An Bord Pleanala
Role of Board
Under the Local Government (Planning and Development) Act 1963 there was an appeal from decisions of planning authorities to the Department/Minister for Local Government. The Local Government (Planning and Development) Act 1976 provided for the establishment of an Bord Pleanala as an independent body to determine planning appeals.
The remit of the Board has been increased substantially over time. It is now the appeal and confirmation body in respect of a range of other legislation, including in relation to building regulations, many environmental matters, and compulsory purchase orders.
Applications for strategic infrastructure may be made directly to the Board. For a temporary period, strategic housing development applications of a certain scale and meeting conditions could be made directly to the Board. There is a division dealing with strategic infrastructure and strategic housing.
Membership
There are ten members of the Board. The chairperson is appointed by the government from a shortlist of three selected by a committee comprising a range of officeholders and representatives of preservation construction trade unions and other interests. The chairperson is appointed for seven years and may be appointed for subsequent terms.
The ordinary members are appointed by the Minister from groups nominated by certain bodies. They are to represent a range of interests divided into four categories relating to planning, architecture, engineering, development, local government and the protection of the environment. Two members are appointed from each.
The Board meets with a minimum quorum of 3 which may be reduced to 2 in exceptional circumstances but not where a material contravention of the development plan, strategic infrastructure or development requiring an environmental impact assessment is involved.
It is an offence to communicate with members of the Board for the purpose of improperly influencing the consideration of any appeal or referral.
The Board publishes an annual report which is laid before the houses of the Oireachtas. The Board publishes a website with extensive information on planning appeals, strategic development, oral hearings and other matters.
2022 Act Changes to ABP
The purpose of the Planning and Development and Foreshore (Amendment) Act 2022 was to amend the Planning and Development Act 2000 in relation to the appointment of, and the efficient discharge of the business of, An Bord Pleanála. The Board of An Bord Pleanála shall consist of a chairperson and a such number of ordinary members, up to a maximum of 14, as the Minister may appoint having regard to the number and nature of applications, appeals, referrals or other matters with which the Board is concerned.
The Minister may, by order, increase the number of ordinary members of the Board above 14, where he or she is of the opinion that the number of applications, appeals, referrals or other matters with which the Board is concerned is at such a level so as to necessitate the appointment of one or more additional ordinary members to enable the Board to fulfil its duty and objectives.
The Minister may appoint, from persons who are, or were formerly, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005, established public servants in state agencies or employees of the Board, one or more than one person, who is, in the opinion of the Minister, a suitably qualified person on a temporary basis.
The 2022 Act replaced the statutory system of nominating bodies submitting nominees to the Minister for consideration for appointment to the Board of An Bord Pleanála, instead providing for a suitable, independent, objective and transparent procedure by which recommendations may be made to the Minister in relation to ordinary members of the Board.
The investigative powers of the chairperson of the Board were amended to provide clear instructions on the actions to be taken on receipt of a complaint or where the chairperson considers there may be issues to be investigated. Provision was also made for such an investigation to be instigated by the Minister. The mechanism for deciding particular cases was amended to provide for a minimum quorum of 3.
The 2022 Act provides for the appointment of a chairperson on an interim basis for a period of up to a year, when the position of chairperson becomes vacant. It also provides that where the position of chairperson is vacant, the deputy chairperson may perform any functions of the chairperson.
Entitlement to Appeal
An appeal may be made by
- the applicant, the so-called first party
- third parties who have made an observation within the requisite time and paid the statutory fee
bodies prescribed or required to be notified of the planning application by the planning authority; regardless of whether they made a representation or submission/observation - certain other non-state bodies whose objectives relate to the promotion of the environment, provided the case relates to certain environmental matters. It need not have made observations.
The Board may dispense with an appeal if it considers the qualification requirements are not satisfied.
A person who has not made an observation but who owns or has an interest in adjoining land in circumstances where the planning permission conditions vary from the original application may appeal where they obtain consent on foot of an application to the Board (leave to appeal.)
Scope of Appeal
An appeal is not permitted against a condition requiring a contribution in accordance with the planning authority’s development contribution scheme unless it is based on the scheme being incorrectly applied.
Apart from this, the planning appeal is an entirely new decision. It is possible, therefore, that in appealing in respect of a particular condition that the applicant may be refused entirely.
Time and Fee
The time limit for appeal is four weeks from the date of the decision of the planning authority. This is the date of the decision rather than the date it is sent. When the last day is a Saturday, Sunday or public holiday when the Board offices are closed, the last day for the appeal is the next day on which the Board’s offices are open. The period between 24th December and 1st January inclusive is disregarded.
Fees are payable in respect of an appeal. The schedule of fees is prescribed and varies with the nature of the development.
An appeal may be withdrawn at any time before it is decided. The notice must be served on the other parties. When the appeal is withdrawn, the planning decision may become effective.
Submissions
Submissions and observations on the appeal must be made within four weeks. This runs from the receipt of the appeal. Where the Board requires publication of a newspaper notice or a site notice, it may be postponed.
Submissions to the Board must be in writing, state the name and address of the person concerned and state the subject matter of the appeal. It must identify the particular appeal. It must set out reasons, considerations and matters together with supporting documents and materials on which the appeal is based. The submission /observation must be lodged with the statutory fee.
