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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- In a situation where many planning authorities, particularly the larger ones, have, or are putting in place, area-based planning offices and associated management structures, it is also vitally important that standards of service and consistency in decision-making are assured between area-based offices. The achievement of consistency can be promoted by: ¾ The use of standardised reporting formats and templates and conditions; ¾ Consultation between officials dealing with particularly complex proposals and officials from other area offices of that local authority to compare planning issues and responses; ¾ Regular meetings of officials reporting on planning applications to deal with practice issues, for example the manner of responding to newly published planning guidelines; ¾ Mentoring of junior or inexperienced staff; ¾ Networking between planners including attending regular training and professional development activities; ¾ The preparation of in-house guidance on the development management process or the interpretation of particular development plan policies; ¾ The preparation of design leaflets for issues such as parking in front gardens or domestic extensions. Consistency is also facilitated when the planner’s report is countersigned in certain circumstances by a more senior planner, such as a team leader or area planner, who is in a position to ensure that, as far as possible, similar cases are assessed using similar criteria. 6.8 The planning decision21 The responsibility for deciding a planning application rests clearly with the Manager or an officer to whom the function has been delegated, and he/she has the ultimate role in ensuring the consistency and fairness of such decisions. Where the delegation of responsibility for deciding planning applications has been delegated, on an area basis, to 2 or more offices, it will be the role of the Manager to ensure consistency and fairness. It is vital, of course, that decisions are made within the relevant statutory time limits to avoid permissions being granted by default. 21 See more detailed discussion of the planning decision in Chapter 7. 60
- The notification of the decision must give the main reasons and considerations on which the decision is based and the main reasons for the imposition of any conditions. The decision that issues as a result of the analysis outlined above must be clear, unambiguous and easily understood. It follows that the decision should be drafted in as informative and helpful a manner as possible so that the applicant and any interested parties will be in a position to assess the impact of the decision and the options open to them as a consequence of the decision. Reasons for refusal and conditions on a decision to grant permission should have a clear purpose and meaning. Any information deficits should also be referred to in refusals, that is, issues that would have required to be clarified by further information, were it not the case that there was a fundamental objection to the proposal. The applicant should not need to seek clarification of the detail of a decision from the planning authority. The decision should be self-explanatory, fair and reasonable. However where factual clarification is required the planning authority should respond speedily – even aside from customer service issues, a speedy response may avert an unnecessary appeal to the Board. 6.9 Decisions that differ from the recommendations in the planning report Section 34(10)(b) of the Planning Act requires that where a final decision of a planning authority on a planning application is different, in relation to either the granting or refusal of permission, from the recommendation of the final planning report, the decision must indicate clearly the main reasons for not accepting the recommendation. It is best practice that the decision would address all the relevant issues raised in the final planning report. Similarly, it is best practice that where the decision, while not differing from the recommendation in relation to the grant or refusal, significantly varies the conditions, it should give the reasons for this variation. Implementing the above procedure is vital in supporting the openness and transparency of the planning system. 6.10 Notification of planning decisions The notification of a planning decision must be given within 3 working days of the decision and must comply with the other requirements of Article 31 of the Planning Regulations, including the requirement to give information in relation to the lodgement of appeals. It is important that the notification of the decision makes clear the date of the decision and that this date (rather than the date of the notification, if that is different) is the relevant date for the purpose of appealing to the Board. In accordance with Article 31 of the Regulations, the notification of a decision must give details of the nature of that decision including conditions attached to a grant of permission, or reasons for refusal in the case of a refusal of permission. Best practice suggests that in the interests of better customer service, planning authorities should also make the 61
- planning report available with the planning decision and send a copy of the report, if requested, to applicants and any persons who made submissions, for information purposes. Alternatively the option of making the planning report easily available over the web or through a telephone ordering service should be pursued. Section 34(11) of the Planning Act requires that where no appeal is taken against the decision, the planning authority must make the grant of permission as soon as possible after the expiration of the period for making the appeal: it is recommended that this is done within 2 weeks of the expiration of the period. 6.11 Documents to be made available to the public after the decision has been made In accordance with section 38 of the Planning Act all documentation relevant to the planning application must be made available for inspection and purchase within 3 days of the making of the planning decision. Pursuant to section 38(3), the planning application, other information received from the applicant and submissions will have been put on the planning file as soon as possible after receipt. Accordingly, after the decision is made, the documents referred to at section 38(1)(c) to (e) should be added to the file, that is: ¾ A copy of all reports prepared by or for the authority in relation to the planning application; ¾ A copy of the decision and a copy of the notification of the decision given to the applicant; ¾ A copy of any documents relating to a contribution or other matter referred to in section 34(5). (Para. 5.3 may also be relevant here). It is best practice to also put a copy of the actual grant of permission, when it is made, on the file. These documents should be also be added to the website file as soon as possible after the decision has been taken. Under section 38 of the Planning Act, the documents required to be made available must be available for inspection or purchase for a period of not less than 7 years). 62
