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
Ask this document
Answers come only from the text of Development Management: Guidelines for Planning Authorities, each claim linked to its page. They are not advice; check the page itself.
Free, with a daily limit.
- Further information may only be sought where it is necessary for the determination of the application. Requests for further information may not be used to seek changes to aspects of the proposed development. Requests for further information under Article 33 on one aspect of a proposal should not be sought where there is a fundamental objection to the proposed development on other grounds; applicants should not have to suffer unnecessary delay or expense if a refusal is likely. For example, additional elevational details should not be sought if the proposed use is not acceptable in principle. However the application should, of course, be considered as fully as possible on the basis of the information lodged and, where the application is being refused, all the reasons for refusal arising from this information should be given to the applicant in the decision. The further information must normally be supplied by the applicant within 6 months of the request otherwise the application is deemed withdrawn: obviously this should be brought to the applicant’s attention when further information is being sought. It should also be noted that where clarification of further information is sought this must also be provided within 6 months of the request for further information (not the request for clarification) and if it is not the request will be deemed withdrawn: again this should be brought to the applicant’s attention. Article 33 as amended, however, allows the planning authority to permit an extension to the 6-month time limit. This can be used to permit clarification to be obtained in cases whether the further information was supplied very late in the 6-month period, or in cases where for various reasons the applicant has difficulty in complying with the 6-month time limit. Further information should, of course, be put on the public file as soon as it is received. 5.8 Revised plans/modified plans (Article 34) Where a planning authority is disposed in principle to granting permission for a proposed development, but considers that modified plans are needed, it may invite the applicant to submit such plans. Revised plans will usually be sought in a situation where the proposal is broadly acceptable and where permission could be granted if one, or a small number, of modifications were made. The applicant may of course prefer to have the application dealt with as originally submitted and exercise his/her right of appeal to the Board if necessary. Where the applicant does not wish to submit revised plans the application should be decided by the authority, that is, either refused or granted with appropriate conditions. Under the amended Planning Regulations revised plans must be sought within 8 weeks of receipt of the application and where the applicant wishes to avail of the opportunity to submit such revised plans he/she must indicate in writing, within a time limit specified by the authority that he/she intends to submit revised plans. The planning authority should specify a very tight deadline so that in the event that the applicant does not reply, or indicates that 50
- he/she does not wish to submit revised plans, the planning authority still has time to make the decision on the planning application within the original 8 weeks. (Such a decision would presumably be a refusal, or a grant which conditioned the desired modification). The amended Regulations also provide that when indicating that he/she intends to submit revised plans, the applicant must also consent in writing under section 34(9) of the Planning Act to an extension of the time for making a decision on the application under section 34(8). This provision gives the planning authority additional time for dealing with revised plans, as, without the consent to extension of time, the Act would require such applications to be decided within the original 8 week period. This new provision also means that there will be time to allow the publication requirements of Article 35 to be complied with, should it transpire that the revised plans contain significant additional data (see para. 5.9 below). 5.9 Significant additional data (Article 35) Article 35 of the Planning Regulations provides for the situation where further information received under Article 33, or revised plans received under Article 34, contain significant additional data. When a planning authority receives further information following a request under Article 33, or revised/modified plans following a request under Article 34, or otherwise receives further information, it should consider whether it contains significant additional data. The question of ‘significant additional data’ can only be determined by the planning authority on an individual basis in each case using professional judgement and having regard to the particular circumstances, but the impact on the environment and/or the effects on third parties will always be material considerations. If it is considered that the further information or revised plans contain significant additional data, prescribed bodies and persons who made submissions or observations must be informed about the further information or modified plans/revised plans and about their right to make additional submissions. Also, the planning authority must require the applicant, within a specified period, to publish a newspaper notice marked “Further Information” or “Revised Plans” and, since the 2006 amendments, to erect a site notice, and to forward copies of those notices to the planning authority. The period for publication may be specified by the planning authority: this should be a short period. The notices must invite submissions to be made not later than 2 weeks after receipt of the newspaper and site notices by the planning authority. A planning authority should also accept and consider any submission received in the period between its request for publication under Article 35 and the date copies of the notices are received from the applicant. A €20 fee is payable in respect of a submission, unless the person making the submission has already paid a fee in respect of a submission on the same planning application. The planning authority must acknowledge receipt of such submissions on the prescribed form. 51
