Planning Determination
Development Plan and Material Contravention
The Planning Authority may not generally grant permission inconsistent with its development plan. For example, if the development plan only permits the use of land for agricultural or recreational uses, an application for commercial or residential development must be refused.
There is a procedure by which a planning authority may grant planning permission in contravention of its development plans. Due to the perceived abuses, in the 1980s, the material contravention procedure was tightened considerably.
Notice of the intention of the planning authority to consider planning permission in material contravention of its plan must be published. The notice must also be given to certain parties, including those who make observations in relation to the development plan.
The planning authority must consider the observations made. A resolution of the Councillors requiring the decision to grant permission must be passed. At least two-thirds (formerly three-quarters) of the total number of councillors must vote in its favour. This majority is also required for amendments to the draft development plan.
The elected members of Local Authorities (the Councillors) have general powers to direct the County Manager, now the chief executive (the executive part of the Council), to do specified acts which would otherwise be within the remit of the executive, including the grant of planning permission. If the County Manager (now the chief executive) is of the opinion that a direction would materially contravene the development plan, he must give this opinion. In this case, the matter must be dealt with in accordance with the material contravention procedure.
The 2010 Act amended the Principal Act to require that two-thirds of the members of a planning authority must vote in favour of a motion deciding to grant permission for a proposed development that would materially contravene the development plan. The 2010 Act also prescribes a similar voting threshold to pass material amendments to draft development plans.
Unlike the case in England and Wales, the elected members have limited involvement in deciding on individual planning applications. Decisions on planning permission applications are adjudicated upon by the executive side of the local authority. They are made by the officers within the planning department and are formally adopted as executive decisions of the Local Authority to grant planning permission.
Determination
A decision on the planning application must be given to the applicant and other persons who have made observations within three working days of the decision. It must state certain matters, including the right to appeal to An Bord Pleanála within four weeks beginning on the date of the decision.
The decision must state the reasons and considerations for the decision. Generally, the reasons are given in standardised, minimal and formulaic terms and do not necessarily did give substantial information.
Where the planning decision is different from the recommendation of the planning inspector’s reports, the statement of reasons must give the main reasons for not accepting the recommendation. The duty to give reasons might be fulfilled by referring to the inspector’s report.
Where planning permissions are granted subject to conditions, reasons are given for each condition. They tend to be in short formulaic terms.
Multiple Applications
The legislation prohibits multiple and duplicating applications which are the same or the same description as development currently under appeal.
Decision Maker
Planning decisions in Ireland are made by the professional planning Inspectorate. They are decisions of the administrative side of the Council, nominally made by the chief executive or a party delegated to make the decision.
In effect, the decision is made on the application by the relevant planning officer or officers. The underlying officer’s report is retained on the file and is available for inspection. The chief executive need not accept the planning officer’s recommendation, but if he does not do so, he must give reasons.
Where a decision would materially contravene the development plan, it must be made by the elected members on foot of the relevant procedure.
The planning permission is to be considered with reference to a range of criteria, principally the development plan, the local area plan, government policies and guidelines, submissions received by public authorities and persons making observations. Specific requirements apply in respect of particular types of development, in particular those affecting protected elements of the natural and built heritage.
Past Breaches
The planning authority may refuse permission where the applicant has carried out a substantial unauthorised development (which could be a development with no permission whatsoever) or has been convicted of an offence under the Planning Acts, subject to certain conditions.
A planning authority may refuse planning permission, subject to certain conditions, where the planning applicant is substantially non-compliant with previous planning permission.
No EIA AA
A planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced, the application would have required that one or more than one of the following was carried out—
- an environmental impact assessment,
- a determination as to whether an environmental impact assessment is required, or
- an appropriate assessment.
Where an application for such a permission had been made in respect of the following development before it was commenced, the application is not required to have a determination
- development within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as a dwelling house;
- modifications to the exterior of a building.
Where a planning authority refuses to consider an application for permission, it shall return the application to the applicant, together with any fee received from the applicant in respect of the application, and shall give reasons for its decision to the applicant.
Default decisions are not applicable to developments requiring an Environmental Impact Assessment or Habitats Directive Assessment. Retention permission is no longer permissible for developments requiring EIA or Habitats Directive assessment. Instead, a special consent procedure applies.
Time Frame
The planning authority may not decide on the application earlier than five weeks after receipt. This period is extended where further information is required. The planning decision to grant, refuse or seek further information must be granted within eight weeks, or a default planning permission may issue.
Formerly, there was deemed to be planning permission on the terms of the application without conditions. Following amendments in 2010 amendments, further provisions apply. See the section on planning decisions.
