Ministerial guidelines
Development Management: Guidelines for Planning Authorities
Practice in handling planning applications: pre-application meetings, the planner's report and planning conditions.
Department of the Environment, Heritage and Local Government · June 2007 · 101 pages
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- It is important that adequate consideration of alternatives16 at the design stage is undertaken and that any potentially significant adverse impacts are not understated, but rather identified and designed out or mitigated as far as possible. The question of mitigation will be addressed in further detail in para. 4.7. It is also important to avoid the inclusion of an excessive level of detail of questionable relevance in the EIS, and to focus instead only on likely significant environmental impacts. Detailed studies from which conclusions are derived should be referred to in appendices and included if necessary. Where a planning authority considers that an EIS fails to contain all the necessary information, the planning authority may seek further information. It is a mandatory requirement that a non-technical summary be submitted as part of an EIS. The purpose of this summary is to summarise the contents of the main document(s) in non-technical language; it should not introduce new or unrelated information. 4.7 Mitigation measures Mitigation measures proposed in any EIS are designed to limit the environmental impacts of the development. There are 3 established strategies for impact mitigation, namely, avoidance, reduction and remedy. In dealing with a planning application it is important to consider how the main mitigation measures specified in an EIS can be secured. ¾ Avoidance. Avoidance measures will generally form an integral part of the proposed development, as they tend to involve site selection and design processes at the very early stage of the project; ¾ Reduction and Remedy. Reduction seeks to monitor and control emissions before they enter the environment and remedy is a strategy used to deal with residual impacts that cannot be prevented from entering the environment. It may be necessary to reinforce such mitigation measures through planning conditions attached to a planning permission. However, a condition requiring that the development be in accordance with the EIS is unlikely to be of value unless the EIS is particularly precise in relation to what specific measures are to be undertaken. Therefore in order to enable the planning authority, or the Board on appeal, to satisfactorily frame conditions with regard to securing mitigation it is important that the mitigation measures in the EIS are focused, clear 16 See Par 2.4.3 of the EPA’s 2002 guidance on the issues to be addressed when considering alternatives. 40
- and precise and the quality of the EIS should be assessed in this light. If the proposals for mitigation are unclear, consideration should be given to seeking clarification by way of additional information to ensure that no ambiguity exists in relation to the measures proposed. Such clarity will ensure that securing the implementation of these measures will be more straightforward. 4.8 EIA application time limits A planning application accompanied by an EIS must be decided within 8 weeks of receipt of the application. If, however, further information is sought, the planning authority has an additional 8 weeks from the date of lodgement of such information (rather than 4 weeks, as in other applications) in which to make a decision. Where a sub-threshold EIS is sought by a planning authority, the planning application will be deemed to be made on the date of receipt of the EIS and the appropriately worded public notices. Any person or body who made a valid submission or observation on a sub-threshold application must be notified where an EIS is subsequently received by a planning authority, and may, within 5 weeks of receipt of the EIS by the planning authority, make further submissions in relation to the EIS. In cases involving transboundary consultation, the Planning Act makes provision for the extension of time limits for the making of decisions. 4.9 Transboundary environmental impacts Article 124 of the Planning Regulations requires that where a planning authority receives a planning application or where the Board receives an application for strategic infrastructure development and where such development requires an EIS and would, in its opinion, be likely to have significant effects on the environment in a transboundary State (that is, as another EU Member State or a state which is a party to the Espoo Transboundary Convention), it must notify certain particulars to the Minister and provide him or her with a copy of the EIS. The planning authority or the Board must also provide information on the proposed development to the transboundary state, at the same time as notifying the Minister, and must also enter into consultations with the state. Where the other state indicates that it wishes to take part in the decisionmaking process, a copy of the EIS must be sent to it. The Regulations also provide that where a transboundary state considers that a proposed development would be likely to have significant effects on the environment in that state and requests that it be provided with information on 41
- the proposed development, the planning authority or the Board as appropriate must provide it with information. Where a planning authority or the Board have not notified the Minister in relation to a proposed development requiring EIS and the Minister is of the opinion that the proposed development would be likely to have significant effects on the environment in a transboundary state he or she may require the planning authority or the Board to furnish him or her with such information as he/she may specify. A decision on a transboundary planning application or appeal cannot be made until after the views of any relevant transboundary state have been received or the consultations are otherwise completed (Article 130). The planning authority must notify the applicant, and Board must notify the parties to the appeal/the local authority/the applicant (as appropriate) in cases where information has been provided to, and consultations have taken place with, a transboundary State. The planning authority may place specific conditions on the granting of permission, thereby reducing or eliminating any possible environmental effects on other Member States. Notice of a decision on a transboundary planning application or appeal should be sent to the Minister, and the relevant transboundary State. 