- 5.10 Unsolicited further information As the submission of unsolicited further information by the applicant may have implications for the rights of third parties, such submissions should only be considered when they relate to non-contentious matters, such as clarification of details already submitted. If further information received departs substantially from the application as originally lodged, it should be dealt with in accordance with the requirements of Article 35, as detailed above, otherwise the application should be determined on the basis of the original plans. Alternatively, the applicant may choose to withdraw the original application and to submit a fresh application. 5.11 Time extensions As outlined in Chapter 1, efficiency is one of the hallmarks of best practice in the development management process. This implies that there should be no avoidable delay in the processing of a planning application. Section 34(9) of the Planning Act provides that an applicant may only give written consent to extend the period for making a decision during the first 8 weeks following lodgement of the application. A time extension should only be used for a limited period where the extra time would facilitate resolution of a problem or problems that might otherwise require that permission be refused. Further information cannot be sought within the extended period. Only one time extension is permitted. 5.12 Material contravention applications Section 34(6) of the Planning Act sets out the procedure under which a planning authority may decide to grant permission for a development which would materially contravene its development plan. Section 34(8)(d) provides for an extension of time in such cases. A planning authority must publish a notice in the prescribed form (Form No. 5, Schedule 3 of the Regulations, as amended) of its intention to grant a permission that would materially contravene the development plan, in a newspaper circulating in its area. The notice must specifically state the objective of the development plan that will be materially contravened by granting the permission. Any person or body may make a written submission in relation to a decision that would involve a material contravention, such submissions to be made within 4 weeks of publication of the statutory notice. No fee is payable for such submissions. As provided for in the amended Article 36 of the Regulations, the planning authority must acknowledge such submissions in writing. 52
- The development plan is of central importance in the planning process18, and section 34(2)(a) of the Act requires a planning authority to have regard to its provisions when deciding an application. In deciding whether any development would materially contravene the plan, the authority should consider whether there would be a departure from a fundamental provision of the plan or whether the development – alone or in conjunction with others – would seriously prejudice an objective of the plan. If the answer is “no”, there is no statutory prohibition on the granting of permission. While section 34(10) requires that in all cases the main reasons and considerations on which the decision on an application is based must be stated, it is particularly important that the reasons for contravening the development plan in the particular circumstances should be fully explained. It should be noted that where a planning authority has decided to refuse permission for a material contravention application, section 37(2) constrains the Board’s freedom to grant permission. However, one of the circumstances in which the Board may grant permission is where it considers that there are conflicting objectives in the development plan, or that the objectives are not clearly stated, as far as the proposed development is concerned. Decisions to grant material contravention permissions should be forwarded to the development plan section of the planning authority, in order that any future changes to the provisions of the plan might be considered. 5.13 Issues relating to title to land Under the Planning Regulations as amended, a planning applicant who is not the legal owner of the land or structure in question must submit a letter of consent from the owner in order to make the planning application. Where an applicant is not the owner and does not submit such a letter of consent, the application must be invalidated. The planning system is not designed as a mechanism for resolving disputes about title to land or premises or rights over land; these are ultimately matters for resolution in the Courts. In this regard, it should be noted that, as section 34(13) of the Planning Act states, a person is not be entitled solely by reason of a permission to carry out any development. Where appropriate, an advisory note to this effect should be added at the end of the planning decision. Accordingly, where in making an application, a person asserts that he/she is the owner of the land or structure in question, and there is nothing to cast doubt on the bona fides of that assertion, the planning authority is not required to inquire further into the matter. If, however, the terms of the application itself, or a submission made by a third party, or information which may otherwise reach the authority, raise doubts as to the sufficiency of the legal interest, further information may have to be sought under Article 33 of the Regulations. Only where it is clear from the response that the applicant does not have sufficient legal interest should permission be refused on that 18 Development Plans Guidelines for Planning Authorities (DEHLG, 2007) 53
- basis. If notwithstanding the further information, some doubt still remains, the planning authority may decide to grant permission. However such a grant of permission is subject to the provisions of section 34(13) of the Act, referred to above. In other words the developer must be certain under civil law that he/she has all rights in the land to execute the grant of permission. Before a planning application can be made in respect of proposed development on land owned by the local authority, the local authority will have to give a letter of consent to the making of the application: in this regard a letter from the Manager will suffice. The consent of the elected members will of course be required for the disposal (whether by means of lease, licence, or sale) of the land in question: the developer should be advised of this in advance. 