Exempt Development
Planning and Development Act
Development.
3.—F38[(1) In this Act, except where the context otherwise requires, “development” means—
(a) the carrying out of any works in, on, over or under land, or the making of any material change in the use of any land or structures situated on land, or
(b) development within the meaning of Part XXI (inserted by section 171 of the Maritime Area Planning Act 2021).]
(2) For the purposes of subsection (1) and without prejudice to the generality of that subsection—
(a) where any structure or other land or any tree or other object on land becomes used for the exhibition of advertisements, or
(b) where land becomes used for any of the following purposes—
(i) the placing or keeping of any vans, tents or other objects, whether or not moveable and whether or not collapsible, for the purpose of caravanning or camping or habitation or the sale of goods,
(ii) the storage of caravans or tents, or
(iii) the deposit of vehicles whether or not usable for the purpose for which they were constructed or last used, old metal, mining or industrial waste, builders’ waste, rubbish or debris,
the use of the land shall be taken as having materially changed.
(3) For the avoidance of doubt, it is hereby declared that, for the purposes of this section, the use as two or more dwellings of any house previously used as a single dwelling involves a material change in the use of the structure and of each part thereof which is so used.
Annotations:
Amendments:
F38
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 2, S.I. No. 488 of 2022.
F39[
Short term lettings
3A. (1) The use of a house or part of a house situated in a rent pressure zone for short term letting purposes is a material change in use of the house or part thereof, as the case may be.
(2) For the purposes of this section, the Minister may make regulations requiring such persons as are specified in the regulations to provide a planning authority with such information as may be so specified and at such intervals as may be so specified in relation to short term lettings in the administrative area of the planning authority.
(3) A person who contravenes a provision of regulations under this section that is described in the regulations as a penal provision shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine.
(4) This section shall not operate to abrogate or amend the law with regard to—
(a) lettings (including short term lettings) outside a rent pressure zone, or
(b) lettings (other than short term lettings) in a rent pressure zone.
(5) In this section—
“rent pressure zone” means—
(a) any area standing prescribed for the time being under section 24A of the Residential Tenancies Act 2004, or
(b) an administrative area deemed to be a rent pressure zone under section 24B of that Act;
“short term letting” means the letting of a house or part of a house for any period not exceeding 14 days, and includes a licence that permits the licensee to enter and reside in the house or part thereof for any such period in consideration of the making by any person (whether or not the licensee) of a payment or payments to the licensor.]
Annotations
Amendments:
F39
Inserted (1.07.2019) by Residential Tenancies (Amendment) Act 2019 (14/2019), s. 38, S.I. No. 286 of 2019. A class A fine means a fine not greater than €5,000 as provided (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 4(1), S.I. No. 662 of 2010.
F40
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3(a), not commenced as of date of revision, as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
F41
Substituted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3(b), not commenced as of date of revision, as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
F42
Inserted by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3(c), not commenced as of date of revision, as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
Modifications (not altering text):
C20
Prospective affecting provision: subss. (1A)-(1F) inserted, subs. (2) substituted and definitions inserted into subs. (5) by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 3, not commenced as of date of revision as provided (13.10.2022) by European Union (Planning and Development, Maritime and Valuation (Amendment) Act 2022) (Amendment) Regulations 2022 (S.I. No. 513 of 2022), reg. 3.
F40[(1A) A person shall not, during the relevant period, advertise or cause the advertisement of a relevant property for short term letting purposes, or enter into any arrangement in respect of a relevant property for short term letting purposes, unless the use of the relevant property for those purposes—
(a) is in accordance with a permission granted under Part III, or
(b) is exempted development for the purposes of this Act.
(1B) A person who contravenes subsection (1A) shall be guilty of an offence and shall be liable, on summary conviction, to a class A fine.
(1C) A person shall be deemed not to have contravened subsection (1A) in respect of a relevant property if the person produces proof, provided by a planning authority in accordance with regulations made under subsection (2), of the matters set out in paragraphs (a) or (b) of that subsection in respect of the relevant property.
(1D) The relevant period may, by order of the Minister made before the expiry of that period, be extended for such period (being a period not exceeding 6 months) as is specified in the order.
(1E) An order under subsection (1D) shall be made by the Minister where he or she is satisfied that it is necessary in order to address an acute shortage of rental accommodation (other than for short term letting purposes) in rent pressure zones.
(1F) An order under subsection (1D) shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each such House.]
F41[(2) For the purposes of this section, the Minister may make regulations—
(a) requiring such persons as are specified in the regulations to provide a planning authority with such information as may be specified and at such intervals as may be so specified in relation to short term lettings in the administrative area of the planning authority, and
(b) requiring a planning authority to provide to such persons as are specified in the regulations such proof of the matters set out in paragraph (a) or (b) of subsection (1A) in respect of a relevant property as may be specified in the regulations.]
…
(5) …
F42[“relevant period” means the period of 6 months commencing on the day following the commencement of section 3 of the Planning and Development, Maritime and Valuation (Amendment) Act 2022;
“relevant property” means a house or part of a house that is not a principal private residence and is located in a rent pressure zone.]
Exempted development.
4.—(1) The following shall be exempted developments for the purposes of this Act—
(a) development consisting of the use of any land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied together with land so used;
F43[(aa) development by a local authority in its functional area (other than, in the case of a local authority that is a coastal planning authority, its nearshore area);]
F44[(ab) development by a coastal planning authority that—
(i) owns the maritime site on which the development is proposed to be situated, or
(ii) is the holder of a maritime area consent granted for the occupation of a maritime site for the purposes of the proposed development,
in its nearshore area;]
F45[(ab) development consisting of the carrying out of relevant works or related activities over principal burial land, ancillary burial land or ancillary land within the meaning of the Institutional Burials Act 2022;]
(b) F46[…]
(c) F46[…]
(d) F46[…]
F47[(e) development consisting of the carrying out by a local authority of any works required for the construction of a new road or the maintenance or improvement of a road;
(f) development carried out on behalf of, or jointly or in partnership with, a local authority, pursuant to a contract entered into by the local authority concerned, whether in its capacity as a planning authority or in any other capacity;]
(g) development consisting of the carrying out by any local authority or statutory undertaker of any works for the purpose of inspecting, repairing, renewing, altering or removing any sewers, mains, pipes, cables, overhead wires, or other apparatus, including the excavation of any street or other land for that purpose;
(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;
F48[(i) development consisting of the thinning, felling or replanting of trees, forests or woodlands or works ancillary to that development, but not including the replacement of broadleaf high forest by conifer species;]
F49[(ia) development (other than development consisting of the provision of access to a national road within the meaning of the Roads Act 1993) that consists of—
(I) the construction, maintenance or improvement of a road (other than a public road) that serves a forest or woodland, or
(II) works ancillary to such construction, maintenance or improvement;]
(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;
(k) development consisting of the use of land for the purposes of a casual trading area (within the meaning of the Casual Trading Act, 1995);
(l) development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949, not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are commenced F50[or works consisting of land reclamation or reclamation of estuarine marsh land and of callows, referred to in section 2 of that Act.]
F44[(1A) Subject to subsection (1B), the following classes of development shall also be exempted development for the purposes of this Act if carried out wholly in the maritime area:
(a) development for the purposes of any survey for archaeological purposes;
(b) development for the purposes, or consisting, of—
(i) the exploration for petroleum, within the meaning of Part II of the Petroleum and Other Minerals Development Act 1960, in accordance with a licence under section 8, 9 or 19 of that Act or a lease under section 13 of that Act,
(ii) the working, within such meaning, of such petroleum, in accordance with such lease or licence, or
(iii) the restoration of the area in which such exploration or working has taken place;
(c) development consisting, or for the purposes, of the construction or operation, in accordance with a consent under subsection (1) of section 40 of the Gas Act 1976, of an upstream pipeline,
(d) development for the purposes, or consisting, of dumping within the meaning of the Dumping At Sea Act 1996;
(e) development authorised under section 638 of the Merchant Shipping Act 1894 or section 3 of the Merchant Shipping (Commissioners of Irish Lights) Act 1997 by the Commissioners of Irish Lights for the purposes, or consisting, of the placement of aids to navigation;
(f) activities that are the subject of, or require, a licence under Part 5 of the Maritime Area Planning Act 2021;
(g) development consisting of the use of any land or maritime site for the purposes of—
(i) the harvesting of shellfish, or
(ii) activities relating to fishing or aquaculture.
(1B) Development referred to in paragraph paragraph (a), (d), (e) or (g) of subsection (1A) shall not be exempted development if an environmental impact assessment of the development is required.
(1C) Development referred to in paragraph (a), (d), (e) or (g) of subsection (1A) shall not be exempted development if an appropriate assessment of the development is required.]
(2) (a) The Minister may by regulations provide for any class of development to be exempted development for the purposes of this Act where he or she is of the opinion that—
(i) by reason of the size, nature or limited effect on its surroundings, of development belonging to that class, the carrying out of such development would not offend against principles of proper planning and sustainable development, or
(ii) the development is authorised, or is required to be authorised, by or under any enactment (whether the authorisation takes the form of the grant of a licence, consent, approval or any other type of authorisation) where the enactment concerned requires there to be consultation (howsoever described) with members of the public in relation to the proposed development prior to the granting of the authorisation (howsoever described).
(b) Regulations under paragraph (a) may be subject to conditions and be of general application or apply to such area or place as may be specified in the regulations.
(c) Regulations under this subsection may, in particular and without prejudice to the generality of paragraph (a), provide, in the case of structures or other land used for a purpose of any specified class, for the use thereof for any other purpose being exempted development for the purposes of this Act.
(3) A reference in this Act to exempted development shall be construed as a reference to development which is—
(a) any of the developments specified in F51[subsection (1) or (1A)], or
(b) development which, having regard to any regulations under subsection (2), is exempted development for the purposes of this Act.
F48[(4) Notwithstanding paragraphs (a), (i), (ia) and (l) of subsection (1) and any regulations under subsection (2), development shall not be exempted development if an environmental impact assessment or an appropriate assessment of the development is required.
(4A) Notwithstanding subsection (4), the Minister may make regulations prescribing development or any class of development that is—
(a) authorised, or required to be authorised by or under any statute (other than this Act) whether by means of a licence, consent, approval or otherwise, and
(b) as respects which an environmental impact assessment or an appropriate assessment is required,
to be exempted development.]
(5) Before making regulations under this section, the Minister shall consult with any other State authority where he or she or that other State authority considers that any such regulation relates to the functions of that State authority.
Annotations
Amendments:
F43
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F44
Inserted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F45
Inserted (15.07.2022) by Institutional Burials Act 2022 (18/2022), s. 97, S.I. No. 356 of 2022.
F46
Deleted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 11.
F47
Substituted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 12, S.I. No. 214 of 2014.
F48
Substituted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(i) and (b), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2).
F49
Substituted (8.02.2020) by Planning and Development (Amendment) Act 2018 (16/2018), s. 8, S.I. No. 44 of 2020.
F50
Inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(iii), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2).
F51
Substituted (1.10.2022) by Maritime Area Planning Act 2021 (50/2021), s. 174 and sch. 12 ref. no. 3, S.I. No. 488 of 2022.
F52
Inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 3, not commenced as of date of revision.
Modifications (not altering text):
C21
Prospective affecting provision: subs. (1)(fa) inserted by Planning and Development and Foreshore (Amendment) Act 2022 (47/2022), s. 3, not commenced as of date of revision.
F52[(fa) development to which section 179A applies;]
C22
Prospective affecting provision: certain developments prescribed as exempted developments by Remediation of Dwellings Damaged by the use of Defective Concrete Blocks Act 2022 (28/2022), s. 28, not commenced as of date of revision.
Exempted development
28. (1) Subject to subsections (2) and (3), and section 4(4) of the Act of 2000, development consisting of the completion of an approved remediation option shall be exempted development within the meaning of, and for the purposes of, that Act.
(2) The development referred to in subsection (1) shall only be exempted development where, on its completion, it is not inconsistent with, or materially different from, the appearance and character of the relevant dwelling in respect of which the approved remediation option is to be or has been completed.
(3) Where the approved remediation option is the demolition of the relevant dwelling and the reconstruction of the dwelling and any permission granted in respect of the relevant dwelling under section 34 of the Act of 2000 is subject to conditions under that section, the conditions shall continue to apply to the relevant dwelling.
(4) In this section—
“development” has the meaning it has in the Act of 2000;
“permission” has the meaning it has in the Act of 2000.
C23
Certain developments prescribed as exempted developments (1.05.2007) by Prisons Act 2007 (10/2007), s. 28, S.I. No. 180 of 2007.
Exemptions, etc., relating to development.
28.— (1) A development—
(a) is an exempted development for the purposes of the Planning and Development Acts 2000 to 2006,
(b) is not subject to—
(i) regulations under section 181 of the Planning and Development Act 2000 ,
(ii) the European Communities (Environmental Impact Assessment) Regulations 1989 to 2005,
(iii) the said Acts of 2000 to 2006 in so far as they relate to environmental impact assessments or any regulations under those Acts relating to such assessments, or
(iv) the Building Control Act 1990 and regulations thereunder,
and
(c) subject to subsections (2) and (3), shall not require a consent or licence under the National Monuments Acts 1930 to 2004 (other than a licence under section 25 of the National Monuments Act 1930 ) or any other consent or licence.
C24
Additional developments prescribed as exempted developments by Dublin Transport Authority Act 2008 (15/2008), s. 44(14), as inserted (8.02.2016) by Public Transport Act 2016 (3/2016), s. 1(b)(iv), commenced on enactment.
Functions of Authority in relation to public transport infrastructure.
44.—(1) In relation to public transport infrastructure in the GDA, the Authority shall have the following functions: …
[(14) The carrying out by the Authority, on its behalf or at its direction of —
(a) a proposed road development (within the meaning of the Roads Act 1993) that has been approved by An Bord Pleanála under section 51 (as amended by section 9 of the Roads Act 2007) of that Act, or
(b) a proposed development that has been approved by An Bord Pleanála—
(i) under subsection (9) (inserted by section 34(c) of the Planning and Development (Strategic Infrastructure) Act 2006) of section 175 of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section, or
(ii) under subsection (8) of section 177AE (inserted by section 57 of the Planning and Development (Amendment) Act 2010) of the Act of 2000 pursuant to an application for approval made by the Authority under subsection (3) of that section,
shall be exempted developments for the purposes of the Act of 2000.]
C25
Additional developments specified as exempted developments (23.12.2001) by Transport (Railway Infrastructure) Act 2001 (55/2001), s. 38, commenced on enactment, as substituted (1.08.2008) by Dublin Transport Authority Act 2008 (15/2008), s. 115(6), S.I. No. 291 of 2008.
Exempted development.
[38.— (1) Each of the following shall be exempted development for the purposes of the Act of 2000:
(a) development consisting of the carrying out of railway works, including the use of the railway works or any part thereof for the purposes of the operation of a railway, authorised by the Board and specified in a railway order or of any incidental or temporary works connected with such development;
(b) development consisting of the carrying out of railway works for the maintenance, improvement or repair of a railway that has been built pursuant to a railway order. ]
Editorial Notes:
E16
Power pursuant to subs. (4A) exercised (14.12.2022) by Planning and Development Act 2000 (Exempted Development) (Number 5) Regulations 2022 (S.I. No. 664 of 2022), in effect as per reg. 1(3).
E17
Power pursuant to subs. (2) exercised (29.11.2022) by Planning and Development (Exempted Development) (No. 4) Regulations 2022 (S.I. No. 605 of 2022).
E18
Power pursuant to subs. (2) exercised (5.10.2022) by Planning And Development Act 2000 (Exempted Development) (No. 3) Regulations 2022 (S.I. No. 493 of 2022).
E19
Power pursuant to subs. (2) exercised (5.10.2022) by Planning And Development (Solar Safeguarding Zone) Regulations 2022 (S.I. No. 492 of 2022).
E20
Power pursuant to subs. (2) exercised (30.03.2022) by Planning and Development Act 2000 (Exempted Development) (Number 2) Regulations 2022 (S.I. No. 151 of 2022).
E21
Power pursuant to subs. (2) exercised (21.02.2022) by Planning and Development Act (Exempted Development) Regulations 2022 (S.I. No. 75 of 2022).
E22
Power pursuant to subs. (2) exercised (30.04.2021) by Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2021 (S.I. No. 208 of 2021).
E23
Power pursuant to subs. (2) exercised (16.03.2021) by Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2021 (S.I. No. 115 of 2021).
E24
Power pursuant to subs. (2) exercised (16.03.2021) by Planning and Development Act 2000 (Exempted Development) Regulations 2021 (S.I. No. 114 of 2021).
E25
Power pursuant to subs. (2) exercised (7.08.2020 for relevant period) by Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2020 (S.I. No. 293 of 2020).
E26
Power pursuant to subs. (2) exercised (27.03.2020 for relevant period) by Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2020 (S.I. No. 92 of 2020).
E27
Power pursuant to subs. (2) exercised (13.02.2020) by Planning and Development (Amendment) Regulations 2020 (S.I. No. 46 of 2020).
E28
Power pursuant to subs. (4A) exercised (8.02.2020) by Planning and Development Act 2000 (Exempted Development) Regulations 2020 (S.I. No. 45 of 2020), in effect as per reg. 1(3).
E29
Power pursuant to subs. (2) exercised (1.07.2019) by Planning And Development Act 2000 (Exempted Development) (No. 2) Regulations 2019 (S.I. No. 235 of 2019), in effect as per reg. 1(3).
E30
Power pursuant to subs. (4A) exercised (25.01.2019) by Planning And Development Act 2000 (Exempted Development) Regulations 2019 (S.I. No. 12 of 2019), in effect as per reg. 1(2).
E31
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) (No. 3) Regulations 2018 (S.I. No. 31 of 2018).
E32
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) (No. 2) Regulations 2018 (S.I. No. 30 of 2018).
E33
Power pursuant to subs. (2) exercised (8.02.2018) by Planning and Development (Amendment) Regulations 2018 (S.I. No. 29 of 2018).
E34
Power pursuant to subs. (2) exercised (17.12.2015) by Planning and Development (Amendment) (No. 4) Regulations 2015 (S.I. No. 582 of 2015).
E35
Power pursuant to section exercised (24.06.2013) by Planning and Development (Amendment) Regulations 2013 (S.I. No. 219 of 2013).
E36
Power pursuant to section exercised (8.09.2011) by Planning and Development (Amendment) (No. 2) Regulations 2011 (S.I. No. 454 of 2011).
E37
Power pursuant to section exercised (10.07.2008) by Planning and Development (Amendment) Regulations 2008 (S.I. No. 256 of 2008).
E38
Power pursuant to section exercised (2.07.2008) by Planning and Development Regulations 2008 (S.I. No. 235 of 2008).
E39
Power pursuant to subs. (2) exercised (28.02.2007) by Planning and Development Regulations 2007 (S.I. No. 83 of 2007).
E40
Power pursuant to section exercised (14.07.2005) by Planning and Development Regulations 2005 (S.I. No. 364 of 2005).
E41
Power pursuant to section exercised (21.01.2002 and 11.03.2002) by Planning and Development Regulations 2001 (S.I. No. 600 of 2001).
E42
Previous affecting provision: subs. (1)(aa) inserted (1.06.2014) by Local Government Reform Act 2014 (1/2014), s. 5(7) and sch. 2 part 4 ref. 11, S.I. No. 214 of 2014; substituted (1.10.2022) as per F-note above.
E43
Previous affecting provision: subs. (1)(ia) inserted (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 17(a)(ii), S.I. No. 474 of 2011, subject to transitional provision in s. 17(2); substituted as per F-note above.
E44
Previous affecting provision: similar amendments to those made by 2011 Act made by Planning and Development (Amendment) Act 2010 (30/2010), s. 5, not commenced; repealed (21.09.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), s. 42, S.I. No. 474 of 2011.
Planning and Development Regulations
Interpretation.
3.
(1)
In these Regulations, any reference to a Schedule, Part or article which is not otherwise identified is a reference to a Schedule, Part or article of these Regulations.
(2)
In these Regulations, any reference to a sub-article, paragraph or sub-paragraph which is not otherwise identified is a reference to the sub-article, paragraph or sub-paragraph of the provision in which the reference occurs.
(3)
In these Regulations, except where the context otherwise requires—
“the 1994 Regulations” mean the Local Government (Planning and Development) Regulations, 1994 (S.I. No. 86 of 1994), as amended;
“the 1998 Regulations” means the Local Government (Planning and Development) (Fees) (Amendment) (No. 2) Regulations, 1998 (S.I. No. 128 of 1998);
“the 2001 Regulations” means the Local Government (Planning and Development) (Fees) Regulations, 2001 (S.I. No. 525 of 2001);
“the Act” means the Planning and Development Act, 2000;
“the Act of 1963” means the Local Government (Planning and Development) Act, 1963 (No. 28 of 1963);
“approved newspaper” means a newspaper approved by a planning authority for the purposes of these Regulations in accordance with article 18;
“bring facility” means a facility of purpose-built receptacles in which segregated domestic wastes may be deposited by the public, provided in an area to which the public have access;
“built-up area” means a city or town (where “city” and “town” have the meanings assigned to them by the Local Government Act, 2001) or an adjoining developed area;
“DTI Strategy” has the meaning assigned to it by the Dublin Transportation Office (Establishment) Order (Amendment) Order, 1999 (S.I. No. 337 of 1999);
“Dublin Docklands Area” has the meaning assigned to it by section 4 of the Dublin Docklands Development Authority Act, 1997 (No. 7 of 1997);
“EIAR” means an environmental impact assessment report;
“electricity undertaking” means an undertaker authorised to provide an electricity service,
‘environmental assessment’ means the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with these Regulations;
Commented [i1]: Note: All former references to EIS are deleted by article 46(b) of S.I. No. 296/2018 European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018
Commented [i2]: Inserted by article 4 of S.I. No. 476/2011 Planning and Development (Amendment) (No. 3) Regulations 2011
Commented [i3]: Inserted by article 5(a) of S.I. No. 436/2004 Planning and Development (Strategic Environmental Assessment) Regulations 2004
“establishment” means an establishment to which the Major Accident Regulations apply;
“gross floor space” means the area ascertained by the internal measurement of the floor space on each floor of a building (including internal walls and partitions), disregarding any floor space provided for the parking of vehicles by persons occupying or using the building or buildings where such floor space is incidental to the primary purpose of the building;
“hazard” means the intrinsic property of a dangerous substance or physical situation, with a potential for creating damage to human health or the environment;
“Major Accident Regulations” means the European Communities (Control of Major Accident Hazards Involving Dangerous Substances) Regulations 2006 (S.I. No. 74 of 2006);
‘Member State’ means any State, other than Ireland, which is a Member State of the European Communities;
“minerals” means all minerals and substances in or under land of a kind ordinarily worked by underground or by surface working for the removal but does not include turf;
“motor vehicle” means a mechanically propelled vehicle for the purposes of the Road Traffic Act, 1961 (No. 24 of 1961);
“NIS” means a Natura impact statement within the meaning of section 177T of the Act,
“outline application” means an application for outline permission;
“outline permission” has the meaning assigned to it in section 36(6) of the Act;
“peat extraction” includes any related drainage of bogland;
‘plan’ for the purposes of Schedules 2A and 2B, means, where the context requires, a development plan, a variation of a development plan, a local area plan (or an amendment thereto), regional planning guidelines or a planning scheme;
“provision of an establishment” means development as a result of which an area would become an establishment;
“regional assembly” means a regional authority established by the Local Government Act, 1991 (Regional Authorities) (Establishment) Order, 1999 (S.I. No. 226 of 1999);
“remedial EIAR” means a remedial environmental impact assessment report within the meaning of section 177F of the Act;
“remedial NIS” means a remedial Natura impact statement within the meaning of section 177G of the Act.
‘the SEA Directive’ means directive 2001/42/EC of the European Parliament and Council of 27 June 2001 (O.J. No. L 197, 21 July 2001) on the assessment of the effects of certain plans and programmes on the environment.
“transboundary State” means any State, other than Ireland, which is a Member State of the European Communities or a party to the Transboundary Convention.
(4)
In these Regulations, any reference to a permission under the Act shall include a reference to a permission under the Act of 1963, and any reference to conditions to which a permission is subject shall be construed accordingly.
(5)
In these Regulations, any reference to the making available for purchase of any document shall be construed as including the making available for purchase of an extract from such document.
Revocations.
4.
The Regulations mentioned in Schedule 1 are hereby revoked.
PART 2
Commented [i7]: Inserted by article 5(c) of S.I. No. 436/2004 Planning and Development (Strategic Environmental Assessment) Regulations 2004
Commented [i8]: Inserted by article 46(a) of S.I. No. 296/2018 European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018
Commented [i9]: Inserted by article 4 of S.I. No. 476/2011 Planning and Development (Amendment) (No. 3) Regulations 2011
Commented [i10]: Inserted by article 5(d) of S.I. No. 436/2004 Planning and Development (Strategic Environmental Assessment) Regulations 2004
22
EXEMPTED DEVELOPMENT
Interpretation for this Part.
5.
