Development Management: Guidelines for Planning Authorities

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   describe the proposals, the appropriate fee and the information required in certain instances e.g., letter of consent from the landowner, certificate of exemption from Part V or evidence as to the suitability of the site for a proposed system of wastewater disposal. Article 22(3), as inserted by the 2006 Regulations, clarifies that in accordance with section 248 of the Planning Act planning authorities may consent to the receipt of the application wholly or partly in electronic form and that in the case of electronic submission one copy will be sufficient. To allow such receipt, Article 22(2)(a) now allows for “a copy of the relevant page of the newspaper” to be submitted as an alternative to “the relevant page of the newspaper”. The maps, plans and drawings required by Article 22 must comply with the requirements of Article 23. Amendments were made in the 2006 Regulations which allow location maps and site or layout plans to be of a scale agreed in advance with the planning authority. In some instances planning authorities are given some discretion - where the terms “as may be appropriate” or “main features” are used – as to the degree of detail and amount of information that they locally require. In some cases the information required will be quite basic; in other cases, such as in the case of a protected structure, it may be more detailed. Planning authorities should use this discretion in a manner that ensures the efficient operation of the development management system and avoids unnecessary delays while ensuring that public participation rights are safeguarded. While it is important that the Planning Regulations are complied with, it is equally important that the planning authority should not go beyond the requirements of the Regulations, making more onerous demands than the Regulations permit. For instance, it is not open to planning authorities to require particular colours on maps, plans, etc. where this is not required by the Regulations. It is open to planning authorities to request (but not require), if desired, in their own planning leaflets, or on their websites, that the maps and drawings be pre-sorted into 6 sets. In relation to the other mandatory documentation under Article 22, planning authorities should take a reasonable approach in validating such documentation. In relation to the requirement that evidence as to the suitability of the site for the proposed system of wastewater disposal (where it is proposed to dispose of wastewater other than to a public sewer) must be supplied with the application, planning authorities should not be over-rigorous in assessing the adequacy of the evidence for the purposes of validation: further evidence may be sought by way of further information. When submitting a planning application for the development of homes on lands subject to Part V of the Act, the legislation requires an applicant to specify the manner in which he/she intends to comply with the Part V obligation. This requires the applicant to indicate which of the options set out in section 96(3)(a) or section 96(3)(b) it is proposed to use to achieve compliance with Part V. As outlined in Appendix A (para. 2) of DEHLG Circular AHS 4/06, submission of the agreement in principle reached at pre- 30

2. Page 32

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   planning stage, if any, provided that it clearly specifies the manner of compliance with Part V, will be sufficient to comply with this requirement. Article 22A of the Regulations allows a planning authority to require the applicant to submit specified additional information with the planning application and sub-articles (2) to (5) of Article 23 provide for the submission of additional information/evidence in particular cases i.e. additional details in relation to works to a protected structure; a transport assessment; additional copies of maps, etc; a scale model, photographs, etc. It is important to note however that the non-submission of any of this information/material cannot be a cause of invalidation of the application, and in cases of non-submission of such information the planning authority should proceed to formally request the required information/material under Article 33. 3.9 Fees Schedule 9 of the Regulations indicates the fee that must be paid with each application. In some cases there may be a genuine misinterpretation of the Schedule. Where the fee is overpaid it should be accepted as validating the application and the balance of the fee should, of course, be refunded. Where the fee is substantially paid, but there is an underpayment, the applicant should be contacted and given the opportunity, within a short specified time frame, to submit the balance. The application should be regarded as valid until this time limit has expired. 3.10 Validation Where the requirements of Article 18 (newspaper notice), Article 19(1)(a) (site notice) and Article 22 (application form and required accompanying documentation) are complied with the application is then deemed to be valid. As set out in the preceding paragraphs, planning authorities should adopt a reasonable approach towards validation. While compliance with the Planning Regulations is essential, particularly to protect the interests and participation rights of third parties who may be affected by the proposed development, planning authorities should take a common sense approach and should avoid invalidating applications on very minor points such as a mis-spelling or an illegible signature, particularly if third party rights are not prejudiced. While it is of course the responsibility of applicants and agents to submit applications which comply with the Regulations, planning authorities might consider an approach whereby (as recommended in the case of a small underpayment of a fee) in a case where an application contains just one minor defect, the applicant would be contacted and offered the opportunity, within a very tight time-frame, to correct the defect (the application would be regarded as valid in the interim period). The Planning Regulations provide that when an application is deemed valid, the planning authority will stamp each document with the date of its receipt and send an acknowledgement to the applicant. Documents should not be 31

