Planning Overview

Planning Permission

Planning permission is required whenever there are “works” to or a “material change of use” of property.  “Works” include carrying on any building, engineering, mining or other operations in, under or over land. Generally, there must be a building activity.  Building operations include demolition, rebuilding, structural alterations and additions to buildings.

Works which affect the interior of a building only or do not materially reflect the external appearance do not generally require planning permission.   Works to the interior of a “protected structure” require a permission which is similar to a planning permission. Protected structures are usually older buildings of architectural, cultural or historical merit or interest.

A material change of use requires planning permission.  This is a matter of interpretation of the entire circumstances.  Whether a change of use is “material” will depend upon its impact on the environment.

There is a range of works and changes of use for which planning permission is not generally required.  They are called exempt development and are laid down in the Planning and Development Regulations. Each type of exempt development contains conditions which need to be examined.  The Regulations set out particular classes of use.  A change of use within a particular class is generally deemed not to be a material change.

Enforcement of Planning Law

The Local Authority has extensive powers to enforce breaches of planning law. In addition, any individual can apply to enforce planning law in the Circuit or High Court by way of a court order to enforce planning breaches. It is not necessary that the individual has any interest in the enforcement, although they usually will.

The Local Authorities have powers to serve warning notices and enforcement notices or may seek an injunction in order to enforce planning laws.   Ultimately, a building built, modified or demolished under that planning permission or in breach of planning law may be ordered to be demolished or rendered compliant.

It is an offence not to comply with the terms of a warning or enforcement notice. Failure to comply is prosecuted in the District Court. A significant daily fine applies for as long as the breach of planning permission is not complied with.

If a planning law breach is not enforced within seven years of the breach, it is immune from enforcement under planning law. This is not the equivalent of planning permission and suffers from certain disadvantages relative to having planning permission.

Planning Permission

The Council (acting as Planning Authority) decides planning applications in accordance with its Development Plan and other material considerations that are relevant.  The Development Plan is an overall statement of the plans and objectives for the area as adopted by the Council. The Council may grant planning permission, either unconditionally or (more likely) subject to conditions, or they may refuse planning permission.

A planning permission generally lasts for five years.  A planning permission is effective for planning law purposes.  It does not confer any right to build where any title and other compliance requirements arise.  It may still be necessary to comply with any other special rules that apply and comply with the terms of the title under which the property is held. For example,  there may be covenants on the terms of the title to property which restrict development or requires the consent of a third party to it.

A planning authority has the power to decline an application if it is similar to another.  The power to decline requires that there has been no significant change in the material considerations since the previous application.  Generally, the planning authority may refuse to determine an application within two years of a similar application.   It has the power to decline overlapping applications.

A planning authority can impose such conditions as it thinks fit, provided that they are for planning purposes and reasonably related to the development. Either the applicant for planning permission or third parties who have made observations on the application can appeal to An Bord Pleanala against the grant or refusal of planning permission or against conditions in the planning permission.

The appeal will be held by Inspectors of the Board. It may be determined by written representations or, where appropriate by an oral inquiry.

Planning authorities may enter agreements in relation to the use and conservation of lands within their area.

The Planning Register

Since the commencement of the Planning and Development Acts, planning authorities have been obliged to keep a register incorporating a map showing various significant planning events and documents affecting property. Originally this was kept in paper form with a cross-referencing map file. Since the advent of the Internet, it is now available in a much more efficient and usable form online.

Historically not all councils maintained the planning register in the manner required. Older paper files are difficult to retrieve.

The planning register is to contain

• details of all planning applications
• planning decisions
• Bord Pleanala decisions
• declarations of exempt development by the Council or Bord Pleanala
• whether an environmental impact assessment or Natura impact statement was submitted with the application
• screening decisions for environmental impact assessment with reasons
• the outcome of screening or appropriate assessment
• Applications for substitute consent
• declarations regarding protected structures
• warning letters and enforcement issued
• quarry legislation

Councils must make specified documents available for inspection and purchase by the public. They may make them available on their website. Certain documents may be published on the website if not made available for inspection.

Planning Application

It is possible to apply for full planning permission or outline planning permission. An outline planning permission leaves further detail for future decision by the Planning Authority.  No works can commence until full planning permission is obtained, dealing with the outstanding points of detail.

Generally, it is advisable to hold a “pre-planning” meeting with the council before making a planning application. The indications given by the planning officials are not binding on the planning authority, but they will be very useful in ascertaining what is likely to be acceptable.

The applicant will generally hold a pre-planning meeting with his advisors, who will usually have prepared some outline proposals for discussion. The planning officials might give informal guidance or suggestions as to what modifications might be required in order to secure permission.

The planning application and six copies of the plans, drawings and other documents must be submitted to the Planning Authority.  The fees are prescribed and vary depending on the scale of development.  The fees for planning applications are laid down. There are scales and basis of charging applicable to different categories of development.   The fees for large development projects can be considerable.

The Planning Acts set out the documents required in connection with a planning permission application. The Planning Authority can require additional documentation.  The applicant is obliged to publicise the application by newspaper advertisements and site notice.

A decision is made within eight weeks of the application or such longer period as might be agreed.  The decision may be a grant, refusal, request for further information or for modification of the proposal.

Offences

It is an offence to carry out unauthorised development. It is an offence to fail to comply with an enforcement notice served. It Is an offence to knowingly assist another not to comply with an enforcement notice.

Various breaches of the planning legislation also constitute offences, including

• damaging a protected structure or proposed protected structure
• failing to comply with notices requiring works in respect of an endangered, protected structure
• contravening a tree preservation order or a proposed tree preservation order.
• holding an event or being in the control of an event which requires a licence without one
• failing to comply with a notice in respect of a funfair

The offences may be prosecuted summarily in the District Court or on indictment in the Circuit Court. Generally, summary proceedings must be commenced within six months of the date the offence took place or when sufficient evidence to justify prosecution came to the attention of the person prosecuting. This is subject to a time limit of seven years.

The prosecution must prove that development has taken place. The onus of proof is on the defendant to prove that the development is permitted by planning permission. The defendant must prove the planning permission and compliance with it.

Penalties

Persons guilty of an offence may be subject to a fine up to €12,697,380 or up to 2 years imprisonment or both on conviction on indictment. They may be subject to a continuing fine of up to €12,697.38 per day for so long as the breach continues.

A person convicted summarily in the District Court is subject to a fine of up to €1904 or imprisonment of up to six months or both. (Revised by the Fines Act). A person so convicted may be subject to a continuing fine for every day of the breach, €634.87.

The fine is payable to the planning authority. The court is also obliged to award the costs of the legal action, including inspections and investigations costs against the person convicted, unless the court is satisfied that there are special and substantial reasons not to do so.

The court may order steps to be taken to comply with an enforcement order where the offence has been committed.

In the case of an offence committed by a company, officers, directors, secretaries and other persons acting as such who approved, facilitated, consented or connived in respect of the offence may be independently found guilty.