(1)
In this Part—
“aerodrome” means any definite and limited area (including water) intended to be used, either wholly or in part, for or in connection with the landing or departure of aircraft;
“airport” means an area of land comprising an aerodrome and any buildings, roads and car parks connected to the aerodrome and used by the airport authority in connection with the operation thereof;
“airport operational building” means a building other than a hotel, required in connection with the movement or maintenance of aircraft, or with the embarking, disembarking, loading, discharge or transport of passengers, livestock or goods at an airport;
“amusement arcade” means premises used for the playing of gaming machines, video games or other amusement machines;
“ancillary equipment” for the purpose of rooftop solar photo-voltaic or solar thermal collector panels in classes 56(d), 56(e), 60 or 61 of Part 1 of Schedule 2 and class 18(c) of Part 3 of Schedule 2 does not include any equipment which must be placed or erected on a wall or a rooftop to allow a solar photo-voltaic or solar thermal collector installation to function;
“associated accessories”, in relation to the inspection, maintenance, repair, renewal, removal or installation of pipes, water mains, sewer or other pipe for the purposes of the Water Services Acts 2007 to 2017, has the meaning assigned to “accessories” by section 2 of the Water Services Act 2007 (No. 30 of 2007) and includes cables that are associated with any of those matters;
“betting office” means premises for the time being registered in the register of bookmaking offices kept by the Revenue Commissioners under the Betting Act, 1931 (No. 27 of 1931);
Commented [i11]: Inserted by article 3(1) of S.I. No. 493/2022 Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2022
Commented [i12]: Inserted by article 3 of S.I. No. 29/2018 Planning and Development (Amendment) Regulations 2018
‘Biomass’ means the biodegradable fraction of products, waste and residues from agriculture (including vegetal and animal substances), forestry and related industries, as well as the biodegradable fraction of industrial and municipal waste;
“business premises” means—
(a) any structure or other land (not being an excluded premises) which is normally used for the carrying on of any professional, commercial or industrial undertaking or any structure (not being an excluded premises) which is normally used for the provision therein of services to persons,
(b) a hotel, hostel (other than a hostel where care is provided) or public house, or
(c) any structure or other land used for the purposes of, or in connection with, the functions of a State authority;
“care” means personal care, including help with physical, intellectual or social needs;
“childminding” means the activity of minding no more than 6 children, including the children, if any, of the person minding, in the house of that person, for profit or gain;
‘CHP’ has the meaning assigned to it by the Electricity Regulation Act 1999;
“day centre” means non-residential premises used for social or recreational purposes or for the provision of care (including occupational training);
“Director of Telecommunications Regulation” means
the Director of Telecommunications Regulation appointed under the Telecommunications
(Miscellaneous Provisions) Act, 1996 (No. 34 of 1996);
“excluded premises” means—
(a) any premises used for purposes of a religious, educational, cultural, recreational or medical character,
(b) any guest house or other premises (not being a hotel or a hostel) providing overnight guest accommodation, block of flats or apartments, club, or boarding house, or,(c) any structure which was designed for use as one or more dwellings, except such a structure which was used as business premises immediately before 1 October, 1964 or is so used with permission under the Act;
“fish counter” means a device capable of mechanically or electrically enumerating fish as they pass a specific point or area;
“Greater Dublin Area” means the area comprising the County Borough of Dublin and the administrative counties of Dun Laoghaire-Rathdown, Fingal, Kildare, Meath, South Dublin and Wicklow;
“house” does not, as regards development of classes 1, 2, 3, 4, 6(b)(ii), 7 or 8 specified in column 1 of Part 1 of Schedule 2, or development to which articles 10(4) or 10(5) refer, include a building designed for use or used as 2 or more dwellings or a flat, an apartment or other dwelling within such a building;
‘‘illuminated’’ in relation to any advertisement, sign or other advertisement structure means illuminated internally or externally by artificial lighting, directly or by reflection, for the purpose of advertisement, announcement or direction;
‘‘industrial building’’ means a structure (not being a shop, or a structure in or adjacent to and belonging to a quarry or mine) used for the carrying on of any industrial process;
‘‘light industrial building’’ means an industrial building in which the processes carried on or the plant or machinery installed are such as could be carried on or installed in any residential area without detriment to the amenity of that area by
reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or grit;
”industrial process” means any process which is carried on in the course of trade or business, other than agriculture, and which is-
(a) for or incidental to the making of any article or part of an article, or
for or incidental to the altering, repairing, ornamenting, finishing, cleaning, washing, packing, canning, adapting for sale, breaking up or demolition of any article, including the getting, dressing or treatment of minerals,
and for the purposes of this paragraph, “article” includes-
(i) a vehicle, aircraft, ship or vessel, or
(ii) a sound recording, film, broadcast, cable programme, publication and computer program or other original database;
‘‘industrial undertaker’’ means a person by whom an industrial process is carried on and “industrial undertaking” shall be construed accordingly;
“mobile telephony’’ means public mobile telephony;
‘‘painting’’ includes any application of colour;
“port” includes any buildings, roads and vehicle parks ancillary to the operation of the port;
“port operational building” means a building other than a hotel, required in connection with the movement or maintenance of ships, or with the embarking, disembarking, loading, discharge or transport of passengers, livestock or goods at a port including customs or passport control facilities and sanitary and phytosanitary and health checks and control facilities, associated administrative offices or other similar facilities directly related to and forming an integral part of the building;
“primarily” for the purpose of classes 56(d), 56(e), 60 or 61 of Part 1 of Schedule 2 and class 18(c) of Part 3 of Schedule 2 means greater than 50%;
“protected person”, for the purposes of Schedule 2, means—
(a) a person who has made an application to the Minister for Justice and Equality under the Refugee Act of 1996 or the Subsidiary Protection Regulations 2013 (S.I. No. 426 of 2013),
(b) a person who falls to be considered or has been considered under section 3 of the Immigration Act of 1999, or
(c) a programme refugee within the meaning of section 24 of the Refugee Act of 1996;
‘‘repository’’ means a structure (excluding any land occupied therewith) where storage is the principal use and where no business is transacted other than business incidental to such storage;
‘school’ has the meaning assigned to it by the Education Act 1998.
‘shop’ means a structure used for any or all of the following purposes, where the sale, display or service is principally to visiting members of the public –
(a) for the retail sale of goods,
(b) as a post office,
(c) for the sale of tickets or as a travel agency,
(d) for the sale of sandwiches or other food or of wine for consumption off the premises, where the sale of such food or wine is subsidiary to the main retail use, and “wine” is defined as any intoxicating liquor which may be sold under a wine retailer’s off-licence (within the meaning of the Finance (1909-1910) Act, 1910), 10 Edw. 7. & 1 Geo. 5, c.8,
(e) for hairdressing,
(f) for the display of goods for sale,
(g) for the hiring out of domestic or personal goods or articles,
(h) as a launderette or dry cleaners,
(i) for the reception of goods to be washed, cleaned or repaired,
but does not include any use associated with the provision of funeral services or as a funeral home, or as a hotel, a restaurant or a public house, or for the sale of hot food or intoxicating liquor for consumption off the premises except under paragraph (d), or any use to which class 2 or 3 of Part 4 of Schedule 2 applies;
“small cell antenna” means an antenna that—
(a) operates on a point to multi-point or area basis in connection with an electronic communications service,
(b) including any power supply unit or casing but excluding any mounting, fixing, bracket or other support structure—
(i) does not, in any two-dimensional measurement, have a surface area exceeding 0.5 square metres, and
(ii) does not have a volume exceeding 0.05 cubic metres,
and
(c) subject to paragraphs (a) and (b), includes a femtocell antenna, a picocell antenna, a metrocell antenna, a microcell antenna, and any similar type antenna;
“solar safeguarding zone” has the same meaning as in the Planning and Development (Solar Safeguarding Zone) Regulations 2022;
NOTE: With regard to the interpretation of “solar safeguarding zone”, article 2 of S.I. No. 492 of 2022, which may be read in association with these consolidated Regulations, provides that Solar Safeguarding Zone means an area classified under article 3 of those Regulations.
Additionally, article 3 of S.I. 492 of 2022 provides that an area identified by reference to a map contained in Schedule 1 and further referred to in Schedule 2 of those Regulations is classified as a Solar Safeguarding Zone.
“state port company” has the same meaning as “managing body of the port” as defined by Regulation 2(1) of the European Union (Port Services) Regulations 2019 (S.I. No. 128 of 2019);
“supermarket” means a self-service shop selling mainly food;
“telecommunications network” means the whole of the telecommunications infrastructure and any associated physical infrastructure of any network operator;
“telecommunications service” means services which consist wholly or partly in the transmission or routing of signals on a telecommunications network or both transmission and routing;
“Wetlands” means natural or artificial areas where biogeochemical functions depend notably on constant or periodic shallow inundation, or saturation, by standing or flowing fresh, brackish or saline water.
“wholesale warehouse” means a structure where business, principally of a wholesale nature is transacted, and goods are stored or displayed incidentally to the transaction of that business.
(2)
In Schedule 2, unless the context otherwise requires, any reference to the height of a structure, plant or machinery shall be construed as a reference to its height when measured from
Commented [i25]: Inserted by article 3(2) of S.I. No. 46 of 2020 Planning and Development (Amendment) Regulations 2020.
Commented [i26]: Inserted by article 3 of S.I. No. 454/2011 Planning and Development (Amendment) (No. 2) Regulations 2011
ground level, and for that purpose “ground level” means the level of the ground immediately adjacent to the structure, plant or machinery or, where the level of the ground where it is situated or is to be situated is not uniform, the level of the lowest part of the ground adjacent to it.
Exempted Development.
6.
(1)
Subject to article 9, development of a class specified in column 1 of Part 1 of Schedule 2 shall be exempted development for the purposes of the Act, provided that such development complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that class in the said column 1.
(2)
(a) Subject to article 9, development consisting of the use of a structure or other land for the exhibition of advertisements of a class specified in column 1 of Part 2 of Schedule 2 shall be exempted development for the purposes of the Act, provided that—
(i) such development complies with the conditions and limitations specified in column 2 of the said Part 2 opposite the mention of that class in the said column 1, and
(ii) the structure or other land shall not be used for the exhibition of any advertisement other than an advertisement of a class which is specified in column 1 of the said Part 2 and which complies with the conditions and limitations specified in column 2 of the said Part 2 opposite the mention of that class in the said column 1.
(b) Subject to article 9, development consisting of the erection of any advertisement structure for the exhibition of an advertisement of any one of the classes specified in column 1 of Part 2 of Schedule 2 shall be exempted development for the purposes of the Act, provided that—
(i) the area of such advertisement structure which is used for the exhibition of an advertisement does not exceed the area, if any, specified in column 2 of the said Part 2 opposite the mention of that class in the said column 1,
30
(ii) the advertisement structure is not used for the exhibition of advertisements other than advertisements of the class to which the exemption relates,
(iii) further to section 57 of the Act, the advertisement structure is not erected on a protected structure or a proposed protected structure save an advertisement structure referred to in Classes 5, 9 or 15 of column 1 of Part 2 of Schedule 2,
(iv) further to section 82 of the Act, the advertisement structure is not located on the exterior of a structure where the structure concerned is located within an architectural conservation area or an area specified as an architectural conservation area in a development plan for the area or, pending the variation of a development plan or the making of a new development plan, in the draft development plan, so as to materially affect the character of the area, save an advertisement structure referred to in Classes 5, 9 or 15 of column 1 of Part 2 of Schedule 2, and
(v) where the advertisement structure is within a Gaeltacht area, any advertisement exhibited is
(I) in Irish, or
(II) in Irish and other languages, with prominence given to the Irish text, and identical content in all versions of the text.
(3)
Subject to article 9, in areas other than a city, a town or an area specified in section 19(1)(b) of the Act or the excluded areas as defined in section 9 of the Local Government (Reorganisation) Act, 1985 (No. 7 of 1985), development of a class specified in column 1 of Part 3 of Schedule 2 shall be exempted development for the purposes of the Act, provided that such development complies with the conditions and limitations specified in column 2 of the said Part 3 opposite the mention of that class in the said column 1.
(4)
(a) Subject to paragraph (b), the carrying out of such works as are necessary to secure compliance with the Building Regulations, 1997 (S.I. No. 497 of 1997) shall, in the case of development consisting of the construction of a dwelling or dwellings in respect of which permission under Part IV of the Act of 1963 was granted before 1 June 1992, be exempted development.
(b) Paragraph (a) shall not apply in the case of development consisting of the construction of a building designed for use as 2 or more separate dwellings.
(5)
(a) Each of the following shall be exempted development:
(i) development consisting of the short term letting in a rent pressure zone of not more than 4 bedrooms in a house that is the principal private residence of the landlord or licensor concerned provided that –
(I) it is a condition of the short term letting that each bedroom that is the subject of the letting shall not be occupied by more than 4 persons,
and
(II) the development –
(A) does not contravene a condition attached to a permission granted in respect of the house under the Act, and
(B) is consistent with any use specified in any such permission;
(ii) development consisting of the short term letting in a rent pressure zone of a house that is the principal private residence of the landlord or licensor concerned provided that –
(I) the aggregate number of days during a year in which the house is the subject of short term lettings does not exceed 90 days, and
(II) the development –
(A) does not contravene a condition attached to a permission granted in respect of the house under the Act, and
(B) is consistent with any use specified in any such permission.
(b) Where a person proposes to undertake development to which paragraph (a) applies, he or she shall, not later than 2 weeks before the commencement of the development, notify the planning authority in whose functional area the proposed development will occur of the proposed development, or cause that planning authority to be so notified, in writing.
(c) A notification under paragraph (b), shall include the following –
(i) the name of the person giving the notification, or on whose behalf the notification is being given, and documentary confirmation that the proposed development relates to the person’s principal private residence;
(ii) if the person giving the notification or on whose behalf the notification is being given is not the owner of the house concerned, the consent in writing of the owner to the proposed development;
(iii) the address and eircode of the house concerned;
(iv) contact information in relation to –
(I) the person giving the notification or on whose behalf the notification is being given, and
(II) the owner of the house concerned;
(v) in the case of proposed development to which subparagraph (i) of paragraph (a) applies, a statement that the proposed development is development to which that subparagraph applies;
(vi) in the case of proposed development to which subparagraph (ii) of paragraph (a) applies, a statement that the proposed development is development to which that subparagraph applies; and
(vii) such other information as the planning authority concerned may reasonably require.
(d) A notification under paragraph (b), shall be accompanied by –
(i) such documentation as the planning authority concerned may reasonably require, and
(ii) in case the notification relates to development to which subparagraph (i) of paragraph (a) applies, a statutory declaration made by the person giving the notification, or on whose behalf the notification is being given, declaring that –
(I) the house in respect of which the proposed development is to be carried out is that person’s principal private residence,
(II) not more than 4 bedrooms in that house will be subject to the short term letting concerned, and
(III) it will be a condition of the short term letting concerned that each such bedroom shall not be occupied by more than 4 persons.
(e) A planning authority shall maintain a record in writing of all information contained in a notification under paragraph (b).
(f) A person who proposes to carry out development to which subparagraph (ii) of paragraph (a) applies shall not later than 4 weeks after the commencement of each year in which he or she intends to carry out the proposed development and before the commencement of any such development in that year –
(i) complete Form No. 15 specified in Schedule 3 and give it to the planning
authority in whose functional area the development will occur, and
(ii) provide that planning authority with a statutory declaration made by that person declaring that the house in respect of which the proposed development is to be carried out is that person’s principal private residence.
(g) A person who carries out development to which subparagraph (ii) of paragraph (a) applies in any year shall –
(i) upon the expiration of 2 weeks after the day that is the 90th day on which such development occurs in that year, complete Form No. 16 specified in Schedule 3 and give it to the planning authority in whose functional area the development occurred, and
(ii) not later than 4 weeks after the end of that year, complete Form No. 17 specified in Schedule 3 and give it to the planning authority in whose functional area the development occurred,
and each such form shall be accompanied by a statutory declaration made by that person declaring that –
(I) the aggregate number of days during the year concerned in which the house was the subject of short term lettings did not exceed 90 days, and
(II) the house that was the subject of those short term lettings was, during the period of those lettings, the person’s principal private residence.
(h) A planning authority shall enter all such information as is contained in the forms referred to in paragraphs (f) and (g) in the record maintained in accordance with paragraph (e).
(i) In this subarticle –
‘principal private residence’ means, in relation to a house that is the subject of a short term letting, a house in which the landlord or licensor concerned ordinarily resides;
‘rent pressure zone’ and ‘short term letting’ have the meanings assigned to them by section 3A (inserted by section 38 of the Residential Tenancies (Amendment) Act 2019 ) of the Planning and Development Act 2000 (No. 30 of 2000).
Development under other enactments.
7.
(1)
Works consisting of or incidental to the carrying out of development referred to in section 86(8) of the Environmental Protection Agency Act 1992 (No.7 of 1992), as amended for the purpose of giving effect to a condition attached to a licence or revised licence granted by the Environmental Protection Agency under Part IV of the said Act shall be exempted development.
(2)
Works consisting of or incidental to the carrying out of development referred to in section 54(4) (a) of the Waste Management Act, 1996 (No. 10 of 1996) for the purpose of giving effect to a condition attached to a licence or revised licence granted by the Environmental Protection Agency under Part V of the said Act shall be exempted development.
Various
Works specified in a drainage scheme
8.
Works specified in a drainage scheme confirmed by the Minister for Finance under Part II of the Arterial Drainage Act 1945 (No. 3 of 1945) or the Arterial Drainage (Amendment) Act 1995 (No. 14 of 1995), carried out by, on behalf of, or in partnership with, the Commissioners, with such additions, omissions, variations and deviations or other works incidental thereto, as may be found necessary by the Commissioners or their agent or partner in the course of the works, shall be exempted development.
8A.
Initial afforestation shall be exempted development.
8B.
Works consisting of field drainage for agriculture, other than drainage and/or reclamation of wetlands, shall be exempted development.
8C.
Land reclamation works (other than reclamation of wetlands) consisting of re-contouring of land, including infilling of soil (but not waste material)
within a farm holding, shall be exempted development.
8D.
Works consisting of the removal for the purposes of agriculture of field boundaries including stone walls, clay banks or wire or post fences shall be exempted development.
8E.
Articles 8B to 8D shall not apply in an area to which a special amenity area order relates.
8F.
Development (other than the replacement of broadleaf high forest by conifer species) that is licensed or approved under section 6 of the Forestry Act 2014 (No. 31 of 2014) and that consists of –
(a) the thinning, felling or replanting of trees, forests or woodlands, or
(b) works ancillary thereto,
shall be exempted development.
8G.
Development (other than development consisting of the provision of access to a national road within the meaning of the Roads Act 1993 (No. 14 of 1993)) that is licensed or approved under section 6 of the Forestry Act 2014 (No. 31 of 2014) and that consists of –
(a) the construction, maintenance or improvement of a road (other than a public road within the said meaning), that serves a forest or woodland, or
(b) works ancillary thereto,
shall be exempted development.
8H.
In areas other than a city, a town or an area specified in section 19(1)(b) of the Act or the excluded areas as defined in section 9 of the Local Government (Reorganisation) Act, 1985 (No. 7 of 1985), development that is licensed or approved under section 6 of the Forestry Act 2014 (No. 31 of 2014) and that consists of the replacement of broadleaf high forest by conifer species in areas less than 10 hectares shall be exempted development for the purposes of the Act.
Commented [i35]: Article 8D is inserted by article 4 of S.I. No. 454/2011 Planning and Development (Amendment) (No. 2) Regulations 2011, and subsequently substituted by article 7 of S.I. No. 584/2011 European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011
Commented [i36]: Article 8E is inserted by article 7 of S.I. No. 584/2011 European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2011
Commented [i37]: Article 8F is inserted by article 3 of S.I. No. 219/2013 Planning and Development (Amendment) Regulations 2013, and subsequently substituted by article 2(a) of S.I. No. 45/2020 Planning and Development Act 2000 (Exempted Development) Regulations 2020
Commented [AOD38]: Article 8G is inserted by article 3 of S.I. No. 219/2013 Planning and Development (Amendment) Regulations 2013, and subsequently substituted by article 2(b) of S.I. No. 45/2020 Planning and Development Act 2000 (Exempted Development) Regulations 2020.
Commented [i39]: Inserted by article 3 of S.I. No. 664/2022 Planning and Development Act 2000 (Exempted Development) (No. 5) Regulations 2022
37
Restrictions on exemption.
9.
(1)
Development to which article 6 relates shall not be exempted development for the purposes of the Act—
(a) if the carrying out of such development would—
(i) contravene a condition attached to a permission under the Act or be inconsistent with any use specified in a permission under the Act,
(ii) consist of or comprise the formation, laying out or material widening of a means of access to a public road the surfaced carriageway of which exceeds 4 metres in width,
(iii) endanger public safety by reason of traffic hazard or obstruction of road users,
(iiia) endanger public safety by reason of hazardous glint and/or glare for the operation of airports, aerodromes or aircraft,
(iv) except in the case of a porch to which class 7 specified in column 1 of Part 1 of Schedule 2 applies and which complies with the conditions and limitations specified in column 2 of the said Part 1 opposite the mention of that class in the said column 1, comprise the construction, erection, extension or renewal of a building on any street so as to bring forward the building, or any part of the building, beyond the front wall of the building on either side thereof or beyond a line determined as the building line in a development plan for the area or, pending the variation of a development plan or the making of a new development plan, in the draft variation of the development plan or the draft development plan,
(v) consist of or comprise the carrying out under a public road of works other than a connection to a wired broadcast relay service, sewer, water main, gas main or electricity supply line or cable, or any works to which class 25, 26 or 31 (a) specified in column 1 of Part 1 of Schedule 2 applies,
Commented [i40]: Sub-paragraph 9(1)(a)(iiia) is inserted by article 4 of S.I. No. 493/2022 Planning and Development Act 2000 (Exempted Development) (No. 3) Regulations 2022
(vi) interfere with the character of a landscape, or a view or prospect of special amenity value or special interest, the preservation of which is an objective of a development plan for the area in which the development is proposed or, pending the variation of a development plan or the making of a new development plan, in the draft variation of the development plan or the draft development plan,
(vii) consist of or comprise the excavation, alteration or demolition (other than peat extraction) of places, caves, sites, features or other objects of archaeological, geological, historical, scientific or ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area plan for the area in which the development is proposed or, pending the variation of a development plan or local area plan, or the making of a new development plan or local area plan, in the draft variation of the development plan or the local area plan or the draft development plan or draft local area plan,
(viiA) consist of or comprise the excavation, alteration or demolition of any archaeological monument included in the Record of Monuments and Places, pursuant to section 12 (1) of the National Monuments (Amendment) Act 1994, save that this provision shall not apply to any excavation or any works, pursuant to and in accordance with a consent granted under section 14 or a licence granted under section 26 of the National Monuments Act 1930 (No. 2 of 1930) as amended,
(viiB) comprise development in relation to which a planning authority or An Bord Pleanála is the competent authority in relation to appropriate assessment and the development would require an appropriate assessment because it would be likely to have a significant effect on the integrity of a European site,
(viiC) consist of or comprise development which would be likely to have an adverse impact on an area designated as a natural heritage area by order made under section 18 of theWildlife (Amendment) Act 2000.
(viii) consist of or comprise the extension, alteration, repair or renewal of an unauthorised structure or a structure the use of which is an unauthorised use,
(ix) consist of the demolition or such alteration of a building or other structure as would preclude or restrict the continuance of an existing use of a building or other structure where it is an objective of the planning authority to ensure that the building or other structure would remain available for such use and such objective has been specified in a development plan for the area or, pending the variation of a development plan or the making of a new development plan, in the draft variation of the development plan or the draft development plan,
(x) consist of the fencing or enclosure of any land habitually open to or used by the public during the 10 years preceding such fencing or enclosure for recreational purposes or as a means of access to any seashore, mountain, lakeshore, riverbank or other place of natural beauty or recreational utility,
(xi) obstruct any public right of way,
(xii) further to the provisions of section 82 of the Act, consist of or comprise the carrying out of works to the exterior of a structure, where the structure concerned is located within an architectural conservation area or an area specified as an architectural conservation area in a development plan for the area or, pending the variation of a development plan or the making of a new development plan, in the draft variation of the development plan or the draft development plan and the development would materially affect the character of the area,
(b) in an area to which a special amenity area order relates, if such development would be development:—
(i) of class 1, 3, 11, 16, 21, 22, 27, 28, 29, 31, (other than paragraph (a) thereof ), 33 (c) (including the laying out and use of land for golf or pitch and putt or sports involving the use of motor vehicles, aircraft or firearms), 39, 44 or 50(a) specified in column 1 of Part 1 of Schedule 2, or
(ii) consisting of the use of a structure or other land for the exhibition of advertisements of class 1, 4, 6, 11, 16 or 17 specified in column 1 of Part 2 of the said Schedule or the erection of an advertisement structure for the exhibition of any advertisement of any of the said classes, or
(iii) of class 3, 5, 6, 7, 8, 9, 10, 11, 12 or 13 specified in column 1 of Part 3 of the said Schedule, or
(iv) of any class of Parts 1, 2 or 3 of Schedule 2 not referred to in subparagraphs (i), (ii) and (iii) where it is stated in the order made under section 202 of the Act that such development shall be prevented or limited,
(c) if it is development to which Part 10 applies, unless the development is required by or under any statutory provision (other than the Act or these Regulations) to comply with procedures for the purpose of giving effect to the Council Directive,
(d) if it consists of the provision of, or modifications to, an establishment, and could have significant repercussions on major accident hazards.
(2)
Sub-article (1)(a)(vi) shall not apply where the development consists of the construction by any electricity undertaking of an overhead line or cable not exceeding 100 metres in length for the purpose of conducting electricity from a distribution or transmission line to any premises.
(3)
For the avoidance of doubt, sub-article (1)(a)(vii) shall not apply to any operation or activity in respect of which a Minister of the Government has granted consent or approval in accordance with the requirements of regulation 31 of the
Commented [i45]: Sub-article 9(3) is inserted by article 3 of S.I. No. 256/2008 Planning and Development (Amendment) Regulations 2008
Habitats Regulations 1997, and where regulation 31(5) does not apply.
