Planning Appeals
The Appeal
Both the applicant for planning permission and persons who have made observations on the application may appeal to An Bord Pleanála (the Board). Where a person has not made observations but holds adjoining land, which is affected by a condition imposed outside the scope of the original application, he may apply for leave to appeal.
There is four week time period for bringing an appeal. This commences on the date of the decision of the planning authority to grant or refuse planning permission. Failure to comply with the requirements makes the appeal invalid.
The time limits for an appeal are important because, in the absence of an appeal, a final grant of planning permission issues from the planning authority. Once issued, the planning permission may be implemented.
The Board may request further submissions or hold an oral hearing in which further submissions will be permissible. A new application for permission cannot be made for the same development, which is the subject of an appeal to the Board before the appeal has been determined or withdrawn.
Procedure
Regulations prescribe the content of the appeal. It must be in writing and state the name and address of the person appealing the decision concerned and the grounds of appeal. It must set out arguments on which the appeal is based.
There are strict requirements in relation to the contents of an appeal to the Board. Unless these are followed, there is a risk that the appeal may be invalid. Further grounds of appeal will not generally be permitted to be lodged.
The Board gives a copy of the appeal to certain parties. This includes the planning authority, the applicant [ and those who have made observations]. Each party has four weeks in which to make submissions and observations to the Board. This time limit is strict.
Those who have made an observation on the planning application may also make observations. The Board has the discretion to allow submissions outside of the time limits.
The planning authority is obliged to give copies of its file together with its internal report on the application and its decision to the Board.
Decision Making
To some extent, the Board acts on the basis of its own expertise. It is a quasi-judicial body.
Unlike a Court, it is not limited to acting only on the basis of the information put forward to it in the particular appeal. However, where the Board acts on the information, other than that put forward by the parties, it must inform the parties and give them the opportunity to respond.
The Board may have regard to Ministerial Planning Guidelines in making decisions. The Board is not bound by the local authority’s development plan. The Board may require an environmental impact assessment, even if the planning authority has not done so.
Bodies Appealing
A body prescribed by law which is to be given notice of an application is entitled to appeal the grant of planning permission. It is not required to have made a submission if has not been notified of the application in accordance with the planning and development regulations in circumstances where it was required to be notified.
Organisations whose aims relate to the promotion of environmental protection are entitled to appeal decisions on applications in respect of which an environmental impact statement is required. They are not required to have made an observation to the planning authority.
The body must not be a State authority or body. It must be active in the field of environmental protection during the previous 12 months.
Appeal Where Conditions Alter
Planning conditions may change the development substantially so as to have an impact on neighbouring lands or owners who might have been willing not to object or to raise the same objection to the original planning application. In these cases, an adjoining landowner may apply to an Bord Pleanala for leave to appeal by reason of the alteration arising from the imposition of a condition.
This application must be made within four weeks. It is effectively an appeal together with a request to permit the exceptional appeal because of the effect of the planning condition.
The Board must seek information from the planning authority within one week, which must be given by the planning authority within another week. Within four weeks of receiving the appeal, the Board must decide whether to grant permission to appeal.
Where the planning permission by reason of conditions applied materially affects the applicant’s enjoyment of land and reduces its value, the request for permission to appeal is to be granted. If permission to appeal is granted, the applicant must submit the appeal within two weeks.
Decision on the Appeal
The Board has an obligation to decide on the appeal within 18 weeks. However, unlike the time limits applicable to the planning authority stage, this time limit is not strict and may be extended. Extensions are very commonly required, with the result that the actual timeframe is commonly four to nine months.
The Board considers the application anew. It is not just a review of the planning authority’s decision. The Board must give reasons for its decision. Likewise, the individual conditions should be assigned reasons.
The Board may grant planning permission even though it contravenes the development plan. It may do so
- where the development is of strategic or national importance;
- where there are conflicting objectives in the plan or where the objective is not clearly stated in relation to the development
- where planning permission should be granted having regard to regional planning guidelines, statutory obligations of authorities, government policy or
- where planning permission should be granted having regard to the pattern of development and permission granted in the area since the making of the development plan.
Where the Board grants a permission which contravenes the development plan, it must give reasons and consideration.
Appeal Issues
The Board can dismiss an appeal if it is vexatious, frivolous or is made with the intention of delaying the development or securing payment of monies as an inducement. The Board can act on its own motion and may use a short-form procedure. If the appealing party does succeed in substance on the grounds of appeal or if it considers that the appeal was made with the intention of delaying the development or securing gain, it may award costs against the person who makes the appeal.
The Board can require parties to the appeal to deliver documents, particulars or information as they consider necessary to decide the appeal. The Board can assign a person to make a written report to the Board. It will usually appoint an inspector to prepare a report and recommendation. If there is an oral hearing, the inspector who conducts it must also prepare a report and recommendation. The report is available for public inspection.
An appeal may be made to the Board in relation to financial contributions only. When the Board is considering the appeal, it should apply the development contribution scheme provisions of the planning authority itself. In the case of an appeal against a contribution in accordance with the planning authority’s contribution scheme, the appeal is limited to a complaint that the planning authority has not properly applied its own scheme.
Oral Hearing
The appealing party or the planning authority may request an oral hearing. The Board decides, at its discretion, whether or not to afford an oral hearing. The Board gives all persons concerned and other relevant public bodies at least one week’s notice of the hearing.
Hearings are not overly formal. The person conducting the hearing decides the procedure. Basic constitutional justice should be observed.
Evidence may be heard on oath. The sanctions for failure to answer questions and privileges against self-incrimination, which apply in a Court case, apply on a planning appeal. The Board may require third parties to attend with documents.