- Chapter 7 Drafting Planning Conditions/Reasons for Refusal of Permission 7.1 Introduction: planning conditions Conditions proposed to be attached to permissions, and the reasons for them, should be carefully drafted so that their purpose and meaning are clear. Conditions must always be precise and unambiguous, particularly since the effectiveness of subsequent enforcement action may depend on the wording. Moreover, adequate reasons should be given by planning authorities to justify conditions; it is not, for example, in the majority of cases, acceptable to give as a reason “in the interests of the proper planning and sustainable development of the area" since this affords the applicant no indication of the particular object of the condition. The number of conditions should be kept to the minimum as the attempt to regulate details to an excessive extent may defeat its own ends. Moreover, difficulties can arise for developers and landowners generally at conveyancing and other stages in attempting to provide evidence of compliance with numerous conditions, especially those of a vague or general nature. The recommendations in this Chapter apply equally to the drafting of planning conditions by the Board. 7.2 Standard conditions Some planning authorities have devised standard conditions (and reasons) for use in relation to different types of applications. This practice is useful in the interests of consistency and can achieve timesavings. Great care should be taken, however, to ensure that standard conditions are used only where they actually apply or that they are properly adapted to meet the needs of particular cases, and that the availability of sets of standard conditions does not lead to the automatic inclusion of unnecessary conditions in particular cases, e.g. conditions which are irrelevant to the particular development, or which deal with matters best dealt with under other codes (see para.7.8 below). 7.3 Basic criteria for conditions Certain basic criteria have often been suggested as a guide to deciding whether to impose a condition. These include whether the condition is: ¾ Necessary; ¾ Relevant to planning; ¾ Relevant to the development to be permitted; ¾ Enforceable; ¾ Precise; 63
- ¾ Reasonable. In addition, it is useful before deciding to impose a condition to consider what specific reason can be given for it: if the only reason which can be framed is a vague, general one, the need for or relevance of the condition, or its validity, may be questionable. 7.3.1 Conditions should be necessary One useful test of need is whether, without the condition, either permission for the proposed development would have to be refused, or the development would be contrary to proper planning and sustainable development in some identifiable manner. It is not enough to be able to say that a condition will do no harm: if it is to be justified, it ought to do some good in terms of achieving a satisfactory standard of development and in supporting objectives of the development plan. It should also be borne in mind that a condition is not necessary where what is sought by the condition is clearly provided for in the plans and particulars by reference to which the permission is being granted. Where revised plans have been submitted during the course of the application, it is essential that the decision should specify which plans are being permitted, e.g. by referring to a plan or plans submitted on a specific date. Equally, if it should appear that there might be some ambiguity in lodged plans as to the scope of the development (such as partial change of use), a condition may be necessary to clarify the position. 7.3.2 Conditions should be relevant to planning As the planning system is intended to be used for genuine planning purposes and not for any extraneous purpose, it is obvious that a condition that has no relevance to the “proper planning and sustainable development of the area” ought not to be attached to a planning permission. Unless the requirements of a condition are directly related to the development to be permitted, the condition may be ultra vires and unenforceable. Section 34(4)(a) of the Planning Act gives power to impose a condition regulating the development or use of adjoining etc. land, but such land must be under the control of the applicant and the condition must be "expedient for the purposes of or in connection with the development authorised by the permission”. Moreover, where a condition requires the carrying out of works, or regulates the use of land, its requirements must be connected with the development permitted on the land to which the planning application relates. 7.3.3 Conditions should be enforceable Clearly a condition should not be imposed if it cannot be made effective. In a case where any doubt arises, it may be useful, therefore, to consider how the enforcement provisions of the Act could be operated to secure compliance 64
- with a proposed condition. To facilitate enforcement, the aim should be to frame conditions, where possible, so as to require some specific act to be done at or before a specified time, or to prohibit some specific thing from being done in carrying out the development. Conditions should be capable of being complied with. It is doubtful that a condition requiring the maintenance of sightlines by the removal or trimming of hedges or trees on a neighbour’s property is within the applicant’s power to fulfil: even where the neighbour has given consent that consent may subsequently be withdrawn. The Law Society has advised that such conditions may create difficulty as to title and have advised that in such cases the applicant be required to obtain an easement over the neighbour’s property thus obtaining the legal right to maintain the sightline. 