5.14 Section 140 motions (Local Government Act, 2001) Section 140 of the Local Government Act 2001, provides that (subject to the procedures set out in the section), an elected council may by resolution require any particular act, matter or thing specifically mentioned in the resolution and which the local authority or the Manager concerned can lawfully do – which includes making a decision to grant planning permission – to be done in the performance of the executive functions of the local authority. Section 140(11) states that this section is without prejudice to the procedures for dealing with material contravention applications under section 34 of the Planning Act, i.e. if the application is deemed to materially contravene the development plan, section 34(6) applies. In requiring the Manager to decide to grant permission in this way, the elected members are restricted to considering the proper planning and sustainable development of the area, regard being had to the criteria set out in section 34(2)(a) of the Planning Act. Officials should present the same report on the application (including an assessment of submissions from prescribed bodies, third parties, and technical reports) to the Council as they would to the Manager or delegated officer. The report should include suggested planning conditions for use in the event that the Council decides to grant permission despite a recommendation to refuse. While the members are not bound to accept any recommendation offered, councillors are required to act reasonably, and must have a basis on which to lawfully reject the expert advice given to them by the authority. They must have regard to the matters set out in the Planning Act; it is not possible to consider matters other than those relating to the proper planning and sustainable development of the area. If councillors do not comply with those requirements, local authority Managers may refuse to comply with any resolution passed as being unlawful. The minutes of the meeting must contain a full account of the matters taken into account by the councillors in reaching their decision. A copy of the Council’s decision, and of the relevant Council minutes, should be placed on the planning file. 54
- 5.15 Use of external consultants to process planning applications The staff of the planning authority will process the vast majority of planning applications. However, at times of particular pressure on staff resources, the authority may find it necessary to employ external planning consultants to assist in processing applications, normally those of a relatively straightforward nature. In such cases, best practice would indicate that: ¾ Procedures must be established to avoid any actual or perceived conflicts of interest in respect of each individual case. The attention of any consultants or contractors engaged should be drawn to the provisions of section 179 of the Local Government Act 2001 which provides that any person whose services are being availed of by the local authority must disclose in writing to the Manager any interest which he or she, or a connected person, has in relation to any matter in relation to the performance by the authority of any of its functions and must comply with any directions the Manager may give him or her in relation to the matter; ¾ The consultants must be provided with ready access to the same range of technical advice and the planning history of the site as if a member of staff was dealing with the file; ¾ Planning reports prepared by consultants should be counter-signed by experienced planners within the authority to ensure consistency of policy interpretation. 5.16 Use of ICTs in processing applications An increasing number of planning authorities are exploiting the potential of Information and Communication Technologies (ICTs) to deliver an improved and more efficient service as regards the processing of planning applications. In particular, ICTs can facilitate prompt internal and external circulation of planning files, tracking of submissions and technical reports, and adherence to statutory time limits. A GIS system can help planners to access a wide range of spatially-referenced information of relevance to a particular application, such as development plan objectives, heritage data, availability of infrastructure, planning history of the site, etc. The Department, working with planning authorities, the Board, and the Local Government Computer Services Board, is committed to working towards the seamless transmission of electronic data throughout the entire planning system, including the online submission of planning applications and appeals and the online submission of observations or comments. 55
- Chapter 6 Making Recommendations on a Planning Application 6.1 Introduction In making its decision on a planning application, the planning authority is restricted to considering the proper planning and sustainable development of an area, having regard to the matters provided for in section 34 of the Planning Act. Section 34 sets out in detail the considerations which the planning authority must take account of, including the provisions of the development plan, Guidelines issued by the Minister for the Environment, Heritage and Local Government, other relevant Ministerial or Government policies and any submissions or observations made in accordance with the Planning Regulations. Planning authorities should also consider whether there has been substantial non-compliance with a previous planning permission, having regard to the provisions of section 35, as amended, of the Planning Act. A key mechanism through which planning authorities demonstrate in an open and transparent manner that these matters have been considered in making the decision on a planning application is the planning report. As stated earlier, these Guidelines are also applicable to the Board where the principles set out would be relevant to the activities to the Board, which is the case in relation to this Chapter. 6.2 Planning reports The planning report should be prepared by the planner responsible in day-today terms for examining the technical aspects of the application, who must have sufficient knowledge of the site in question to enable him/her to carry out an accurate assessment of the impact of the proposed development. Generally the sites of the proposed development should be inspected by the planner responsible for dealing with the application and a digital photograph or photographs should be taken: this site inspection is quite separate from the site notice inspection referred to in Chapter 3. The level of detail appropriate in reporting on different types of planning applications is a matter for planning authorities to decide upon; however 6.3 below sets out certain minimum requirements. Planning reports should: ¾ Gather together all information relevant for the proper consideration of the application; ¾ Structure these considerations in a way that is clear to the applicant and the wider public and that enables informed judgements to be made as to the merits of an appeal to the Board. 56
