Planning Permissions
Planning Permissions
Planning permission does not give permission to do that which is not otherwise lawful. A planning permission is required to comply with the requirements of planning legislation, only. It may be necessary, for example, to obtain property rights, modification of restrictive covenants, environmental licences and other statutory consents in order to undertake the development.
A planning permission is a legal document which may be subject to interpretation. The Courts interpret the true meanings of planning permissions in the event of a dispute or as the context requires. The application and permission are looked at together to interpret what is permitted.
In some cases, the permitted use may not be stated but may be implied. The planning permission is interpreted in the light of the circumstances. External documents will be looked at if the planning permission is ambiguous.
Certain grounds of refusal of planning permission entitle the applicant to compensation. The vast majority of grounds do not attract compensation.
Outline Planning Permission
It is possible to apply for an outline planning permission. An outline planning permission is an initial permission approving certain aspects of the development improvement. There is then a further permission providing for the details at a later date.
Outline permission cannot be made for retention permission, works to a protective structure or works requiring pollution control or waste licence or requiring environmental impact assessment.
Outline permission does not permit works to be undertaken. Work is only permissible when the second final permission is obtained.
The application consequent on the grant of an outline of permission may not be refused on any basis which has been decided in the outline permission. Provided the permission is within the terms of the planning permission it must be granted. There is no appeal to Bord Pleanála against the grant of permission consequent on an aspect decided in the original outline planning permission grant.
The application for the second full permission must be made within three years of the date of the outline permission or any further period as may be specified in the outline permission not exceeding five years. The ordinary five-year rules apply to the grant of the second permission (it is presumed). Unlike the former the life of the planning permission does not apply on the life of the earlier permission.
Retention Permission
Retention permission is planning permission for works that have already been undertaken or change of use without planning permission. The planning authority does not have regard to the fact that unauthorised development is in place.
It would not be proper for the planning authority or Bord Pleanála to have regard to the fact that refusal would cause hardship and might necessitate removal and demolition. Retention permission is not retrospective. Enforcement action is not to be suspended or withdrawn by reason of an application for retention permission.
Adjudicating on Application
The planning authority must decide the planning application on a so-called “quasi-judicial” basis. The authority may only act with reference to legitimate and bona fide planning considerations. It does not have the discretion to make whatever decision it wants. It must act in good faith in accordance with the prescribed criteria.
The primary basis of the decision on a planning application is the proper planning and sustainable development of the area. A range of factors are encompassed within proper planning and development, including the preservation of amenities, public health and safety services and other similar grounds. Further grounds are specified in regulations.
The planning authority may have regard to previous decisions or precedents. If a planning application has been rejected before, it is likely to be rejected again. Precedents are a guide only and are not binding. The history of the lands concerned, private interests, the neighbouring person’s interest and the impact on the environment will differ from case to case.
The planning authority must only take account of legitimate planning reasons. If it takes account of irrelevant considerations then its refusal may be invalid. There are certain matters which the planning authority and Bord Pleanála are restricted to considering. The planning authority and Bord Pleanála are restricted to considering the proper planning and development of the area.
There are certain matters which the planning authority and Bord Pleanála must have regard to. This is not the obligation to have regard to means that reasonable consideration must be given.
Past Breaches
The planning authority may form the opinion that a developer should be refused planning permission due to its past records of persistent failures of compliance. Associated parties of the applicant such as partners, controlled companies and other connected and effective controllers are looked at, in relation to the decision.
Where the planning authority is of the opinion that there is a real and substantial risk that the developed would not be satisfactorily completed it may refuse the planning permission. It may take account of information furnished in the application on request or available on foot of enforcement and legal proceedings or otherwise. The planning breaches may not necessarily be in the same planning authority area.
The planning authority may give notice to the developer that it has formed the opinion that due to past failures the applicant should not be granted planning permission. Details of the failures are given and the applicant is invited to make submissions within a period.
Having considered the submissions the planning authority makes a decision and notifies the applicant. There is no appeal to an Bord Pleanala. The only recourse is by way of an application to the High Court taken within eight weeks.
Criteria for Decision I
The planning authorities are obliged to consider the planning application in light of the planning development plan. The provisions of the development plan are of primary importance. The planning authority may grant permission in contravention of its development plan. However, in this situation, the material contravention procedure applies. Bord Pleanála is not bound by the material contravention procedure.
It is specifically allowed to grant planning permission even though it would contravene the development plan. If the planning authority has refused permission on a material contravention Bord Pleanála may grant permission only where it considers the development is of strategic national importance.
Planning permission should be granted having regard to the pattern of development and permissions granted in the area since making the planning application development plan.Regard must be had to the provisions of any special amenity Order.
Regard must be had to any designated European site or other area specified for conservation or protection of the environment. This includes archaeological national heritage features, conservation and protection of European. In relation to natural habitats, an assessment must be undertaking in respect of proposed development which impacts on a European site.
Criteria for Decision II
If there are conflicting objectives or objectives are not clearly stated in relation to the proposed development the permission should be granted having regard to regional planning guidelines for the area, statutory guidelines, strategy policy directives, statutory obligations of the local authority and governmental policy.
The following are also amongst the relevant considerations
- Local area plan.
- Discretion to consider draft local area plan.
- Protected Structures.
- Impact archaeological conservation area.
- The housing strategy of the council.
- any environmental impact assessment.
Additional considerations apply in respect of residential development applications for special social and affordable housing obligations apply.
In a strategic development zone planning permission must be granted where the development would be consistent with a planning scheme for the area.
Ministers give guidelines from time to time in relation to certain matters.