7.3.4 Conditions should be precise Every condition should be precise and clearly understandable. It must tell the developer from the outset exactly what he or she has to do, or must not do. A condition which requires the developer to take action if and when some other indefinite event takes place is unacceptable e.g. to improve an access "if the growth of traffic makes it desirable". A condition that requires that the site "shall be kept tidy at all times" is clearly of little value, as is a condition requiring that the permitted development "shall not be used in any manner so as to cause nuisance to nearby residents". In the one case, the condition is too vague, and in the other, the question of whether or not a particular use constitutes a nuisance is left open. Conditions that can only be expressed in such vague general terms will often be found to be unnecessary or unenforceable. 7.3.5 Conditions should be reasonable A condition may be so unreasonable that it would be in danger of rejection by the Courts. For example, it would normally be lawful to impose a continuing restriction on the hours during which an industrial or other use can be carried out, if the use of the premises outside these hours would seriously injure the amenities of property in the vicinity, but it would be unreasonable to restrict the hours of operation to such an extent as to effectively nullify the permission. Again, it may be unreasonable to make a permission subject to a condition which has the effect of deferring the development for a very long period, by requiring, for example, that the permitted development should not be carried out until a sewerage scheme for the area - which may only be at the preliminary design stage - has been completed. If the development is genuinely premature, the application ought to be refused. A condition that requires a developer to carry out additional works may be reasonable but the provisions of section 34(4)(m) of the Planning Act may come into play in some cases where such a condition is attached. Section 34(4)(m) of the Act allows for planning authorities to impose conditions to require a developer to carry out additional works, such as the provision of roads, traffic calming measures, 65
- open spaces, car parks, sewers, watermains or drains, facilities for the collection or storage of recyclable materials and other public facilities in excess of the immediate needs of the proposed development, subject to the local authority paying for the cost of the additional works and taking them in charge or otherwise entering into an agreement with the applicant with respect to the provision of those public facilities. If such a condition is attached the planning authority will be liable for the costs of the services over and above the requirements of the development. In other cases, a useful test of reasonableness may be to consider whether a proposed condition can be complied with by the developer without encroachment on land that he or she does not control, or without otherwise obtaining the consent of some other party whose interests may not coincide with his/hers. 7.4 Time limits Having regard to the statutory provisions regarding the life of a planning permission, conditions should not generally (except in the case of retention permissions) require that a development be commenced or finished by a certain date. However, it may be appropriate in particular circumstances to regulate the phasing of a development – see para. 7.13 below re residential development – or to require that a building should not be occupied until it has been substantially completed in accordance with approved plans should this be necessary. Planning authorities may grant permission for a duration longer than 5 years if they see fit, e.g. for major developments (for example for wind energy developments) but it is the responsibility of applicants in the first instance to request such longer durations in appropriate circumstances. 7.5 Temporary permissions In deciding whether a temporary permission, which can apply to a particular structure or use, is appropriate, three main factors should be taken into account. First, the grant of a temporary permission will rarely be justified where an applicant wishes to carry out development of a permanent nature that conforms with the provisions of the development plan. Secondly, it is undesirable to impose a condition involving the removal or demolition of a structure that is clearly intended to be permanent. Lastly, it must be remembered that the material considerations to which regard must be had in dealing with applications are not limited or made different by a decision to make the permission a temporary one. Thus, the reason for a temporary permission can never be that a time limit is necessary because of the adverse effect of the development on the amenities of the area. If the amenities will certainly be affected by the development they can only be safeguarded by ensuring that it does not take place. An application for a temporary permission may, however, raise different material considerations from an application for permanent permission. 66
- Permission could reasonably be granted on an application for the erection of a temporary building to last seven years on land that will be required for road improvements in eight or more year’s time, whereas permission would have to be refused on an application to erect a permanent building on the land. Similarly, an application for permission to erect an advertisement structure in a rundown area may warrant more favourable treatment if the structure is to be removed on the expiration of a specified period when redevelopment works are likely to be under way. In the case of a use which may possibly be a “bad neighbour” to uses already existing in the immediate vicinity, it may sometimes be appropriate to grant a temporary permission in order to enable the impact of the development to be assessed, provided that such a permission would be reasonable having regard to the expenditure necessary to carry out the development22. A second temporary permission should not normally be granted for that particular reason for it should have become clear by the expiration of the first permission whether permanent permission or a refusal is the right answer. In other circumstances, an application for a second temporary permission may be quite genuine and should be dealt with on its merits. For example, where a temporary permission has been granted for a structure which is inherently impermanent, an application for a permission for a further limited period could reasonably be made if the structure has been well maintained and there has been no other change in circumstances relating to the proper planning and sustainable development of the area concerned. In all temporary permissions for structures, express provision should be made by condition requiring the removal of the structure and the carrying out of appropriate reinstatement works on the land at the expiration of the specified period. In addition, the condition should specify the period for which the permission is being granted by reference to some particular date and not by reference to the occurrence of some indefinite future event. Use of expressions such as “such longer period as the planning authority may allow” or “on three month’s notice” should be avoided. 