Changes of use.
10.
(1)
Development which consists of a change of use within any one of the classes of use specified in Part 4 of Schedule 2, shall be exempted development for the purposes of the Act, provided that the development, if carried out would not—
(a) involve the carrying out of any works other
than works which are exempted development,
(b) contravene a condition attached to a permission under the Act,
(c) be inconsistent with any use specified or included in such a permission, or
(d) be a development where the existing use is an unauthorised use, save where such change of use consists of the resumption of a use which is not unauthorised and which has not been abandoned.
(2)
(a) A use which is ordinarily incidental to any use specified in Part 4 of Schedule 2 is not excluded from that use as an incident thereto merely by reason of its being specified in the said Part of the said Schedule as a separate use.
(b) Nothing in any class in Part 4 of the Schedule 2 shall include any use—
(i) as an amusement arcade,
(ii) as a motor service station,
(iii) for the sale or leasing, or display for sale or leasing, of motor vehicles,
(iv) for a taxi or hackney business or for the hire of motor vehicles,
(v) as a scrap yard, or a yard for the breaking of motor vehicles,
(vi) for the storage or distribution of minerals,
(vii) as a supermarket, the total net retail sales space of which exceeds 3,500 square metres in
the greater Dublin Area and 3,000 square metres in the remainder of the State,
(viii) as a retail warehouse, the total gross retail sales space of which exceeds 6,000 square metres (including any ancillary garden centre), or
(ix) as a shop, associated with a petrol station, the total net retail sales space of which exceeds 100 square metres.
Development consisting of the provision within a building occupied by, or under the control of, a State authority of a shop or restaurant for visiting members of the public shall be exempted development for the purposes of the Act.
(4)
Development consisting of the use of not more than 4 bedrooms in a house, where each bedroom is used for the accommodation of not more than 4 persons as overnight guest accommodation, shall be exempted development for the purposes of the Act, provided that such development would not contravene a condition attached to a permission under the Act or be inconsistent with any use specified or included in such a permission.
(5)
Development consisting of the use of a house for child minding shall be exempted development for the purposes of the Act.
(6)
(a) In this sub-article—
‘habitable room’ means a room used for living or sleeping purposes but does not include a kitchen that has a floor area of less than 6.5 square metres;
‘relevant period’ means the period from 8 February 2018 until 31 December 2025.
(b) This sub-article relates to a proposed development, during the relevant period, that consists of a change of use to residential use from Class 1, 2, 3, 6 or 12 of Part 4 to Schedule 2
(c) Notwithstanding sub-article (1), where in respect of a proposed development referred to in paragraph (b)—
(i) the structure concerned was completed prior to the making of the Planning and Development (Amendment) (No. 2) Regulations 2018,
(ii) the structure concerned has at some time been used for the purpose of its current use class, being Class 1, 2, 3, 6 or 12, and
(iii) the structure concerned, or so much of it that is the subject of the proposed development, has been vacant for a period of 2 years or more immediately prior to the commencement of the proposed development,
then the proposed development for residential use, and any related works, shall be exempted development for the purposes of the Act, subject to the conditions and limitations set out in paragraph (d).
(d)(i) The development is commenced and completed during the relevant period.
(ii) Subject to sub-paragraph (iii), any related works, including works as may be required to comply with sub-paragraph (vii), shall –
(I) primarily affect the interior of the structure,
(II) retain 50 per cent or more of the existing external fabric of the building, and
(III) not materially affect the external appearance of the structure so as to render its appearance inconsistent with the character of the structure or of neighbouring structures.
(iii) Any related works for the alteration of existing ground floor shop fronts shall be consistent with the fenestration details and architectural and streetscape character of the remainder of the structure or of neighbouring structures.
(iv) No development shall consist of or comprise the carrying out of works to the ground floor area of any structure which conflicts with any objective of the relevant local authority development plan or local area plan, pursuant to the Part 1 of the First Schedule to the Act, for such to remain in retail use, with the exception of any works the purpose of which is to solely provide on street access to the upper floors of the structure concerned.
(v) No development shall consist of or comprise the carrying out of works which exceeds the provision of more than 9 residential units in any structure.
(vi) Dwelling floor areas and storage spaces shall comply with the minimum floor area requirements and minimum storage space requirements of the “Sustainable Urban Housing: Design Standards for New Apartments – Guidelines for Planning Authorities” issued under section 28 of the Act or any subsequent updated or replacement guidelines.
(vii) Rooms for use, or intended for use, as habitable rooms shall have adequate natural lighting.
(viii) No development shall consist of or comprise the carrying out of works to a protected structure, as defined in section 2 of the Act, save where the relevant planning authority has issued a declaration under section 57 of the Act to the effect that the proposed works would not materially affect the character of the structure or any element, referred to in section 57(1)(b) of the Act, of the structure.
(ix) No development shall contravene a condition attached to a permission under the Act or be inconsistent with any use specified or included in such a permission.
(x) No development shall relate to any structure in any of the following areas:
45
(I) an area to which a special amenity area order relates;
(II) an area of special planning control;
(III) within the relevant perimeter distance area, as set out in Table 2 of Schedule 8, of any type of establishment to which the Major Accident Regulations apply.
(xi) No development shall relate to matters in respect of which any of the restrictions set out in sub-paragraph (iv), (vii), (viiA), (viiB), (viiC), (viii) or (ix) of article 9(1)(a), or paragraph (c) or (d) of article (9)(1), would apply.
(xii) No development shall consist of or comprise the carrying out of works for the provision of an onsite wastewater treatment and disposal system to which the code of practice made by the Environmental Protection Agency pursuant to section 76 of the Environmental Protection Agency Act 1992 relates and entitled Code of Practice – Wastewater Treatment and Disposal Systems Serving Single Houses together with any amendment to that Code or any replacement for it.
(e)(i) Where a person proposes to undertake development to which paragraph (b) relates, then he or she shall in the case of development relating to Class 1, 2, 3, 6 or 12 of Part 4 to Schedule 2, notify in writing the planning authority in whose functional area that the change of use will occur not less than 14 days prior to the commencement of the works related to the proposed change of use and any related works;
(ii) Details of each notification under subparagraph (i), which shall include information on—
(I) the location of the structure,
(II) the number of residential units involved, including the unit sizes and number of bedrooms in each unit, and
(III) the Eircode for the relevant property,
46
shall be entered in a record by the planning authority maintained for this purpose and the record shall be available for inspection at the offices of the planning authority during office hours and on the planning authority’s website.
(iii) During the years 2019, 2020, 2021, 2022, 2023, 2024, 2025 and 2026 each planning authority shall provide information to the Minister on the number of notifications received by it under this paragraph during the preceding calendar year, including details of the information so received for the purposes of subparagraph (ii).
Saver for certain development.
11.
Development commenced prior to the coming into operation of this Part and which was exempted development for the purposes of the Act of 1963 or the 1994 Regulations, shall notwithstanding the repeal of that Act and the revocation of those Regulations, continue to be exempted development for the purposes of the Act.
Cases
CIE v An Bord Pleanála
[2008] I.E.H.C. 295
JUDGMENT of Mr. Justice Clarke delivered on the 19th day of June, 2008
1. Introduction
1.1 Ballymote Railway Station is situated in County Sligo on the Dublin to Sligo railway line. The applicants (“Irish Rail”) have undertaken major works in the upgrading of the track and signalling along this line which is designed towards improving both safety and capacity. Amongst the works undertaken in that context were the erection of several masts for signalling purposes which are designed to ensure communication at all times between the central train control in Dublin and all locomotive drivers along the line. It is said that such communication is an integral part of the signalling system designed to ensure the orderly and safe running of trains along the route. It is also said that Ballymote Station was chosen for one such mast because it gave the necessary coverage for the operation of the signalling system.
1.2 In general terms the dispute which has now arisen is as to the planning status of the erection of the mast in question. That issue, in turn, involves the interaction of certain of the provisions of the Planning and Development Act 2000, (“the 2000 Act”) concerning, on the one hand, exempted development and on the other hand protected structures. In circumstances which it will be necessary to set out in more detail in the course of this judgment, Irish Rail had embarked on a development involving the erection of the relevant mast when a process was put in train to have Ballymote Station declared a protected structure for the purposes of the 2000 Act. It will be necessary to refer to the relevant legalisation in some detail in due course. However, in general terms there are, as might be expected, limitations on the manner in which works can be carried out in or near protected structures. At the same time there are equally understandable provisions contained within the 2000 Act, and the regulations made under it, which exempt certain works from the need for planning permission. One such category of exempted development relates to works carried out in connection with the proper running of railway lines.
1.3 The issues in this case largely centre around the requirements for the protection of protected structures on the one hand and the exemptions given in respect of developments connected with railway lines on the other. A dispute arose between Irish Rail and the notice party (“Sligo County Council”) as to the planning status of the works in question. Sligo County Council, in that context, referred the matter under s. 5 of the 2000 Act to the respondent (“the Board”) for the purposes of seeking a declaration under that s. as to whether or not the works were exempted development. The Board came to the view that the works were not exempted development and declared accordingly. In these proceedings Irish Rail seek to challenge that decision of the Board. Against that general background it is necessary to turn now to the specific issues which arise.
2. The Issues
2.1 In essence Irish Rail put forward three sets of grounds as the basis for its challenge to the decision of the Board.
2.2 The first set of grounds concerns the proper interpretation of the 2000 Act, and in particular s. 57 of that Act. I will refer in due course to the relevant provisions of the section. However for these purposes it is sufficient to note that s. 57(1), in general terms, seeks to limit the extent to which the carrying out of works to a protected structure or a proposed protected structure can be exempted development. It is common case that, were it not for the fact that Ballymote Station became proposed as a protected structure, the works sought to be carried out by Irish Rail would be exempted development. The first issue, therefore, concerns the question of whether s. 57 has the effect of “de-exempting” works which would otherwise be exempted development when those works are carried out to a protected structure or a proposed protected structure. That issue turns on the proper construction of the relevant legislation to which I will turn in early course.
2.3 The second issue which arises concerns the fact that Ballymote Station became proposed as a protected structure after work on the development had been commenced but before such works were completed. In those circumstances it is argued on behalf of Irish Rail that, even if the construction which Irish Rail seeks to place on the legislation as a whole is incorrect (and that, therefore, works of the type involved, even though normally exempted, would not be exempted if carried out to a protected structure or a proposed protected structure) nonetheless, on the facts of this case, the works must be regarded as remaining exempted because the development had been commenced at a time when Ballymote Station was not proposed as a protected structure.
2.4 Finally, a third issue was raised both in the statement of grounds relied on by Irish Rail and in the written submissions filed, which suggests that the decision of the Board on the merits is open to challenge. In fairness to counsel for Irish Rail that aspect of the case was not pressed at the hearing. I will, therefore, deal with that matter very briefly at the close of this judgment.
2.5 There was no significant controversy between the parties as to the underlying facts which are relevant to these proceedings. In that context I turn first to those undisputed facts.
3. The Facts
3.1 Irish Rail commenced work on the development in early July, 2004. The overall development involved the erection of a radio mast and associated work approximately 82 metres from Ballymote Railway Station. The ancillary works involved the construction of a compound with palisade fencing measuring 29.6m x 6.9m x 2.3m together with the erection within that compound of a concrete control house measuring 5.5m x 3.5m x 2.6m. The radio mast of some 29 metres height and a cabin measuring 6.1m x 2.5m x 2.7m were also intended for erection within the compound.
3.2 It would appear that on 30th July, 2004, Sligo County Council decided to issue a notice under s. 12(3)(a) of the 2000 Act, proposing the addition of certain structures to the record of protected structures in the Sligo Draft County Development Plan 2005-2011. One of the structures proposed for addition was Ballymote Railway Station. It does not appear that Irish Rail were informed of the relevant decision by the Council until a letter dated 30th August, 2004. That letter referred to the fact that works had already been carried out at Ballymote Railway Station involving the construction of a base to accommodate an aerial fencing, and a structure to accommodate machinery. The letter asserted that as a result of the provisions of s. 57 of the 2000 Act, the carrying out of any works at the station were no longer exempted development and requested, therefore, that no further works be completed in the absence of planning permission.
3.3 As of the time of the decision of Sligo County Council on the 30th July, 2004, Irish Rail had completed the mast base, the foundations for the telecoms equipment room and blockwork for the generator room. Between the 30th July and the receipt of the letter of 30th August, Irish Rail had carried out further works which involved placing the roof and door on the generator room and the erection of posts for the palisade security fence around the equipment compound. All that was left to be completed of the proposed development as of that stage was the construction of the roof of the generator room, the completion of the palisade fence, and the erection of the mast itself.
3.4 It was at all times accepted, quite properly, by Sligo County Council that works carried out prior to the inclusion of Ballymote Station in the list of proposed exempted structures remained exempted development. The issue between the parties concerns whether works after that time retained the protection conferred on such exempted development.
3.5 The notification of 30th August, 2004, set a closing date for submissions and observations of 11th October, 2004. Prior to that date, on 4th October, 2004, Irish Rail made observations referring to the development in the context of the major works and the upgrading of the Sligo to Dublin line and noting that the works had commenced as exempted development prior to any notification of the proposal to add Ballymote Station to the list of protected structures. The response also drew attention to Class 23 of the Planning and Development Regulations 2001 (“the Regulations”) which confers exempted status on “works required in connection with the movement of traffic by rail on, in, over or under the operational land…” of a railway entity such as Irish Rail. On that basis it was asserted that the works remained exempted development and the position of Irish Rail was stated to be that the works would, therefore, continue, although a desire was expressed to co-operate with Sligo County Council in regard to the issue generally. Certain correspondence followed but on 30th March, 2005, no agreement between the parties had been reached and Sligo County Council issued an enforcement notice which required the removal of what was said to be an “unauthorised telemast”. Further attempts were made to resolve matters which came to no avail and by letter of 5th May, 2005, Sligo County Council indicated that before issuing legal proceedings in relation to enforcement it had decided to refer the matter to the Board in order to seek a declaration under s. 5 of the 2000 Act as to whether or not the works were exempted development. In its submissions to the Board of 19th July, 2005, Irish Rail placed reliance on an assertion that the mast constituted exempted development within Class 23 of the Regulations. The issue concerning the interaction between the exempted development provisions of the 2000 Act, and the protected structure provisions of the same Act was explored in some detail. In passing it should be noted that on 19th July, 2005, Sligo County Council notified Irish Rail that Ballymote Station had, in fact, been added to the list of protected structures. However for the purposes of the issues which arise in this case there is no difference in substance between the status of a proposed protected structure or an actual protected structure. It should also be said that Irish Rail did, in fact, complete the works which are, as I understand it, now in place.
3.6 The relevant decision of An Bord Pleanala was made on 13th January, 2006. In that decision the Board determined as follows:-
“(a) The mast would generally come within the exemption under Class 23 of part 1 of schedule 2 of the Regulations of 2001.
(b) The mast is in the curtilage of the railway station.
(c) The mast materially affects the character of the railway station – a proposed protected structure.
(d) As the station is a proposed protected structure, s. 57 of the Planning and Development Act 2000, removes the exemptions normally available to Iarnrod Eireann at the station under Class 23 of part 1 of schedule 2 of the Regulations of 2001.”
It is as against that decision that this challenge is brought.
3.7 Against that factual background it is necessary now to turn to the construction question.
4. The Construction Issue
4.1 It should firstly be noted that both parties accepted that, insofar as the question of the proper construction of the 2000 Act is concerned, it is for this Court to determine same. On that basis it was, in my view quite properly, accepted by counsel on behalf of the Board that if I were to come to the view that the Board had misconstrued the relevant provisions of the Act in a manner which materially effected its decision, then it would follow that the determination of the Board must be quashed. While the established jurisprudence of the courts confers a very significant margin of deference to the planning judgments of the Board, a different situation applies where it is alleged that the Board has misconstrued any relevant statutory provisions. In such circumstances a decision of the Board is liable to be quashed by the court in the event that the court is satisfied that, in some material respect, the decision of the Board was affected by an erroneous view of the relevant statute.
4.2 Section 57(1) of the 2000 Act, provides as follows:-
“Notwithstanding s. 4(1)(h), the carrying out of works to a protected structure or a proposed protected structure shall be exempted development only if those works would not materially affect the character of;
(a) the structure, or
(b) any element of the structure which contributes to its special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest”
The provision needs to be seen in the context of s. 4 of the 2000 Act, which sets out various categories of exempted development. Included in those categories is s. 4(1)(h) which is in the following terms:-
“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.”
4.3 Section 4(2) permits the relevant Minister to make regulations providing for any class of development to be exempted development for the purposes of the Act. It is under that section that the Regulations are made and the general exemption provided to railway undertakings in Class 23 is, therefore, exempted development under s. 4(2). There are, thus, certain types of development which are directly exempted by statute under one or other of the various sub-clauses of s. 4(1). There are also other categories of development which are exempted by reason of regulations made by the Minister under s. 4(2). It is also relevant to consider the provisions of the 2000 Act concerning protected structures. Part IV, Chap. 1, of the 2000 Act sets out the development controls for protected structures and proposed protected structures. The structures concerned are those which have been included (or are proposed to be included) in a development plan of a planning authority.
4.4 It should also be noted that s. 58(1) of the 2000 Act, imposes a positive duty on the owner and occupier of a protected structure to ensure that such structure is free from endangerment while s. 58(2) imposes similar obligations in respect of structures proposed for protection.
4.5 A number of other provisions of the 2000 Act are either directly or indirectly relevant to the issues which I have to decide. In particular, counsel for the Board places reliance on a series of sections which, it is said, show that the legislation as a whole was intended to put in place a regime that would ensure that protected structures or proposed protected structures were, in fact, afforded a high degree of protection.
4.6 Section 59 entitles a planning authority to issue a notice to require works to be carried out in relation to the endangerment of a protected structure or a proposed protected structure. Section 60 entitles a planning authority to issue a notice to require restoration of the character of such structures. Section 69 entitles a planning authority to carry out such works to a protected structure as are reasonable and necessary to give effect to the terms of a notice issued under s. 60, while s. 70 entitles the planning authority concerned to recover any expenses incurred in carrying out such works. Section 71 entitles a planning authority to acquire a protected structure, whether by agreement or compulsorily, and s. 80 provides for grants for the assistance of persons carrying out works to protected structures.
4.7 There can be little doubt but that counsel for the Board was correct when stating that the legislation, taken as a whole, provides for a very significant support for protected structures.
4.8 The argument put forward on behalf of Irish Rail is quite straightforward. Section 57(1) of the 2000 Act, starts with words “notwithstanding s. 4(1)(h)”. It is clear that the use of language such as “notwithstanding” in legislation in the manner in which it is used in s. 57 is normally designed for the purposes of removing doubt as to which of two potentially conflicting provisions are to prevail. In this case the potentially conflicting provisions are those concerning exempted development on the one hand, and those concerning protected structures on the other hand. In general terms the legislation makes clear that exempted development does not require planning permission. As pointed out earlier the definition of exempted development encompasses both those types of development which are designated as exempted in the legislation itself and those designated in regulations made under the legislation. In general terms the purpose of s. 57 would appear to be to seek to delimit the extent to which works to a protected structure or a proposed protected structure can be regarded as exempted development unless the works concerned do not materially affect the character of the structure or a relevant element of the structure which contributes to its status. If the phrase “notwithstanding s. 4(1)(h)” was not present then there would not seem to me to be really any great difficulty in construing the relevant statutory provisions. Section 4 would confer exempted status on certain types of development, but that exempted status would be removed in relation to a protected structure or proposed protected structure unless the works were immaterial in the sense in which that term is used in s. 57(1). It is the presence of the phrase “notwithstanding s. 4(1)(h)” that creates the difficulty.
4.9 That difficulty is, in my view, aptly noted at para. 8 – 22 of Simons – Planning and Development Law (2nd Ed.) where the author states the following:-
“On a literal reading of the section, it is submitted that the opening words ‘notwithstanding s. 4(1)(h)’ govern the entire of what follows and, accordingly, the qualification on the availability of exempted development is confined to that class of exempted development. If this literal interpretation is correct, then it produces the anomalous result that, whereas one particular form of exempted development is highly qualified, the full gamut of the classes of exempted development under the Planning and Development Regulations 2001, is nevertheless open. This is because, unlike the position obtaining in relation to a structure located in an architectural conservation area, there is no qualification imposed under the Regulations themselves in respect of works to a protected structure or a proposed protected structure.”
4.10 In reality that para. encapsulates the position on both sides to this argument. Irish Rail argue that the presence of the words “notwithstanding s. 4(1)(h)” must be given some meaning and must have been included for some purpose. Thus, it is said, Simons is correct in interpreting the literal meaning as confining the qualification on the availability of exempted development to the limited cases where exempted status is derived from s. 4(1)(h) only. If that be the correct interpretation of the section, then it would follow that a developer who wished to rely on the category of exempted development set out in s. 4(1)(h) so as to develop a protected structure could only do so if the development concerned met the criteria set out in s. 57 of not materially affecting the character of the structure or any part of it which contributed to its special interest. However, a developer wishing to rely on any other category of exempted development (whether found in the 2000 Act itself or in the Regulations) would not face that limitation. The Board disagrees with the construction placed on the section by Irish Rail. In addition the Board argue that confining the “de-exemption” to s. 4(1)(h) would produce an absurd result which, it is said, can be overridden by the provisions of the Interpretation Act 2005.
4.11 In support of its argument in favour of what is, in my view correctly, described by Simons as the proper literal interpretation of the section, Irish Rail also draws attention to s. 87(1) of the 2000 Act, which is designed to de-exempt development which contravenes an approved scheme within an area of special planning control. That s. provides as follows:-
“Notwithstanding s. 4 and any regulations made thereunder, any development within an area of special planning control shall not be exempted development where it contravenes an approved scheme applying to that area.”
4.12 The point is well made that it is surprising in the extreme that the Oireachtas should, in s. 87, have chosen to use the words “notwithstanding s. 4” while using in s. 57 the words “notwithstanding s. 4(1)(h)”, without there being intended to be some difference between the respective uses. Both sections are, after all, dealing with the same sort of issue. Both sections involve a de-exemption in cases where there is perceived to be some overriding obligation whether to a protected or proposed protected structure or to the contents of an approved scheme applying to an area of special planning control.
4.13 I have to confess that this is by no means the first time when legislation in the planning and environmental field which I have had to consider has been drafted in a way which gives rise to very significant difficulties of interpretation. See, for example, Maye v. Sligo Borough Council [2007] IEHC 146, Cork County Council v. Shackleton [2007] IEHC 241 and Glenkerrin Homes v. Dun Laoghaire Rathdown County Council [2007] IEHC 241, which list only relates to cases which have happened to fall for decision by me.
4.14 It is regrettable that often important provisions of legislation designed to protect the environment are produced in a way which gives rise to such a difficulty of interpretation that a significant risk of the legislation not achieving its end is created. Be that as it may courts, when faced with the product of such draughtsmanship, have to do the best they can.
4.15 I am satisfied that Irish Rail are correct as to the literal interpretation of the section. I can see no real basis for the distinction between the words used in s. 57 on the one hand and s. 87 on the other hand unless, on a literal meaning, different ends are to result.
4.16 Utilising the traditional approach to statutory interpretation I would, therefore, be satisfied that Irish Rail’s contended for construction is correct. The real question seems to me to turn on whether a different construction may be mandated by s. 5 of the Interpretation Act 2005.
4.17 That s. provides as follows:-
“5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2 (1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.
(2) In construing a provision of a statutory instrument (other than a provision that relates to the imposition of a penal or other sanction)—
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of the instrument as a whole in the context of the enactment (including the Act) under which it was made,
the provision shall be given a construction that reflects the plain intention of the maker of the instrument where that intention can be ascertained from the instrument as a whole in the context of that enactment.”
4.18 It does not seem to me that it can be said that the section is obscure or ambiguous. Indeed the very problem with the section is the clear use of the reference to s. 4(1)(h). Having determined what is, in my view, the literal interpretation of the section is it seems to me that I then must ask whether a construction based on that literal interpretation would, in the words of s. 5(1)(b) of the Interpretation Act 2005, “be absurd or would fail to reflect the plain intention of” (in the context of this case) the Oireachtas.
4.19 The consequences of the literal interpretation are, in my view, correctly described by Simons as “anomalous”. The range of exempted development permitted both under the direct statutory provisions and the Regulation are very wide indeed. It would provide scant protection for a protected structure or a proposed protected structure if it could be interfered with in a way which altered the features of that structure which gave it its special character by relying on any form of exempted development with one narrow exception. Such a result would, in my view, be absurd and would fail to reflect the plain intention of the Oireachtas as ascertained from the 2000 Act as a whole which is to provide a wide degree of protection to protected structures.
4.20 In the circumstances it seems to me that s. 5 of the Interpretation Act 2005, mandates a departure from the literal meaning. I am, therefore, satisfied that the view taken by the Board as to the proper construction of the section was correct and that, therefore, s. 57 has the effect of de-exempting any development which would otherwise be exempted unless the development concerned meets the criteria for not materially affecting relevant features of the protected structure as set out in that section. On that basis I am satisfied that the Board came to a correct view as to the interpretation of section 57.
4.21 Against the background of that finding it is now necessary to turn to the second issue raised on behalf of Irish Rail which relies on the fact that the development had made significant progress both before the decision of Sligo County Council to propose Ballymote Station as a protected structure and, to an even greater extent, before the notification of that decision to Irish Rail. This raises the question of the status of commenced exempted development. I now turn to that issue.
