ABP Non-Planning
Non-Appeal Functions
The Board has a role in relation to certain matters, other than appeals, under planning legislation. These functions differ from a planning appeal.
Since 2001, the Board has had a significant new role in relation to compulsory acquisition matters. In particular, it confirms the making of a compulsory acquisition order in most cases.
The Board hears certain applications in relation to types of development applications directly rather than by way of appeal. This occurs in relation to permission for strategic infrastructure development. They are heard immediately by the Board.
It is possible to make an application to the planning authority for a decision as to whether development is or is not exempted. It is possible to appeal this application/reference to the Board. The procedure is relatively informal.
Determining Agreements
Sometimes planning permission conditions provide for matters to be agreed upon between the planning authority and applicant or, in default of agreement to be referred to the Board. In this context, the Board’s role is one of adjudicating on the relevant condition. It must act on the basis of the condition concerned. It does not have the discretion to substitute its own decision.
A developer may be required to make provisions for social and affordable housing. See the separate sections on this issue. There are a number of alternatives in relation to the terms on which the condition might be fulfilled.
Where there is a requirement that a person enters an agreement, a dispute regarding the form of agreement may be referred to the Board for determination. The default position provides for transferring lands at hypothetical undeveloped value.
Open Spaces & Right of Way
Where planning permission requires the provision of open space, there are special enforcement powers for breach. The local authority may serve a notice on the owner of the land requiring that the land be provided and made suitable for open space use. If the owner fails to do so, it may serve an acquisition notice. An appeal may be made to Bord Pleanala against the same.
The planning authority is obliged to identify public rights of way over land. This is not a legal requirement for the existence or nonexistence of a right-of-way. Equally, the publication of a right-of-way does not guarantee that it is a valid right-of-way.
A planning authority has the power to create a legal right-of-way. It must serve notice of its intention to do so on the owner and occupier of the land affected and publish a notice in a newspaper. Submissions and observations may be made within a period of not less than six weeks.
Having considered the application, the planning authority may resolve to make the right-of-way order with or without modifications or may decide not to do so. Persons who have been notified may appeal against the order Bord Pleanala.
Strategic Development Zone
The Board has a role in relation to a planning scheme in respect of a Strategic Development Zone. A development agency or persons making submissions may appeal the making of the scheme to the Board. The Board must consider the proper planning and sustainable development of the area, the development plan strategies, special amenity Orders and other matters.
Where a strategic development zone is in existence, or the relevant agency has entered an agreement for such purpose, the authority may, following designation, make a draft planning scheme for any part of the site and refer it to the planning authority. Procedures apply, and copies are sent to the Minister Board and various prescribed bodies. The notice must be published, and observations may be made within a period of at least six weeks.
The various observations are taken into account, and the chief executive prepares a report on the draft planning scheme. This is ultimately deemed adopted unless disapproved by resolution by the elected members of the Council.
Where the decision is made, the authorities and persons making observation are given notice and particulars are approved. Persons who have made submissions and observations may lodge an appeal to Bord Pleanala within four weeks.
Unilateral Council Action
Where a planning authority decides to revoke planning permission under the limited powers in this regard, there is a provision for appeal to an Bord Pleanala within four weeks. There are very limited grounds for revoking planning permission.
The planning authority may exceptionally require as a condition that a structure be demolished, removed, replaced or altered or that conditions apply to its continued use. When it does so, it is obliged to serve a notice on owners and occupiers of the land concerned with specific details inviting observations.
Having received representations and observations, it may decide to confirm the order. There is an appeal to Bord Pleanala, which may be taken by the parties affected.
A structure in an architectural conservation area which is the objective of a provision in a planning control scheme may be the subject of a notice. The notice specifies the measures required for restoration, demolition, removal, alteration, replacement or repair of the structure or continuance of its use.
Representations must be made within eight weeks, which must be taken into account. The planning authority may confirm or revoke the notice or amend it. Persons affected may appeal to an Bord Pleanala against the notice.
Certain Council Licences
There are various other licences and consents that the planning authority may grant, which are subject to an appeal to Bord Pleanala. Where a land owner or occupier unreasonably refuses consent to the placing of or construction of cables, and wires pipelines over land or for inspection, repair, alteration renewal of the same, it may appeal to Bord Pleanala. If an Bord Pleanala decides that consent has been unreasonably withheld, it can be deemed to be given.
The planning authority may grant licences for the placing or erection of infrastructure such as signs, vending machines, overground electronic communications and physical infrastructure on roads and by licence.
There is an appeal to Bord Pleanala. It may grant, refuse or withdraw consent for such licence.
Quarries
There are special planning provisions in respect of quarries. Special additional conditions may be applied to the operation of a quarry under a procedure. The imposition of such procedures is subject to an appeal to Bord Pleanala.
Before making a decision, the Board invite submissions, and it must have regard to them in making its decision.
Local Authority EIA
Bord Pleanala may grant an exemption to a local authority from the requirement to prepare an environmental impact assessment report and statement where exceptional circumstances warrant. It considers whether some other assessment should be made. Notice of exemption must be published in a newspaper and certain other places.
CPO Confirmation
Where there is an application for approval by the Board for the compulsory acquisition of land relating to a development which requires an environmental impact statement under the local authority development provisions, the person conducting the hearing may hear evidence in relation to environmental and planning issues relating to the development and may include it in his or her report to the Board.
IPC / Waste Licensing
The Board may approve or refuse permission or attach conditions to an approval. Where the development is one for which an IPC or waste license is required, no conditions for the control of emissions or waste may be applied. They are dealt with under the relevant licence.
The Board, when making a decision for which an integrated pollution control or waste licence is required. It may request the Environmental Protection Agency to make observations. Regard is to be had to the observations.
In deciding to permit local authority development, the Board is to make a decision having regard to
- the development plan for the area,
- any special amenity order
- any European site
- policies of the government
- provisions of planning regulations