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Ms Justice Iseult O’Malley and Ms Justice Mary Finlay Geoghegan, will then hear an appeal raising issues concerning the obligations of An Bord Pleanála to give reasons for its decisions.

Read the full story @ The Irish Times

Should the Board better explain its decisions when it over-turns its own Planning Inspectors?

Next Monday the Supreme Court will hear an appeal which concerns the duty of An Bord Pleanála to give reasons for its decisions. The appeal is against a High Court judgment quashing the board’s permission for a wind farm development of six turbines at Coor West, Shanvogh, Co Clare. Calls for more detailed reasons for decisions in which the Board over-rules its own Planning Inspectors’ recommendations have been long called for; this case could help to address this.

In this case, Louise Kiernan, the Board’s Planning Inspector, in a 78 page report containing six detailed reasons for refusal (the report is dated 30th November, 2011) , recommended that the planning application be refused  - this recommendation was in line with the decision of Clare County Council which had refused planning permission. The Board’s Direction (this is available @ http://www.pleanala.ie/documents/directions/239/S239378.pdf) lists each of the Inspector’s recommended reasons for refusal and sets out reasons for not accepting the recommendation of its Inspector in each case. Four turbines were then granted from the original six.

On the 14th June 2016, the High Court overturned the grant of permission as a result of a judicial review case taken by a woman named Kathleen Connolly.  In making the decision Mr Justice Max Barrett was critical of the absence of clarity and specificity in An Bord Pleanála’s grant of permission. He noted how decisions of public bodies must be clear enough for someone reading the decision to consider if there is sufficient legal basis to challenge them. He stated: “Proper planning was never intended to be, nor can it be allowed to become, a perk reserved for the few who can afford expert lawyers, with something less than best being the lot of the many who cannot.” The Board must, as a statutory body, comply with legal requirements. The Board claimed it had, but Mr Justice Barrett found it had not. He ruled Ms Connolly was entitled to an order quashing the Board’s 2014 grant of permission.

What did the High Court find the Board did wrong? Clare County Council had refused planning permission in 2011 for a range of planning and environmental reasons (visual impact, noise impact, water pollution risk, unsuitable location, impact on ecology, etc.). The Board sought information from the developer to address these issues and then, on the basis of this information, granted permission in 2014. Ms Connolly took her High Court appeal because, she claimed, the Board failed to meet statutory planning requirements in its assessment and decision. A particular issue arose over the Board deciding a Natura Impact Statement was needed such that it could undertake an appropriate assessment; however, the Board failed to explain why it decided such an assessment was necessary.

Mr Justice Barrett decided that in addressing Ms Connolly’s complaints the Board could not just say it had considered all the material put before it and then decided an appropriate assessment was necessary. The issue being how could Ms Connolly possibly identify from all of the material which formed the planning application and appeal the basis of the Board’s decision. This reason needed to be provided such that Ms Connolly could understand the basis for the Board’s decision and whether to take judicial review.

Mr Justice Barrett referred to the Board’s own assessment (as opposed to its Planning Inspector’s) as a “rather contrary report relating to a different development”.

The case highlighted how the Board must provide clearly, concisely and precisely set out its findings and its conclusion in a manner that is sufficiently specific for anyone reading them to decide if those findings and the subsequent decision are lawful. They are also needed, Mr Justice Barrett pointed out, to allow the courts to assess, by way of judicial review, whether a decision made by a statutory body is a lawful one.

Essentially, a person reading the Board’s findings and decision must be able to decide whether or not to challenge them in court without reviewing the entire planning file / planning appeal file to determine if everything the Board had done was done in accordance with statutory requirements.

This decision, if upheld by the Supreme Court, could serve to make the Board’s findings and decisions clearer to the benefit of all those involved in the planning process. It should help Third Parties to better understand Board decisions and whether to challenge them. It is just a pity it is taking so long. The original Clare County Council decision on this case was made on the 12^th November 2011. It is now March 2018. The time delay here for one single planning application highlights the significant time delays can beleaguer Irish planning.

