Permission Requirement
Development Control
Planning law regulates the physical appearance of the environment and the use to which property is put. Planning permission may be required, when there are works or a change of use to land or property.
The Planning Acts labels works or change of use as “development”. Development requires a grant of planning permission unless it is exempt under the Acts. Demolition is included in works – see above. Virtually any works which change the external appearance of buildings potentially requires planning permission.
This may not necessarily be limited to building works. Changing the character of the building so that it is inconsistent with the character of adjoining buildings would be sufficient to constitute development.
Works, for the purpose of planning law, include any construction, excavation, demolition, extension, alteration repair or renewal. Virtually any works whatsoever to a building may require planning permission unless, they are exempt.
What is and is not exempt is laid down in detailed conditions in planning legislation. What may be exempt in one area may not be exempt in another. This is because there are various conditions for exemption to apply.
Material Change of Use
A material change of use of land requires planning permission. For example, a change of use of residential premises to a commercial use or shop would require planning permission. What is and is not material depends on the impact on the environment.
There may be fine distinctions between whether a change from one type of business use to another is a material change of use. Ultimately it is a matter for the Courts to decide in the event of a dispute or enforcement proceedings. There are procedures under planning law to obtain rulings as to what is or is not change of use.
The key factor is the change in the impact on the environment. For example, a use which involves relatively low customer traffic may be changed to a use with higher traffic and thereby be materials. Properties may have established uses when planning legislation began in 1964.
Another example of use is the number of units in a building. Where a building is used in one unit and is later subdivided into several units this would be usually a material change of use. For example, an extension from say five units to eight units could be a material change of use requiring planning permission.
The use of building facades for advertising may be a change of use. Use of structures for advertising is a change of use requiring planning permission.
Where a premises is already being used for a particular purpose and it has intensified, this can be a material change of use requiring planning permission. For example, if land is being used for quarrying and the scale of activity is greatly increased this can be a so-called intensification of use and accordingly a material change of use.
Another example may be where a shop goes from being open limited hours to being open for much greater hours and different times of the day. The significance lies in the impact of the change of use on adjoining lands and owners. In effect, it is deemed reasonable that they have the opportunity to object to the change under the planning legislation procedure.
Immunity from Enforcement
Planning permission is not generally required where works have taken place or a use has continued without enforcement for upwards of seven years. Unlike the position in the UK, there is not deemed to be planning permission in this situation. Instead, there is immunity from enforcement under planning legislation.
There may, however, be adverse consequences in the absence of planning permission. Much of this may include, for example, the absence of an automatic right to rebuild or reconstruct the existing situation on fire or destruction or the absence of compensation on compulsory acquisition.
Abandoned Use & Lapsed Permission
If a property is being used for a particular use it may be abandoned if it is not used for a certain period. There is no hard and fast rule as to when a use is abandoned. Two to three to two years of non-use might be a general rule of thumb as to what constitutes abandonment.
If for example a premises has simply not been used at all for a number of years it may require planning permission to be used once again. For this reason, derelict buildings may require planning permission to be reused even if they are perfectly usable from a physical point of view and require no physical work.
Planning permission may have been given , but will lapse if not implemented within a certain period (generally five years). In some cases, cessation of use for a shorter period than two to three years particularly in the case of advertisements may constitute an abandonment.
A planning permission use may be lost if another planning permission allowing a different use is implemented. Where a building is destroyed the planning permission for its use is also destroyed.
Exemption of Minor Works
Because of the breadth of the concept of works and material change of use the planning legislation sets out detailed conditions for so-called exempt development. They refer to works and changes of use which do not require planning permission or do not generally require planning permission.
There are many detailed examples of exempted development which are specific to particular industries and classes of use and work. They should be consulted in cases where they may be of relevance and remove the need to obtain a planning permission.
Exempt development regulations usually have conditions. An existing planning permission might remove an exemption that otherwise applies so that planning permission is required even though the works would generally be exempt. Similarly, each type of exemption has conditions which may not be satisfied in certain cases. The detailed rules in exempt developments are laid down in ministerial regulations and change from time to time. See the other sections
Broad Exemptions
There are certain broad exemptions, such as for the use of lands and buildings for agriculture. This does not apply to “works”, which may require planning permission or may be separately exempt. There are various conditions including in particular, that if environmental impact assessment is required the exemption does not apply.
Works by the council itself within its own area do not require planning permission but are subject to a similar procedure. Local authorities must undergo a public consultation process which is similar to planning permission. There are many classes of exemptions in respect of public works and works by utility undertakers such as ESB, telecommunications services, gas services, etc.
Works consisting of maintenance, improvement or alteration affecting the interior of a structure which do not materially affect its external appearance so as to render it inconsistent with adjoining structure is generally exempt. Broadly speaking this will exempt most categories of internal work.
The exemption does not apply to protected structures. A form of control similar to planning permission applies.Protected structures which are designated buildings e.g. of architectural merit and interest always require planning permission or consent similar to it.
The character of a structure relates to its appearance design, colour and features. For example, the replacement of Georgian windows with modern windows would generally not be exempt because it would be inconsistent with the character of adjoining structures or the structure itself.
Exemption Issues and Planning Permission
If a planning permission is submitted it must be implemented in the terms submitted for approval. Even if variations from it would otherwise be exempt, the plans must still be followed.
Certain works within the so-called curtilage of the premises are exempt. Conditions apply in relation to size, position, location, height, etc. There are various categories of exemption:
It is possible that what would otherwise be exempt is not exempt because the planning permission states. In certain cases planning permission is granted but on condition that the exemptions which would normally apply to future works do not apply.
There is no exemption development which would interfere with the landscape or view.
What would otherwise be exempt will not exempt is the structure itself is unauthorised. This may even happen where it has been authorised for more than seven years, and is thereby immune from enforcement of itself.