Planinng Conditions I
The planning authority must consider what planning conditions may be imposed. Section 34 lists the types of planning conditions.
Conditions must be relevant to planning. They cannot impose, for example, revenue making requirements. Similarly, in relation to environmental matters are usually properly dealt with under environmental controls.
The permissions should be limited to lands under the control of the applicant and persons under his direct or indirect control. The condition must be precise and must not be unreasonable.
Permission conditions frequency provide certain matters must be done before development is commenced. These conditions are preconditions. Commencing development of works before the conditions are complied with is a breach of planning permission.
Where an activity is subject to licensing under environmental legislation Bord Pleanála may not impose conditions controlling emissions or including prevention elimination, abatement or reduction of those omissions. It may have regard to environmental considerations in the application. However, the actual control of emissions is regulated by the relevant environmental licence and not planning legislation. The purpose is to ensure that planning permission does not indirectly contradict or override the environmental licence.
Planning Conditions II
Conditions may include, for example, the following:
- conditions regulating the development and use of other lands which adjoins, abuts or is adjacent to the land to be developed and is under the control of the applicant insofar appears expedient for the purpose of the development authorised.
- conditions requiring carrying out of works which the planning authority considers are required for the development.
- conditions requiring reduction of vibration noise, prevention or reduction of the emission of any noise and vibration which might give reasonable cause for annoyance to premises in the vicinity, including any noise or vibration,
- conditions for open spaces,
- conditions requiring security to be given for completion of development,
- conditions requiring removal of any structures or discontinuing of use at the expiration of a period and for reinstatement
- conditions requiring signage,
- conditions in the case of permissions affecting protected structures, providing for preservation by written and visual records and architectural salvaging,
- conditions regulating the hours during which work may be undertaken.
- Conditions may specify the purpose for which property may be used to.
Planning Conditions III
Conditions may require development contributions. These are principally relevant to the development of the lands They may require contributions towards existing and future infrastructure and facilities open spaces, roads, car parks, sewers, utilities, bus corridors lanes, refurbishment or replacement of roads, car parks, sewers, wastewater facilities, ancillary matters.
It is possible under certain circumstances to appeal to Bord Pleanála against certain conditions relating to contribution to public infrastructure only. In this case, the planning permission goes ahead and the appeal relates only to the contribution.
Where an appeal is brought generally to Bord Pleanála it may impose its own conditions in accordance with the same criteria. Where Bord Pleanála grants permissions in respect of development where appropriate it applies as a condition of the contribution scheme for the area.
The local authority may require special contributions in respect of particular developments where exceptional costs are not covered by the development scheme are incurred. The contribution must be refunded if works are not commenced within a certain time.
Supplementary Contributions
A planning authority may, when granting a permission, include conditions requiring the payment of a contribution in respect of any public infrastructure service or project specified in a scheme made by the planning authority provided or carried out or proposed to be provided or carried out ) by a planning authority. It may do so
where the provision of the infrastructure concerned is an objective in the development plan of a planning authority, by a public authority, or, pursuant to an agreement entered into by a public authority with any other person, by that person, or pursuant to an agreement entered into by a local authority with any other person, by that person, and that will benefit the development to which the permission relates when carried out.
The Board shall consider an appeal brought to it by an applicant for permission , in relation to a condition requiring the payment of a contribution in respect of a public infrastructure service or project specified in a supplementary development contribution scheme, where the applicant considers that the service or project will not benefit the development to which the permission relates and in certain other circumstances.
Social and Affordable Housing Obligations
Part V of the 2000 Planning and Development Act introduced a mechanism through which local authorities can obtain up to 20% of land zoned for housing development at “existing use value” rather than “development value” for the delivery of social and affordable housing.
A “Part V” agreement refers to the agreement between a developer (applicant) and the planning authority outlining how the developer will meet his/her obligations under Part V. When submitting a planning application, the developer must specify the manner in which he/she intends to comply with his Part V obligations.
The Compliance Options include:
- transfer of land – the default option (for the developer);
- building and transfer of houses;
- transfer of fully or partly serviced sites;
- transfer of land, building and transfer of houses on the land,
- transfer of fully or partly serviced sites (off-site);
- payment of agreed amount;
- a combination of options.
In selecting an option, the developer should have regard to the planning authority’s requirement to have regard to its Housing Strategy and other matters. Developers should discuss their Part V options in the pre-planning meeting.
The 2016 Act provides that the various options reflect the restructuring of the Social Housing Investment Program. Houses may be taken on a temporary basis under the rental assist scheme or on a long-term lease, as part of the social and affordable housing obligations.
Duration
Consequent upon the property crash in 2008/9 the Planning and Development Act 2010 make further provision for the extension of the duration of planning permissions.
A planning authority may extend the term of a permission if it is satisfied that considerations of a commercial economic or technical nature beyond the applicant’s control, prevent commencement or carrying out substantial works.In order to take account of changed circumstances the extension may be granted only if it is consistent with the objectives of the current development, plan regional planning guidelines/strategies and ministerial guidelines whether before or after the original grant.
A special power was given to the National Asset Management Agency to extend the life of planning permission. The may be a single extension of up to 5 years. Conditions may be applied requiring adequate security, whihc may be additional to the original security.
Legislation in 2016 and 2017 allowed for the possibility of a second extension of the duration of a planning permission for a development of 20 or more houses which did not originally require environmental impact assessment or appropriate assessment. This was to apply for a period up to 5 years and up to 31 December 2021 whichever is sooner.
The extension must be necessary to facilitate completion of the development and the authority must be satisfied that it complies with planning legislation. The development must have been commenced and substantially completed before the date as extended, on which the permission expires.