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   date-stamped before validation, as, in the event of the application being deemed invalid, the applicant may wish to use some of the documents in a subsequent application. It will be important therefore that the planning authority, while not date-stamping all the documents prior to validation, have some mechanism for noting the date of receipt of the application, e.g. by initially date-stamping only the application form, on receipt of the application. It is in the planning authority’s interest to ensure that planning applications are validated as quickly as possible to minimise the amount of time and effort that will otherwise go into returning the planning application and the fee, informing any objectors and returning such fees. As the authority’s planning applications list must be prepared not later than the fifth working day following a particular week, (i.e. by the following Friday) a similar period of time should be aimed at for validating a planning application. Under the Planning Regulations the weekly list must indicate which applications have been invalidated, so that persons wishing to make submissions are aware of this fact. Best practice example A new applications unit was established in Galway County Council comprising 6 administrative and technical staff. The team is responsible for the acceptance, validation and distribution to the planners/assessment centre of all new planning applications received both at the public counter and by post. The administrative team accepts all planning applications at a dedicated counter, which can accommodate up to three customers at any one time and the technical team is responsible for the validation/mapping of all planning applications. The team is also involved with other planning procedures within the office. Both teams were given special training and instruction in relation to all relevant aspects of the Planning and Development Regulations 2001 and IT training e.g. ECDL etc. Software requirements include iPlan, SoftCoWeb, PlanReg and Map Info. The advantages of this system are ƒ The agent and applicant know that the file is valid. ƒ The files are on the planner’s desk within 7 days. ƒ Better customer service. ƒ Increased security for file and fee. ƒ Reduced number of files to handle. ƒ Cost savings. ƒ Increased staff productivity. 3.11 Dealing with invalid applications Where the application is deemed invalid the planning authority must return the entire application, including all drawings and the fee, to the applicant (or the 32

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   applicant’s agent). The applicant must be informed in writing of the precise reasons – all the reasons - why the application was invalid. The letter should also emphasise the importance of removing the site notice. The planning authority then enters in the register an indication that an invalid application has been made (rather than, as heretofore, the details of the application). If any observations have been made on the application prior to its validation, the persons who made the observations must be informed that the application is deemed invalid and any fee paid in respect of the submission returned. Where an application has been validated, but on inspection of the land to which the application relates, the planning authority considers that the requirements of Articles 17(1)(b), 19 or 20 have not been met or that the information submitted in the planning application is substantially incorrect or incomplete, Article 26(4), as amended, allows the planning authority to invalidate the planning application notwithstanding the fact that it has been acknowledged. Again the letter to the applicant should explain clearly why the application is invalid and any persons who made submissions should be informed that the application has been invalidated and have their fees refunded. In a case where an application has been invalidated in error, there is no provision for re-instatement or “de-invalidating”. This is right because a member of the public might have been informed that an application had been invalidated and would not know that it was subsequently “de-invalidated”. Cases of invalidation in error will be rare, but it is important that when a customer has a complaint about the invalidation of a planning application or the process of validation, he or she should have recourse to the planning authority’s complaints procedure and that the complaint should be treated seriously and dealt with promptly. If following investigation it transpires that the application was in fact invalidated in error, an apology should issue to the applicant and the planning authority should consider appropriate redress e.g. paying the advertising costs of a subsequent application. 3.12 Managing the validation process In managing the validation process the planning authority will be aiming to achieve a situation where all applications lodged are valid on receipt. The planning authority can use its discretion to ensure that the best system is put in place, having regard to its local situation. As indicated above, this will be facilitated when the planning authority has a clear and helpful approach to the information that is required for making planning applications in its area. Other methods of encouraging valid applications that have been tried by planning authorities include: ¾ Holding advisory seminars for architects, planning consultants and other agents who lodge applications, on a regular/annual basis in their planning authority; 33

