Almost all works, even very minor ones potentially constitute “development” under the Planning and Development act. Pragmatic considerations require that minor works and certain other categories of work, should not require planning permission. Accordingly. the Planning and Development Acts and regulations under them, deem certain development to be exempt from the requirement for planning permission.
Certain works are exempt because they are regulated in a different manner. For example, works by local authorities and governmental authorities are exempt. They are, however, subject to a separate regime which involves an element of prior public consultation and due process.
The Planning Act itself designates certain works to be exempt. This includes many important exemptions. Most of the detailed exemptions are specified in the schedule to the Planning and Development regulations made under the Act. By being specified in regulations, there is flexibility and they may be readily amended, from time to time as circumstances require.
The Minister for the Environment and Local Government may exempt development of particular types and classes subject to conditions, where he is of the opinion that either by reason of their size, nature or limited effect on their surroundings that development of that class, would not offend against the principles of proper planning and development.
The Minister may provide for exemptions where the development is authorised or required to be authorised under enactment by way of license or approval, which requires consultation with members of the public, albeit not necessarily requiring a decision by an independent body. This latter category covers exempt development by the public, state and local authorities themselves.
The Schedules to the planning and development regulations set out classes of exempt development. The classes of exempt development have varied over time since 1964. In broad terms, the general trend has been to increase the scope and size of potential extensions and other exempt for dwelling houses. Another contrary trend has been to impose more conditions on exemption.
The exempt development regulations deal with works and change of use. They spell out the conditions under which minor works are exempt. They define categories of use. In broad terms, a change of use within the categories is exempt.
The Planning and Development Act provides certain important exemptions from the requirement for planning permission. Development by a council within its own area is exempt. Development carried on jointly or in partnership with local authority pursuant to a contract entered with it, or in another capacity is exempt. The development is subject prior public consultation requirements.
Development consisting by a local authority or a statutory undertaker for the purpose of inspection, repairing, renewing, altering, sewers, mains, cables, overhead wires and other apparatus including street excavation is exempt.
A statutory undertaker is any public utility body, including railway, canal navigation body, airport or harbour authority, gas, electricity, telecommunications service provider or an entity providing services connected with or carrying out works for the purpose of the activities of that public undertaking.
Development consisting of the use of land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied with lands so used. is exempt. Agriculture includes horticulture, seed growing, dairy farming, breeding of livestock, horse training, rearing of bloodstock, use of land for grazing, market gardens and nursery ground. The exemption covers use and not building works for such purpose.
Development consisting of the carrying out of works for the maintenance, improvement or other alteration of a structure, being works which affect only the interior of the structure is exempt. This is provided that it does not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the structure or of neighbouring structures.
This is a very important basis of exemption. It exempts internal works for most structures. Protected structures or proposed protected structures do not enjoy the exemption, in so far as the works relate to the protected element. See generally the section on special planning controls.
The exemption allows decoration and alteration of the appearance of the exterior of a structure, which not materially affect its external appearance so as to render it inconsistent with the character of the structure or of a neighbouring structure.
There may be elements of subjectivity in respect of this ground of exemption. In some cases, an application under Section 5 of the Planning and Development Act for certification that the works are exempt, may be desirable in order to clarify uncertainty.
The courts have held that the character of a structure relates to it shape, colour, design, ornamental features and layout and not its particular use. Regard is to be had to its appearance before and after the requisite work.
Where planning permission is granted, the planning permission must be implemented as a whole. The developer may not simply deviate from it insofar, as the exempt development regulations would allow.
Development consisting of the use of a structure or other lands within the curtilage of a house for any purpose incidental to the enjoyment of the house as such is exempted by the act. This exemption, for example, exempts the use of an outbuilding for storage purposes or for the parking of a private vehicle.
Exempt Where Required by Other Law
Development required pursuant to an enforcement process is exempt. Works consisting of the removal of any structure or object or the carrying out of work required by a planning authority under the provisions of the Act or any enactment is exempt.
Works necessary to comply with building regulations shall in the case of development comprising the construction of a dwellinghouse, be exempt. This does not apply to development comprising the construction of a building consisting of two or more separate dwellings.
The carrying out of any development in compliance with a water pollution notice, air pollution notice, in compliance with conditions attached to a fire safety certificate (other than the construction or erection of an external fire escape or water tank) or in compliance with requirements of a waste management act compliance notice are exempt.
Works required for the purpose of a license under the Environmental Protection Agency Act or the Waste Management Act are exempt. Works specified in a drainage scheme made by the OPW or certain other entities are exempt.
Restrictions on Exemptions
The planning and development regulations contain the bulk of the exemptions available. The schedule to the regulations set out classes of developments and the respective conditions on which they are exempt. The regulations also specify important restrictions on exemption.
An important exclusion applies if the exemption would contravene a condition attached to a planning permission or be inconsistent with any use specified in a permission. The planning authority may deliberately disapply the exempt development regulations in whole or in part. This is sometimes done, for example, where the garden size is relatively small so that the general exemptions for extensions is restricted or excluded.
A less obvious example is where the exemption is impliedly inconsistent with a planning permission condition. This would appear to be so even if the planning permission condition may no longer be enforced, due to the time limit on enforcement.
The extensions, alteration, repair or renewal of an unauthorised structure or structure used for an unauthorised purpose is not exempt. Development which would endanger public safety by reason of traffic hazard or obstruction to road users is not exempt.
Exemption does not apply to development consisting of the demolition or alteration of a building or structure which would preclude or restrict continuance of the existing use, where it is an objective to ensure the building will remain available for such use and such objective has been specified in the development plan or draft development plan.
Works which are also excluded from that which would otherwise be exempt include
- works obstructing a public right of way;
- construction, extension or alteration of a building so as to bring it forward of the building line as determined on the street or in the development plan or draft development plan;
- works interfering with the character of a landscape, a view or prospect of special amenity value or special interest, specified as an objective in the development plan or draft development plan;
- works to the interior of a structure located within an architectural conservation or area specified in the development plan or draft development plan;
- a range of development within an area covered by a special amenity area order;
- works requiring environmental impact assessment
- works which materially affect the character of a (proposed) protected structure
Development is not exempted development if an environmental impact assessment of the development is required.
No retention permission is permissible for development which requires an environmental impact assessment.There is a consent process available exceptionally, which allows retrospective planning permission for development requiring an environmental impact assessment or an assessment under the habitats directive.
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