Planning Permissions
Planning Permissions
Planning permission does not give permission to do that which is not otherwise lawful. A planning permission is required to comply with the requirements of planning legislation, only. It may be necessary, for example, to obtain property rights, modification of restrictive covenants, environmental licences and other statutory consents in order to undertake the development.
A planning permission is a legal document which may be subject to interpretation. The Courts interpret the true meanings of planning permissions in the event of a dispute or as the context requires. The application and permission are looked at together to interpret what is permitted.
In some cases, the permitted use may not be stated but may be implied. The planning permission is interpreted in the light of the circumstances. External documents will be looked at if the planning permission is ambiguous.
Certain grounds of refusal of planning permission entitle the applicant to compensation. The vast majority of grounds do not attract compensation.
Outline Planning Permission
It is possible to apply for an outline planning permission. An outline planning permission is an initial permission approving certain aspects of the development improvement. There is then a further permission providing for the details at a later date.
Outline permission cannot be made for retention permission. Works to a protective structure or works requiring pollution control or waste licence or requiring environmental impact assessment.
Outline permission does not permit works to be undertaken. Work is only permissible when the second final permission is obtained.
The application consequent on the grant of an outline of permission may not be refused on any basis which has been decided in the outline permission. Provided the permission is within the terms of the planning permission it must be granted. There is no appeal to Bord Pleanála against the grant of permission consequent on an aspect decided in the original outline planning permission grant.
The application for the second full permission must be made within three years of the date of the outline permission or any further period as may be specified in the outline permission not exceeding five years. The ordinary five-year rules apply to the grant of the second permission (it is presumed). Unlike the former the life of the planning permission does not apply on the life of the earlier permission.
Retention Permission
Retention permission is planning permission for works that have already been undertaken or change of use without planning permission. The planning authority does not have regard to the fact that unauthorised development is in place.
It would not be proper for the planning authority or Bord Pleanála to have regard to the fact that refusal would cause hardship and might necessitate removal and demolition. Retention permission is not retrospective. Enforcement action is not to be suspended or withdrawn by reason of an application for retention permission.
Adjudicating on Application
The planning authority must decide the planning application on a so-called “quasi-judicial” basis. The authority may only act with reference to legitimate and bona fide planning considerations. It does not have the discretion to make whatever decision it wants. It must act in good faith in accordance with the prescribed criteria.
The primary basis of the decision on a planning application is the proper planning and sustainable development of the area. A range of factors are encompassed within proper planning and development, including the preservation of amenities, public health and safety services and other similar grounds. Further grounds are specified in regulations.
The planning authority may have regard to previous decisions or precedents. If a planning application has been rejected before, it is likely to be rejected again. Precedents are a guide only and are not binding. The history of the lands concerned, private interests, the neighbouring person’s interest and the impact on the environment will differ from case to case.
The planning authority must only take account of legitimate planning reasons. If it takes account of irrelevant considerations then its refusal may be invalid. There are certain matters which the planning authority and Bord Pleanála are restricted to considering. The planning authority and Bord Pleanála are restricted to considering the proper planning and development of the area.
There are certain matters which the planning authority and Bord Pleanála must have regard to. This is not the obligation to have regard to means that reasonable consideration must be given.
Criteria for Decision I
The planning authorities are obliged to consider the planning application in light of the planning development plan. The provisions of the development plan are of primary importance. The planning authority may grant permission in contravention of its development plan. However, in this situation, the material contravention procedure applies. Bord Pleanála is not bound by the material contravention procedure.
It is specifically allowed to grant planning permission even though it would contravene the development plan. If the planning authority has refused permission on a material contravention Bord Pleanála may grant permission only where it considers the development is of strategic national importance.
Planning permission should be granted having regard to the pattern of development and permissions granted in the area since making the planning application development plan.Regard must be had to the provisions of any special amenity Order.
Regard must be had to any designated European site or other area specified for conservation or protection of the environment. This includes archaeological national heritage features, conservation and protection of European. In relation to natural habitats, an assessment must be undertaking in respect of proposed development which impacts on a European site.