5. Commenced Exempted Development
5.1 The first question which needs to be addressed under this heading is the status of a development which commences, legitimately, as exempted development but where, in the course of that development, the exempted status of the development changes. Such a situation could, in principle, arise in one of two ways. Firstly there could be a material change in the categories of exempted development or in the parameters by reference to which exempted development is to be judged. For example the current regulations permit, in appropriate circumstances, extensions to be built to houses within certain parameters without the necessity of planning permission, such development having exempted status conferred on it. It might be possible that a policy change might occur which would lead to a reduction in (say) the size of a development which might have such a status conferred on it. What is the position in relation to a development which was commenced under one regime but where, before the development concerned was completed, same became inconsistent with a revised regime introduced during the course of the development.
5.2 Secondly, as this case illustrates, an exempted status may be altered by, for example, the inclusion of a property in a list of protected structures or, indeed, by the creation of an area of special planning control. These and other circumstances may lead, also, to a development being commenced at a time when the intended development would be exempted but where an alteration in exempted status is brought about by virtue of an independent event which occurs during the currency of the development.
5.3 There does not seem to me to be anything to be found in the express provisions of the legislation to indicate what is to occur in those circumstances. It is important to note that the only matter that was referred to the Board in this case was the question of the exempted status of the balance of the elements of the development at Ballymote Railway Station which were uncompleted as of the conferring of proposed protected status on the station. There is no doubt as a fact that the entire development was exempted development as of the date of the commencement of the works. There is equally no doubt but that by the time the development was completed none of it qualified as exempted development as such. While the Board was not invited to consider the status of the works that had been carried out prior to the alteration in the exempted status of the development as a whole, it seems to me to be clear that those works were exempted development. There is nothing in the legislation which could remotely justify the adoption of a retrospective view of the status of works which were undoubtedly exempted at the time when these works were carried out.
5.4 In the planning context McKechnie J. noted, in Kenny v. An Bord Pleanala (No.1) [2001] 1 IR 565, at pp. 581, 582, quoting with approval from the judgment of Henchy J. in Hamilton v. Hamilton [1982] I.R. 466, that there is a presumption that a statute does not intend to operate unfairly, unjustly or oppressively by entrenching on rights or obligations lawfully acquired or created before the statute came into force. On that basis it is clear that the statute should be construed as prospective in its application and not retrospective in the absence of clear and unambiguous wording to the contrary or necessarily implied.
5.5 There is not doubt but that McKechnie J., in Kenny, made clear that changes in planning legislation (in that case concerning obligations in respect of environmental impact assessment and statements) could not be deemed to be retrospective so as to impose an obligation in relation to a process which had commenced prior to the relevant legislation coming into force. It is, of course, correct to say, as was argued by counsel for the Board, that the specific issue with which McKechnie J. was concerned was one of process rather than one concerning the substance of the planning status of a particular development. Kenny is not, therefore, direct authority for the proposition that a project lawfully commenced can be completed even if there is a change in its exempted status during the currency of the development. Rather Kenny is direct authority for the proposition that, in the absence of clear statutory wording to the contrary, a planning process is presumed to be brought to a conclusion under the statutory regime under which it was commenced.
5.6 However, the rationale behind the judgment of McKechnie J. in Kenny seems to me to also have application to a case such as this. As pointed out by McKechnie J., in placing reliance on the judgment of Henchy J. in Hamilton, the presumption is that legislation will not operate in an unfair, unjust or oppressive manner by trenching on rights or obligations lawfully acquired or created before the statute came into force.
5.7 It, therefore, seems to me to follow that there should be presumed to be an intention behind the legislation that parties who have commenced works lawfully on foot of an exempted status should not have their rights unfairly or unjustly interfered with by a change in that protected status during the reasonably currency of the development concerned.
5.8 There is, of course, no such wording to be found in the legislation as would convey a contrary intention. It would, equally, have been helpful if the Oireachtas had thought to clarify this matter including, unless it was considered appropriate to declare all works subsequent to a change in exempted status to be unlawful, the parameters within which a party might legitimately be permitted to continue with a development which was lawfully commenced.
5.9 A simple example, undoubtedly quite divorced from the facts of this case, is, nonetheless, illustrative of the general principle. I return to the ordinary and oft relied on exemption in relation to certain extensions to domestic property. If such an extension was planned and commenced within the parameters of an existing exempted development regime and had been completed to (say) roof level, what would then be the status of such development if there were a change, such as one I postulated earlier, in the parameters applicable to such exempted development by (say) a reduction in the permitted size. The works already completed would be legitimate and could not be directed to be removed. Nonetheless, on the view adopted by the Board, the roof could not be put on because its erection would no longer be exempted development. Is it conceivable that the Oireachtas intended such a result? Would not such a result be unjust and oppressive? Equally to say that such a result accords with any view of proper planning and development and would be in the public interest, when it would permit the continued presence of a half completed structure which could not be directed to be removed but which could not either be completed, would border on the absurd. In the absence of wording in the relevant statute which made clear that such a result was intended, I would lean against such a construction. There is not, in my view, any such wording to be found in the relevant provisions. A change in exempted status which affects the balance of a development underway is not, in strict terms, retrospective, as it could only affect works not yet completed. However, it has the potential to operate in a manner which is very close, in substance, to retrospectivity.
5.10 In those circumstances it does seem to me that there must, at least in some cases, be circumstances where a development lawfully commenced as exempted development must be permitted to be completed. It would, of course, be open, and preferable, if the Oireachtas were to define the parameters within which it might be considered reasonable to allow such development to complete. However the Oireachtas has not so done and the courts must, in the absence of any such legislation, do the best that they can.
5.11 In my view the appropriate approach, in the absence of such legislation, is for the court to assess whether it would be unjust in all the circumstances of the case to regard the completion of a development legitimately commenced as being unlawful. In that context the question of whether all of the works sought to be completed form part of a single and materially indivisible project would be an important factor. Secondly, the extent to which the works had, in fact, been completed and whether the works were ongoing as of the time when the change in exempted status occurred would also be material.
5.12 In that context I would not agree with the submission made by counsel for Irish Rail that the metaphorical turning of the first sod would be sufficient. It could hardly be said to be unjust to prevent a person who had carried out very little work on a development from completing it simply because there was change in its planning status when little more than preliminary works had been carried out. Likewise it seems to me that the fact that a party might wish to carry out two or three largely separate elements of work at the same location, each of which might be exempted at the commencement of the works, would not necessarily entitle such a party to embark upon a second or subsequent independent element of the works simply because the first element had been started when the relevant change in planning status came into effect.
5.13 However, on the facts of this case, it seems to me clear that the entire development which I have earlier described is a single integrated development. None of the elements of that development make any sense without the rest. There was no need to have a palisaded area or plant buildings unless there was going to be a mast. Equally the mast could not be put up and become effective without those other elements. There is no basis, therefore, in my view, for considering the development undertaken by Irish Rail at Ballymote to be anything other than a single integrated development.
5.14 Secondly, it is clear that significant works had been completed in relation to that development both by the time the relevant decision of Sligo County Council was made and, to an even greater extent, by the time that decision was communicated to Irish Rail.
5.15 In that context it is unnecessary to definitively determine which is the operative date but I would be inclined, without so finding, to the view that the date of notification is the more important. There are obviously good policy reasons why the protection conferred by s. 57 and other relevant provisions concerning protected structures are applied equally to a proposed protected structure as to a protected structure. If that were not to be the case then unfortunate developments could occur to a structure while its protected status was under consideration. However, a consequence of the fact that, for practical purposes, in this regard, the same status is accorded to proposed protected structures as protected structures themselves is that a structure may become a proposed protected structure without the owner or occupier of the relevant property becoming aware of it. Where a party bona fide carries out work in the reasonable belief that that work is exempted development because that party has not been notified by the relevant local authority of the proposal to include a structure in the register of protected structures, then it seems to me to be likely that a court would have to have regard to work carried out during the period up to the relevant notification in assessing the justice of the case. If the overall test is as to whether it would be unjust to prevent the party concerned from completing the development then it seems to me that significant weight may well have to be attached to work carried out prior to the time when the party concerned became aware (or ought to have been aware) of the relevant change in status.
5.16 In those circumstances I am satisfied that Irish Rail commenced a significant integrated development and had progressed it to a significant extent prior to becoming aware that the exempted status of the building had changed (and indeed, although to a lesser extent, when that change of status occurred). In those circumstances it seems to me that it would be unjust and oppressive to render the balance of the works necessary to complete the already commenced development unlawful and in the absence of clear wording in the relevant legislation requiring such a view, I would not be prepared to hold that the works were unlawful.
5.17 In those circumstances I am satisfied that Irish Rail are correct in their view that, on the facts of this case, the development concerned retained its exempted status as a development which was a single integrated development, bona fide commenced as exempted development and progressed to a significant and material stage prior to the change of status of the development concerned. In those circumstances it seems to me that the decision of the Board was materially effected by an incorrect, if understandable, view of the legislation and must, therefore, be quashed.
6. The Merits of the Boards Decision
6.1 As indicated earlier this aspect of Irish Rail’s case was not pressed in any significant way at the hearing before me. I am satisfied that there was more than sufficient material before the Board to allow the Board to come to the planning decision which it did as to whether, if s. 57 applied, the relevant statutory criteria were met.
6.2 In my view counsel for Irish Rail was correct in not pursuing this matter as there was no basis for the courts intervention on the merits of the planning aspect of the decision.
7. Conclusions
7.1 It follows that the decision of the Board must be quashed but, for the reasons which I have set out, only on the grounds that the development had lawfully commenced and progressed to a significant extent during a time when it was exempted development such as would render it unjust to preclude its completion. On that basis I am satisfied that the Board was wrong in concluding that the development had lost its exempted status.
Murphy v An Bord Pleanála
[2009] IEHC 38
Judgment of Mr. Justice Feeney delivered on the 30th day of January, 2009.
1.1 In these proceedings, the applicant seeks an order of certiorari quashing the decision of the respondent dated 18th April, 2001. It was a decision made pursuant to the Local Government (Planning and Development) Acts 1963 to 1999, to grant permission to the first named notice party under planning reference number W/00/1996. The appeal before An Bord Pleanála related to a development of a premises comprising partial change of use of house and conversion and first floor extension of domestic store to ground and first floor café at Cloan, Allihies, Beara, County Cork in accordance with plans of particulars lodged with Cork County Council. The premises is part of a group of buildings on the Main Street and the applicant in this case who was the appellant in the appeal before An Bord Pleanála is a neighbour.
1.2 The first named notice party, Martin Hayes, first made an application for planning permission in respect of the said premises in October of 1998, and that application was withdrawn in December of 1998. It was withdrawn at a time when Circuit Court proceedings had been brought by Desmond Murphy against Martin and Jackie Hayes. It was stated in writing, on behalf of Martin and Jackie Hayes, that they would be making a new application to the planning authority for “retention of the revised elevations and road frontage, so far as permission is required for the change in the road’s frontage”. A second application for permission for retention of extension to store and conversion of same to residential accommodation and retention of paving to road frontage was made by application dated the 21st January, 1999. By order dated the 30th July, 1999, Cork County Council refused to grant permission for the development for three stated reasons set out in the schedule attached to the order.
1.3 A third application for planning permission was made by Martin Hayes to Cork County Council for partial change of use of dwelling and conversion and first floor extension of domestic store to ground and first floor café in respect of the said premises by application dated the 30th March, 2000. That application was successful and Cork County Council granted permission for the development by notice dated the 24th August, 2000 subject to seventeen conditions set out in the schedule. Desmond Murphy appealed that decision to An Bord Pleanála.
1.4 In support of his appeal against the decision to grant planning permission the applicant submitted, in part, that the original development was illegal and the proposed development incorporated that development as the ground floor support for the second storey. The allegation that the original development was illegal was the subject matter of ongoing Circuit Court proceedings brought by Desmond Murphy against Martin and Jackie Hayes in Cork Circuit Court proceedings, Record Number E334/1998. Desmond Murphy in his appeal to An Bord Pleanála relied, in part, on a claim that the proposed development physically incorporated a ground floor extension which, it was claimed, was an illegal development. Martin Hayes contended that the earlier works incorporating the store into his premises was an exempted development rather than an unauthorised development as its area was below the threshold required in respect of which planning permission would be required. An Bord Pleanála concluded that the appeal could be dealt with without an oral hearing and duly informed all parties to the appeal of that fact by letters dated the 6th December, 2000.
1.5 The planning inspector of An Bord Pleanála inspected the site on the 30th January, 2001 and prepared a nineteen page report dated the 6th April, 2001. The inspector recommended that permission be refused. The grounds were that the proposed development would be contrary to the proper planning and development of the area and that the residential amenity of the adjoining properties would be injured by the proposed development of a commercial café by virtue of the additional noise, activity, disturbance and odours generated by such use and would therefore be contrary to proper planning and development. The inspector noted that there was a dispute in relation to earlier works carried out consisting of a single storey extension to the dwelling house, and that the appellants, including the applicant herein, had referred to “the unauthorised nature of these works”. The inspector went on to point out that the party applying for permission appeared to be arguing that those works constituted an exempted development notwithstanding that previous applications for permission had been lodged and determined by the planning authority. The inspector pointed out that the retention of the earlier works to the existing single storey, consisting of an extension at the front and side of the dwelling house, were not included within the description of the overall development under consideration. That development referred to a first floor extension. The recommendation to refuse planning permission was based upon the inspector’s considered opinion in relation to the proper planning and development of the area and no concluded view was expressed in relation to the dispute concerning the earlier works.
1.6 By the date of the inspector’s report the Circuit Court proceedings brought by Desmond Murphy against Martin and Jackie Hayes pursuant to s. 27 of the Local Government (Planning and Development) Act 1976, as amended by s. 19 of the Local Government (Planning and Development) Act 1992, had been withdrawn by Desmond Murphy. On the 4th October, 2000 the proceedings were struck out with no order as to costs, the Court having been informed that the matter had been settled between the parties.
1.7 Notwithstanding the recommendation of the inspector, An Bord Pleanála determined to grant permission for the development and did so by decision dated the 18th April, 2001.
2.1 The applicant sought leave to apply for judicial review before this Court and on the 2nd April, 2004, the Court granted the applicant leave to apply for judicial review for an order of certiorari quashing the decision of the respondent dated the 18th April, 2001 and for further and other relief and costs. The grounds upon which the applicant was permitted to seek such relief were:-
(a) that the respondent erred in law in that it failed to have regard to matters which they ought to have taken into account, and had regard to matters which they ought to have disregarded, and in the premises, that the determination of the respondent of the 18th April, 2001 is fundamentally void, and;
(b) the decision and the determination of the respondent of the 18th April, 2001, is unreasonable in that the direction of the Board which overruled the inspector’s report was founded on a fundamental misunderstanding of the legal position vis-à-vis the status of the proposed development and specifically failed to recognise that the development was unauthorised for the purpose of the Local Government (Planning and Development) Acts 1963 to 1999.
2.2 The essence of the applicant’s claim centres upon the legal and planning consequences arising from the alleged unauthorised status of part of the existing premises. The applicant contends that An Bord Pleanála erred in law in granting planning permission in circumstances where the development for which permission was sought would incorporate an extant unauthorised use. This was identified by the applicant in his submissions in the following manner:-
“The applicant pleads that the decision of the respondent is in error in that it failed to adequately address itself to and understand the legal position vis-à-vis the status of this extension and the unauthorised status of the structure upon which it was proposed to be built.”
2.3 In considering the limited grounds upon which leave was granted, the Court must address a number of matters, namely:-
(a) Is An Bord Pleanála prohibited from granting planning permission in circumstances where the development in respect of which planning permission is sought incorporates an extant development which it is alleged amounts to an unauthorised use and/or development?
(b) In circumstances such as are outlined in the previous paragraph, must an application for permission include an application for retention of the alleged unauthorised use/development?
(c) Is An Bord Pleanála obliged to expressly determine whether a particular existing element of an overall proposal is unauthorised in a case such as this?
(d) Was the decision of An Bord Pleanála irrational in that it failed to consider and determine a necessary question in respect of an alleged unauthorised structure?
(e) Did An Bord Pleanála fail to have regard to matters which they ought to have taken into account or alternatively had regard to matters which they ought to have disregarded in arriving at their determination of the 18th April, 2001.
There is a clear overlap between these matters.
2.4 From the affidavits and documents exhibited, it is clear that An Bord Pleanála made no determination in relation to whether or not the earlier works which had been carried out to the existing single storey extension to the premises amounted to an unauthorised use or development. The development in respect of which permission was sought was a first floor extension over the earlier development. There was a dispute as to whether or not planning permission was required for the earlier extension. The applicant in this case made a claim that a Circuit Court Judge had found that the works carried out on the earlier development were an unauthorised development and that an order had been made directing works to be carried to reinstate the property. There is no Circuit Court Order to support the suggested finding of the Circuit Court Judge. It is the case that no such works were carried out and that by the time that the decision came to be made by An Bord Pleanála, the Circuit Court proceedings had been withdrawn and struck out.
2.5 A number of the arguments made on behalf of the applicant are based upon a contention that the structure upon which the extension was to be built never had the benefit of permission and was an unauthorised development and therefore required an application for the retention. However, the affidavits available to this Court and the documents exhibited do not establish that the earlier works to the existing single storey extension were unauthorised. What is clearly established is that it is contended on behalf of the applicant that such earlier extension amounted to an unauthorised development and/or use but it is also the case that the first named respondent contends that such works and such development was an exempted development rather than an unauthorised development. At the time that An Bord Pleanála considered this matter there was a claim made on behalf of the applicant that the Circuit Court had arrived at a determination that there was an unauthorised development but there was no order to support such contention and by the date when the decision was made the Circuit Court proceedings had been struck out with no order and An Bord Pleanála so informed. The order of the Circuit Court of the 4th October, 2000, records that the Court was informed that the matter had been settled as between Desmond Murphy and Martin and Jackie Hayes and that the proceedings were thereby struck out with no order. Insofar as it is alleged by the applicant that the Circuit Court made a finding in relation to the removal of an unauthorised structure, it has not been established or shown to this Court what structure or use was the subject of such finding. What is clear is that there was a dispute as to whether or not such earlier extension amounted to an unauthorised development or whether such development was an exempted development and that An Bord Pleanála, whilst aware of such dispute, made no determination in relation to same nor was there any Circuit Court Order in relation to such works. All parties to the planning process were fully aware of the nature and extent of the proposed development and made submissions to An Bord Pleanála in a manner which confirmed such knowledge.
3.1 In considering whether or not An Bord Pleanála is prohibited from granting planning permission in circumstances where the proposed development would incorporate an extant development which was unauthorised, the Court must consider the legislation under which An Bord Pleanála operates. Section 26 of the Local Government (Planning and Development) Act 1963, as amended, deals with permission for development. Section 26(3)(a) provides that:-
“a planning authority shall not, in a case in which the development concerned would contravene materially the development plan or any special amenity area order relating to the area, decide to grant permission under this section save with the consent of the Minister.”
That section places a limit on the discretion of the planning authority and s. 26(5)(b) in dealing with the Minister’s decision-making function on appeal requires that the appeal be determined on the same basis, that is by reference to consideration of the proper planning and development of the relevant area as set out in s. 26(1) of the Act and in relation to the conditions as identified in s. 26(2). Consideration of those provisions demonstrate that there is no express prohibition within s. 26 on the grant of planning permission, either by the planning authority or on appeal where the development, the subject matter of the planning application, has within its area an extant unauthorised development. The Court must consider whether or not it can be correct in law for An Bord Pleanála to permit of such development where it would involve the Board allegedly condoning or facilitating an unlawful development notwithstanding that there is no statutory prohibition.
3.2 Inherent within the argument made on behalf of the applicant is that in granting the permission herein, An Bord Pleanála was permitting a development which incorporated an illegal unauthorised extant development and that it followed that the grant implicitly approved such unauthorised development. That argument fails to have regard to the provisions of s. 26(11) of the Local Government (Planning and Development) Act 1963. That sub-section states:-
“a person shall not be entitled solely by reason of a permission or approval under this section to carry out any development”.
That section establishes that a grant of permission does not entitle a person to carry out a development. It is a necessary pre-requisite to the carrying out of a development to have planning permission but the grant of planning permission does not entitle a person to carry out a development if such development would for some reason be contrary to law.
3.3 The provisions of s. 26(11) were considered by the Supreme Court in the case of Convery v. Dublin County Council [1996] 3 I.R. 153 in the judgment of Keane J. (at p. 173) in the following terms:-
“It is clear from this provision (section 26(11)) that a planning authority (or An Bord Pleanála on appeal) which is confined in reaching its decision to considering the matters referred to in the preceding sub-sections of s. 26, cannot be said to have authorised the developer by the grant of a permission to commit an act which would be otherwise unlawful, whether because it interfered, for example, with the right to light of other property owners or created an unacceptable hazard for persons ….”
On the facts of this case there was no determination by An Bord Pleanála as to whether or not the earlier extension was an unauthorised development or not and the grant made by An Bord Pleanála cannot be said to have authorised the developer to commit an act which would be unlawful given the provisions of s. 26(11). This is all the more so on the facts of this case where there was a dispute as to whether or not the earlier extension was an unauthorised development or an exempted development.
Keane J. returned to consideration of s. 26(11) of the Local Government (Planning and Development) Act 1963 in a later case of Keane v. An Bord Pleanála [1998] 2 I.L.R.M. 241 where he stated (at p. 246/247):-
“In many cases, including the present, a person who has been granted planning permission will be unable to proceed with the development until he has obtained a relevant permission. This may arise either as a matter of public law or private law. For example, a company may apply for permission for the erection of a hotel including a bar and restaurant facilities. In terms of planning law, the grant of permission will authorise, not merely the construction of the building but also its use as a hotel, restaurant and bar. As a matter of public law, however, that use cannot lawfully commence until such time as the necessary licences are obtained under the codes dealing with the licensing of bars and restaurants. …. Where the land is leasehold, there may be covenants affecting the proposed development which may require the consent of the lessor to be obtained.
The fact that such permission or consents may be required before the development may lawfully commence does not preclude the planning authority or An Bord Pleanála, from granting the permission, provided all the relevant requirements of the planning legislation are met. Section 26(11) of the Local Government (Planning and Development) Act 1963 acknowledges at least by implication that such further permissions under public or private law may be required by providing that: a person shall not be entitled solely by reason for permission or approval under this section to carry out any development.
The scheme of the legislation is clear. A planning permission does no more than assure the applicant that quoad the planning legislation, his development will be lawful. The policy of the legislation is to ensure, not merely that harmful development is prevented, but that beneficial development takes place.”
In this case the planning permission did no more than assure the applicant that as regards the planning legislation, the particular development sought would be lawful. That development was in respect of a first floor extension and did not extend to the ground floor. If an earlier development by the developer was unauthorised and/or unlawful, the planning permission granted did not, either by law or by implication, authorise or permit such earlier development. It cannot be said on the basis of the law as identified by Keane J. that the decision of An Bord Pleanála implicitly approved the earlier development as the development which was approved did not deal with the earlier development.
3.4 Carroll J. applied the Supreme Court’s decision in Keane v. An Bord Pleanála in the case of Cablelink Limited v. An Bord Pleanála [1999] 1 IR 596, where having considered the judgment in Keane v. An Bord Pleanála and the terms of s. 26(11) of the Local Government (Planning and Development) Act 1963, she stated (at p. 600):-
“The addition of a condition providing that no development should take place until a licence had been acquired would have added nothing to the planning permission. Such a condition is already there by virtue of s. 26(11). It is not the case that planning permission can only be granted when all other requirements are met. The respondent cannot assume that the grantee will act illegally on foot of planning permission.”
An Bord Pleanála is prohibited by law from assuming that a person who is in receipt of a grant of planning permission will act illegally. It cannot proceed on the basis that if permission is granted that anything illegal will be done on foot of that grant. The issue as to whether or not there has been an unauthorised development or use is a matter for the planning authority and An Bord Pleanála can proceed on the basis that any outstanding matter in relation to enforcement is an issue which will be addressed by the relevant planning authority.
The Court is satisfied that in granting planning permission in this case the respondent cannot be said to have facilitated or condoned an unlawful activity or to have implicitly approved of same. Nor can it be said that the Board granted planning permission in circumstances where the development for which the planning permission was granted was unauthorised for the purpose of the Local Government (Planning and Development) Acts 1963 to 1999. Whether or not there has been an unauthorised use/development was a matter for the relevant planning authority. The applicant has failed to prove that any earlier development was necessarily unlawful.
3.5 The applicant seeks to rely on a planning decision of An Bord Pleanála (Ref. Number PL 19.222320) where the Board refused the grant of planning permission for an extension of an unauthorised development in relation to quarrying activities. Cases such as that are fundamentally different from the facts of this case. What was under consideration in the quarrying case was the extension of quarrying activities into a new field or area from the original quarry area. The decision was that the proposed development of itself, would be an unauthorised development. That is not what has occurred in this case where the Board has determined that planning permission should be granted for the development in respect of which planning permission was sought and no other development.
4.1 The facts of this case establish that the first named notice party did apply for planning permission in respect of earlier works carried out at the premises. Those works which are claimed to constitute an unauthorised development were carried out in the spring of 1998. Those works included works identified as an extension to the exiting single storey side/front of the premises, and it is those works which are central to the issues raised in this case. The facts are that the second application for planning permission which was pursued to a determination and resulted in a refusal, included, but was not limited, to those works. That application for permission was refused by order dated 30th July, 1999, for three stated reasons, one of which related to the extension in question which was identified as a reconstructed store. No determination was made as to whether or not those particular works were an exempted development or not. The order refusing permission was not determinative as to whether or not that extension was an exempted development or not.