4.10 Local authority development and EIA Any development identified as requiring environmental impact assessment that a planning authority proposes to carry out or that any other person proposes to carry out on behalf of or jointly or in partnership with a planning authority within the functional area of a planning authority, requires the preparation of an EIS and its submission to the Board for approval. These provisions do not apply to proposed road development by road authorities that is dealt with separately under the Roads Act 1993, section 50 of which requires a roads authority to prepare an Environmental Impact Statement and submit an application for approval to the Board for any motorway, busway or other prescribed road development. Specific guidance on the preparation of EISs for road scheme proposals is contained in the National Roads Authority’s Environmental Impact Assessment of National Road Schemes - A Practical Guide. The guide should be read in conjunction with the EPA guidance documents on EISs generally. A newspaper notice of the nature and location of the proposed development must state that an EIS is to be submitted with the application and that it will be available for inspection or purchase at a specified location for a period of not less than six weeks. The notice must invite submissions or observations to the Board within the specified period, in relation to the possible effects on the environment of the proposed development and any possible implications for 42
- the proper planning and sustainable development of the area. A similar notice must be sent to the relevant prescribed bodies. A local authority may make a scoping request to the Board regarding the content of an EIS (Article 117 of the Planning Regulations) and a road authority may make a scoping request to the Board under section 50 of the Roads Act 1993. 43
- Chapter 5 Processing a Planning Application 5.1 Introduction This Chapter outlines ways of combining efficient and effective processing of applications with adherence to strict statutory requirements. In a high quality service there should be no avoidable delays in the process, especially in relation to proposed developments central to the social and economic well being of the community, such as housing, employment, and infrastructure. 5.2 Notification of prescribed bodies Article 28 of the Planning Regulations requires planning authorities to give notice of valid planning applications to certain prescribed bodies where, in the opinion of the authority, the development would be relevant to the functions of that body. The Regulations, as amended, require a planning authority, when giving notice to a prescribed body, to forward the planning application form together with the location map and to forward further documentation on request. Planning authorities should endeavour to meet the reasonable requests of prescribed bodies on the information to be furnished to them e.g. if a specific prescribed body indicates that it will always require a particular document or plan when looking at planning applications, planning authorities should if possible forward this plan with the initial notice. As planning authorities may determine the application without further notice to a prescribed body that does not make a submission within five weeks of the date of lodgement of the application, it is imperative that such bodies be notified at the earliest possible stage. Planning authorities should therefore establish internal procedures that enable new applications to be reviewed speedily to determine the prescribed bodies, if any, that should be notified. In this regard, planning authorities should endeavour to notify relevant prescribed bodies within two working days of validation. It would be helpful if the planning authority indicated the specific reason why the case is being referred, e.g. by citing the relevant sub-paragraph of Article 28. A GIS system offers potential advantages in this regard, because site locations affecting or in the vicinity of protected structures, European protected sites, Gaeltacht areas, airports, major electricity lines, etc. can readily be identified. In relation to development proposals likely to affect a transboundary state or relating to the provision of or modifications to an establishment to which the Major Accident Regulations apply, planning authorities should also note the consultation requirements set out in Chapter 5 of Part 10 and Chapter 1 of Part 11 of the Planning Regulations, respectively. Planning authorities should keep a record on the file of all bodies consulted about any particular application and whether any response was received. This record should be part of the documentation submitted to the Board in the event of an appeal. Planning authorities should note that a prescribed body is 44
- entitled to lodge an appeal if it was entitled to be notified but was not notified17. 5.3 Making the planning application available to the public As required by section 38 of the Planning Act, certain documents must be made available for inspection or purchase as soon as possible after they are received. Accordingly as soon as any necessary copies have been made, the planning application, the EIS where applicable, any other material submitted by the applicant (with the exception of contact details) and any submissions or observations received should be placed on a file available for public inspection, irrespective of whether the application has been validated or not, together with copies of records of any pre-application consultations. An up-todate copy of the planning application file should be available for inspection at the public office at all times when the office is open. In order to satisfy the requirements of Data Protection legislation the recommended format of the application form to be used (available at www.environ.ie) is one where the contact details of the applicant or agent are inputted on a page separate to the body of the form, which page should not be placed on the public file. The front page of the recommended format also advises the applicant that the planning application (but not the contact details) will be placed on the public file, and will be placed on the planning authority’s website, where this is the policy of the planning authority. The recommended application form also contains a tick box in relation to direct marketing and Article 