Criteria for Decision II
If there are conflicting objectives or objectives are not clearly stated in relation to the proposed development the permission should be granted having regard to regional planning guidelines for the area, statutory guidelines, strategy policy directives, statutory obligations of the local authority and governmental policy.
The following are also amongst the relevant considerations
- Local area plan.
- Discretion to consider draft local area plan.
- Protected Structures.
- Impact archaeological conservation area.
- The housing strategy of the council.
- any environmental impact assessment.
Additional considerations apply in respect of residential development applications for special social and affordable housing obligations apply.
In a strategic development zone planning permission must be granted where the development would be consistent with a planning scheme for the area.
Ministers give guidelines from time to time in relation to certain matters.
Planing Conditions I
The planning authority must consider what planning conditions may be imposed. Section 34 lists the types of planning conditions.
Conditions must be relevant to planning. They cannot impose, for example, revenue making requirements. Similarly, in relation to environmental matters are usually properly dealt with under environmental controls.
The permissions should be limited to lands under the control of the applicant and persons under his direct or indirect control. The condition must be precise and must not be unreasonable.
Permission conditions frequency provide certain matters must be done before development is commenced. These conditions are preconditions. Commencing development of works before the conditions are complied with is a breach of planning permission.
Where an activity is subject to licensing under environmental legislation Bord Pleanála may not impose conditions controlling emissions or including prevention elimination, abatement or reduction of those omissions. It may have regard to environmental considerations in the application. However, the actual control of emissions is regulated by the relevant environmental licence and not planning legislation. The purpose is to ensure that planning permission does not indirectly contradict or override the environmental licence.
Planning Conditions II
Conditions may include, for example, the following:
- conditions regulating the development and use of other lands which adjoins, abuts or is adjacent to the land to be developed and is under the control of the applicant insofar appears expedient for the purpose of the development authorised.
- conditions requiring carrying out of works which the planning authority considers are required for the development.
- conditions requiring reduction of vibration noise, prevention or reduction of the emission of any noise and vibration which might give reasonable cause for annoyance to premises in the vicinity, including any noise or vibration,
- conditions for open spaces,
- conditions requiring security to be given for completion of development,
- conditions requiring removal of any structures or discontinuing of use at the expiration of a period and for reinstatement
- conditions requiring signage,
- conditions in the case of permissions affecting protected structures, providing for preservation by written and visual records and architectural salvaging,
- conditions regulating the hours during which work may be undertaken.
- Conditions may specify the purpose for which property may be used to.
Planning Conditions III
Conditions may require development contributions. These are principally relevant to the development of the lands They may require contributions towards existing and future infrastructure and facilities open spaces, roads, car parks, sewers, utilities, bus corridors lanes, refurbishment or replacement of roads, car parks, sewers, wastewater facilities, ancillary matters.
It is possible under certain circumstances to appeal to Bord Pleanála against certain conditions relating to contribution to public infrastructure only. In this case, the planning permission goes ahead and the appeal relates only to the contribution.
Where an appeal is brought generally to Bord Pleanála it may impose its own conditions in accordance with the same criteria. Where Bord Pleanála grants permissions in respect of development where appropriate it applies as a condition of the contribution scheme for the area.
The local authority may require special contributions in respect of particular developments where exceptional costs are not covered by the development scheme are incurred. The contribution must be refunded if works are not commenced within a certain time.
Supplementary Contributions
A planning authority may, when granting a permission, include conditions requiring the payment of a contribution in respect of any public infrastructure service or project specified in a scheme made by the planning authority provided or carried out or proposed to be provided or carried out ) by a planning authority. It may do so
where the provision of the infrastructure concerned is an objective in the development plan of a planning authority, by a public authority, or, pursuant to an agreement entered into by a public authority with any other person, by that person, or pursuant to an agreement entered into by a local authority with any other person, by that person, and that will benefit the development to which the permission relates when carried out.
The Board shall consider an appeal brought to it by an applicant for permission , in relation to a condition requiring the payment of a contribution in respect of a public infrastructure service or project specified in a supplementary development contribution scheme, where the applicant considers that the service or project will not benefit the development to which the permission relates and in certain other circumstances.
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.