Does letting property on Airbnb require planning permission?

Following my posting on Twitter of an Airbnb story in the Irish Times this morning, I had a call from the owner of a small apartment building, who wanted to know if he needed planning permission to start letting it full time on Airbnb. This raises a question which was answered by An Bord Pleanála (the planning appeals board) back in 2016. I would have thought this question had been put to bed (if you excuse the pun ...). The details of the 2016 case are:

The Board decided then that

§  the use of an entire residential apartment on a year-round basis for a series of short-term holiday lettings constitutes a change of use;

§  such change of use raises planning considerations that are materially different to the planning considerations relating to the ‘normal’ use as a residential apartment;

§  the change of use is a material change of use, and therefore constitutes ‘development’ under the Planning and Development Act 2000, as amended; and

§  such ‘development’ is not exempted development, and therefore requires planning permission.

The case, which received considerable media attention at the time, concerned whether the use of residential apartment for short term holiday lettings is or is not development or is or is not exempted development. The case was taken by Temple Bar Residents and the property in question was Apartment 1A, 5 – 5A Crown Alley, Dublin 2. The property owner had advertised the property for sale at a price which could only be justified by the fact that it generated €79,000 in 2015 from short-term lettings by way of Airbnb.

The case was taken first to Dublin City Council via a referral made under Section 5 of the Planning and Development Act 2000, as amended, and then to An Bord Pleanála under the same provisions. For those who wish to view them, the case references are: Dublin City Council - RL3490 and An Bord Pleanála - PL29S.RL3490. The Board’s assessment of the case and decision can be reviewed at http://www.pleanala.ie/casenum/RL3490.htm

Dublin City Council’s Declaration on the Section 5 referral stated:

No provision is made in the Planning and Development Act 2000 (as amended) or the Planning and Development Regulations 2001 (as amended) by which the said change of use would constitute exempted development. It is concluded that the proposed change of use of the subject apartment for short term letting constitutes development, being a material change of use having regard to its character and its material impacts on the proper planning and sustainable development of the area.

The Board’s Planning Inspector noted how, this question invites an assessment under the following three headings:

 (i) Has a change of use occurred?

(ii) If so, has a material change of use occurred?

(iii) If development has occurred, is this development exempted development?

The following summary of the Inspector's assessment under each point sets out the basis for the Board’s final decision as set out above.

(i) Has a change of use occurred?

The critical point arrived at was that in light of definitions of “house”, “habitable house”, and “dwelling” cited, no one staying in the subject apartment is now a resident, all are visitors, and so the presence of a residential use has ceased to apply, i.e. no one staying in the apartment lives there, resides there, considers it their home or their abode. Thus, the subject apartment is no longer in use as a private residential apartment but as short-term holiday lettings accommodation. It was therefore concluded that a change of use had occurred. However, for a

(ii) If so, has a material change of use occurred?

Under Section 3(1) of the Planning Act 2000, as amended, for a change of use to be considered development, it must be a material change of use.  The Planning Inspector therefore considered this point and concluded that the use of the subject apartment as short-term holiday lettings accommodation raises matters that differ from those that would arise under any assessment of this apartment for residential use. Thus, in accordance with planning case law (Monaghan County Council -v- Brogan), the test for a material change of use of the apartment was met and so its use as short-term holiday lettings accommodation was found to constitute development.

(iii) If development has occurred, is this development exempted development?

The Inspector then had to consider whether the Planning Acts or Regulations contain any section or article under which this development could be considered to be exempt development. The Inspector noted the following points:

§  The Act in defining “house” and “habitable house” effectively defines residential use. However, neither the Act nor the accompanying Regulations define short-term holiday lettings accommodation or refer to this use. 

§  Under Article 5(1) of the Planning and Development Regulations, 2001 – 2015, the definition of “business premises” leads on to the definition of “excluded premises”, which refers to the provision of “overnight guest accommodation”. A common dictionary definition of “guest” is “a person who is invited to visit someone’s home” or “a person staying at a hotel or guest house”. It thus does not include within its ambit the self-catering visitor that characterises the short-term holiday lettings use in question.