4.2 Not only is the order of 30th July, 1999, from Cork County Council refusing the grant for permission, not determinative of the issue as to whether or not the extension to the so-called store was or was not an exempted development, but the fact that an application for retention was made by the first named notice party does not, and cannot, be taken as implying that the first named notice party, as the developer, accepted that the development was unauthorised. The position which existed at the time of An Bord Pleanála’s consideration is as recorded by the inspector, which was that there was a dispute in relation to whether or not such works constituted exempted development or not. That is stated in paragraph 12.5 of the inspector’s report of 6th April, 2001. The issue as to whether a developer is estopped from claiming that development is exempted by pursuing a lawful application for planning permission was considered by the Supreme Court in the case of Fingal County Council v. William P. Keeling & Sons Ltd. [2005] 2 I.R. 108. Fennelly J. in giving the judgment of the Court, dealt with the issue of estoppel in relation to an application for planning permission but did so in a limited way. That arose in circumstances which he outlined (at p. 113) of his judgment:
“The court must, nonetheless, determine the current appeal. In the absence of considered argument and reference to authority in the High Court, it is undesirable that this court should play the effective role of a court of first instance by determining generally on this appeal, whether and to what extent a doctrine of estoppal has a role to play in the field of the relations in public law between an individual and a planning authority. That will have to be determined, on full consideration of the law, by the High Court in this or another case.
Nonetheless, in the very narrow terms in which the supposed principle of estoppel was expressed in the terms of the preliminary issue directed and determined by the High Court, it seems clear and was virtually conceded by counsel for the applicant, that it cannot be sustained. If a proposed development is, in fact, and in law, an exempted development, no principle has been identified whereby the owner of land should be estopped from asserting the exemption merely by reason of the fact, and by nothing more, that he or she has made a perfectly proper and lawful application for planning permission. That would be to deprive them of a right at law by reason of his exercise of a different right which would require cogent justification. There could be many perfectly good and even laudable reasons for taking the course of applying for planning permission, where there is an arguable case for exemption. It might be done through oversight or mistake or merely through an abundance of caution or to ensure that the planning situation was very clear on the sale of a property. It is, perhaps, better, at this stage to say nothing more, as counsel for the applicant reserves the right to assert the right of a planning authority to rely on the doctrine of estoppel based on a more extensive factual basis.”
The applicant has identified no argument in support of any claim of estoppel nor has any authority been opened to the Court in relation to such claim. This Court is left in the position that no cogent basis has been identified to suggest that the developer’s earlier application for permission, which was refused, would in any way deprive the developer from contending that part of the development which failed to get planning permission was an exempted development.
The facts in this case establish that there has been no determination as to whether or not the extension to the existing single storey dwelling at the side/front of the building is, or is not, an exempted development. The applicant has identified no determination to that effect. What has been shown is that such works were part of an application which was refused. Insofar as the side/front extension was addressed in the order refusing permission of 30th July, 1999, it was addressed in the following terms:-
“The layout of the reconstructed store for which retention is sought, does not match the proposed use. Specifically, it is not appropriate for a dining room forming part of a private residence to have two doors opening directly on to the public street.”
The issue as to whether or not that particular development was exempt or not, was not considered. This Court is satisfied that the notice party did not, as a result of making the second application for planning permission, herein before referred to, thereby deprive himself of the right which he had at law of asserting that such works were an exempted development. The Court is satisfied that the first named notice party did not deprive himself of the right at law that he had to make such an assertion.
4.3 What has been established is that there was a dispute as to whether or not there was an unauthorised development or an exempted development. On that basis alone, it cannot be said that the applicant has established that the planning permission granted gives implicit approval to an unauthorised structure. The first named notice party, the developer, has a planning permission and he, as the developer, is obliged to act legally on foot of such planning permission. An Bord Pleanála cannot assume that if or when permission is granted on appeal, that anything illegal will be done on foot of that permission. An Bord Pleanála can proceed on the basis that any outstanding issue involving enforcement is an issue that will be taken up by the relevant planning authority as part of its enforcement powers. It is also the case that the applicant has failed to establish a factual basis to support the claim that the development permitted by the planning permission is necessarily incapable of being implemented at law. This is not a case in which it has been shown that there is no reasonable prospect of the permission being implemented lawfully or that the development has no reasonable prospect of being implemented. This is not a case in which the party seeking planning permission is a person who is unable to assert sufficient legal estate or interest to enable him to carry out the proposed development as was the case in Frescati Estates v. Walker [1975] I.R. 177. The facts of this case can be distinguished from the facts in the Frescati Estates case, as that was a case in which the applicant was incapable of carrying out the development which is not the case herein. Frescati cannot be read as being an authority for the proposition, as contended by the applicant, that applications for planning permission should only be granted in circumstances where the proposed development is capable of being carried out. It is clear that the statutory position is that a person is not entitled, solely by reason of permission or approval under s. 26 of the Local Government (Planning and Development) Act 1963, to carry out any development. If further or other permissions and/or licences are required, then it is for the developer to ensure that the same are obtained and An Bord Pleanála can proceed on the basis that a developer will act within the law.
4.4 The applicant’s argument in relation to an irrational decision is predicated upon a claim that the proposed development is to be carried out on top of an illegal structure. That has not been established. Even if it were the case that it had been proved that the development permitted by the planning permission was to be carried out on top of an illegal structure, that, of itself, does not disentitle An Bord Pleanála from granting permission. The grant of permission in the words of Keane J. in Convery v. Dublin Corporation cannot be said to have authorised a developer to commit an act which would otherwise be unlawful.
4.5 In the light of the above, the Court is satisfied that An Bord Pleanála is not prohibited from granting planning permission in circumstances where the development in respect of which planning permission is sought incorporates an extant development which it is alleged amounts to an unauthorised use and/or development. Nor is it the case that an application for permission, in circumstances such have been established in this case, must include an application for retention of the alleged unauthorised development. Therefore, it cannot be said that An Bord Pleanála was obliged to determine whether or not the disputed works were an unauthorised development or an exempted development. It also follows that the applicant has failed to establish that An Bord Pleanála acted in an irrational manner when it failed to determine whether or not the earlier extension works carried out to the side/front of the dwelling were, or were not, an exempted development.
5.1 The final matter for consideration by the Court is did An Bord Pleanála fail to have regard to matters which they ought to have taken into account, or alternatively, have regard to matters which they ought to have disregarded in arriving at their determination of 18th April, 2001. The basis of the applicant’s argument in relation to this matter is that An Bord Pleanála was required to make a decision and determination on the status of the alleged unauthorised extension, and that in failing to do so, An Bord Pleanála therefore failed to take into account a relevant consideration in reaching its decision.
5.2 The applicant’s claim that An Bord Pleanála were obliged to make a decision and determination on the status of any extant development, must be considered in light of the statute law and the facts of this case. Firstly, the applicant did commence s. 27 proceedings in the Circuit Court and prior to any decision or Court Order, settled those proceedings and consented to having the proceedings struck out with no order. Those proceedings, which commenced prior to any consideration by An Bord Pleanála, had the capacity to determine and conclude whether or not the disputed works were an unauthorised development or an exempted development. Therefore, the position as of the date upon which An Bord Pleanála’s decision was as set out in the inspector’s report which was that there was a dispute as to whether or not the earlier works to the side/front of the premises amounted to an unauthorised development or not.
5.3 The planning legislation identifies the obligation placed on a planning authority, or, on appeal, An Bord Pleanála in s. 26(1) of the Local Government (Planning and Development) Act 1963 (as amended), which is consideration of the proper planning and development of the relevant area. On the facts of this case, that is what occurred and the decision as made by An Bord Pleanála, identifies on the face of it, a decision made based upon the proper planning and development of the relevant area. A proper reading of the grant of permission date of 18th day of April, 2001, makes it clear that An Bord Pleanála fulfilled its statutory obligation because it identifies the basis upon which An Bord Pleanála decided to grant permission subject to conditions, and confirms that the proposed development, subject to the conditions imposed, would be in accordance with the proper planning and development of the area. It also follows from the matters previously determined in this judgment that the Court is satisfied there was no requirement on An Bord Pleanála to determine whether a particular existing element which was to be incorporated into the development was or was not authorised.
5.4 The applicant claims that An Bord Pleanála failed to have regard to matters which they ought to have taken into account. That claim is made on the basis that it is asserted that An Bord Pleanála failed to consider or to take account the alleged unauthorised status of part of the existing structure. It is clear from the face of the inspector’s report, and from the submissions lodged, that An Bord Pleanála was fully aware that there was a dispute as to the planning status of an earlier extension. An Bord Pleanála was aware of such dispute, and knowing of same, proceeded, as it was entitled to do, to determine that the proposed development in respect of which permission was sought, was in accordance with the proper planning and development of the area. An Bord Pleanála was obliged to make a decision pursuant to s. 26(1) of the Local Government (Planning and Development) Act 1963 and this is what it did.
5.5 The applicant also alleges that the respondent failed to consider or take into account matters which they ought to have taken into account. That claim is based upon the contention that the applicant failed to consider the alleged unauthorised status of the existing structures. It is clear from the inspector’s report that the dispute in relation to the planning status of an earlier development was identified. The inspector identified the dispute and concluded that he did not recommend that the existence of such dispute as being a reason for refusal, having regard to the other concerns that he had identified in relation to planning and development. The Court is satisfied that the nature of the dispute in relation to the planning status of part of the existing structure was before the Board. The existence of that dispute had not been the basis for the inspector’s recommendation and in those circumstances there was no requirement on the Board to refer to that matter in its decision. Further, since the Court has already determined that there was no obligation on An Bord Pleanála to determine the dispute in relation to the planning status of part of the existing structure, the Court is satisfied that An Bord Pleanála did not fail to consider or take account of a matter which they ought to have taken into account.
6.1 In the light of the above findings, the Court is satisfied that the applicant has failed to establish any grounds for the relief sought in the statement to ground his application for judicial review dated 12th day of May 2005, and the applicant’s application will be dismissed.
Michael Cronin (Readymix) Ltd v An Bord Pleanála
[2009] IEHC 553
JUDGMENT of Mr. Justice Ryan delivered on the 15th day of December, 2009
On a reference by a planning authority under section 5(4) of the Planning and Development Act, 2000 An Bord Pleanála may give a decision as to what, in a particular case, is or is not development or exempted development. The applicant in this case is challenging such a decision, in which Kerry County Council was the planning authority and the decision related to the applicant’s quarry at Coolcaslagh, Killarney, Co. Kerry. The Board decided that a block making operation at the quarry was development and not exempted development.
The background to the reference can be shortly summarised. The applicant operates a quarry at the above address where it produces readymix concrete and concrete blocks. In late 2003 the County Council as planning authority became concerned that the block making activity within the quarry might be unauthorised development. At an inspection on the 16th September, 2003, an official was informed that block-making was being carried out, that there was no new structure and that the only new work that had been done was the replacement and extension of an old yard for making and storing the blocks. That information did not prevent the Council from sending a warning letter on the 29th September, 2003.
A submission on behalf of the applicant also did not convince the Council and there was another inspection on the 10th November, 2003 by a planning enforcement official, who recommended that an enforcement notice be issued, which happened on the 21st November, 2003. There followed correspondence between solicitors for the applicant and the planning authority and at least one meeting was held, but no further steps were taken to prevent the use of the quarry for block making.
The applicant company was making the case that the block making was exempted development within the meaning of s. 4(1)(h) of the 2000 Act. It also contended that quarrying and concrete production had been going on at the site since before the 1963 Local Government (Planning and Development) Act came into effect and block-making was not different in kind from producing readymix concrete. Some block making was also part of the quarry’s history. The matter remained unresolved when the Council sought a decision from the Board.
The planning authority asked for the Board’s assistance under s. 5 by way of letter of the 4th May, 2006. It is clear from the heading and the contents of the letter that the principal area of concern to the local authority was the block-making facility. But it did mention the information from the operator of the quarry “that the only new work carried out was the replacing of an old concrete yard, the extension of the yard for the making and storage of blocks.” The Council enclosed its enforcement file and the letter set out factual information as well as the Council’s understanding of the developer’s contentions. There was no adequate factual basis for some of the stated information but neither the Inspector nor the Board relied on those facts and so they are irrelevant to the issues in this case.
The respondent’s inspector reported on the 17th November, 2006, and the Board’s decision is dated 13th December, 2006. The conclusions and decision of An Bord Pleanála are based on and follow the Inspector’s report, repeating in the decision all but one of ten recommendations made by the inspector. The decision under s. 5(4) of the 2000 Act is that the block-making operation at the applicant’s quarry is development and is not exempted development.
The applicant makes his challenge by reference to the inspector’s report which is the foundation of the adverse decision made by the Board. There are three issues in the case:-
(a) Did the Board’s Inspector apply s. 4(1)(h) correctly?
(b) Did the Inspector apply the correct test in deciding that there was a material change of use and/or was the Inspector’s approach to this question irrational?
(c) Did the Inspector fail to distinguish between the concepts of works and use in the 2000 Act in coming to the conclusion that there was a change of use?
If any of these questions is answered in the affirmative, the decision was flawed and the applicant is entitled to an order quashing it. As to other minor grounds advanced by the applicant, including an argument as to fair procedures, I do not think that they are of significance.
This Court directed that a telescoped hearing be heard in which both the leave and substantive applications are heard. This does not obviate the need for the applicant to meet the criteria in order for leave to be granted, but since all the issues were debated at the hearing, it follows that if the applicant succeeds in its application on the substantive question, consideration of the leave issue is unnecessary.
The notice parties took no part in the proceedings. Counsel for the planning authority appeared briefly at the opening of the case to say that his clients associated themselves with the submissions to be made by the respondent and left over the question of an application for costs that might arise at a later stage.
I should say at the outset that it is accepted on both sides that the role of this court is and ought to be limited in a case of this kind. If a matter is properly within the field of planning judgment, I should not substitute my own view for that of the respondent even if I felt entitled to come to a different conclusion than the Board did, provided there is a rational basis for the finding. See O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. On the other hand, it is very much the province of the court to see that the Board and its Inspector have properly applied the law and have properly construed the relevant legislative provisions and have as a result asked the right questions.
The first question is whether the Board and the Inspector properly construed and applied s. 4(1)(h) in coming to the conclusion that development took place at the quarry that was not exempted development. The Board’s conclusions in this respect appear at para. (d), (e) and (g) of the decision which is as follows:-
(d) the laying out of a hard surfaced area of 2 acres in extent is development,
(e) the laying out of a hard surfaced area of 2 acres in extent does not fall within the scope of s. 4(1)(h) of the 2000 Act, not being works for the maintenance, improvement or other alteration to a structure,
(g) the construction of the yard is development which is not exempted development.
It is not disputed that laying out the yard was development. The only question therefore is whether the Inspector applied the right test, asked herself the right question and approached the issue correctly. The Inspector’s consideration of this appears on p. 11 of her report as follows:-
“In relation to the enlargement of the yard, which is stated to be about 2 acres in extent, there is no dispute between the parties that the yard has been extended to facilitate drying and storage essential to the production of concrete blocks. The operator’s case is that the replacement of the old yard and the extension of the yard are not visible and that an exemption under s. 4(1)(h) of the 2000 Act applies. Section 4(1)(h) relates to 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 . . .’
“I submit that the replacement/repaving and extension and of a concrete yard would not be described as either maintenance or improvement of a structure as neither description would allow for an extension of the area. The term ‘alteration’ is defined to include plastering or painting, removal of plaster or stucco or the replacement of a door, window or roof that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures.
I consider that neither the legal definition or the ordinary dictionary definition of ‘alteration’ encompass the concept of an extension or enlargement as a defining characteristic but rather relates to more minor changes to a structure. I consider that an extension of the yard has taken place and that this is ‘works’ and is ‘development’, but would not be described as ‘maintenance, improvement or other alteration of any structure’ and does not therefore fall within the exempted development provisions set out in s. 4(1)(h) of the 2000 Act and I reject the operator’s arguments in this regard.”
Mr. Galligan SC for the company contends that the work done to the yard surface was an alteration or an improvement of the structure. Structure includes an excavation and a quarry is an excavation. The work clearly amounted to the alteration or improvement or even maintenance of the structure and it was not an extension. This applies whether the structure, the planning unit, is considered to be the quarry as a whole or the concrete yard surface. The Board was obliged to go on to consider the later part of the exempted development provision in s. 4(1)(h) but it did not do so. This is a matter of statutory interpretation that it is for this Court to decide. If the Inspector and the Board misconstrued s. 4(1)(h), the application must succeed. The respondent agrees this point.
The Board submits that s. 4(1)(h) does not apply to extensions. Counsel Ms. Butler S.C. draws attention to the applicant’s submission documents to the Board for support for her proposition that the company has accepted that the laying down of the yard was indeed an extension. She also contends that this is a planning matter in which the Inspector and the Board have particular expertise and it is for them and not for the court to decide in contradiction of that expert view unless there are strong grounds for doing so and there are no such grounds in this case. An Bord Pleanála by itself and through its Inspector felt that this was a development consisting of an extension and the applicant also treated it as such. The Board’s written submissions express the point as follows:-
Thus a subset of works – those carried out for maintenance, improvement or other alteration of a structure – are exempted provided they do not materially affect the external appearance of the structure. By implication all other works – which must include any act or operation of construction, excavation, demolition, extension, repair or renewal – are not exempted irrespective of whether they materially affect the external appearance of the structure or not.
At para. E(1), the applicant claims that the Board was incorrect because the exemption under s. 4(1)(h) “extends to any alteration affecting the external appearance of a structure and is, therefore, not confined to alterations of the structure itself”. This sentence is a little difficult to parse, but it appears that the applicant contends that the exemption under s. 4(1)(h) extends to all works that do not affect the external appearance. This is transparently incorrect. The Act specifically includes “extension” as a type of works but then specifically omits that type of works from the type that can gain an exemption under s. 4(1)(h). Accordingly, irrespective of whether extension affects the external appearance, it cannot benefit from s. 4(1)(h). The Act draws a clear distinction between “alteration” and “extension”. It therefore was not open to the Board or its Inspector to subsume the latter within the former. For the same reason, contrary to what is suggested in para. E (3), the extension could not be treated as an “improvement” and avail itself of s. 4(1)(h) as that would again merge two categories of works which the Act has rendered distinct and separate.
At para. E (5), the applicant complains that the Board and its Inspector did not properly consider the issue of materiality of impact on the external appearance of the structure. Again, however, this misses the point. As the types of works engaged in by the applicant did not come within s. 4(1)(h) in the first instance, the question as to materiality of impact did not arise.
It follows that the interpretation of s. 4(1)(h) is central to the decision in this case. I was not referred to any authority that would assist in the construction of the provision. It is necessary at this point to set out some of the relevant provisions of the 2000 Act.
Section 4(1)(h) defines exempted development as follows:-
“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;”
“‘alteration’ includes-
(a) plastering or painting or the removal of plaster or stucco, or
(b) the replacement of a door, window or roof, that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures;
‘works’ includes 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.”
The Board’s argument is that what was done here was that the structure was extended, whether the structure is considered to be the quarry itself or the concreted area of the floor of the quarry. There was an extension. Since s. 4(1)(h) covers “maintenance, improvement or any other alteration,” that excludes an extension. The reason it does that is because the definition of “works” includes alteration of a structure as well as extension. Therefore, the argument goes, the fact that there is no reference in s. 4(1)(h) to extension means that it was intended to be excluded so that only alterations that do not constitute extensions or any of the other actions or things in the definition of works, other than alterations, can qualify.
I may mention in passing that no argument was advanced as to whether “maintenance, improvement or any other alteration”, is to be construed so that other alteration is eiusdem generis with maintenance and improvement. Does the paragraph permit all kinds of alterations or only alterations that are related to maintenance or improvement? I am not sure that this question is material to this case, but it seems to me that it could explain why alteration could be given a particular meaning in s. 4(1)(h) that might not apply elsewhere.
I want to simplify s. 4(1)(h) to reduce it to the part that is relevant to this case, whereby it reads: –
“the carrying out of works for the maintenance, improvement or other alteration of any structure, being works which do not materially affect the external appearance of the structure.”
If one inserts into this condensed definition the meaning of “works” from s. 2, exempted development then means the following:-
“the carrying out of works (including any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal) for the maintenance, improvement or other alteration of any structure, being works which do not materially affect the external appearance of the structure.”
I think that this approach makes sense. The word “works” in s. 4(1)(h) has to be given its meaning as set out in s. 2. But the approach suggested by the Board and by the Inspector requires that some of the meanings of “works” must be excluded for no reason that is apparent from s. 4(1)(h). Neither does it make sense from a practical point of view. If we ignore any other alteration and simply consider maintenance or improvement, there are many kinds of construction and extension works that would constitute maintenance or improvement. A person might put on a small extension at the back of his house similar to what his neighbours did and it makes complete sense that that should be considered exempted development. If it were not so, planning authorities would be inundated with applications for very small changes in people’s houses simply because they amounted to extensions. Anything that increases the footprint of the original house is an extension. This would include the slightest porch or outer door at the front and the smallest addition to the building beyond the back wall or indeed the side walls. It seems to me that the proposition contended for by the Inspector and relied on by the Board is untenable. It requires that the word extension be given a special meaning that is independent and exclusive of the terms maintenance, improvement or other alteration and the result of that is worse than meaningless; it is actually impossible to apply. This analysis treats the concept of an extension as if it were a term of art in a criminal statute or a Tax Act and even then in my opinion it might be illegitimate to construe it in the way the Inspector did.
The Board was wrong in its interpretation of s. 4(1)(h), in my view. An extension is not excluded as a matter of definition. An extension can be an improvement or an alteration. Maintenance and supervision (and other alteration) are the purposes for which the work is done in exempted development. The definition of works in s. 2 lists the kind of activities of which any act or operation constitutes works. So, an act of demolition amounts to works; so does an operation of renewal etc. An act or operation of construction or repair may be required for the purpose of maintenance of a structure and that is obviously intended to be exempted development, but it would be excluded if the Board’s submissions are correct. By insisting that the work done must be actual maintenance, improvement or other alteration, rather than for [the purpose of] maintenance etc., the Board confuses purpose and act and overlooks “the carrying out of works” in s. 4(1)(h). The paragraph is best understood first by inserting after “works” the words from its definition that are relevant, that is, excluding references to a protected structure, and secondly by splitting it into its constituent phrases as follows. I have emphasised some words for clarity: –
“the carrying out of works (including any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal)
for the maintenance, improvement or other alteration of any structure,
being works which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure.”
The first phrase describes acts, the second purposes and the third effect.
It is clear when the paragraph is analysed in this way that work that is exempted development can materially affect the external appearance of the structure provided it does not make it inconsistent with its own character or that of neighbouring structures. This is precisely the point that was decided in Cairnduff v. O’Connell [1986] 1 I.R. 73, where the Supreme Court was satisfied (although Griffin J. had some reservation on the point) that the works did materially affect the external appearance of the defendant’s house. The Court held that the work was not inconsistent with the character of the house itself or adjoining houses and was therefore exempted development. The balcony and staircase at the back of the defendant’s house could well be described as an extension, as well as an alteration or an improvement.
I should add perhaps that the word “alteration” does in my view have to be understood in a different sense in s. 4(1)(h) from its general definition in section 2. When it is defined in section 2 as including painting etc., it has a different meaning from s. 4(1)(h) which refers to maintenance, improvement or other alteration. The s. 2 definition describes act or activities, including painting or plastering, which result in a material impact on the external appearance of the building so as to make it inconsistent with the character of the building or with neighbouring structures. Alteration in this sense expressly envisages the material impact that is inconsistent with, for example, the character of the building. By contrast with this, alteration in s. 4(1)(h) expresses purpose. Moreover, the provision excludes work that changes the exterior so as to make it inconsistent. If one does not accept the different functions of the word in s. 2 and s. 4 (1)(h), alteration seems to have more or less opposite and certainly conflicting meanings in these two parts of the Act. Even if that were the case, it seems to me that these provisions and definitions are not intended to express legally watertight and hermetically sealed concepts and the expressions have to be given their reasonable meanings in the particular contexts in which they are used. This approach is consistent with proper principles of statutory interpretation, which look to the overall scheme and the context in which expressions are used.
In the result, the Inspector and the Board did not ask the correct question or questions. It was clear that works had been carried out. The fundamental question therefore was not about the nature of the work done but rather about its purpose and effect. Did the work make the structure inconsistent with its character? If it did not, the next question was whether the work was done for the maintenance, improvement or other alteration of the structure. In the circumstances of this case, I think that neighbouring structures did not enter into the question of whether the works made the quarry inconsistent with them.
This misunderstanding of s. 4(1)(h) in its statutory context is fatal to the decision made by the Board.
I now turn to the second issue that has to be considered. The Board’s conclusions on this were: –
“(h) The manufacture of blocks is dependent on the use of a large area of land for drying and storage which gives rise to material planning effects, and
(i) The production of concrete blocks is an intensification of use that consists of a material change of use of the land:”
The Inspector’s reasoning appears at pp. 11 and 12 of her report. In the following quotation, which is a single paragraph in the original, I have broken the passage into two for ease of discussion.
