Both the applicant for planning permission and persons who have made observations on the application may appeal to An Bord Pleanála (“the Board”). Where a person has not made observations but holds adjoining land, which is affected by a condition imposed outside the scope of the original application, he may apply for leave to appeal.
There is four week time period for bringing an appeal. This commences on the date of the decision of the planning authority to grant or refuse planning permission. Failure to comply with the requirements makes the appeal invalid. The time limits for an appeal is important because in the absence of an appeal, a final grant planning permission issues from the planning authorities. Once issued, the planning permission may be implemented.
Regulations prescribe the content of the appeal. It must be in writing and state the name and address of the person appealing the decision concerned and the grounds of appeal. It must set out arguments on which the appeal is based. There are strict requirements in relation to the contents of an appeal to the Board. Unless these are followed, there is a risk that the appeal may be invalid.
Further grounds of appeal will not generally be permitted to be lodged. The Board may request further submissions or hold an oral hearing in which further submissions will be permissible. A new application for permission cannot be made for the same development, which is the subject of an appeal to the Board before the appeal has been determined or withdrawn.
The Board gives a copy of the appeal to certain parties. This includes the planning authority, the applicant [ and those who have made observations]. Each party has four weeks in which to make submissions and observations to the Board. This time limit is strict. Those who have made an observation on the planning application may also make observations. The Board has the discretion to allow submissions outside of the time limits.
To some extent, the Board acts on the basis of its own expertise. It is a quasi-judicial body. Unlike a Court, it is not limited to acting only on the basis of the information put forward to it in the particular appeal. However, where the Board acts on information, other than that put forward by the parties, it must inform the parties and give them the opportunity to respond.
The planning authority is obliged to give copies of its file together with its internal report on the application and its decision to the Board. The Board may have regard to Ministerial Planning Guidelines in making decisions. The Board is not bound by the local authority’s development plan. The Board may require an environmental impact assessment, even if the planning authority has not done so.
Decision on the Appeal I
The Board has an obligation to decide the appeal within 18 weeks. However, unlike the time limits applicable to the planning authority stage, this time limit is not strict and may be extended. Extensions are very commonly required, with the result that the actual timeframe is commonly four to nine months.
The Board considers the application anew. It is not just a review of the planning authority’s decision.
The Board must give reasons for its decision. Likewise, the individual conditions should be assigned reasons.
The Board may grant planning permission, even though it contravenes the development plan. It may do so
- where the development is of strategic or national importance;
- where there are conflicting objectives in the plan or where the objective is not clearly stated in relation to the development
- where planning permission should be granted having regard to regional planning guidelines, statutory obligations of authorities, government policy or
- where planning permission should be granted having regard to the pattern of development and permission granted in the area since the making of the development plan.
Where the Board grants a permission which contravenes the development plan it must give reasons and consideration.
Decision on the Appeal II
The Board can dismiss an appeal if it is vexatious, frivolous or is made with the intention of delaying the development or securing payment of monies as an inducement. The Board can act of its own motion and may use a short form procedure. If the appealing party does succeed in substance on the grounds of appeal or if it considers that the appeal was made with the intention of delaying the development or securing gain, it may award costs against the person who makes the appeal.
The Board can require parties to the appeal to deliver documents, particulars or information as they consider necessary to decide the appeal. The Board can assign a person to make a written report to the Board. It will usually appoint an inspector to prepare a report and recommendation. IF there is an oral hearing, the inspector who conducts it must also prepare a report and recommendation. The report is available for public inspection.
An appeal may be made to the Board in relation to financial contributions only. When the Board is considering the appeal, it should apply the development contribution scheme provisions of the planning authority itself. In the case of an appeal against a contribution in accordance with the planning authority’s contribution scheme, the appeal is limited to a complaint that the planning authority has not properly applied its own scheme.
The appealing party or the planning authority may request an oral hearing. The Board decides in its discretion, whether or not to afford an oral hearing The Board gives all persons concerned and other relevant public bodies, at least one week’s notice of the hearing. Hearings are not overly formal. The person conducting the hearing decides the procedure. Basic constitutional justice should be observed.
Evidence may be heard on oath. The sanctions for failure to answer questions and privileges against self-incrimination which apply in a Court case, apply on a planning appeal. The Board may require third parties to attend with documents.
Other Board Planning functions
The Board has a role in relation to certain matters, other than appeals, under planning legislation. This function differs from the planning appeal.
It is possible to make an application to the planning authority for a decision as to whether development is or is not exempted. It is possible to appeal this application ./ reference to the Board. The procedure is relatively informal.
A developer may be required to make provision for social and affordable housing. See the separate chapter on this issue. There are a number of alternatives in relation to the terms, on which the condition will be provided. Where there is a requirement that a person enters an agreement, a dispute regarding the form of agreement may be referred to the Board for determination. The default position provides for transferring lands at hypothetical undeveloped value.
Sometimes planning permission conditions provide for matters to be agreed between the planning authority and applicant, or in default of agreement to be referred the Board. In this context, the Board’s role is one of adjudicating on the relevant condition. It must act on the basis of the condition concerned. It does not have the discretion to substitute its own decision.
The Board has a role in relation to a planning scheme in respect of a Strategic Development Zone. A development agency or persons making submissions may appeal the making of the scheme to the Board. The Board must consider the proper planning and sustainable development of the area, the development plan strategies, special amenity Orders and other matters.
Since 2001, the Board now has a significant new role in relation to compulsory acquisition matters. In particular, it confirms be making of a compulsory acquisition order, in most cases.
The Board hears certain types of development applications directly, rather than by way of appeal. This occurs in relation to permission for strategic infrastructure development. They are heard immediately by the Board.
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