5. Page 35

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   ¾ Providing written advice at the public counter and on the authority’s website; ¾ Validating applications as they are lodged at the counter by the applicant or agent. Planning authorities should endeavour to have adequate staff levels, appropriately trained, for receiving and validating applications either by post or over the counter. Obviously, the percentage of applications invalidated may be no reflection on the performance of the planning authority. However, planning authorities should monitor the level of invalidations, looking at the trends within their own organisations and comparing the figures with other planning authorities through the Department’s Quarterly Planning Statistics (published on the Department’s website at www.environ.ie). Directors should be aware, broadly, of the principal reasons/categories under which applications are being invalidated in their authorities, and of the broad numbers in these different categories, so that they can consider whether there are any steps they can take to reduce the level of invalidations. Consideration should be given to developing local targets or indicators in this respect, as part of the pursuit of continuous improvement in service delivery to customers. 3.13 Applications involving protected structures or proposed protected structures For such applications the site/newspaper notices must indicate that the proposal involves works to a protected structure, or a proposed protected structure. (The notices do not have to indicate that the structure is in an Architectural Conservation Area). The additional documentation required to accompany a planning application for works to a (proposed) protected structure will depend on the scale, extent or complexity of the works involved. The additional documentation will generally relate only to the areas affected by the proposed works14. 14 This is further detailed in the Architectural Heritage Protection Guidelines for Planning Authorities (DEHLG, 2004). 34

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   Chapter 4 Environmental Impact Assessment 4.1 Introduction Environmental Impact Assessment (EIA) is a key instrument of EU environmental policy. The primary purpose of the EIA Directive (Directive 85/337/EEC, as amended by Directives 97/11/EC and 2003/35/EC) is to ensure that those projects which are likely to have significant effects on the environment are subject to a comprehensive assessment of their likely significant impacts. The mandatory requirement in the Directive to carry out EIA in respect of certain project classes over certain thresholds is implemented in planning legislation. In many cases, Ireland has adopted a substantially lower threshold than that set out in the Directive. Planning legislation also makes provision for sub-threshold EIA. The EIA requirements under planning legislation have been consolidated into Part X of the Planning Act and Part 10 of the Planning Regulations with 3 associated Schedules (5, 6 & 7). EIA consists of: ¾ Preparing an Environmental Impact Statement (EIS); ¾ Making the planning application and EIS available for comment by prescribed bodies and the general public; ¾ Evaluating the adequacy of the EIS; ¾ Evaluating the application in the light of an acceptable EIS and any comments received during the consultation process. EIA is a process which focuses on anticipating all environmental impacts of significance of a proposed development prior to consent being granted, and which specifies those measures that should be taken to eliminate or at least mitigate such impacts to an acceptable level. It should be clear from the records of the consent authority that the adequacy of the EIS has been fully considered and that the project has received a full environmental impact assessment. EIA when correctly carried out, is of considerable importance in the development management process because: ¾ It leads to improved decision-making by providing better information, including information on cumulative effects; ¾ It facilitates consideration of alternatives (including alternative sites, routes, layouts, processes, etc.) at a formative stage; ¾ It enables potential significant adverse impacts on the environment to be identified and either eliminated, reduced or alleviated through 35