§  Neither the Act nor the Regulations state that the use of an apartment as short-term holiday lettings accommodation is exempted development. If the view is taken that this use is analogous to that of a hostel, then it could be said to be encompassed by Class 6 of Part 4 of Schedule 2 to Article 10 of the Regulations. However, as the residential use of an apartment is not included within this Class or any other Class of the said Part 4, the possibility that the material change of use of the subject apartment from residential use to short-term holiday lettings is exempted development does not arise.

Accordingly, the Inspector concluded that the material change of use of the subject apartment from residential use to short-term holiday lettings use is development, which is not exempted development.    

The Board's conclusion

In the light of the Inspector’s assessment, it was concluded that the change of use of Apartment 1A, 5 – 5A Crown Alley, Dublin 2, from residential use to short-term holiday lettings use was a material change of use. Accordingly, this change of use constitutes development under Section 3(1) of the Planning and Development Act, 2000 – 2015, which is not exempted development either under this Act or the accompanying Planning and Development Regulations, 2001 – 2015. 

The Board’s final decision:

On the 17/10/2016, the Board unanimously upheld its Inspector’s recommendation and decided:

(a) That the use of a residential apartment for short-term holiday lettings, as described above, at Apartment 1A, 5 – 5A Crown Alley, Dublin 2 constitutes a change of use, 

(b) The change of use to an apartment for short term holiday lettings, as described above, raises planning considerations that are materially different to the planning considerations relating to the permitted use as a residential apartment. In particular, (i) the extent and frequency of coming and going to and from the apartment by short term renters and servicing staff (ii) associated concerns for other residents in respect of security and general disturbance and (iii) the fully commercial nature of the activity,

(c) Thus, the change of use is a material change of use and is development, and

(d) Neither the Planning and Development Act, 2000, as amended nor the Planning and Development Regulations, 2001, as amended provide any exemption in respect of such a change of use. 

The change of use of a residential apartment to an apartment for short term holiday lettings is development and is not exempted development.  

The impact of the decision:

The impact of this decision was that then Department of Housing, Planning, Community and Local Government produced and issued a Circular on 22 December 2016 to address this issue. It was circulated to planning authorities and other interested parties.

The Department’s Circular explains the differences between properties that are:

a) only made available for short-term letting purposes on an occasional basis or for particular periods of the year,

b) partially occupied by the residential owners on an ongoing basis, and

c) exclusively used for commercial short-term letting purposes on a year-round basis.

The Department Circular directs planning authorities to focus planning enforcement action on scenario (c) above, entire properties which are used for commercial short-term lettings on a near-continuous basis.

Planning authorities are encouraged to carry out enforcement action where necessary to ensure that properties in the scenario (c) above are not operating in contravention of planning requirements.

What can you do? 

If you have a question or query on any of the above, please give me a call. I note how anyone can complain to the Enforcement Section of a planning authority and/or refer a question to one as to whether the use of a particular apartment, house or other property for Airbnb or other short term letting constitutes unauthorised development using section 5 of the Planning and Development Act.

Planning authorities must investigate all complaints made to their enforcement sections and can initiate enforcement action even in the absence of third party complaint.

Written by Brendan Buck.

Planning guidelines make Ireland unaffordable – Airbnb

Ireland’s planning guidelines for short-term lettings make it an unaffordable destination for families, Airbnb has said. In a document sent to Dublin City Council on November 9th last year, Airbnb outlined a raft of concerns over a circular sent by the Department of Housing, Planning and Local Government in October. The circular reminds local councils of existing rules requiring landlords to apply for change of use permission if they wish to let out their properties on a short-term basis.

Airbnb said the department’s guidance had “potentially wide-ranging implications for those sharing their homes”, and noted the “lack of clarity within the guidance is likely to cause concern and confusion for Ireland’s home-sharing community”.

Read the full article @ The Irish Times