- 6.3 Structure and content of planning reports The format and structure of planning reports will necessarily vary in line with differing types of application but, in general, a planning report should be typed/in electronic format, logically set out and clearly signed by the person who prepared it, and should contain at least the following elements: (1) A brief description of the proposed development including the location and characteristics of the site; (2) Any particular distinguishing features of the site (including the date on which the site was inspected), which are relevant to the application and to the development proposed, observed at the time of the site inspection, such as visibility at a proposed entrance point or the type of development in the vicinity of the proposed development; (3) Consideration should be given to the inclusion of photographs to illustrate particular points made in the planning report; any photographs taken during the site inspection should be included; (4) A summary of the planning history relating to the site and any relevant pre-application consultation, focusing primarily on applications and decisions made in the past five years, not only in relation to the site itself, but also in relation to adjoining or nearby sites that might have a material bearing on the application; (5) A summary of the relevant matters set out in section 34 of the Planning Act. These matters include the provisions of the development plan and any Local Area Plan, any European site, any relevant policy of the Government or the Minister, which of course includes Planning Guidelines issued by the Minister, and any other relevant planning policy provisions relevant to the area including zoning, development objectives and architectural conservation areas; (6) A list of the prescribed bodies that were notified under Article 28 and an indication as to which of these bodies made submissions or observations. The number of submissions received under Article 29 should also be noted. The key points made in submissions both from prescribed bodies and others should be summarised; (7) A summary of the key points discussed at pre-application consultation, if any, and also key points made in any submissions made by internal local authority sections/departments. It is important to remember that matters discussed/agreed at pre-application consultation meetings are without prejudice and cannot bind the planning authority to act in a particular manner in the determination of any subsequent application. However, where the recommendations in the report are likely to depart significantly from the matters discussed or agreed at the pre-application discussion stage, the matter should be highlighted for the attention of the decision-maker 57
- on the application. This will help to ensure that applicants are treated consistently and reasonably throughout the course of their application or, where there is a change of direction on the part of the planning authority, it is clear to the applicant why this is the case; (8) A summary of the key planning issues; (9) An assessment of each planning issue as outlined at (6), (7) and (8) above; (10) The assessment made by the Housing Department on the applicant’s proposals for complying with Part V, where applicable; (11) Where the recommendation is to refuse because of a fundamental difficulty or difficulties, but where even if such difficulties did not exist, further information would have been required, an indication of the matters on which such information would have been required19. (12) A recommendation for the granting of permission, with or without specified conditions, for the refusal of permission or for a request for further information. The reasons for the conditions, the refusal or the further information requirement should be explained. Reports subsequent to the receipt of further information should also address the adequacy of such information. 6.4 Planning reports – importance of a balanced approach The preparation of planning reports and recommendations depends on a variety of inputs from, for example, the roads, environment, housing, water services, fire safety or other departments/sections of a local authority and also, on occasion, from external agencies. Not all such submissions and reports may be in agreement on the course of action necessary. In such situations, it is the function of the planning report to set out all the relevant issues and to assign the appropriate weighting to issues raised. In this regard it is especially important that the planning report takes into account, and responds appropriately to, national planning policy and relevant provisions of the development plan. Minor concerns that arise in internal reports, for example concerns in relation to minor deficiencies in the capacity of local infrastructure, may be capable of being resolved by way of conditions in cases where the proposed development would otherwise be consistent with the objectives of the development plan. Essentially the planning report must strike an appropriate 19 This is important: a frequent complaint by agents and others, is that when they submit a second application which addresses/overcomes all the expressed reasons for refusal of a first application, they find that contrary to their expectations it is not granted, but that new issues or problems are raised. 58
- balance between concerns at local level and an overview of all relevant policies and information. 6.5 Submissions and observations Submissions and observations on applications made under Article 29 of the Planning Regulations are an important part of an open and transparent planning system. Where such submissions are received, it is essential that every effort is made to record and assess their general thrust in the planning report and to respond appropriately to any concerns or issues raised which are relevant to the consideration of the proper planning and sustainable development of the area. Efforts in this area can go a long way to addressing local concerns about proposed developments and may in some cases avert subsequent appeals to the Board or applications for judicial review. 6.6 Environmental Impact Assessment20 For planning applications that are accompanied by Environmental Impact Statements, the adequacy of the content of the EIS is a key issue in the preparation of the planning report. In particular, the report should include an assessment as to whether the contents of the EIS comply with Article 94 of the Planning Regulations, for example by recording whether the information required under the relevant headings has been included and whether the quality of the information supplied is such that it will enable the planning authority to assess the environmental impact of the proposed development. Where planning authorities have already given a written “scoping” opinion under Article 95(4), it must carry out the above assessment with reference to the matters set out in the opinion. 6.7 Measures to improve consistency All reasonable efforts should be made to research the planning history of sites and their general environs, including details of any pre-application consultation, as this is very important to help ensure that planning authorities take a consistent approach to planning proposals in a particular area over time. The availability of IT based solutions such as GIS and electronic viewing of planning registers and files are powerful tools in making such research efficient and easy to retrieve. Such research efforts are an effective means of building up the planners’ local knowledge and are particularly valuable in addressing situations where staff turnover has been significant. 20 See Chapter 4 for detailed discussion of EIA. 59
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.