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   appropriate mitigation measures, thus contributing to more sustainable development; ¾ It facilitates and encourages public involvement in the process – an integral part of the Directive. It is not possible within the scope of these guidelines to address all aspects of EIA in detail. Instead, the intention is to highlight some key issues relating to proper planning and sustainable development, and to point to sources of further guidance. 4.2 Environmental Protection Agency guidance The EPA has published two guidance documents15, which should be consulted by planning authorities when assessing an EIS (or when preparing an EIS for major development by the local authority itself): ¾ Guidelines on Information to be Contained in Environmental Impact Statements (2002): these Guidelines were drafted with the primary objective of improving the quality of EISs in Ireland. The guidelines contain useful information on initial screening in regard to the need for EIS. They also address a wide range of project types and potential environmental issues. The guidelines deal with issues such as alternatives and mitigation. They also provide a focus for scoping between the parties concerned. ¾ Advice Notes on Current Practice (2003): These were designed to complement the 2002 Guidelines. They contain greater detail on many of the topics covered by the Guidelines and offer guidance on current practice for the structure and content of EISs. Section 3 provides guidance on topics to be addressed in EISs for different classes of development, detailing 33 generic project types with similar development or operational characteristics, and highlights typical issues that arise. Information in relation to the range of bodies that should be consulted in relation to an EIS is provided in Section 4. 4.3 Lodging an planning application with EIS and procedures for dealing with such applications Where an EIS is required to be submitted with a planning application: ¾ The newspaper and site notices must state that an EIS will be submitted to the planning authority with the application, and that the EIS will be available for inspection or purchase at a fee not 15 Available on www.epa.ie. 36

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   exceeding the reasonable cost of making a copy, during office hours at the offices of the relevant planning authority; ¾ 10 copies of the EIS must be submitted. Procedures for determining a planning application that includes an EIS are different from those applicable to other planning applications in a number of respects, particularly in terms of the time period available to the planning authority and the requirement to notify prescribed bodies; the procedures are set out in Part 10 (Chapter 2) of the Planning Regulations. In deciding on an application for which an EIS has been submitted the planning authority, and the Board on appeal, must have regard to the statement, any supplementary information submitted relating to the statement and any submissions or observations submitted concerning the effects on the environment of the proposed development. Where a planning application for a development for which a mandatory EIS is required is not accompanied by an EIS, it should be declared invalid by the planning authority (Article 99 of the Planning Regulations). Where the Board considers that an appeal relates to a planning application which falls within one of the prescribed classes of development requiring assessment (Article 93) and an EIS was not submitted to the planning authority in respect of the planning application, it must require the applicant to submit an EIS (Article 109 (2)). In addition, a planning authority/the Board must require an EIS in the case of a planning application/appeal relating to an application for subthreshold development in cases where it considers that the development would be likely to have significant effects on the environment. In exceptional circumstances, the Board may grant an exemption from the obligation to prepare an EIS. An exemption cannot be granted in respect of developments, which may have transboundary environmental effects. An application for outline permission may not be made to a planning authority for development mandatorily requiring an EIS (Article 96(1)). Accordingly any such applications should be returned to the applicant. Where a planning authority or the Board receives an outline application in respect of a subthreshold development which would in its opinion be likely to have significant effects on the environment it must (Article 96(2)) inform the applicant that the outline application cannot be made and that a full application accompanied by an EIS is required. In such a case the outline application is deemed withdrawn and returned to the applicant, relevant details entered on the register, any persons or bodies who made submissions informed and any fees for submissions returned. 37