In practice, default planning permission is very rare. If the planning authority fails to make a decision within the period and the relevant further conditions apply, it will be deemed to have granted default permission. In practice, it will generally be necessary to go to Court for an Order that a default permission has issued. The courts will insist on strict compliance with the terms of the legislation. It may not breach the Development Plan.
A request for information stops the time running. Time begins to run again only when the request has been complied with. Time generally begins to run four weeks after the date the request for further information has been complied with.
Appeals
There is a general obligation to deal with appeals to An Bord Pleanála within a period of 18 weeks. However, this period may be extended where the An Bord Pleanála believes it is not appropriate or possible to determine the appeal within the prescribed time.
An Bord Pleanála is obliged to notify the parties to the appeal within the period that it will not be possible to determine it within that time and specify when it intends to render the decision.
Where an appeal is made to An Bord Pleanála, the planning authority must forward the information related to the appeal to An Bord Pleanála.
No oral hearings are heard in relation to planning applications at the planning authority stage. In contrast, there may be an oral hearing in relation to Bord Pleanála at Bord Pleanála stage.
Further Information
Where a planning authority, within eight weeks of the receipt of a planning application, serves notice requiring the applicant to give to the authority further information or to produce evidence in respect of the application, the authority shall make its decision on the application within four weeks of the notice being complied with, or if in relation to further information given or evidence produced in compliance with the notice, the planning authority—
- considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and
- gives notice accordingly to the applicant,
within four weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority.
Where, in the case of a planning application accompanied by an environmental impact statement or a Natura impact statement, a planning authority serves the above notice the authority shall make its decision within eight weeks of the notice being complied with, or if in relation to further information given or evidence produced in compliance with the notice, the planning authority—
- considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and
- gives notice accordingly to the applicant,
within eight weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority.
Default In Decision I
Where a planning authority has failed to make a decision in relation to an application within the period specified and becomes aware, whether through notification by the applicant or otherwise, that it has so failed, the authority shall proceed to make the decision notwithstanding that the first period has expired. Where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant.
Where a planning authority fails to make a decision within a period of 12 weeks after the expiry of the first period, a deemed decision of the planning authority to grant the permission shall be regarded as having been given on the last day of that period of 12 weeks.
Any person, who has made submissions or observations in writing in relation to the planning application to the planning authority, may at any time within the period of 4 weeks after the expiry of the period of 12 weeks, appeal the deemed decision.
The above provisions do not apply where there is a requirement to carry out an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment in respect of the development relating to which the authority has failed to make a decision.
Default In Decision I
Default decisions are not applicable to developments requiring an Environmental Impact Assessment or Habitats Directive Assessment. Retention permission is no longer permissible for developments requiring EIA or Habitats Directive assessment. Instead, a special consent procedure applies.
Where the planning authority has failed to make a decision in relation to development where an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment is required within the first period and becomes aware, whether through notification by the applicant or otherwise, that it has so failed—
- the authority shall proceed to make the decision notwithstanding that the first period has expired,
- where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant,
- provided that no notice under above as served on the applicant prior to the expiry of the first period, where a planning authority proceeds to make a decision under in relation to an application, it may serve notice on the applicant, requiring the applicant to give to the authority further information or to produce evidence in respect of the application shall apply to such notice subject to any necessary modifications,
- subject to service of a notice , where a planning authority fails to make a decision before the expiry of the period of 12 weeks beginning on the day immediately after the day on which the first period expires, the authority shall, spay the appropriate sum to the applicant, and shall pay a further such sum to the applicant where it fails to make a decision before the expiry of each subsequent period of 12 weeks beginning immediately after the preceding 12 week period,
- not more than five payments of the appropriate sum shall be made by a planning authority to an applicant in respect of the failure of the authority to make a decision in relation to an application,
- where a planning authority makes a decision in relation to an application more than one year after the expiration of the first period the authority, before making the decision—
The appropriate sum ’ means a sum which is equal to the lesser amount of 3 times the prescribed fee paid by the applicant to the planning authority in respect of his or her application for permission or €10,000.
Planning Conditions
Local Authorities have eight weeks within which to agree on condition compliance issues. Once a condition compliance submission has been lodged, the Planning Authority must either
- reach an agreement with the person on the relevant points,
- advise the person in writing that they cannot agree, or
- refer the matter to the Board for its determination.
This must occur within eight weeks or such a longer period (that must be agreed with the person(/applicant). Should an agreement not be reached, the person(/applicant) can appeal the matter to the Board (within four weeks of the Planning Authority’s notification). If the planning authority does not respond within eight weeks or such a longer period as may have been agreed, then that authority shall be deemed to have agreed on the points of detail as so submitted.