Exemption Certification
Section 5 Declaration
There is a provision for an application to the planning authority for a declaration that works or use are exempt. The request requires information about the applicant and the property.
It must set out in clear terms the question for which the declaration is sought and the subject matter of the request concerned. It specifies whether it relates to a protected structure or a proposed protected structure. The planning permission history of the site is required together with previous planning applications.
A site location map together with other appropriate plans and drawings, are required. The use history and other relevant issues, including statutory declarations, if available, in relation to prior use, should be furnished.
The application for a declaration may be made by the owner or other parties. If made by a third party, the owner must also be notified. A fee is payable.
Decisions under part section 5 are placed on the planning authority’s or Board’s website and are available for inspection.
Consideration
The planning authority may require additional information.The requirement to respond to a section 5 application/referral within four weeks shall not apply if it appears that it is not possible or appropriate because of exceptional circumstances of the development proposal. In this case the planning authority is to give notice to inform the person why this is the case and specify the date by which it is to make the decision.
The planning authority is to issue its declaration within four weeks. If, because of exceptional circumstances of the development or proposed development relating to its nature, complexity, location or size it would not be appropriate to do so, this time may be extended. If further information is requested, the time is extended until three weeks after the receipt of further information.
The planning authority’s decision is to give reasons for the decision. It may specify whether or not it is likely to have significant effects on the environment by reason of its natural size and location and require an environmental impact assessment. Each planning authority is to maintain details of planning declarations on the planning register.
If the planning authority fails to issue the declaration within the required period, the person concerned can refer the matter to An Bord Pleanala within a period of four weeks.
An Bord Pleanala Reference
The planning authority may decide to refer any question as to what is or is not development directly to An Bord Pleanala.
The Minister for Culture Heritage and the Gaeltacht may apply for a decision to an Bord Pleanala as to whether matters pursuant to which the Minister has been given notice as affecting lands designated under the Birds Directive or the Habitats Directive, require planning permission or is exempt.
An Bord Pleanala may dismiss a referral where it decides that it is vexatious, frivolous or without foundation. It may dismiss a referral which it discerns is for the purpose of delaying development or securing payments or inducements.
ABP Process
It may dismiss on the basis of the nature of the referral and previous relevant permissions. It should give reasons for its decision.
Where a determination impacts property rights, the persons affected should have the opportunity to make submissions and observations.
A referral may be considered abandoned if the information requested is not furnished. The Board may serve a notice requiring a response within a period of between two and four weeks of notice as to why the application should not be regarded as abandoned. Having considered any response or if there is no response, it may dismiss the application.
Payment of Expenses
A planning authority or the person making the referral may be required to pay compensation to the other for expenses incurred, as determined by the Board at its discretion. The Board may request the planning authority to pay the expenses of an applicant regardless of the result of the referral.
Where the planning authority’s decision is confirmed, the Board did not agree to the substance of the referral and it considers that the referral was made in order to delay development or secure monetary gain, the Board may direct the party who has made a referral to pay compensation to the planning authority or other parties to the referral or to the Board itself for the expenses incurred.
ABP Decision
The decision should give the reasons and the considerations taken into account in making the decision. Where development is within the categories potentially requiring an environmental impact assessment, the Board is to specify whether it may have a significant effect on the environment by reason of its nature, size and location and is such as to require an environmental impact assessment.
A copy of the decision is sent to the person who made a referral and those who made observations or submissions on it. The inspector’s report is available online. The documentation is available at the planning authority or the Board. Copies may be purchased.
The decision is entered into the planning register. It is open for inspection, and copies may be purchased. The planning authority is to have regard to the declarations when determining further referrals.
Environmental Impact
The planning authority or the Board shall specify in relation to development subject to environmental impact assessment, whether a proposal would l be likely to have significant effects on the environment and require an environmental impact assessment.
The Minister for Arts Heritage and Gaeltacht may apply to the Board for the determination whether an activity requiring the consent of that Minister pursuant to the natural habitats or birds and natural habitats directive or under the wildlife legislation is exempt development.