Development by local authorities in their own functional area is exempt. It does not require planning permission. However, most local authority development must go through a form of public consultation procedure, in which third parties’ views and input must be sought. It is not equivalent to a planning process.
Local authority development is subject to a certain amount of third-party control in cases which are the subject of an Environmental Impact Statement requirement. These are required by European Union law. Where the requirement applies, the local authority must prepare an environmental impact assessment which must be approved by Bord Pleanála.
A local authority must not undertake development within its area, which materially contravenes its development plan. This prohibition does not apply to certain types of development, some of which are mentioned below.
Consultation Procedures I
Prescribed types of local authority development must undergo a public consultation procedure. The types of development concerned are prescribed by the Planning and Development Regulations. The requirement applies to a wide range of development including construction of houses and most works exceeding €126,000 in value.
The requirements apply to following classes of work whether or not in excess of €126,000:
- construction of house;
- certain road widening,
- construction of a bridge or tunnel;
- construction of a swimming pool;
- use of land for waste disposal;
- burial ground;
- construction of a fire station, library and public toilet.
The procedure does not apply to works which consists of maintenance and repair, other than works which would materially affect the character of a protected structure or of a proposed protected structure. There are also exemptions where works are urgently necessary to deal with an emergency situation, works required to be undertaken by law or by court order and works which require an Environmental Impact Statement. This latter category is subject to separate control set out below.
Consultation Procedures II
The local authority must publish details of the proposed development in a newspaper and fix a site notice to the place where the development is proposed. It should specify the nature and extent of the development proposed and indicate that submissions and observations may be made relating to the development. They must be made in writing to the local authority and must deal with planning and development considerations. There are requirements to give notice to certain prescribed bodies, depending on the nature and extent of the development.
The Manager of the authority is to prepare a report for the elected members. This is to set out the nature and details of the proposal, its principle features and an evaluation of whether it is consistent with the proper planning and sustainable development of the area to which the development relates, having regard to the development plan. It is to give reasons.
The report must list the bodies and persons who have made submissions and observations. It must summarise the issues, including those raised on submissions and observations and the Manager’s response. It must contain a recommendation as to whether or not the proposed development should be proceeded with, as proposed, varied or not at all. The proposal is deemed approved, subject to any resolution to the contrary by the elected members.
The local authority may not resolve against works which are inconsistent with the waste management plan. The power to resolve against works may not be undertaken in respect of works which are required by law to be undertaken. This might be interpreted narrowly or widely. In the widest sense, it could cover all works for which the authority has a general statutory duty to undertake.
Environmental impact assessment requirements
Environmental impact assessment requirements derives in European Union law and are binding on the organs of the State including, local authorities. Local authorities require approval from Bord Pleanála of its environmental impact assessment. The Board may grant or refuse approval or attach conditions.
Certain development requires an environmental impact assessment below certain thresholds, only if it would be likely to have significant effects on the environment. The local authority should itself consider whether an environmental impact assessment is appropriate in the circumstances. Bord Pleanála may require an assessment if one should properly be made, notwithstanding that it is below the relevant thresholds.
Where an environmental impact assessment is made, the local authority must give notice of the proposal in a number of newspapers. It should indicate the nature and extent of the development, that an EIS has been prepared and that submissions and observations may be made to Bord Pleanála relating to the implications of the development for proper and sustainable development and is effects on the environment. The EIS itself, must be available for inspection for a period.
The local authority and the EIS must send a copy of notice and observations to the Board. The Board may require further information and a more detailed environmental impact assessment. It may require the publication of further notices where new material arises and may require an additional period for submission of observations.
Bord Pleanála determines the matter, having regard to the environmental impact assessment, effects on the environment, likely consequences for proper and sustainable planning and the views of State and certain other authorities. Where there is an oral report, the report and recommendations of the inspector are taken into account.
Where a local authority development requires compulsory acquisition, there may be a hearing by Bord Pleanala in the context of confirmation of the CPO, if objections are made. See generally the sections on compulsory acquisition.
Contravention of Development Plan
Generally, a local authority may not contravene its own development plan. There are certain overriding statutory obligations which mandate certain public works, notwithstanding that that they may be inconsistent with the development plan.
Where the National Roads Authority direct the local authority’s roads authority to attend to certain obligations, they must be complied with, notwithstanding material contravention of the development plan. The NRA must follow certain procedures before contravening or directing a material contravention of a development plan or special amenity order, including publication of notices and consideration of objections. It must serve the road notice with its proposals and consider objections made.
Where works are consistent with the waste management plan and are necessary for its implementation, there is a procedure whereby the Manager may proceed with the works, notwithstanding contravention of the development plan. Notice must be published and observations must be received and considered.
State Sector Development
Formerly, the State itself was assumed to be exempt from the Planning Acts under the general State privilege. State authorities are presumptively subject to planning permission. There are a range of public authorities, ranging from ministers / departments of the Government to state authorities, which are in the broad public sector, to greater or lesser extents.
The present position, under the 2000 Act, is that development by a State authority may be exempt and not subject to public consultation or may be subject to a public consultation procedure, similar to that for local authorities. The Minister may specify development which, for the purpose of public safety, order or the administration of justice, national security or defence is exempt and does not require public consultation.
Where development is proposed to be carried out by a State Department or the Commissioners of Public Works, the Minister, may if satisfied that the carrying out of the development is required by reason of an accident or an emergency, by order suspend or vary any provisions of the regulation.
Exempted under the first category (security administration of justice) includes
- Garda stations, premises or installations for the purpose of the operations of the Gardai;
- prisons and places of detention;
- courthouses, whether temporary or permanent;
- barracks and other buildings for in connection with Defence Force operations;
- office buildings used for the purpose of or in connection with the business of the Dáil, Oireachtas certain departments, the Chief State Solicitor’s Office, DPP, Office of the Attorney General and the Courts Service; and
- certain works which have a national security element.
Also exempt is a range of development consisting of extensions to buildings within their curtilage, works which affect a protected structure and certain installations within their respective curtilages.
Where public consultation is required, the State authority must give the planning authority for the area, notice of the proposal including, particulars, plans, and other information. The State authority publishes a notice of the proposed development in a newspaper and affixes a site notice. This contains information on the nature of the development. It sets out where the drawings and particulars are available for inspection, for a period of the six weeks following publication. It invites submissions and observations. Similar requirements apply to the site notice and newspaper notice.
The proposal must be made available for inspection. This must include documents, particulars, plans and other information. Submissions and observations may be made to the State authority in relation to the development. The state authority has to give notice to certain parties, including the planning authority. Where it affects a protected structure or is within an architectural conservation order area or proposed area, notice must o be given to the Minister for Arts, Heritage and the Gaeltacht.
The plans are to remain available for inspection for the requisite period. They are to contain details of the documents setting out the nature of the development, location, plan, particulars of the appearances via drawings attached.
The State authority, in deciding whether the proposed development is to be carried out, must have regard to the submissions and observations made by the planning authority and others.. It may carry out the proposal as originally proposed or as varied and amended or may choose not to carry it out at all.
After making a decision it must give notice to the planning authority. Notice must also be given to certain persons who have made submissions and observations. Where a large number of observations have been made, a general public notice may be given. Notice of the decision may be published in a newspaper.
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