7.6 Conditions relating to occupation of buildings Planning permissions attach to the land, and not to the applicant. Section 39(2) of the Planning Act, enables a condition to be attached, specifying that the use of a structure as a dwelling shall be restricted to use by persons of a particular class or description. Planning authorities should be sparing in their approach to such conditions, as they can limit the freedom of the owner to dispose of his or her property or to obtain a mortgage. However, the Sustainable Rural Housing Guidelines23 outline circumstances in which it would be reasonable to attach occupancy conditions, e.g. in rural areas under considerable development pressure where the applicant is a person with roots 22 The Childcare Facilities Guidelines (DOELG, 2001) recommend, for instance, that if a temporary permission is granted, the permission should be for a period of not less than 5 years. 23 See para. 4.7 and Appendix 1 in relation to occupancy conditions. 67
- in or links to the area. Those guidelines also advise that the use of so-called “sterilisation agreements” under section 47, that is, agreements for the purposes of restricting or regulating the development and use of land permanently or for a specified period, should be avoided apart from highly exceptional cases, because of the inflexible nature of such agreements. 7.7 Conditions directly departing from the application A condition that radically alters the nature of the development to which the application relates will usually be unacceptable. For example, a condition should not require the omission of a use, which forms an essential part of a proposed development, or a complete re-design of a development. If there is a fundamental objection to a significant part of a development proposal, and this cannot fairly be dealt with in isolation from the rest of the proposal, the proper course is to refuse permission for the whole. 7.8 Conditions relating to other codes There has been a tendency to attach to planning permissions conditions relating to matters that, though of concern in the exercise of development management, are the subject of more specific controls under other legislation or are directly regulated by other statutes or by the common law. The aim, no doubt, is to seek to improve the operation of those other controls or codes by the use of the enforcement provisions of the Planning Act. It is inappropriate, however, in development management, to deal with matters which are the subject of other controls unless there are particular circumstances e.g. the matters are relevant to proper planning and sustainable development and there is good reason to believe that they cannot be dealt with effectively by other means. The existence of a planning condition, or its omission, will not free a developer from his or her responsibilities under other codes and it is entirely wrong to use the development management process to attempt to force a developer to apply for other some licence, approval, consent, etc. At best, the imposition of conditions in relation to matters that are the subject of other controls is an undesirable duplication. In practice, such an approach can give rise to conflict and confusion if the effect of a condition on a development is different from that of the specific control provision. In this context, it should be remembered that the Building Regulations require certification by the developer’s design team. Instead, where they consider it necessary to do so, planning authorities could, when notifying the grant of a permission, issue a clear warning about the requirements of other codes. Planning authorities may find it helpful to circulate guidance to staff with responsibility for commenting on planning applications, as to what kind of conditions can be validly attached to planning decisions. 7.8.1 and 7.8.2 below give examples of cases where it may be appropriate to add conditions in relation to other codes. 68
- 7.8.1 Conditions in relation to construction and demolition waste In relation to the issue of the proper management of construction and demolition waste, planning authorities should have regard to DEHLG Circular Letter WPR 7-06 and Best Practice Guidelines on the Preparation of Waste Management Plans for Construction & Demolition Projects (available at www.environ.ie) or any subsequent revision of these guidelines. These documents provide guidance on how proposals with significant construction and demolition waste management issues relevant to planning should be considered in an integrated manner. 7.8.2 Conditions relating to accessibility for all As stated in Chapter 2 the necessity to ensure that the design implications of accessibility are addressed in housing and commercial development should be brought to potential applicants’ attention at pre-application consultation stage, otherwise the development might be compliant with Part M of the Building Regulations but still inaccessible from the main road, street or car park. Planning authorities should also consider whether it is necessary to add conditions to ensure access for all in the approach to buildings from the main road, street or disabled car parking. As stated earlier, the National Disability Authority’s 2002 publication “Building for Everyone” offers good practice on this issue. Conditions in relation to safe passage for the public, including people with disabilities, in the vicinity of the site during the construction phase could be also considered where appropriate. 7.8.3 Fire conditions While it is appropriate that the Planning Acts should be used to the full to ensure that all development meets adequate fire safety standards, it must be emphasised that when dealing with a planning application, fire safety can only be considered where it is relevant to the primary purpose of the Acts, namely the proper planning and sustainable development of the area. For example, fire safety considerations may arise in respect of: ¾ The location of proposed development in relation to existing industrial or other hazards; ¾ The historic fabric and contents of protected structures24; ¾ Fire service access for proposed development; ¾ Water supplies for fire fighting. Under no circumstances should a condition be included in a permission requiring that “the developer shall consult with and comply with the 24 See Chapter 17 of the 2004 planning guidelines on architectural heritage protection. 69
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.