“Manufacture of concrete blocks
“I propose to now discuss the manufacture of concrete blocks and whether or not this constitutes a material change of use. In relation to the production of blocks instead of 25% of the production of readymix I accept the points made on behalf of the operator in relation to the absence of material planning impacts in terms of the type and quantities of raw materials used and the traffic implications. I agree that the development would not constitute an intensification of use above the production level of the concrete in terms of materials sourced from the site and then processed and exported from the site in relation to noise and dust impacts, I note that the hard surfaced yard is close to a dwelling house and consider that the regular movement of blocks would be likely to give rise to some additional noise and dust related disturbance. In addition, as the operators submissions indicate there are material changes in terms of the land use requirements as the concrete block production relies on the use of an extensive area of land for the purpose of open storage and I consider that in this respect there is a significant change in the nature of the process and an intensification of use of the lands.
“The production of concrete blocks is reliant on the laying out of 2 acres of a 130 acres site, of which only 96 acres is used for excavation, and the use of that land for drying and storage of blocks. There are changes in terms of the surface water flows in the area and the extensive nature of the operation in land use terms compared with the production of readymix with possible resulting impact on geology and hydrogeology. The development of an extensive hard surface area at this location would also militate against the development of a habitat which would potentially be of ecological importance and this is a further consequence in terms of the proper planning and sustainable development of the area. I conclude that the development of a 2 acre hard surfaced area has material planning consequences. The process of production of concrete blocks is therefore materially different to that of production of readymix and constitutes a material change of use.”
The applicant company challenges the decision of the Board and the conclusions of the Inspector in respect of material change of use on the grounds that the Inspector did not approach the question in a legally appropriate or permissible way and, secondly, that she took into account irrelevant considerations and appeared to have confused or conflated the concepts of works and use in the legislation which is of central importance in this case.
The Board’s responses are summarised in two paragraphs of its written submissions. As to the decision on intensification of use para. 19 says:
The Board followed the Inspector’s recommendation in concluding at (h) that the manufacture of blocks was dependent on the use of a large area of land for drying and storage which gives rise to material planning effects and at (i) that the production of concrete blocks was an intensification of use that consists of a material change of use of the land. It is submitted that the Board’s conclusion on this point was amply supported by the material before it, principally the inspector’s report.
On the complaint that the inspector and the Board failed to distinguish works from use in the interpretation and application of the legislation, para. 22 set out the definition of “use” in s. 2(1) and para. 23 submits:
The Applicant’s reliance on this measure is misplaced. The purpose of the exclusion in the definition, as noted by Keane J in Kildare County Council v. Goode [1999] 2 IR 495 is simply to ensure that planning permission is not required for statutorily exempted works merely by reason of the fact that the carrying out of such works would also be a use. The two categories are not mutually exclusive and the Supreme Court recognised that certain activities – in that case notably quarrying- may be characterised as both. Moreover, there is no authority for the proposition that the materiality of a change of use cannot be assessed by reference to impacts associated with works.
The applicant’s contention is first that the inspector failed to establish an essential baseline for the planning impacts that result from the original use, for the purpose of comparing those impacts with the results of the present use. The earlier use “A” must first be established before it can be compared with the later use “B” and the proper mode of comparison is not simply to assess the difference in the nature of the operations but to contrast the planning impacts of the two different activities or levels of activity. It seems to me that this is requiring too formal an approach by a planning Inspector. I think it is legitimate to consider the available evidence and to deduce to the extent that is legitimately possible the quantum of change that has taken place and the resulting planning implications. And that is primarily a matter for the planning Inspector and not for the court. Mr. Galligan S.C. for the applicant relies on Galway County Council v. Lackagh Rock Company [1985] 1 I.R. 120 but I do not read that case as laying down a rigid rule as to the mode of comparison or as excluding reference to relevant evidence. I reject this ground accordingly.
Another objection that the applicant makes in relation to the taking into account of irrelevant considerations has more substance. If the Inspector had stopped about half-way down the paragraph I have quoted above, at the point where I have made a break, I think that this error would have been avoided. Although I believe that the evidence is fairly thin, it is nevertheless in the realm of planning to consider all the matters that the Inspector detailed up to that point in her analysis. Had she reached a conclusion as to material change of use at that point, I do not think that it could be challenged since I have rejected the applicant’s main complaint that it failed to establish the original use.
The problem is that the Inspector then went on to take into account matters that in my view were irrelevant to the issue or that were speculative or confusing and the combination of these inappropriate conclusions and observations with the earlier, legitimate ones contaminated the process and rendered it invalid. Let me be more specific. The visual impact of the development when viewed from surrounding lands is of questionable relevance in this case to the issue of material change of use; the fact that natural regeneration of the site could have occurred if the area was not surfaced is wholly irrelevant – it may be relevant to other aspects of planning process but I simply cannot see how that matter can affect a decision as to whether there has been a material change of use. The next sentence in the Inspector’s reasoning deals with changes in surface water flows with “possible” resulting impacts on geology and hydrogeology. The hard surface “would also militate against the development of a habitat which would potentially be of ecological importance”. This includes no more than possible impacts and changes that might potentially be of ecological importance. This is not the language or the thinking that is expected of an expert making an assessment for the purpose of reporting to a statutory body such as the respondent. The Inspector’s conclusion could have stood on its own but was fatally undermined and devalued by the inclusion of these irrelevant matters, some of them only on a basis of possible or potential impacts. The Inspector’s conclusion on this question as to material change of use must also be invalidated.
Turning to the third objection that has to be considered, namely, the proposition that the Inspector has invalidly confused or conflated “works” and “use”, I think this complaint is also justified. In the case of an exempted development, the qualifying works can be undertaken because they are excluded from the planning process. It follows that they will often if not always affect the ecology of the land on which the works are carried out. They will do so more or less permanently. If an addition (or extension) is built to the front or the rear of a house, the ground underneath is permanently affected, so are the water flow and the ecology. The same consequences arise where the planning authority gives planning permission. In Cairnduff v. O’Connell, Finlay C.J. said with reference to the similar exempted development provision in the 1963 Act:
“The scheme of the statute, however, appears clearly to me to be that work by way of construction or alteration and a change of user are separately dealt with. Therefore, to construe the section as to permit on unbuilt land the carrying out of works which are an exempted development but are for the purpose of adapting that land for a clear change of user and to prohibit the carrying out of works within the same category on a structure would, in my view, be to create a meaningless anomaly.”
A planning authority will take into account the use to which developed land will be put when it is considering whether or not to give planning permission. There is therefore an overlap of the concepts of works and use when permission is being granted. The same consideration can arise if the development is exempted. Part of the process deals with the works that are actually carried out on the land and then there is the use to which the developed area is put. If an exempted development were put to a use that was wholly inconsistent with the building then the local authority might challenge it because it was a material change of use of the land.
That is the situation that arose in ESAT Digifone v. South Dublin County Council [2002] 3 I.R. 585. There, the real issue was not the works but the change of use from a business outbuilding to a centre of communications, which was considered a material change of use and was condemned on planning grounds as a result. Kearns J (as he then was) said, at p. 596:
“Insofar as the placing of telecommunications equipment is concerned, I cannot see how, insofar as the same may be described as works, it can be seen as going to either the “maintenance, improvement or other alteration of any structure” so as to qualify for exemption under s. 4(1)(g). It seems to me that the activity associated with the placing and utilisation of the telecommunication equipment falls to be considered more properly as a change of use, whether taken together with the placing of the antennae or by itself.”
Suppose the householder builds a modest extension to his house. If it is consistent with the neighbouring structures that will constitute exempted development, generally speaking. If he uses that as a kitchen or a garage or an extra bedroom that is consistent with the whole structure as extended. However, if a communications company were to load up the extension with sophisticated electronics for the purpose of supplying a major part of a city with a mobile phone service, the situation would be entirely different. It would not be entirely different by reason of the works that were carried out, but because of the radical change to the use of the premises. Applying this thinking to the present situation, it seems to me that the Inspector should have looked at the concreted area and asked the question whether the use of that area of land for storing or resting or drying blocks in connection with block making operations constituted a material change of use in all the circumstances. She did not do that. She addressed herself to the question whether the concreted surface itself amounted to a material change of use and that is where, in my view, she fell into error and did indeed conflate works and use, as submitted by the applicant.
My conclusions on these issues mean that the impugned decision by the respondent must be quashed and I propose to order accordingly.
Morgan v Slaneygio Ltd
[2017] IEHC 284
JUDGMENT of Ms. Justice Baker delivered on the 4th day of May, 2017.
1. This application arises from the demolition by the respondents of a building situate at and known as 25 Dublin Street, Carlow, Co. Carlow, a terraced building between and connected to Nos. 24 and 26 Dublin Street, Carlow.
2. Number 26 Dublin Street, Carlow is a protected structure and the applicant and her two siblings are the owners. The applicant brings the application on her own behalf and on behalf of, and with the authority of, the other two co-owners.
3. The first respondent is a limited liability company of which the second respondent is the principal shareholder, and is the owner of the premises at No. 25 Dublin Street, Carlow, which adjoins No. 26 on the northern boundary thereof.
4. For convenience, I will refer to No. 25, the now demolished building, as “the Premises”. The Premises is situate within an architectural conservation area, but is not a protected structure.
5. A particular feature of the Premises is that it has a gated arch on the ground floor through which access may be gained to the yard at the rear.
6. This judgment is given in an application for an order pursuant to s. 160 of the Planning and Development Act 2000, as amended, (“the PDA”) for the reinstatement of the Premises to its prior condition, and for ancillary orders relating to the degree of detailed directions and scrutiny to be engaged by the court regarding such works.
7. On 1st November, 2016, Noonan J. made an order ex parte restraining the carrying out of further works by the respondents to the Premises and the preservation of all structural materials at, or taken from, the site. On 10th October, 2016 an order was made by me joining Carlow County Council as co-applicant in the proceedings on its motion, and continuing the order made ex parte by Noonan J. By that order the applicant was permitted to carry out temporary works of buttressing and support subject to conditions, and the conservation architect employed by the applicant was permitted to enter upon and inspect the Premises.
8. An unusual feature of the application is that the respondents have indicated a willingness to reinstate the building, and argue that in those circumstances the making of a court order is unnecessary and oppressive. The respondents have made this concession notwithstanding their assertion that the works carried out at the Premises were exempted works of demolition executed for the purposes of improving and making safe the existing structure. As the making of an order under s. 160 is conditional upon the court accepting that the works of demolition were unauthorised, and therefore amenable to a planning injunction under the section, the respondents deny that the court has jurisdiction to grant an order under s. 160.
9. Carlow County Council supports the application and rejects the assertion that the works of demolition were exempted development.
Relevant facts
10. In December, 2015 Slaneygio purchased the Premises. On 24th June, 2016, Mr. Germaine attended a pre-planning meeting with Carlow County Council at which he indicated his intention, or that of the company, to seek planning permission to develop the Premises and erect a hostel. A second pre-planning meeting was held on 2nd August, 2016, and the planning officials advised Mr. Germaine that, as the building was situate in an architectural conservation area, and because it abutted a protected structure, the demolition of the building would not be in accordance with best architectural practice or the planning guidelines.
11. In late September, 2016, Mr. Germaine visited one of the co-owners, Ms. Morgan’s brother, David Morgan, asking him to consent to demolition of the Premises in return for a car park space in the proposed development. David Morgan in his affidavit of 14th November, 2016, avers that he refused consent and that he pointed out to Mr Germaine that the demolition or redevelopment of the Premises would be a matter for the planning authorities.
12. Mr. Germaine in his first affidavit of 9th November, 2016, says that at some point in mid-October, 2016, he instructed workmen to enter upon the Premises and carry out certain internal works, as a consequence of which on 20th October, 2016 a wall or part of a wall to the rear of the Premises collapsed. At some time between 20th and 27th October, 2016, Bill Forristal, B.E. inspected the Premises on behalf of the respondents and produced a written report dated 27th October, 2016, sent by email at midday on Saturday, 29th October. Mr. Germaine asserts that as a result of concerns regarding the safety of the building expressed in that report that he carried out the demolition works on 29th October, 2016. The work commenced early on that morning, a Saturday morning of a bank holiday weekend, and continued over the weekend.
13. The interim injunction was granted on Tuesday morning, 1st November, 2016.
14. No planning permission exists for the demolition of the building, and it is accepted for the purposes of this application that, as the demolition was not a spontaneous event, the demolition may be characterised as “works” comprising development within the meaning of the PDA.
The issues
15. The respondents argue that, as Mr. Germaine has stated on his own behalf and on behalf of the company that he will reinstate the Premises, and as counsel has confirmed this in open court prior to the commencement of the hearing, an injunction is not necessary. However, the matter for determination first by me is whether the court has jurisdiction to grant an injunction under s. 160 and that engages the question of whether the works of demolition were exempt within the planning code. Certain factual differences arise from the affidavit evidence, and I will in this judgment also consider whether those factual differences require to be resolved by the cross-examination of Mr. Germaine on his affidavits. I will deal also with the argument, that because the demolition of the building is said by the respondents to have been necessitated by health and safety considerations, the court should exercise its discretion to refuse injunctive relief.
Are the works exempt?
16. It is common case that the Premises has been empty for a number of years, and the respondents assert that it has been semi-derelict for a long period of time. Mr. Germaine’s evidence is that he engaged contractors for the purpose of cleaning out the interior of the building, and taking down plaster work and decaying and rotting materials, with the intention of “bringing the structure back to its core” before any repair or decorative works “of a more substantial nature” could be carried out. The Premises is not a protected structure and the works of internal refurbishment were exempt from the requirement of planning permission.
17. Mr. Germaine says that following on works carried out on 20th October, 2016, “a catastrophic” collapse occurred to the rear of the building and he exhibits a photograph which shows a large gaping hole in the wall and a considerable amount of rubble in the form of timber and mortar scattered around.
18. Mr. Germaine says that it became apparent that the building had no foundations and that there was “immediate concern as to the stability of the remainder of the building given the relatively minor works that caused the rear wall to collapse”. He says that the collapsed wall supported part of the roof, and that the lack of support for the roof which in turn tied the building together had the combined effect that the building became unstable and unsafe. He says the roof timbers were in very poor condition and damaged by rot, as were the floors.
19. Mr. Germaine obtained a report from PDS BFP Consulting Engineers and Bill Forristal B.E. of that firm inspected the Premises prior to providing his report dated 27th October, 2016, and gave a considered view that the structure remaining was in a “dangerous state and presents a significant hazard both within the site, to the adjoining properties and to the general public on the adjoining street”, and recommended that “action should be taken as soon as practicable to make safe the site”.
20. Mr. Forristal in a previous paragraph in his report noted that the “root cause” of the recent collapse of the rear wall “is not immediately apparent” but noted that the structural configuration combined with poor condition of flooring and roofing timbers resulted in an unstable structure prone to collapse from vibrations or from accidental impact.
21. Mr. Forristal recommended that access to the site be restricted, that consultation be had immediately with Carlow County Council, that temporary safety measures and “long-term proposals” and measures be taken, and that the damaged roof and damaged and dangerous masonry walls be reduced to a safe height. It was noted as important that agreement be reached with neighbouring owners on temporary and long-term weathering and structural support. Prompt action was advised.
22. Mr. Forristal expressly noted the “broader” scope relating to the planning and building control situation on site.
23. The evidence of Mr. Germaine was that the building was demolished in reliance on this report and for reasons of health and safety. His evidence is that his motivation in carrying out the works of demolition was to ensure the safety of nearby buildings and members of the public, and that he was anxious to do so before what he describes as the “festivities” expected over the October bank holiday weekend “reached the building”.
24. The respondents rely on this sequence of events as the factual basis on which it is argued that the works carried out were exempted development.
25. Mr. Germaine avers that it was always his intention to refurbish the building in the manner which is now intended and that “the intention in respect of the building” is to reconstruct it “in the same style and in terms of its appearance facing the street” and the new building will be “identical or certainly not materially different from, the building that was there originally”. He asserts that the works now proposed to reinstate the building will have the effect that the new building on the site will be of the “same appearance of the original building, albeit in a structure that will be stable and appropriate”.
The statutory provisions
26. Section 2 of the PDA as amended provides the definition of “works” as follows:
“‘works’ includes 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.”
27. The legislation identifies a class of development including the carrying out of works as exempt, and the relevant exempting provision on which the respondents rely is s. 4(1)(h) of the PDA:
“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;”
28. The leading case on the interpretation of the exempting provisions is the judgment of Ryan J. in Michael Cronin Readymix v. An Bord Pleanála [2009] 4 IR 736. The works in question involved the extension of quarry works to incorporate a plant to manufacture cement blocks. An Bord Pleanála determined, pursuant to its statutory power in s. 5 of the PDA, that the construction of the extension for block-making was not exempted development, as it did not constitute works carried out for the “maintenance, improvement or other alteration” of the existing structure. The judgment of Ryan J. was given in the challenge by the applicant to the decision of An Bord Pleanála.
29. Ryan J. considered the meaning of the word “alteration” in s. 4(1)(h) and identified a number of different meanings in the phraseology used in the subsection. Of particular relevance to the present application is that Ryan J. noted that when the effect of works of improvement, maintenance or alteration was to render the appearance inconsistent with the structure, the works were not capable of being characterised as exempt. An alteration envisages of its nature “some material impact”, but an alteration that is inconsistent with the character of the building is not exempt.
30. Ryan J. considered that An Bord Pleanála had been wrong in its interpretation of s. 4(1)(h), and as he put it:
“an extension is not excluded as a matter of definition. An extension can be an improvement or an alteration. Maintenance and improvement (and other alteration) are the purposes for which the work is done in exempted development.” (para. 25)
31. Ryan J. summarised the matter as follows:
“It is clear when the paragraph is analysed in this way that work that is exempted development can materially affect the external appearance of the structure provided it does not make it inconsistent with its own character or that of neighbouring structures. This is precisely the point that was decided in Cairnduff v. O’Connell [1986] I.R. 73, where the Supreme Court was satisfied (although Griffin J. had some reservation on the point) that the works did materially affect the external appearance of the defendant’s house. The court held that the work was not inconsistent with the character of the house itself or adjoining houses and was therefore exempted development. The balcony and staircase at the back of the defendant’s house could well be described as an extension, as well as an alteration or an improvement.” (para. 26)
32. Ryan J. gave a number of illustrations of works that might be considered exempted and others which would not. The building of a modest extension to a domestic dwelling, and the carrying out of painting or other works of decoration or maintenance might in some cases change the character of a building but in other cases not do so. As he said, the definitions are not “intended to express legally watertight and hermetically sealed concepts and have to be given their reasonable meanings in the particular contexts in which they are used.” (para. 27)
33. In reliance on that judgment, the respondents argue that the works carried out by them, while they are properly to be characterised as “works” within the meaning of the PDA, are exempted works of development as the works were carried out with the intention of reconstructing the building, i.e. for the purpose of improvement or alteration of the building, and that, as it is the intention of the respondents that the building would be restored in the same style as the building that was there originally, the works are exempt.
34. The proposition is grounded in an assertion that works may be exempted if the subjective intention or purpose of the person carrying out those works is to maintain or improve an existing structure, and that an accidental or unintended consequence of the carrying out of works remains exempt even if the consequence of those works would not taken alone be exempt. I do not consider this proposition to be legally sound for a number of reasons.
35. The suggestion that the exemption contained in s. 4(1)(h) requires a planning authority or the court to engage in an analysis of the intention of a person would make a decision on a planning matter one to be determined on the basis of a finding of subject motive or intention, would involve the planning authority or the court in an analysis of subjective, and difficult to ascertain, intention, and could make a consideration of whether works were exempt a matter of conjecture. Whether works or a development are exempt is a matter to be determined objectively by reference to the definition in s. 4(1)(h), and by reference to the character of the building and adjoining buildings, not by reference to whether the works were deliberate, accidental or, as presented by Mr. Germaine, merely an unfortunate and unintended consequence of the carrying out of improvements.
36. The question whether particular work is exempt is a question of law to be determined in the light of the facts and the definition contained in the PDA. Just as the question whether the impact of works materially affects the external appearance of the structure is a question of the application of legal principles to the facts, so too is the question whether works are exempt. The planning authority determines the matter by reference to the nature of the works and the nature of the building to which alterations are made. The task is the assessment of whether the carrying out of the works, be they characterised as improvement or maintenance, has or is likely to have the effect that the building has lost its material or essential elements. These matters are to be objectively assessed.
37. The concrete application of the provisions relating to exemption readily admit of different classes of work of different degrees of intensity lying in different places along a spectrum between works which can readily be characterised as improvement, and works which have the effect of changing the original identity of a building, such as the external appearance or the character of the building is inconsistent with or materially different from the old building.
38. To take an example, the carrying out of works to extend the ground floor of an existing dwelling house might involve the demolition of some of the rear wall of the building. The purpose of demolishing the wall is to facilitate or enable the construction of the extension, which could be characterised as an improvement or alteration of the existing structure. The excavation and demolition of the rear wall is carried out in order to facilitate the works of improvement or extension. In the words of the statute, the carrying out of the work of demolition is for that improvement.
39. The entire demolition of the house on the other hand will inevitably affect the external appearance of the structure, and it is difficult to imagine a more extreme example of the alteration of a structure than the alteration by demolition of an entire building as a result of which what is left is an empty site or a hole in the ground.
40. The mere fact that the motive or purpose of demolishing the building is to build a new building with modern materials, with an appearance identical, or materially similar, to the previous building cannot of itself render demolition exempt. Put simply, the new building is not the same structure as the old building, and while this might be particularly obvious or stark in the case of a historic building, it is an observation that may be made in regard to any building, even a building of no particular architectural or conservation interest.
41. The matter can also be dealt with by reference to the identity or essence of a building, and any work of demolition or excavation which means that the original building has entirely lost its identity as a building, could not in my view be exempt development as it could not be said that the works did not materially affect the external appearance of the structure. The demolition of a building does not merely affect the external character of the structure, but destroys the structure.
42. There is some judicial authority on how a court might determine how a building has lost its original identity in planning terms. Herbert J. in McCabe v. Córas Iompair Éireann & Anor. [2007] 2 IR 392, considered precisely this question in regard to works carried out by the respondents to a railway bridge which it claimed had been necessitated by damage caused to the bridge by being repeatedly struck by heavy good vehicles. In the course of the works, the respondents eliminated an arch in the bridge and replaced it with a flat deck. Planning permission had not been obtained for the works. Herbert J. held that the works were exempted development, being works for the maintenance, improvement or alteration of the bridge. Herbert J. considered that the matter came down to the extent or degree of the works or reconstruction:
“In my judgment the renewal or reconstruction of a part or of parts of the bridge would be covered by the provisions of s. 4(1)(h) of the Act of 2000, provided that the extent of that renewal or reconstruction was not such as to amount to the total or substantial replacement or rebuilding of the original structure. The question is one of fact and degree whether in the instant case the original railway under bridge has been so changed by the works that one could not reasonably conclude that it remains the same bridge even though with some alterations, improvements or indications of maintenance work.” (para. 23)
43. Herbert J. found that the replacement of the brick and stone arch with a new flat span pre-concrete deck structure was “undoubtedly an improvement of the structure”, and that the original bridge “has not been so totally altered that it becomes a new bridge even though it maintains some part of the former bridge”.
44. Herbert J. considered various indices or elements of the new bridge structure as relevant to his consideration. The overall dimensions of the bridge remained the same, the essential and immediate visual impact was preserved as the original sections of the original limestone abutments remained. The new arches were faced with reconstituted stone blocks. The visible replacement stone work “was designed to blend, and does effectively blend the new single span flat deck” with the existing stone structure. Herbert J. also referred to the colour or design of the materials used and noted that these did not “contrast discordantly” with the other masonry.
45. The Supreme Court considered the question in Cairnduff v. O’Connell, which dealt with s. 4(1)(g) of the then relevant Act of 1963. Finlay C.J. held that the insertion of a window in the side wall of the three storey terraced house, the replacement of a window by a door in the construction of a balcony, and the installation of a staircase for the purpose of converting it into a residence of two flats, did not so materially affect the external building of the structure as to render it inconsistent with the character of the house itself or adjoining house:
“Secondly, I am satisfied that the character of the structure provided for in the sub-section must relate, having regard to the provisions of the Act in general, to the shape, colour, design, ornamental features and layout of the structure concerned. I do not consider that the character of the structure within the meaning of this sub-section, can depend on its particular use at any time …” (p. 77)
Application to the facts of the present case
46. The case law, including the judgment of Herbert J. in McCabe v. Córas Iompair Éireann & Anor. and the Supreme Court in Cairnduff v. O’Connell, relates to works of development which altered existing structures, and by which the court was considering whether the structures that lost their original identity. The entire destruction of a building, which leaves nothing more than a hole in the ground, must of its very nature be an alteration to which the process identified in s. 4(1)(h) could not be applicable, namely that works be carried out for a purpose with a particular effect on an existing structure and consistent with the essence or identity of that structure.
47. The entire character of the Premises as a building has been destroyed, and therefore, in my view, as a matter of law and objectively speaking, it is not possible to argue that the works did not so materially affect the external appearance of the structure so as to render its appearance or character inconsistent with its previous structure or surrounding buildings.
48. The matter is not one of motive, and the destruction of a building even for purposes of putting in its place a building which is more structurally sound, cannot render the works exempt.
49. It follows, therefore, that I consider that the respondents have failed to convince me that the development carried out on the premises is exempted development. This has the effect that s. 160 of the PDA is engaged and the application under that section is properly brought.