27 of the Regulations has been amended to require the weekly lists of planning applications and planning decisions to contain a warning in relation to the use of the information in the lists for direct marketing purposes. The former requirement to include the applicant’s home address in the weekly lists of planning applications and decisions, under Article 27 and Article 32, respectively, has been removed, also for reasons of data protection and privacy. In addition to issues regarding contact details, other issues arise here in relation to personal data and privacy. Planning authorities will often require evidence from applicants seeking to build one-off rural houses in order to determine whether the proposed development would be in accordance with the planning authority’s rural housing policy for the area in question, as set out in its development plan, and with the Department’s Sustainable Rural Housing Guidelines for Planning Authorities (April 2005). For instance, an applicant may be required to demonstrate his/her links with the area or to demonstrate housing need. While transparency is an integral part of the planning system, it is important to respect the privacy of individuals as far as possible. Accordingly, in gathering such evidence, planning authorities should endeavour to accept only evidence which does not contain unnecessary personal details, such as the applicant’s age, income, marital status, etc. 17 Section 37(4) of the 2000 Act 45
- For example, a planning authority should not seek utilities bills or bank statements as evidence that a person has been resident at a certain address for a period of time, as these will include account number and financial details. Instead the planning authority could require a letter from a utilities’ company or bank to establish the person’s billing address over the period. Similarly, where a person seeks to prove that he/she has been employed in an area over a period, documents showing financial details such as payslips, P60s, tax certificates, should not be accepted as evidence, instead a letter from the employer could be sought, which, while confirming the fact of the employment would not contain any extraneous personal data, such as the nature of the applicant’s job or his/her salary scales. Where an applicant claims a particular medical condition that requires him/her to live in a particular area, a medical certificate/letter which states that he/she has a condition or an illness without specifying its nature should be sought. Particular care should be taken about the personal information of persons other than the applicant. Insofar as possible, the names and personal details of others should not be included in the material supplied with the application form. For example, in a case where an applicant is applying for permission to live in an area in order to care for an elderly parent who is ill, it is suggested that the planning authority, rather than accepting medical evidence which states that a named individual has a specific medical condition, should request medical evidence to the effect that the applicant has a close relative living in the area who has a medical condition such that he/she requires care/assistance. As a general rule, the approach of the planning authority should be to compile the amount of evidence needed, but no more, and to ensure that the evidence submitted contains no superfluous personal information, other than that required to establish the specific fact(s) that the planning authority needs to have confirmed. It is suggested that planning authorities should not, for example, seek evidence in an open-ended way which could encourage the applicant to submit voluminous personal data, but should be specific rather than general in requesting supporting documentation. Many local authorities are putting the planning file on their websites which is very desirable for ease of access. However planning authorities might note that the requirement under section 38 of the Planning Act is to make all documentation received from the applicant available for inspection at the office of the planning authority and to make a copy available for purchase. Accordingly, as long as the file in the planning office contains all documentation submitted by the applicant the requirements of the Act are met. There may be rare occasions where a planning authority might decide, because of the particularly sensitive nature of a specific piece of information that was taken into account in deciding a planning application, that while the law requires it to be placed on the hard copy file in the planning office, it should not be put on the website. This will be a judgement call for the planning authority having regard to the principles of data protection. It is obviously not generally desirable that there would be 2 versions of a planning file i.e. the complete hard copy available at the planning office and an edited 46
- version on the website and accordingly it is suggested that the decision to hold back particular documents from the website should only be taken after every effort has been made, as set out in the previous paragraphs, to obtain evidence that is capable of being published without breaching the privacy rights of individuals. The Office of the Data Protection Commissioner also recommend the use of a Robot Exclusion Protocol by planning authorities in relation to planning application data on their websites. This allows web site administrators to indicate which pages of the website should not be accessed by a robot that is categorising a website. While the protocol is purely voluntary and cannot restrict a robot from searching and categorising a website, it is understood that the reputable search engines, such as Google, etc., do abide by such exclusions. 5.4 Internal circulation of files It is also important to decide as quickly as possible, which departments/sections or specialist staff within the planning authority need to be consulted about a particular application. It is recommended that each planning authority should devise internal guidelines for doing this; certain categories of development may always need to be referred to particular sections or officers. For example, applications involving Part V proposals will need to be referred to the Housing Department at the earliest possible stage so that the assessment of the proposals can be completed for inclusion in the planning report. Similarly, applications involving protected structures should normally be referred to a conservation officer where there is such a post in the authority. In other cases the planner may need to exercise his or her judgement regarding appropriate referrals. Planning authorities should have clear and consistent standard procedures to facilitate the process of internal circulation. It should be easy for any person reading the planning file to identify the source of any reports or comments on the file. Any written reports or comments should be dated, and should include the author’s name, title and section/department. Staff within the authority who normally deal with other statutory codes should be informed of the advice given in Chapter 7 below regarding planning conditions and such codes. 47