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   4.4 Above threshold and sub-threshold developments Schedule 5 of the Planning Regulations sets out the classes of development for which an Environmental Impact Statement must be prepared and must accompany a planning application. Schedule 5 is divided into two parts: ¾ Part 1 of Schedule 5 reflects Annex 1 of the EIA Directive on projects which of their nature would be likely to have significant environmental impacts, and for which an EIS is mandatory under European law. ¾ Part 2 of Schedule 5 details categories of development for which an EIS is required in Ireland, and relates to Annex II of EIA Directive, which required Member States to establish their own criteria and/or thresholds for determining when Annex II projects would have significant environmental effects. In considering whether or not a development is below a mandatory EIS threshold, it is important to consult the two parts of Schedule 5 - because certain categories of development appear in both Part 1 and 2 - and to be aware that the lower mandatory EIA threshold in Part 2 applies. The purpose of the sub-threshold provision in EIA legislation is to ensure that projects which are below the mandatory thresholds set out in the EU Directive in quantity, area or other limit specified, but which are likely to have significant effects on the environment because of their location, nature or cumulative effects, are made subject to EIA. It is important to remember that the meaning of the term “effects” here is not necessarily confined to adverse effects. The Department has issued detailed guidance to assist consent authorities in determining whether or not significant effects are likely to arise: Environmental Impact Assessment Guidance for Consent Authorities regarding Sub-threshold Development (August 2003). Where the planning authority, or the Board on appeal, considers that such effects are likely, it must require the applicant to submit an EIS. A decision on the need for subthreshold EIA should be made with reference to the criteria which were introduced by the EIA amending Directive of 1997 (97/11/EC) and which are now set out at Schedule 7 of the Planning Regulations. In the case of sub-threshold development on any of the sites of conservation sensitivity listed in Article 103(2) of the Planning Regulations, there is an obligation on a planning authority to formally consider in every such case whether the development is likely to have significant effects on the environment of the site, area or land. Where a planning application for a sub-threshold development is not accompanied by an EIS and the planning authority considers that the development would be likely to have significant effects on the environment it must in writing require the applicant to submit an EIS (Article 103). Provision 38

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    is also made in the case of appeal for the Board to require an EIS (Article 109). Planning authorities and the Board should record the reasons for their decision for requiring (or not) the submission of an EIS for a sub-threshold development and should retain a copy of the decision on the relevant file for inspection by the public. 4.5 Scoping Scoping is the process whereby a person intending to apply for planning permission seeks to ascertain from the planning authority the nature and extent of issues that should be addressed during the EIA process. A scoping request may be formal where a written opinion is sought from the planning authority (under Article 95), or informal. In either case, the purpose of the scooping request is to ensure that the EIS will be focussed on the most important issues, to identify the likely significant environmental impacts, to consider possible alternatives and/or mitigation measures and to discuss relevant data sources and forecasting/measurement methods. It is of crucial importance that major issues are adequately dealt with objectively, and that minor issues are not described in excessive detail. In drawing up an opinion about the scope of the coverage required, the planning authority must have regard to the prescribed contents of an EIS. The planning authority may seek observations from the Board, other statutory consultees and relevant agencies as part of this process and must take into account all observations received to ensure that all relevant issues are identified and addressed to an appropriate level. If the planning authority considers that it has insufficient information to enable it to give a written opinion on the scoping request, it may require further information. It must be recognised, however, that advice given by the planning authority at the scoping stage is given without prejudice to its subsequent assessment of the adequacy of the EIS or to its decision on the accompanying planning application. 4.6 Quality of EISs The EIS has often provided a focus of attention for opponents of large or controversial development projects, particularly where the adequacy or objectivity of the EIS has been open to question. The EPA’s 2003 Advice Notes highlight the most common problems affecting the quality of EISs. It is very much in the interest of the promoter of a project requiring EIA that these problems should be avoided, in order not only to avoid risk of delay in processing the application (and any subsequent appeal) but also risk of refusal. 39

Source Department of the Environment, Heritage and Local Government: Development Management: Guidelines for Planning Authorities (June 2007) · Licence the publisher's termsText read from the publisher’s PDF; tables, maps and drawings do not survive as text, and page numbers are the PDF’s (its first page is 1). Check the original before relying on a passage.