The section 160 application: discretion
50. The respondents concede that works to reinstate the building are required to be done, and have in open court and on affidavit expressed a willingness to carry out the necessary works to replace the demolished building with a new building of similar character and type. In those circumstances, the respondents say that it is unnecessary and wrong that an order be made under s. 160, and that even I were to determine that the works carried out by the second respondent constituted unauthorised development, that I should refuse to grant injunctive relief having regard to what they say were bona fide intentions, and the fact that the building was demolished for reasons of health and safety and not with any motive inconsistent with the planning code, or with an intention of deliberately ignoring the architectural and period features of the building.
51. The leading judgment on the power of the court to grant a planning injunction under s. 160 remains the case of Morris v. Garvey [1982] I.L.R.M. 177 which has been considered in a number of subsequent cases including the judgment of Clarke J. in Cork County Council v. Slattery Pre-cast Concrete Limited & Ors. [2008] IEHC 291, where he noted that while the court retained a discretion as to whether it might grant an order under s. 160 where it is established that there has been unauthorised development, that discretion is to “sparingly exercised” (para. 12.1):
“At the same time the starting point has to involve a recognition that unauthorised development is unlawful and that a court should be slow to tacitly accept the unauthorised nature of a development by giving any undue leeway to the party who has been guilty of the unauthorised development in the first place.”
52. Undoubtedly, the actions of the parties have a bearing on the exercise of the court’s discretion, but so too do other factors.
53. Kearns P. in Wicklow County Council v. Kinsella [2015] IEHC 229, at p. 56 of the judgment identified a number of relevant factors:
“(a) The reasonableness of the conduct of both parties;
(b) The bona fides of the respondent in dealing with the planning authority;
(c) Public convenience or interest i.e., the extent to which the public may be adversely affected;
(d) Delay (if any) in bringing the application;
(e) Error merely technical or minor;
(f) Undue hardship on the respondent, (though in Westport UDC v. Golden [2002] 1 I.L.R.M. 439 Morris P. took into account the extent to which the respondent contributed to the situation);
(g) Opinion of the planning authority.”
54. In the present case, the planning authority is of the opinion that the demolition works were not exempt and has sought an order for the reinstatement of the building in its totality “in like dimensions and fabric, and in consultation with the Council and further with the consultation of a conservation architect in the Department of Arts”. There was no delay and the breach of the planning code is not trivial or technical.
55. The one factor which might influence me in determining whether to grant an injunction is the reasonableness of the conduct of the respondents, and whether the demolition of the building was an unintended consequence of other clearly exempt works. This does require that I determine an issue of fact.
56. Mr. Germaine asserts that his purpose in carrying out the works of total demolition arose from advice that the building was unsafe, and that the sequence of events had the effect that, notwithstanding his prior intention, the only reasonable and safe thing to do was to demolish the building in its entirety.
57. The applicants point to a number of factors which would suggest that the evidence of Mr. Germaine is not credible. In particular, they point to the fact that the timber, clay brick, timber rafters and timber floor, found in the demolition yard were not in very bad condition, or were in good condition, notwithstanding what is asserted by Mr. Germaine. They point also to the fact that Mr. Germaine, before he received the report from Mr. Forristal, at 12:15 on Saturday 29th October, 2016, had some hours earlier begun the demolition works. None of the recommendations made by Mr. Forristal were followed, including the recommendation that the respondents seek “planning permission for demolition or have the written authorisation/direction from the County Council”. The planning authority was not consulted nor was an agreement reached with neighbours. Mr. Forristal in a letter of 30th October, 2016, sent to Mr. Germaine confirms that he had advised Mr. Germaine before the works of demolition were carried out verbally and by text that “you could not proceed without getting the necessary approvals”. Mr. Forristal says the works carried were “unauthorised works” and done “against my advice”.
58. The applicants argued that the weight of evidence, including that of independent experts including Mr. Forristal, the affidavit of Karl Pedersen, Architect sworn on 28th November, 2016, and the affidavit and exhibited memoranda of Paula Murphy, Executive Planner of Carlow County Council, sworn on 14th November, 2016, which shows advice given to Mr. Germaine on Thursday, 27th October, 2016, to, inter alia, take down the damaged roof safely and to consult with Carlow County Council on matters of temporary safety and long term proposals, points to a deliberate or careless approach to the works by the respondents.
59. Nonetheless, the matter remains one where there is a conflict on affidavit, and notwithstanding that s. 160 provides that the application is to be heard by affidavit, a material fact asserted on affidavit by Mr. Germaine that the demolition works were done wholly for safety reasons, is one that cannot be resolved by affidavit. Certain objective and independent pointers exist to point to a more complex series of motives, but nonetheless it seems to me that in order to resolve the matter fully and in order to fully adjudicate on whether the discretionary factors identified on behalf of the respondents should preclude me from granting an injunction, it is appropriate that I now require the attendance of Mr. Germaine for cross-examination. I consider that the conflict of evidence may not be readily resolved without the cross-examination of Mr. Germaine on his two affidavits.
60. A notice of motion issued on 7th March, 2017, pursuant to O. 40, r. 1, requiring the attendance of Mr. Germaine for cross-examination and for reasons relating to the listing of the case, this application came to be listed at the hearing of the application under s. 160 on 24th March, 2017. Mr. Germaine did not attend and, therefore, the matter proceeded in his absence by the opening of the affidavit evidence and legal argument. Both counsel accepted that a final decision on the application may have to await the result of cross-examination and I agree.
61. In summary, I conclude:-
(a) I am satisfied as a matter of law that the works of demolition carried out by the respondents are not exempted development for the purposes of s. 4(1)(h) of the PDA.
(b) Whether I should exercise my discretion and refuse to make an order in the light of the assertion that the demolition occurred as a matter of mistake or as an unintended consequence of a lawful action will await the cross-examination of Mr. Germaine.
62. The suggestion that an injunction is not necessary having regard to the concession made by the respondents is linked to the question of the discretionary nature of the remedy, albeit I note for present purposes that the degree to which the reinstatement must respect the fabric of the historic building is one which may require ongoing supervision by an expert. I am persuaded by the argument of the County Council that the works must be of a type and quality which respects that character, and that ongoing scrutiny and supervision may be necessary in the circumstances.
Michael Cronin (Readymix) Ltd v An Bord Pleanála
[2017] IESC 36
JUDGMENT of Ms. Justice O’Malley delivered the 30th day of May 2017.
Introduction
1. In these judicial review proceedings the respondent to the appeal (hereafter “Cronin” or “the company”) sought an order of certiorari in respect of a ruling made by An Bord Pleanála (“the Board”) pursuant to the terms of s.5 of the Planning and Development Act 2000 (“the Act”). The Board had determined that works carried out by the company amounted to development and were not exempt from the requirement to obtain planning permission. The learned High Court judge (Ryan J., as he then was) granted the relief sought but also granted a certificate for appeal to this Court pursuant to s.50(4)(f)(i) of the Act. The question certified is whether or not he was correct in his interpretation of s.4(1)(h) of the Act, which led him to hold that the contentious works carried out by Cronin constituted exempted development within the meaning of the Act.
2. The facts relevant to the appeal can be briefly stated. Cronin operates a quarry at Coolcaslagh in Co. Kerry. The site owned by the company covers about 130 acres, of which 96 acres are used for excavation. It produces both readymix concrete and concrete blocks at the site.
3. In late 2003 the County Council (“the planning authority”) became concerned about the extent of the operations and inspected the site with a view to enforcement proceedings. The inspector found a hard surfaced yard, of some two acres in extent, being used for the purposes of the block-making operation. The company’s position was that quarrying and the production of concrete at the site pre-dated the Local Government (Planning and Development) Act 1963; that making concrete blocks was not different in kind to the manufacture of readymix concrete since the same ingredients were used; and that there was no new structure on the site but simply the replacement and extension of an old yard for the purpose of drying and storing the blocks prior to despatch to customers.
4. In May 2006 the planning authority applied for a determination from the Board under the procedure provided for in s.5 of the Act as to whether or not there had been development, and, if so, whether or not it was exempted development. The authority believed that the quarry and the concrete plant had been in existence for longer than seven years and accordingly no enforcement action could be taken in that regard. However, it considered that they were both unauthorised developments. It also said that it had established that the block manufacturing business was a recent development and therefore amenable to enforcement.
5. The case made by Cronin was that the works had not required planning permission. It was asserted, firstly, that the entire quarry site and related processing activities pre-dated the time of commencement of the Local Government (Planning and Development) Act 1963. It was submitted, in relation to the repaving and extension of the yard, that no new structure had been erected and that the previously-existing concrete yard had been in use as part of the established readymix concrete batching operation. The space taken up was less than two acres of a site of 130 acres. There was no appreciable increase in the extent of manufacturing operations; no perceptible traffic impact; and no perceptible noise or dust impact. The works had been carried out in a low-lying, worked out area of the quarry and were not visible from any public road or any residence in the vicinity. In those circumstances the exemption provided for in s.4(1)(h) of the Act was relied upon. The development, it was submitted, came within that provision because it constituted works for the “improvement” or “alteration” of a structure, which affected only the interior of the structure or which did not materially affect the external appearance of that structure so as to render its appearance inconsistent with the character of the structure.
6. It was also submitted that the planning authority had failed to demonstrate that the block-making amounted to a material change of use, rather than being ancillary to the overall quarry use. The batching process for the blocks was said to be no different to the process for readymix concrete, up to the point that the wet concrete emerged from the batching plant. At that point readymix concrete was poured directly into delivery trucks and taken to construction sites, whereas the blocks had to be shaped and were then laid out for three days on the paved area to dry out before delivery. The overall level of production of concrete had not changed.
7. The inspector who reported to the Board took the view that on the evidence, the Board could only conclude that some form of quarry operation and block manufacture was in place prior to the commencement of the 1963 Act, but that it could not be determined that no material change of use by reason of intensification had not occurred. She pointed to evidence suggesting that production had increased in 1984. In the circumstances she felt that it could not be determined that the quarry was authorised, and she therefore could not accept that the use of the batching plant was ancillary to an authorised quarry.
8. The inspector considered that the laying out of the hard surfaced area and the use of the two-acre part of the site for purposes related to block manufacture was of critical importance. Her conclusion was that the laying out of the hard surface area was development and was not exempted development. Her reasons were as follows:
“In relation to the enlargement of the yard, which is stated to be about 2 acres in extent, there is no dispute between the parties that the yard has been extended to facilitate drying and storage essential to the production of concrete blocks. The operator’s case is that the replacement of the old yard and the extension of the yard are not visible and that an exemption under s.4(1)(h) applies. Section 4(1)(h) relates to 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…’
I submit that the replacement /repaving and extension of a concrete yard would not be described as either maintenance or improvement of a structure as neither would allow for an extension of the area. The term ‘alteration’ is defined to include plastering or painting, removal of plaster or stucco or the replacement of a door, window or roof that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures’.
I consider that neither the legal definition nor the ordinary dictionary definition of ‘alteration’ encompass the concept of an extension or enlargement as a defining characteristic but rather relates to more minor changes to a structure. I consider that an extension of the yard has taken place and that this is ‘works’ and is ‘development’, but would not be described as ‘maintenance, improvement or other alteration of any structure’ and does not therefore fall within the exempted development provisions set out in section 4(1)(h) of the 2000 Act and I reject the operator’s arguments in this regard.”
(Emphasis in the original.)
9. The inspector accepted Cronin’s argument that the production of concrete blocks, as opposed to readymix, did not have a material planning impact in terms of the type and quantity of raw materials used or in relation to the traffic implications. Nor did it constitute an intensification of use in terms of materials sourced from the site and then processed and exported from the site. However, it was likely to give rise to additional noise and dust related disturbance. On this aspect, she noted that there was a private residence nearby. In addition, concrete block production required an extensive area of land for the purpose of open area storage. In this respect she considered that there had been a significant change in the nature of the process and an intensification of use of the lands. She said:
“The production of concrete blocks is reliant on the laying out of 2 acres of a 130 acre site, of which only 96 acres is used for excavation, and the use of that land for the drying and storage of blocks. I consider that this use of land has material planning consequences in terms of the visual impact of the development when viewed from surrounding lands – natural regeneration of the site could have occurred if this area was not surfaced. There are changes in terms of the surface water flows in the area and the extensive nature of the operation in landuse terms compared with the production of readymix with possible resulting impacts on geology and hydrology. The development of an extensive hard surface area at this location would also militate against the development of a habitat which would potentially be of ecological importance and this is a further consequence in terms of the proper planning and sustainable development of the area. I conclude that the development of a 2 acre hard surfaced area has material planning consequences. The process of production of concrete blocks is therefore materially different to that of the production of readymix and constitutes a material change of use.”
10. In coming to the conclusion that there had been development and that it was not exempted development, the Board ruled, inter alia, as follows:
• that the laying out of a hard surfaced area of two acres in extent was development;
• that the laying out of a hard surfaced area of two acres in extent did not fall within the scope of s.4(1)(h) of the 2000 Act, in that it did not constitute works for the maintenance, improvement or other alteration to a structure;
• that the manufacture of blocks was dependent on the use of a large area of land for drying and storage which gave rise to material planning effects; and
• that the production of concrete blocks was an intensification of use that consisted of a material change of use of the land.
11. Cronin thereafter instituted judicial review proceedings. The two reliefs claimed were an order of certiorari of the decision that the block making operation was development, and was not exempted development, and a declaration that the Board did not have jurisdiction to make that decision in the absence of sufficient evidence as to the use of the lands at October 1st, 1964 and/or prior to the alleged material change of use of the lands. It should be noted that, having regard to the certified question, this appeal is not concerned with the concept of “material change of use” but only with the issue of exempted development.
The relevant legislative provisions
12. It is relevant to consider, to begin with, the general policy of the planning permission regime as set out in the Act. Section 32 provides that, subject to the other provisions of the Act, permission is required in respect of any development that is not exempted. Subsection (2) of that section stipulates that, where permission is required, development is not to be carried out except under and in accordance with permission granted under the Act.
13. In the vast majority of cases, an application for permission to develop land is to be made to the local planning authority. In deciding whether or not to grant permission, or to grant permission subject to conditions, the planning authority is constrained by the provisions of s. 34 of the Act to consider the proper planning and sustainable development of the area. Regard must be had to the development plan for the area; the provisions of any special amenity area order relating to the area; any European site or other prescribed area; where relevant, the policy of the Government or any Minister of the Government; and any other relevant provisions of the Act or regulations made thereunder. Section 34(4) provides for a non-exhaustive list of 18 matters that may be the subject of conditions attached to planning permission, including measures to regulate the use of any adjoining land owned by the applicant, the control of noise and vibration and conditions relating to the carrying out of the necessary works.
14. Development, for the purposes of the Act, is defined in s.3 as meaning, except where the context otherwise requires,
“the carrying out of works on, in, over or under land or the making of any material change in the use of any structures or other land”.
15. Section 2(1) provides in relevant part that the word “works” includes
“any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.”
16. Section 4(1) sets out a list of categories of developments which do not require permission. These are referred to as exempted developments. As far as non-State developers are concerned, the notable classes are perhaps those dealing with the use of agricultural land and those dealing with forestry-related activities. There is also an exemption for house occupiers in relation to the use of any structure or land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such.
17. Section 4(2) empowers the Minister to provide, by regulation, for any class of development to be exempted development for the purposes of the Act where, inter alia, in his or her opinion, the carrying out of that class of development would not offend against principles of proper planning and sustainable development by reason of its size, nature or limited effect on its surroundings.
18. The Act has been amended in recent years but as of the date of hearing of this matter in the High Court the category of exemption in issue in the case was s.4(1)(h), which refers to
“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.”
19. The word “structure” means any building, structure, excavation or other thing constructed or made on, in or under any land, or any part of a structure so defined. Where the context so admits it also includes the land on, in or under which the structure is situate.
20. It is also necessary to consider the meaning of the word “alteration”. It is not defined as such, but s. 2(1) of the Act provides that it
“includes
(a) plastering or painting or the removal of plaster or stucco, or
(b) the replacement of a door, window or roof,
that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures.”
The High Court judgment
21. It was contended on behalf of Cronin that the work done to the yard surface was an alteration or an improvement, or perhaps even maintenance, of the structure. The structure in question was either the quarry as a whole, or the concrete yard surface.
22. The Board submitted that the laying down of the yard was an extension, whether considered as an extension of the quarry itself or of the concrete area. Extensions are specifically mentioned in the definition of “works” and must be seen as a separate and distinct category within that definition. They cannot be subsumed into the concepts of “alteration” or “improvement” and are not specifically included in the exemption provisions. The works therefore could not be exempt, whether they materially affected the appearance of the structure or not.
23. The trial judge considered that the Board’s approach required the exclusion from s.4(1)(h) of some of the meanings of “works” set out in s.2(1). He preferred to assume that the word was to be given the same meaning in both sections, so that an extended version of the provision for exempted development under the relevant heading would read:
“the carrying out of works (including any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal) for the maintenance, improvement or other alteration of any structure, being works which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure.”
(Emphasis in the original).
24. Ryan J. rejected the argument that extensions were excluded from s.4(1)(h), stating that an extension could be considered an improvement or an alteration. The words should not be construed as a term of art in a criminal statute or a Tax Act. At p.9 of the judgment he said:
“The Board was wrong in its interpretation of s.4(1)(h), in my view. An extension is not excluded as a matter of definition. Maintenance and supervision [sic – recte improvement] (and other alteration) are the purposes for which the work is done in exempted development. The definition of works in s.2 lists the kind of activities of which any act or operation constitutes works. So, an act of demolition amounts to works; so does an operation of renewal etc. An act or operation of construction or repair may be required for the purpose of maintenance of a structure and that is obviously intended to be exempted development, but it would be excluded if the Board’s submissions are correct. By insisting that the work done must be actual maintenance, improvement or other alteration, rather than for [the purpose of] maintenance etc., the Board confuses purpose and act and overlooks ‘the carrying out of works’ in s.4(1)(h).”
25. The trial judge considered that his was, in any event, a more practical approach because otherwise permission would be required for every small extension to a private house. He acknowledged, however, that his interpretation required the giving of two different meanings to the word “alteration”. This was because, in his view, “alteration” in s.2(1) described acts, including painting and plastering, which resulted in a material impact on the external appearance of a building while “alteration” in s.4(1)(h) related to purpose. He found it necessary to take this approach in order to avoid attributing meanings to the word which were actually in conflict with each other.
26. In his concluding remarks on the issue the judge said:
“In the result, the Inspector and the Board did not ask the correct question or questions. It was clear that works had been carried out. The fundamental question therefore was not about the nature of the work done but rather about its purpose and effect. Did the work make the structure inconsistent with its character? If it did not, the next question was whether the work done was for the maintenance, improvement or other alteration of the structure. In the circumstances of this case, I think that neighbouring structures did not enter into the question of whether the works made the quarry inconsistent with them.
This misunderstanding of s.4(1)(h) in its statutory context is fatal to the decision made by the Board.”
Submissions in the appeal
27. Counsel for the Board summarises the effect of the ruling of the trial judge as being that all types of works described in s.2(1) can be exempt under s.4(1)(h), provided they are for the specified purposes and do not materially affect the appearance of the structure in question. This would be so even if the development bore no relationship to the original structure. It is submitted that this approach overlooks the fact that the Act deals with a regulatory scheme, which imposes a general requirement that all development should be the subject of planning permission. This general requirement should, it is submitted, be interpreted broadly while the discrete exemptions provided for should be interpreted narrowly. By including all s.2 descriptions of “works” within the exemption in s.4(1)(h), depending only on purpose and visual impact, the trial judge’s reading of the legislation ignored the importance of other planning considerations such as environmental impact. Appearance is of very slight relevance in the case of a quarry but issues relating to water, noise and traffic could be very significant.
28. It is submitted that it was an error on the part of the trial judge to consider that the purposive reading adopted by him was required in order to allow for small extensions to private houses, since the power of the Minister, under s.4(2) to exempt specified classes of development, by way of statutory instrument, has already been utilised for that and many other categories.
29. Looking specifically at s.4(1)(h), counsel submits that it provides for a limited category of works that amount to alterations (with the concepts of maintenance and improvement being subsets), which are either wholly internal or, if external, are insignificant. It is unnecessary in such cases to subject the development to the whole range of planning considerations, precisely because the paragraph only applies to a limited range of works. It would be absurd to construe it as covering any works, no matter what the scale and no matter how slight the relationship with the original structure, just because they are intended as improvements.
30. Counsel for the Board relies on Dillon v. Irish Cement Ltd (unrep., Supreme Court, 26th November, 1986) as an authority dealing specifically with the proper approach to interpretation of an exemption under the Act. The category of exempted works in question in that case was set out in regulations made under the then applicable legislation. Finlay C.J. said:
“I am satisfied that in construing the provisions of the exemption Regulations the appropriate approach for a Court is to look upon them as being regulations which put certain users or proposed development of land into a special and, in a sense, privileged category. They permit the person who has that in mind to do so without being in the same position as everyone else who seeks to develop his lands, namely, subject to the opposition or interests of adjoining landowners or persons concerned with the amenity and general development of the countryside. To that extent, I am satisfied that these Regulations should by a Court be strictly construed in the sense that for a developer to put himself within them he must be clearly and unambiguously within them in regard to what he proposes to do…”
31. Reliance is also placed on South Dublin County Council v. Fallowvale Limited [2005] IEHC 408. In that case McKechnie J. was dealing with an application for an injunction, under s. 160 of the Act, where the respondent developer claimed the benefit of an exemption. In determining where the onus of proof lay in such proceedings he considered a number of authorities, including Dillon v. Irish Cement and subsequent authorities where it had been cited. His conclusion (at paragraph 70) was that there was a clear preponderance of authority for the proposition that, when the development complained of was sought to be excused under an exemption provision, the onus of establishing that point was on the person asserting it.
32. On behalf of Cronin, it is submitted that the Court should give the words of the legislation their natural and ordinary meaning. Counsel argues that Dillon and Fallowvale were both concerned with the question of the onus of proof rather than the appropriate principles of statutory construction, and do not govern the issue in this case. If the Oireachtas had intended to limit the “works” concerned to certain sub-categories it would have referred to “works of … maintenance, improvement or other alteration”. Use of the word “for” is said to express the concept of purpose.
33. However, it is also submitted that the principle of strict construction of penal provisions is applicable, on the basis that the Act creates, in s.151, an offence of carrying out “unauthorised” development (that is, post-1964 development that has no permission and is not exempted development). On this basis, s.5 of the Interpretation Act 2005 is relied upon for the proposition that the words used should not be given a purposive meaning.
34. Counsel argues that the learned High Court judge was correct in holding that the exemption in question is limited only by the purpose of the development and its effect in terms of visual impact. It is said that the “structure” that has been altered in this case could be considered to be either the yard or the quarry. The previous hard-standing area was in itself an alteration to the quarry, so any alteration to that area might be said to be an alteration to the quarry. Counsel contended that there was no limitation of a permissible development in terms of size, provided that it remained within the quarry structure. It would be permissible to concrete over the entire floor of the quarry.
35. On this aspect, counsel for the Board refers to s. 261 and the definition of “quarry” therein, which specifically excludes a place at which manufacturing is carried out.
36. It is accepted by Cronin that the interpretation now urged might be said to weaken the framework created by the Act for environmental protection in the planning process. However, it is submitted that the existing controls relating to intensification and material change of use still apply. In any event, if the provision has an adverse effect it is a matter for the Oireachtas and not for intervention by the Court.
A penal statute?
37. Section 5 of the Interpretation Act 2005 provides as follows:
“5.-(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)-
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of-
(i) in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or
(ii) in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
the provision shall be given a construction that reflects the plain intention of the Oireachtas or Parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
38. Section 151 of the Planning and Development Act provides that any person who has carried out or who is carrying out “unauthorised” development shall be guilty of an offence. The offence is triable either summarily or on indictment. Section 156 provides that in such proceedings
“it shall not be necessary for the prosecution to show, and it shall be assumed until the contrary is shown by the defendant, that the subject matter of the prosecution was development and was not exempted development.”
39. Section 156 thus creates a reverse burden or onus of proof. It would be inappropriate to determine in these proceedings what the precise parameters of that burden might be. If necessary it would fall to be considered in the light of authority holding that such a burden, in general, requires an accused person only to demonstrate the existence of a reasonable doubt. (For a recent discussion of this topic, see Director of Public Prosecutions v. Heffernan [2017] IESC 5.)
40. I am satisfied that the Act is not a penal statute in the sense of having as its objective the creation of a criminal offence, with the provision of a range of defences. The purpose and scheme of the Act is to create a regulatory regime within an administrative framework which, in the interests of the common good, places limits on the right of landowners to develop their land as they might wish. The principal objectives of the regime are proper planning and sustainable development, and the chief method of ensuring the attainment of those objectives is the planning permission process. It is based on the principle that developments that might have some significant impact, having regard to the range of factors encompassed within the concepts of proper planning and sustainable development, should go through the assessment process necessary for the grant of planning permission. The primary roles in that process are given to the planning authorities and the Board. The main powers of enforcement provided for in the Act are conferred on them.
41. A crucial point, for the purposes of this case, is that those bodies are responsible for deciding what is or is not exempted development. They do so by exercising civil powers conferred by the Act, not in the context of a criminal prosecution. It is necessary to point out again that the issue in this case arises from a ruling made in the procedure provided under s.5 of the Act. That provision sets out a scheme whereby, in the first instance, any person may apply to the relevant planning authority for a declaration as to whether what has occurred in a particular development is or is not development; or whether it is exempt development. A planning authority may, on its own initiative, make a similar application to the Board. The procedure is an expedient method of determining the status, within the regulatory regime, of a particular development about which some doubt may exist.