- Best Practice Example Cork City Council has appointed a Senior Executive Engineer who prepares a composite report on all the engineering issues i.e. roads, water, drainage and environment (waste) for its smaller applications i.e. house extension, individual house applications, shopfronts, etc. which constitute roughly 50% of its applications. This obviates the need for the file to be referred to 4 different Directorates. The average response period for the composite engineering report has been 5 working days, which greatly aids the issuing of speedier decisions. 5.5 Dealing with prescribed body and third party submissions As required by Article 28(4) and Article 29(2) of the Regulations all submissions from prescribed bodies and others must be acknowledged as soon as possible - ideally within 3 working days of receipt. It is vital that this is done, as without an acknowledgment a person may not appeal the decision of the planning authority to the Board. The 2006 Regulations have prescribed the form for such acknowledgements. Submissions received prior to the validation of the application must be accepted; where the application is subsequently invalidated, any person who made a submission must be informed and the fee returned (see para. 3.11). Where a submission, other than a submission from a prescribed body, is received either without the prescribed fee, or outside the statutory time limit, it should be returned to the sender as soon as possible with an explanation as to why it is being returned. It should be noted, as clarified by the amended Article 28(2), that any submission or observation received from a prescribed body before the decision is made on the application must be taken into account by the authority in making its decision on the application. It is also important, as stated in para. 5.3, that submissions must be put on the planning file as soon as possible after they are received, so that they are available for inspection or purchase by members of the public. The former requirement to include a telephone number with a submission has been removed from the Regulations. While the public will generally be aware that submissions made on planning applications are available for inspection they may not have considered the fact that many planning authorities are now scanning all planning documents and placing them on their websites. The Department’s Planning Information Leaflet No.3 Commenting on a Planning Application will shortly be amended to include reference to the fact that persons should be aware that their submissions will be made public and could be placed on the planning authority’s website and that they should therefore be careful not to include excessive or superfluous personal information about themselves or others. Planning authorities should also draw attention to this in any information material on the planning process, either handed out in hard copy or placed on their websites. 48
- 5.6 Processing major/complex planning applications Planning authorities should establish special procedures for dealing with applications for major developments (such as those deemed to be of strategic local, regional or national importance) or those involving complex technical issues. (Obviously developments subject to the provisions of the Planning and Development (Strategic Infrastructure) Act 2006 are dealt with under a separate procedure). Such procedures should involve the designation of a senior staff member to take overall responsibility for processing the application. He or she will be responsible for briefing the management team and the elected members as to the progress of the application, for ensuring that all relevant external and internal consultees are notified in good time and for co-ordinating the various submissions and professional or technical reports when the application is being determined. In certain cases involving complex technical issues (which may be raised by an environmental impact statement, for example), it may be necessary to seek specialist consultancy advice, and to brief the consultant on the issues involved. Regular case conference meetings between personnel from relevant departments within the planning authority will help identify and resolve key issues arising at an early stage. Any minutes or notes of such meetings should be put on the planning file after the decision has been made. 5.7 Requests for further information (Article 33) As stated in Chapter 2 above, one of the objectives of pre-application consultations is to avoid the need for seeking further information at a later stage. However, whether or not such consultations have taken place, consideration of the application may reveal the need to seek such information before the application can properly be determined. The Planning Regulations provide that a request for further information must be made within 8 weeks of the receipt of the application: such a request cannot therefore be made outside this period even where the applicant has consented to an extension of time under section 34(9) of the Act. The Planning Act also provides that where further information is requested within 8 weeks, the normal 8 week time period for dealing with a request is extended by 4 weeks from the date of compliance with the request (8 weeks in the case of an application accompanied by an EIS). A request for further information should clearly indicate all the information required, as the Planning Regulations do not permit a second request save where this is necessary to clarify matters raised in the applicant’s response. Requests for further information, if necessary, should be made as soon as possible, and certainly soon after the expiry of the 5-week period for submissions from third parties. 49
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.