Planning Protections
Development Plan
Planning authorities must indicate objectives for the conservation and protection of the environment, including, but not limited to designated natural heritage areas, and European sites (SACs SPAs plus others) in their development plans. Local authorities must have regard to the implication of any proposed development for which planning permission is sought on a European site or natural heritage area.
In principle, planning authorities are entitled to take more positive and proactive steps to promote and protect environmental protection. They may acquire land for open spaces, make special amenity orders and designate landscape conservation areas. They make preservation orders.
Planning authorities may enter agreements for the creation of a public right of way over land and compulsorily acquire rights of way. They may enter agreements with landowners regulating and restricting the use of land.
Planning Permission Requirement
Planning permission is required whenever there are “works” to or a “material change of use” of property. The definition of works for the purpose of planning permission is very broad. “Works” include carrying on any building, engineering, mining or other operations in, under or over land.
A material change of use is a matter of interpretation of the entire circumstances. Whether a change of use is “material” will depend upon its impact on the environment.
Because the definition of development can be difficult to interpret, there is a procedure under section 5 of the Planning and Development Act for application to the planning authority (the Council) for its opinion. This can be appealed to Bord Pleanala. Decisions are published.
Exemptions
Development by a local authority and the state is exempt from planning permission. However, it is subject to a public consultation procedure. In some cases, it may also require environmental compliance.
There are very broad exemptions from the requirement for planning permission in relation to the agricultural use of land and certain agricultural works. Development consisting of the use of any land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied together with land so used is exempt. This applies to the use and not the works. There is also an exemption for many types of agricultural work.
There is a number of conditions and exceptions, both general and specific to the exemption. The terms of the exemptions can be open to interpretation. There are section 5 opinions in relation to some of the relevant issues which are available online from various councils.
Agriculture Exemptions
“Agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the training of horses and the rearing of bloodstock, the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and “agricultural” shall be construed accordingly;
The following are exempt
- development consisting of the thinning, felling or replanting of trees, forests or woodlands or works ancillary to that development, but not including the replacement of broadleaf high forest by conifer species;
- development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949, not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are or works consisting of land reclamation or reclamation of estuarine marshland and of callows, referred to in section 2 of that Act.
The above exemptions do not apply if an environmental impact assessment or an appropriate assessment of the development is required. The particular regulations for an appropriate assessment may reapply the exemption.
The Minister may make regulations prescribing developments and classes of developments authorised by any other statute other than planning law, whether by means of a licence consent or other approval for which an environmental impact assessment or appropriate assessment is required, to be exempted.
Some Exemptions
The Minister has the power to make regulations providing that certain categories of works are exempt. The planning and development regulations deal with many aspects of planning permission. The regulations make many types of development in rural areas exempt from planning permission, subject to conditions. There are many diverse exemptions
There are general exemptions and those applicable only in defined rural areas. The following are exempt.
- Works specified in a drainage scheme confirmed by the Minister for Finance under Part II of the Arterial Drainage Act carried out by, on behalf of, or in partnership with, the Commissioners, with such additions, omissions, variations and deviations or other works incidental thereto, as may be found necessary by the Commissioners or their agent or partner in the course of the works,
- Initial afforestation
- Works consisting of field drainage for agriculture, other than drainage and/or reclamation of wetlands
- Land reclamation works (other than the reclamation of wetlands) consisting of re-contouring of land, including infilling of soil (but not waste material) within a farm holding
- Works consisting of the removal for the purposes of agriculture of field boundaries, including stone walls, clay banks or wire or post fences.
The last three exemptions shall not apply in an area to which a special amenity area order relates.
- Development consisting of the thinning, felling or replanting of trees, forests or woodlands, or works ancillary to that development, but not including the replacement of broadleaf high forest by conifer species, is exempted development.
- Development (other than where the development consists of the provision of access to a public road) consisting of the construction, maintenance or improvement of a road (other than a public road), or works ancillary to such road development, where the road serves forests and woodlands, is exempted development.
Special Rural Exemptions
Part 3 deals with exemptions in a rural area; this is other than a city town and certain specified areas.
They include a wide range of work, including
- construction or maintenance of gullies, drain, pond trough, pit or culvert
- widening and deepening of watercourses
- the removal of obstructions from watercourses and
- the making and repairing of embankments in connection with any of the foregoing works.
There are exemptions for various classes of agricultural buildings and structures within certain sizes. Detailed conditions apply.
Exceptions to Exemptions
The exemptions do not apply in a list of cases, including development which
- interfere with the character of a landscape or a view or prospect of special amenity value or special interest, the preservation of which is an objective of a development plan for the area in which the development is proposed or, pending the variation of a development plan or the making of a new development plan, in the draft variation of the development plan or the draft development plan,
- consist of the fencing or enclosure of any land habitually open to or used by the public during the 10 years preceding such fencing or enclosure for recreational purposes or as a means of access to any seashore, mountain, lakeshore, riverbank or another place of natural beauty or recreational utility,
- obstruct any public right of way,
The following exceptions to exemptions do not apply to any operation or activity in respect of which a Minister of the Government has granted consent or approval in accordance with the requirements of the Habitats Regulations, provided that the grounds of imperative reasons of overriding public interest are not relied on.
- consist of or comprise the excavation, alteration or demolition (other than peat extraction) of places, caves, sites, features or other objects of archaeological, geological, historical, scientific or ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area plan for the area in which the development is proposed or, pending the variation of a development plan or local area plan, or the making of a new development plan or local area plan, in the draft variation of the development plan or the local area plan or the draft development plan or draft local area plan,
- consist of or comprise the excavation, alteration or demolition of any archaeological monument included in the Record of Monuments and Places, pursuant to the National Monuments (Amendment) Act, save that this provision shall not apply to any excavation or any works, pursuant to and in accordance with a consent or a licence granted under the National Monuments Act
- comprise development in relation to which a planning authority or An Bord Pleanála is the competent authority in relation to appropriate assessment and the development would require an appropriate assessment because it would be likely to have a significant effect on the integrity of a European site,
- consist of or comprise development which would be likely to have an adverse impact on an area designated as a natural heritage area by order made under the Wildlife Act
If it is a development to which EIS / EIA applies, it is not exempt unless the development is required by or under any other statutory provision to comply with procedures for the purpose of giving effect to the EIA / EIS Council Directive.