Determining Appeal
The period for determining the appeal is 18 weeks. This may be varied by ministerial order. A ministerial order may direct that the Board gives priority to certain classes of appeals or strategic or special strategic economic or social importance.
The Board may extend the 18 weeks period, where it is not possible or appropriate because of particular circumstances to determine the appeal within the 18 weeks period. It is to inform the parties who have made observations and submissions within this period and give the reasons why the decision has not yet been made. It is to specify a date before which the decision is to be made.
The Board is to take all steps to make the decision within that timeframe. It is possible due to unforeseen circumstances that a decision may not be possible, in which event the Board may give notice of the further extension.
In a planning appeal, an inspector usually prepares a report and recommendation. It is then considered by the Board. Where the Board does not follow the inspector’s report and recommendations, it is to state the reasons why it did not do so.
Documents Considered
Where an appeal is made, the planning authority submits certain documents to the Board, including copies of the planning application, drawings, plans, environmental impact assessment report, studies, copies of reports, a certified copy of its decision, submissions and observations made.
The Board may, if it considers it appropriate in the interests of justice, require a party to the appeal or a person was made submissions/observations to make a submission or observation on a matter arising in the appeal. Notice is given to make the submission or observation within a period between two and four weeks.
The Board may require documents by notice from parties to the appeal and bodies who made observations in order to decide the appeal. A notice must be given with a timeframe of between two and four weeks.
Oral Hearing
The Board has absolute discretion to grant or refuse an oral hearing. There is no right to an oral hearing. The matter is decided by the Board with reference to whether it will assist the understanding and determination of the matter.
A request for an oral hearing must be in writing, accompanied by a statutory fee made within four weeks of the appeal or when the third party receives notice of the appeal. When the Board decides to hold an oral hearing, it must notify the parties who have made submissions and observations. It must give notice of the hearing.
Copies of correspondence, documents, and information are to be made available at the offices of the Board and the planning authority within a certain period before the hearing. The Board may decide to give copies of documents and particulars to any of the parties.
Procedure
An oral hearing is usually heard by one of the Board’s inspectors. They must follow the general requirements of natural and constitutional justice. The hearing must be expeditious without undue formality. Parties may be required to submit points or summaries of arguments in advance. The Board may direct the parties to limit their points and arguments in relation to the matters specified in a direction.
Evidence may be heard on oath or affirmation. The person giving evidence is in the same position as a witness in the High Court. The Board may require persons to give information in relation to any matter, including documents, records, accounts, et cetera. The person holding the hearing may require an officer of the planning authority to provide information reasonably required.
The Board may seek information from a body even if it is not a notice party to the appeal if it considers that its input would be material to the determination of the appeal. It may invite observations and submissions from the body concerned.
Persons may be represented at the hearing. The Board may hear persons who have not made submissions where it is considered appropriate in the interests of justice.
The person conducting the hearing may limit the time during which a person may make points or arguments or question the evidence of others. He or she may preclude arguments if they have not been presented in a direction for advance submission unless he considers it necessary in the interests of fair procedures to allow so. The person holding the hearing may disallow irrelevant points or undue repetition.
It is an offence to give false evidence that a person believes not to be true, which is material to the hearing. It is an offence to hinder by act or omission the conduct of the hearing, to refuse to answer a question properly put or to do anything which would constitute contempt of court if it was a court hearing.
The oral hearing may be adjourned as appropriate. Notice is to be given of the adjourned dates.
Criteria for Decision
The Board may take into account points and considerations other than those raised on the appeal by persons making submissions observations. Notice of the matters is served on the parties to the appeal and persons who made submissions observations. They may make submissions observations on the matters concerned. They may make observations in a period between two and four weeks, as specified.
The Board is to consider the proper planning of sustainable development of the area and the terms of previous planning permissions. There is a provision for appeal against a condition only where the condition relates to special financial contribution conditions. In this case, the appeal is limited to this particular issue.
The appeal documents must be made available at the Board’s offices. The Board may treat an appeal as abandoned, where a party does not respond to requests for information for an inordinate length of time. The Board will generally serve a notice giving additional time and stating that if there is no response within a period, it may regard the appeal as abandoned.
The Board may direct the planning authority or a party appealing to pay compensation to the Board or to other parties for expenses incurred. Where the Board decides the appeal was made with the intention of delaying the development or seeking financial gain. It may direct the applicant to pay compensation to the planning authority or other parties to the appeal and/or the Board’s expenses.
Planning Decision of the Board
The Board may grant planning permission which is a material contravention of the planning authority’s development plan. Where the planning authority has refused permission on the basis of material contravention of its development plan, the Board may grant planning permission only where
- the proposal for development is of national or strategic importance
- there are conflicting objectives in the development plan which are not clearly stated relative to the development
- the permission should be granted having regard to ministerial guidelines, ministerial policy directives, regional spatial and economic strategies
the relevant policy of a government minister - the permission is such that it should be granted having regard to the pattern of development and permissions granted since the making of the development plan.
Where the Board grants planning permission in contravention of the development plan, it must state its reasons and considerations for the decision.
Where a planning application is being appealed, an application for the same or similar development may not be lodged until the Board has decided the appeal or the appeal has been withdrawn.
There is a general power for the Board to amend its decisions to correct clerical errors or to give effect to permissions where what is involved has been contemplated or permitted by the decision but is not expressly been provided for or generally to give effect to a decision. The power may not be used to alter the terms of the permission or development materially.