42. In Grianán an Aileach Interpretative Centre v. Donegal County Council (No.2) [2004] 2 IR 625 the Supreme Court held that, having regard to the availability of the s. 5 procedure, the High Court had no jurisdiction to grant a declaration that certain proposed activities at a venue were covered by the terms of its planning permission. While such a question might legitimately come before the courts in, for example, enforcement proceedings, the jurisdiction to determine the issue in the first place had been conferred on the planning authority and on the Board. In Wicklow County Council v. Fortune [2013] IEHC 397 Hogan J. held that this reasoning must be taken as impliedly precluding the High Court from finding that a development was exempted where there was an unchallenged decision by the Board that it was not. I agreed with his conclusion in my judgment in Wicklow County Council v. O’Reilly [2015] IEHC 667.
43. It follows that the primary role in determining whether a development is exempted or not is given to (depending on the circumstances) either the planning authority or the Board. A decision by one of those bodies is an authoritative ruling on the issue, subject to the potential for judicial review. However, it plainly does not, and could not, result in a determination of guilt or innocence of a criminal offence. There was no suggestion to the contrary at any stage of these proceedings. In my view, therefore, it is entirely inappropriate to read the provisions of s.4 as if they related to “the imposition of a penal or other sanction”. What they are concerned with is the exemption of categories of development from the general requirement to obtain permission.
44. In any event, I consider that s. 5 of the Interpretation Act has no application to the matter before the Court. Section 4(1)(h) is not obscure or ambiguous and does not lead to an absurd result.
Conclusion
45. The issue, then, is whether the plain intention of the Oireachtas can be ascertained. In my view it can. I agree with the argument of counsel for the Board, as summarised in paragraphs 28 to 30 above, that the effect of the High Court judgment would be to render exempt a range of developments far in excess of the intention of the Oireachtas. One must bear in mind the overall framework and scheme of the Act, with the many considerations that come into play in the planning process, and look at the context of the provision in question within that framework. I think it is manifestly unlikely that the intention was to render exempt all works carried out on any existing structure, including unlimited extensions in size, subject only to considerations of visual appearance (and subsequent considerations arising from any intensification of use). Nor do I consider that the words used in the section compel the Court to the conclusion that this is the meaning of the section.
46. In the first place, it seems necessary to stress that there is no single definition of the word “alteration” for the purposes of the Act. Thus, for at least some purposes of the Act an “alteration” may involve something that changes the external appearance in a way that is inconsistent with the character of the structure in question, or with the character of neighbouring structures. However, for the purposes of the exemption an “alteration” must not have that effect.
47. Given the different ways in which the word is used, it is best taken as simply bearing its ordinary meaning of “change”. Obviously, an extension is an alteration but that does not really advance the argument in any direction.
48. It is true that, in principle, an extension could be considered to be an improvement. However, that is a concept that requires further examination. Almost by definition, any proposed development will be an improvement from the point of view of the developer. In my view the trial judge fell into error in ascribing such significance to the word “for” in the phrase “works for the maintenance etc” as to make the purpose for which the works were carried out of paramount importance. In the context of the overall framework, policies and purposes of the Act, that is to ascribe a weight which I do not believe the word can bear. I do not consider that it was the intention of the legislature to make the necessity to apply for planning permission dependent on the motive and purpose of the developer. It seems to me that an “improvement”, for the purposes of an exemption, must be something that relates to the internal use and function of the structure, resulting in either no externally noticeable difference or an insignificant difference.
49. In my view the interpretation placed on s.4(1)(h) of the Act by the High Court was incorrect. I accept the arguments of the Board as to its true meaning, and consider that an extension is a development that does not come within the exemption. In the circumstances I would allow the appeal.
Ian Cairnduff and Maureen Cairnduff v Peter O’Connell
1984 No. 212
Supreme Court
5 February 1986
[1986] I.L.R.M. 465
(Finlay CJ, Walsh and Griffin JJ)
FINLAY CJ
(Walsh J concurring) delivered his judgment on 5 February 1986 saying: This is an appeal against an order of the High Court made by Barrington J on 11 July 1984, dismissing an application for an injunction pursuant to s. 27 of the Local Government (Planning and Development) Act 1976.
The appellants who are owners of the house, 56 Waterloo Road, in the City of Dublin, sought an injunction restraining the respondent who is the owner of the house immediately next door, at No. 58 Waterloo Road, from the breaking open and insertion of a window into the side wall of the return of the respondent’s house and the replacement of a window in the side wall of that return by a door and the construction of a balcony outside, with an external staircase leading down to the garden.
The appellants allege the works being carried out by the respondent require planning permission and it is agreed that he has not sought or obtained planning permission. The respondent asserts that the works being carried out by him are an exempted development and do not require planning permission.
On behalf of the appellants it was candidly and clearly admitted that whilst their application is to restrain breach of the planning laws that their motive or intention is to try and preserve the privacy of a patio at garden level, which they have in their garden and which they say will be excessively and unpleasantly overlooked as the result of the opening of the window complained of and, more particularly, as a result of the construction of the balcony and staircase complained of.
In the course of his judgment in the High Court, Barrington J held that the works being carried out by the respondent were an exempted development within the provisions of s. 4 (1) (g) of the Local Government (Planning and Development) Act 1963. He further held that although the works complained of form part of an alteration of the house intended to adapt it for use as two flats, instead of its previous use as a house with bed-sittingrooms, this did not constitute a change of user requiring permission, though subsequent occupation of the house, when adapted, might do so.
The facts
The appellants who are husband and wife occupy their house as an ordinary family residence. It is one of a series of terraced houses on Waterloo Road, each of which has a return at the rear. Between the two returns, there is a distance of about 25 feet only, and there is then an ordinary garden wall as the party wall, which is approximately 12 feet high. The houses would originally have been built prior to 1850.
Up to 1974 there was a window in the return of the respondent’s house, though it may not have been as large as the window now being built or in precisely the same position. Up to some period between 1964 and 1974 there was a small landing and stairway going down from a door in the return of the *467 respondent’s house, which is in the same position as the door now being opened, but the landing being small and the stairs going down at the side of the respondent’s return and, therefore, at the maximum distance from the appellants’ premises. The balcony now constructed stretches across the entire way from the return of the respondent’s house to the edge of the party wall, and the stairs is nearer to the appellants’ premises than to the respondent’s return. There can be no doubt that a person standing on this balcony could literally lean over the wall and completely overlook the patio immediately adjoining it which is the property of the appellants.
The statutory provisions
S. 4 (1) (g) of the Act of 1963 provides that one of the categories of exempted development shall be:
development consisting of the carrying out of works for the maintenance, improvement or other alteration of any structure, being works … which do not materially affect the external appearance of the structure so as to render such appearance inconsistent with the character of the structure or of neighbouring structures.
By s. 2 (1) of the Act of 1963 it is provided that, save where the context otherwise requires, ‘use’ in relation to land does not include the use of the land by the carrying out of any works thereon:
‘Works’ includes any act or operation of construction, excavation, demolition, extension, alteration, repair or renewal.
‘Land’ includes any structure …
The submissions
On behalf of the appellants it was submitted:
(1) That for the purposes of s. 4 (1) (g) of the Act of 1963, the test as to whether works being carried out materially affect the external appearance of the structure should be applied having regard to the condition of the structure immediately prior to the carrying out of the works and that, without any question, both the opening of the window, where a window was not, and the construction of the balcony and stairway materially affected the external appearance of the structure. It was further contended that this was so done as to render the appearance inconsistent with the character of the appellants’ neighbouring house on the basis that that being an ordinary residence, invasion of its privacy was inconsistent with its character as a residence.
(2) In the alternative it was submitted that the carrying out of this work which, combined with internal alterations, was intended to effect a change from a house consisting of bed-sittingrooms to a house consisting of two flats was a change of use requiring permission on the basis that land in the definition of use, which I have already quoted, by reason of the context should not be taken to include any structure, but to consist of unbuilt land only.
On behalf of the respondent it was submitted as follows:
(1) In the interpretation of s. 4 (1) (g) the time at which the test of materially affecting the external appearance of the structure should be applied is the external appearance of the structure as it originally was and that proof which existed of the existence of a window some eleven years ago, and the existence of a landing and staircase, even though in a different position and of a different size, *468 some 15 to 20 years ago, prevented the existing works from materially affecting the external appearance.
(2) That even if they did, the character of the structure or of neighbouring structures, as contained in s. 4 (1) (g), should be construed as the general character of the houses as buildings (that is to say, in this case, for example, early Victorian terraced houses) and was not related to the question of their use as a residence.
(3) It was submitted in the alternative that even if the court were to hold that a technical breach of the Planning Acts had occurred that the discretion of the court should be exercised under s. 27 of the 1976 Act to refuse an injunction on the grounds that the motive of the appellants was indirect, since it was the preservation of the privacy of their premises which was not a recognisable legal right.
(4) It was submitted that there was no warrant for interpreting the meaning of ‘land’ in the definition of ‘use’ contained in s. 2 of the Act of 1963 so as to exclude structures.
The law
On the issues thus raised I have come to the following conclusions:
(1) On the facts of this case I am satisfied that the erection of the balcony and staircase and the opening of the window are works which materially affect the external appearance of the structure. It is, I think, clear that if a structure had a particular adjunct such as a balcony and stairway, and if for a relatively short period of time that had been removed or had become demolished, that its replacement with one of substantially the same size and appearance would not materially affect the external appearance of the structure on the basis that immediately when that work commenced no balcony or staircase existed. In the present case, however, it would appear that a period of at least 15 years had elapsed since any form of staircase or landing existed at these premises and that when it did exist it was very significantly different in appearance from that which is now being constructed. Furthermore, the opening of the window was in a wall which, in effect, had been blank for a period of probably eleven years. It is of importance, of course, that the test as to whether works materially affect the external appearance of the structure does not in any way depend on whether they affect that appearance for better or for worse.
(2) On the question as to whether these works affected the external appearance of the structure so as to be inconsistent either with its character or the character of neighbouring structures, it seems to me the following considerations must apply. First, in relation to a terraced house, at least, its character would, it seems to me, be much more dominantly affected by its street appearance than by its rear appearance. Second, I am satisfied that the character of the structure provided for in the subsection must relate, having regard to the provisions of the Act in general, to the shape, colour, design, ornamental features and layout of the structure concerned. I do not consider that the character of the structure, within the meaning of this subsection, can depend on its particular use at any time in such a way as to make, as the appellants contend, an invasion of the *469 privacy of a patio at the rear of a Victorian terraced house something inconsistent with the character of the structure of that house. Consideration of the photographs which were proved in the court below and which were available to this Court, indicate that a balcony of this description and the opening of a window on the side of a return of a house of this type could not be said, by any standards, to be inconsistent with the character of the house itself or with the character of adjoining houses, in the sense in which I understand that word as contained in the subsection. Such balconies and windows are, to common knowledge, a feature of the rear of a great number of Georgian and Victorian terraced houses in the City of Dublin. I therefore conclude that the works being carried out by the respondent was work which is an exempted development pursuant to s. 4 (1) (g) of the Act of 1963.
(3) I am not satisfied that there are any grounds for construing the definition of ‘land’ contained in the definition of ‘use’ in s. 2 of the Act of 1963 in the restricted way for which the appellants contend. Within the provisions of the Act with regard to permission for development and permission for change of use, there seems to me to be a clear statutory scheme. It may well be that a person contemplating the expenditure of money on the reconstruction or alteration of premises which, as works, constitute an exempted development, might well be wise to seek in advance of an actual change of use, permission for change of user. The scheme of the statute, however, appears clearly to me to be that work by way of construction or alteration and a change of user are separately dealt with. So to construe the section as to permit on unbuilt land the carrying out of works which are an exempted development but are for the purpose of adapting that land for a clear change of user and to prohibit the carrying out of works within the same category on a structure would, in my view, be to create a meaningless anomaly. I am, therefore, satisfied that the carrying out of these works does not of itself within the meaning of the section, constitute a change of user. A debate took place in the submissions before this Court as to whether a change of use from a multiple bed-sittertype residence to two flats was a change which required permission or whether it constituted an exempted change. On this issue I express no view.
Having regard to these conclusions, it is not necessary for the purpose of deciding this appeal to deal with the further submission made on behalf of the respondent that the appellants’ purpose of seeking to preserve the privacy of their premises disentitled them to an injunction. I would, however, share with Barrington J the sympathy he expressed for the position of the appellants, the privacy of whose patio and downstairs rooms has been, by reason of the carrying out of this work, seriously interfered with. Had the work, in my opinion of the interpretation of the Act, constituted an unauthorised development, I would have had no hesitation in granting the appropriate injunction. It seems a pity that as between neighbours the respondent could not have constructed the balcony and staircase, which is the real cause of complaint, so as to provide an access which he desires, without making it such a complete invasion of the appellants’ privacy. Whilst the issue is not directly before me I feel I should express the view that the appellants are, in my opinion, entitled to erect, at the *470 appropriate place, a translucent type of barrier, such as a perspex or glass structure, so as to preserve the privacy of their premises, and that if they do so there would not appear to me to be any grounds for suggesting that it would not of itself constitute an exempted development under s. 4 (1) (g). I would accordingly dismiss this appeal.
GRIFFIN J:
I agree with the judgment of the Chief Justice. I have, however, some reservation as to whether the opening of the window in question and the erection of the timber balcony and open thread steps leading to the garden of the respondent’s premises are works which ‘materially affect the external appearance of the structure’ within the meaning of s. 4 (1) (g) of the Local Government (Planning and Development) Act 1963. I do not, however, consider that it is necessary for the purpose of this appeal to decide that issue. On the assumption that the works do materially affect the external appearance of the structure, I am in entire agreement with the Chief Justice that they do not ‘render such appearance inconsistent with the character of the structure or of the neighbouring structures’ within the subsection, and as such are exempted development. There was uncontradicted evidence that similar stairways are to be found at the corresponding position in many of the other houses in Waterloo Road, and, as the Chief Justice has pointed out, such balconies and stairs are a common feature of the rear of a great number of such houses in the City.
In common with Barrington J and the Chief Justice, I can appreciate the feelings of the appellants who found the diminution of the privacy of their dwelling objectionable and who considered that the erection of such a balcony, from which their garden, and patio in particular, can be overloooked, was insensitive to their privacy as adjoining occupiers. Although the expressed intention of the respondent for having such a large balcony (10′ × 5′) was for use only as a means of access to the garden and to permit the placing of a number of flower pots thereon, human nature being what it is, it is almost inevitable that during fine weather the occupiers of the premises will sit out, or perhaps eat, on that balcony, to the detriment of the privacy of the appellants who would be likely to be using their garden and patio at the same time. Counsel for the appellants readily accept that they have no right in law not to be overlooked by the respondent as the adjoining occupier, and concedes that they are attempting to use the provisions of the Planning Acts to achieve their desired objective. The fact that their motive was one of self-interest would not, in my opinion, be sufficient to defeat their right to an injunction under s. 27 of the Local Government (Planning and Development) Act 1976, if the works in question were not exempted development under s. 4 of the Act of 1963. Like the Chief Justice, if the works were such as to require permission for development or approval under s. 26 of the Act of 1963, I would without hesitation grant the appropriate injunction pursuant to s. 27 of the Act of 1976.
I also would dismiss the appeal.
Dublin Corporation v Elizabeth McGrath
9178 No. 340 SS
High Court
17 November 1978
[1978] I.L.R.M. 208
(McMahon J)
McMAHON J
delivered his judgment on 17 November 1978 saying: This is a case stated by the Distict Justice for the District Court area of Kilmainham pursuant to s. 2 of the Summary Jurisdiction Act 1857 and s. 51 of the Courts (Supplemental Provisions) Act 1961.
The complainants are the Planning Authority for the County Borough of Dublin. They brought these proceedings by summons in the District Court in which it is alleged that the defendant had failed to comply with an enforcement notice under s. 31 of the Local Government (Planning and Development) Act 1963 requiring her to remove a certain structure from the rear garden of the premises 72 Ballygall Road West, Dublin. The structure in question is an erection in concrete blocks approximately 64 feet long by 31 feet wide and 19 feet high and is intended to be used as a commercial motor garage.
This building was erected by the defendant without having obtained planning permission under the Local Government (Planning and Development) Act 1963. The District Justice accepted the evidence of the defendant’s husband Patrick McGrath that he commenced this development in May 1975 and during the progress of the work he received a number of visits from an Inspector from the complainants’ Planning Department and the Inspector assured Mr. McGrath that he could proceed with the erection of the building and that the Inspector would look after the matter of planning permission for him and that he, Mr. McGrath believed that there would be no objection by the Planning Authority if he completed the building which he did. The Inspector involved was suspended from duty shortly afterwards and subsequently dismissed.
The District Justice decided that by reason of these misleading representations the complainants were estopped from denying that the building erected by Mr. McGrath was exempted development. He dismissed the summons and on the application of the solicitor for the complainants stated this case raising for the determination of the High Court the question of law which is stated as follows:
Was I correct in law in holding that the complainants qua Planning Authority were estopped from denying the representations made by their former employee?
On the question of estoppel of a Planning Authority by representations of its officials the Court was referred to the following English authorities Southend-on-Sea Corporation v Hodgson Ltd [1962] 1 QB 416; Wells v Minister of Housing [1967] 2 All ER 1041; Lever (Finance) Limited v Westminster LBC [1970] 3 All ER 496.
Under English Planning Law an officer of a Planning Authority may have delegated to him the function of determining whether a particular work is a development and if so whether it requires an application for planning permission having regard to the development plan. (See Town and Country Planning Act 1971 s. 4(1) replacing similar provisions in the Act of 1968).
In Southend Corporation v Hodgson Ltd it was held there was no estoppel as a result of a mistaken representation by an official on the grounds that if the authority was estopped from alleging that an enforcement notice was valid it would be hindered in the exercise of its discretion to prevent an unauthorised development. *210 In Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496 the Planning Authority was held to be estopped by a decision of an officer made within his ostensible authority. In our legislation the Planning Authority is not given the power to decide whether a particular development is or is not an exempted development. Exempted developments are defined in Section 4 of the Act of 1963 and under Section 5 of the Act any question which arises as to whether a particular development is or is not an exempted development must be referred to and decided by the Minister. There could be no question of the Inspector from the complainants’ Planning Department having ostensible authority to make the representations which the District Justice found he had made. The case of Wells v Minister for Housing [1967] 2 All ER 1041 was referred to in the decision of the Supreme Court. In Greendale Building Company v Dublin County Council [1977] IR 256 Henchy J said in the course of his judgment:
“The general rule is that a plea of estoppel of any kind cannot prevail as an answer to a well-founded claim that something done by a public body in breach of a statutory duty or limitation of function is ultra vires. That was held by Cassels J in Minister of Agriculture and Fisheries v Matthews [1950] 1 KB 148 by Harman J in Rhyl U.D.C. v Rhyl Amusements Ltd [1959] 1 All ER 257 and in the unreported case of Minister of Agriculture and Fisheries v Hulkin (1948) (which was cited with approval by Cassels J and Harman J in these cases) in which Lord Grene M.R. said ‘the power given to an authority under a Statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra vires if it were possible for the donee of a statutory power to extend his power by creating an estoppel’. There are of course some modern cases (such as Robertson v Minister of Pensions [1949] 1 KB 227) which have engrafted exceptions on the general rule so as to debar a public authority from relying on a mere irregularity of procedure which it was held they should in all fairness have overlooked. But as far as I am aware the exceptions are confined to such technicalities. ‘I take the law to be’ says Lord Denning MR in Wells v Minister of Housing and Local Government [1967] 2 All ER 1041 at 1044 ‘that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid’. I know of no case where a public authority was held to be estopped from asserting that it had acted in breach of an express or implied prohibition or restriction of function in a Statute; see Spencer Bower and Turner The Law of Estoppel by Representation 2nd Ed.) pp 132/3. The reason I believe is that it is incompatible with parliamentary democracy for the Court under the guise of estoppel or waiver or any other doctrine to set aside the will of Parliament as constitutionally embodied in a Statute.
If the complainants had told the defendant that the building which her husband was erecting was an exempted development they would be acting ultra vires and could not be held to have estopped themselves from asserting subsequently that planning permission was necessary for the development in question and accordingly, no representation by their agent could work a similar estoppel.
In so far as the representation referred to in the question of law in the case stated *211 includes a representation that planning permission would be granted for the development this cannot bind the complainants to grant planning permission. Under s. 26 of the Local Government (Planning and Development) Act 1963 the complainants in dealing with an application for planning permission must consider the proper planning and development of the area of the Authority having regard to the provisions of the development plan, any special amenity area order and the other matters referred to in s. 26(2).
Any undertaking by the complainants to grant planning permission without complying with the provisions of s. 26 would clearly be ultra vires. The Authority could not be bound therefore by any representation of its agent to act illegally by granting planning permission in disregard of the terms of s. 26 of the Act.
Accordingly the question of law in the Case Stated must be answered in the negative. The matter is referred back to the learned District Justice.
Dublin Corporation v Salvatore Raso
1976 No. 36 SS
High Court
1 June 1976
[1976-7] I.L.R.M. 139
(Finlay P)
FINLAY P
delivered his judgment on 1 June 1976 saying: This is a case stated by District Justice Donal Kearney in obedience to an order of mandamus granted by Gannon J on 14 July 1975. The case stated arises out of the following facts. The defendant is the proprietor of a shop premises at 47 Kilbarrack Road in the County Borough of Dublin and this shop was used by him, the defendant, at material times for the sale of groceries and also for the sale of fish and chips.
On 3 July 1971 the defendant applied to the Corporation for planning permission for a change of user of the shop from a foodmarket as which it had been previously used to a fish and chip take-away store. Permission was granted on 1 September 1971, the development being referred to in that permissions as ‘retain change of use from foodmarket to fish and chip shop at 47 Kilbarrack Road Raheny’. It was granted subject to certain conditions which are irrelevant to the present proceedings but did not contain any condition with regard to opening or closing hours.
A number of local residents had apparently objected to the granting of this permission and appealed to the Minister and he, whilst confirming the decision to grant permission, added an additional condition to it that the premises shall not be used for the permitted use between the hours of 11pm and 8am. In that decision which is dated 11 April 1972 the permission is referred to as ‘a permission subject to conditions for the continuance of use of a shop at 47 Kilbarrack Road, Raheny, Dublin as a fried fish and chip shop in accordance with plans and particulars lodged with the Corporation’.
The really substantial point urged on behalf of the defendant in this case was as follows.
Under the provisions of rule 4 of the Local Government (Planning and Development) Act 1963 (Exempted Development) Regulations 1967 (SI No. 176 of 1967) development consisting of a change of use within any of the classes of use specified in Part IV of the Schedule to those regulations is an exempted development. The classes of use contained in Part IV Class 1 include use as a shop for any purpose except as (a) a fried fish shop. The defendant contends that it was not necessary for him to have applied for any permission for a change of user in this shop except in so far as the change was to user as a fried fish shop and not as a fish and chip shop. The argument then runs that the condition with regard to opening hours could only apply in law to the hours of opening for the sale of fried fish. That the evidence before the District Justice did not prove beyond reasonable doubt that fried fish had been sold outside the permitted hours but proved only that fish and chips had been sold and that this could be a description of boiled or say smoked fish together with chips.
On this submission I have come to the following conclusions. It is in my view within the power of the planning authority or the Minister on appeal to impose a condition upon the granting of a permission governing the hours of opening of a shop for the purpose as undoubtedly occurred in this case of cutting down *141 nuisance, noise and the frequenting or gathering of people which would disturb the residential aspect of a neighbourhood. Such an object and a condition securing such an object is clearly within the planning code. It would therefore in my view have been open to the planning authority even if the proper application had been made for per-mission, (that is, to say, permission only for use as a fried fish shop without any reference to chips) to have imposed a condition that the shop would not be open for the purpose of selling either fried fish or chips after 11pm — although on the strict interpretation of the regulations change of user from a foodstore to a store selling chips only would be an exempted development. The words ‘permitted use’ contained in the condition imposed in the granting of permission by the Minister on 11 April 1972 must be interpreted in my view as referring back to the use referred to in the decision itself which as I have indicated was use as a fried fish and chip shop. The defendant who applied for permission in that form cannot in my view be heard now to assert that because the inclusion of the words ‘and chip’ may have been strictly unnecessary that the condition must be construed as prohibiting only the sale of fried fish but not prohibiting the sale of fried chips after 11pm.
I think there are very strong grounds for saying that the expression ‘fish and chip’ could and should be interpreted in a common sense way as having a well accepted ordinary meaning and involving fried fish and chips. If the District Justice were entitled to impose such a construction on the evidence given before him then this point would fail entirely because even the designated use contained in Part IV of the Schedule to the Regulations would have been made after the forbidden time of 11pm. In a criminal case however I am prepared to accept for the purpose of this decision without expressly deciding it that the onus of proof on the prosecution leaves it open to some doubt as to whether the phrase ‘fish and chips’ must necessarily or inevitably mean fried fish. What is clear beyond any doubt however in my view is that the word ‘chip’ used certainly in connection with fish and referring to a food can only mean one thing and that can only mean one thing and that is a fried chip of potato.
This being so I am satisfied that evidence by a person in the words that he or she purchased fish and chips after 11pm is clear evidence which was of course in no way contradicted at the hearing before the learned District Justice that the permitted use as stated in the decision of the Minister on the planning appeal that is to say fried fish and chips was in part at least, that is to say in reference to fried chips operated by the defendant after the forbidden time of 11pm.
On this basis I am satisfied that the decision of the learned District Justice to convict the defendant was a correct decision in law and I so answer the case stated.