The 2016 Act provides that the various options reflect the restructuring of the Social Housing Investment Program. Houses may be taken on a temporary basis under the rental assist scheme or on a long-term lease, as part of the social and affordable housing obligations.
Duration
A planning permission generally has a life of five years. Conditions may be imposed providing a different longer or shorter duration.
Retention permission is not limited to five years. Permissions are also permitted for a limited period or for temporary planning permission.
Once a planning permission expires it is no longer effective. The rights to undertake development permitted by it are discontinued and a new application must be made.
The life of a planning permission may be extended under certain conditions. One extension only is permitted. The application must generally be made in the last year of the permission.
The planning authority must be satisfied that the development commenced before the expiration, substantial works were completed and the development will be completed within a reasonable time. No public participation or appeal is involved in a decision to extend the life of a planning permission in this way.
Planning permissions can be revoked in limited circumstances. The planning authority may only do so if the development no longer conforms with the development plan. A notice must be served on the persons affected by the revocation and modification. They must be invited to make observations.
The planning authority must have regard to the submissions or observations in making its decision. After the notice is served a decision is made in light of the observations. There is a right of appeal to Bord Pleanála. There will be generally a requirement for compensation if the revocation of permission causes loss.
Extension of Duration I
Arising from the financial crisis and the “ghost estate” phenomenon, there is provision for the extension of permission (for a period of up to 5 years) in circumstances where substantial works have not been carried out, but there were commercial, economic or technical considerations, beyond the control of the applicant, which substantially mitigated against either the commencement of development or the carrying out of substantial works.
On application to it in that behalf a planning authority shall, as regards a particular permission, extend the appropriate period by such additional period not exceeding 5 years as the authority considers requisite to enable the development to which the permission relates to be completed provided that each of the following requirements is complied with:
either the authority is satisfied that
- the development to which the permission relates was commenced before the expiration of the appropriate period sought to be extended,
- substantial works were carried out pursuant to the permission during that period, and
- the development will be completed within a reasonable time,
or the authority is satisfied—
- that there were considerations of a commercial, economic or technical nature beyond the control of the applicant which substantially militated against either the commencement of development or the carrying out of substantial works pursuant to the planning permission,
- that there have been no significant changes in the development objectives in the development plan or in regional development objectives in the regional planning guidelines for the area of the planning authority since the date of the permission such that the development would no longer be consistent with the proper planning and sustainable development of the area,
- that the development would not be inconsistent with the proper planning and sustainable development of the area having regard to any guidelines issued by the Minister under section 28, notwithstanding that they were so issued after the date of the grant of permission in relation to which an application is made under this section, and
- where the development has not commenced, that an environmental impact assessment, or an appropriate assessment, or both of those assessments, if required, was or were carried out before the permission was granted.
In extending the appropriate period a planning authority may attach conditions requiring the giving of adequate security for the satisfactory completion of the proposed development, and/or may add to or vary any conditions to which the permission is already subject.
Extension of Duration II
A planning authority shall—
- as regards a particular permission in respect of a development that relates to 20 or more houses and in respect of which an environmental impact assessment or an appropriate assessment, or both of those assessments, were not required before the permission was granted, and
- upon application being duly made to the authority setting out the reasons why the development cannot be reasonably completed within the appropriate period,
further extend the appropriate period by such additional period not exceeding 5 years, or until 31 December 2021, whichever first occurs.
The authority shall only so extend that period where the authority
- considers it requisite to enable the development to which the permission relates to be completed,
- is satisfied that the application is in accordance with such regulations under the Planning and Development Acts 2000 to 2016 as apply to the application,
- is satisfied that any requirements of, or made under those regulations are complied with as regards the application,
- is satisfied that the development to which the permission relates was commenced, and substantial works were carried out, before the expiration of the appropriate period or any extension of that period, and
- is satisfied that in the case of a permission where the expiry of the appropriate period as extended occurred or occurs during the period from 19 July 2016 to the day preceding the day when the Planning and Development (Housing) and Residential Tenancies Act 2016 comes into operation, the application is duly made within 6 months of the said commencement date, or
- where the appropriate period as extended expires on or after the date of commencement of the 2016 Act, the application is duly made within the period prescribed for those purposes.