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 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, 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, 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 at 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 a planning permission and suffers from certain disadvantages relative to having a 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. Planning permissions are 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 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 restricts 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 enquiry.
It is possible to apply for full planning permission or an outline planning permission. An outline planning permission leaves further detail for future decision by the Planning Authority. No works can commence until a 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 its 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 advertisement 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 a modification of the proposal.
Planning Obligations in Developments
Generally, planning obligations are imposed through conditions in the planning permission. There may be social and affordable housing conditions and conditions relating to a range of other issues, relevant to the development. Planning obligations are usually the means of providing a public benefit which the Planning Authority deems necessary as a package in granting the planning permission.
Planning obligations can restrict development in some way and can require specific activities to be carried out or can provide for the payment of money. It is normal practice for financial obligations to be payable before the grant of a planning permission can be implemented.
Planning obligations must be fair and reasonable and are not to amount to a purchase of a planning permission. They must be necessary. The obligation must be relevant to planning considerations, must be necessary, directly relate to the development, be fairly and reasonably related in scale and reasonable in all other respects. Examples of planning obligations could include, for example, contribution towards the costs of a new access road, bus shelters, open space, improved junction layouts, new or improved rail/bus station facilities, park and ride, measures for cyclists, pedestrians, library facilities, social education, recreation or sporting facilities.
Social and Affordable Housing Obligations
Part V of the 2000 Planning and Development Act introduced a mechanism through which local authorities can obtain up to 20% of land zoned for housing development at “existing use value” rather than “development value” for the delivery of social and affordable housing.
A “Part V” agreement refers to the agreement between a developer (applicant) and the planning authority outlining how the developer will meet his/her obligations under Part V. When submitting a planning application, the developer must specify the manner in which he/she intends to comply with his Part V obligations.
The Compliance Options include:
- transfer of land – the default option (for the developer);
- building and transfer of houses;
- transfer of fully or partly serviced sites;
- transfer of land, building and transfer of houses on the land, transfer of fully or partly serviced sites (off-site);
- Payment of agreed amount;
- A combination of options.
In selecting an option, the developer should have regard to the planning authority’s requirement to have regard to its Housing Strategy and other matters. Developers should discuss their Part V options in the pre-planning meeting.
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