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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- requirements of the Fire Officer” (or other words to that effect), whether or not such requirements are known at the time the decision is made. This kind of condition is objectionable in principle, and probably invalid. In some cases, it may become apparent from the information provided in the planning application that a proposed development would also require a fire safety certificate under the Building Control Regulations and, where this is made known to the planner, it may be appropriate to inform the applicant (e.g. by means of a cover letter with the planning decision). Similarly, the information provided as part of a planning application may indicate that aspects of a proposed development could give rise to difficulties for the developer in obtaining a fire safety certificate, and the planner may need to discuss with the applicant whether any design modifications should be made before a planning decision issues. 7.8.4 Conditions relating to Environmental Protection Agency licensable activities25 Under section 99F of the Environmental Protection Act 1992 as inserted by section 15 of the Protection of the Environment Act 2003, the planning authority and the Board, in granting permission for an activity licensable by the Environmental Protection Agency, may not impose conditions relating to the control of emissions26 from the activity, or to the control of emissions following the cessation of the operation of the activity. The construction aspects of the development can however be regulated by the planning authority. Before making a decision in respect of such a proposed development, the authority or the Board may request the EPA to make observations within a specified period in relation to the development (including in relation to any EIS submitted), and shall have regard to such observations in making the decision. Section 257 contains similar provisions regarding waste licences. See also para. 7.17 - Refusals of permission for EPA licensable activities. 7.8.5 Conditions recommended by other departments within the local authority When a planning application is referred to other departments in the local authority, certain conditions may be recommended. Such recommendations must be tested against the validity criteria set out above, as these departments may not be familiar with the constraints on planning conditions. 25 See also para. 7.17 regarding refusal of permission for such activities. 26 “Emissions” are defined in section 2 of the 1992 EPA Act as amended by the Protection of the Environment Act 2003. The definition also applies to the Waste Management Act. 70
- 7.9 Conditions requiring matters to be agreed In some cases, it may be considered unreasonable when granting a permission to require the applicant to go through the statutory application procedure again in relation to some detail of the proposed development and, to obviate this, a practice has developed of using a form of condition which requires that the matter shall be agreed with the planning authority. However, such conditions should be avoided in cases where the matters involved are of a fundamental nature or such that third parties could be affected27. The use of such conditions should be minimised, in order to reduce the number of compliance submissions that have to be dealt with subsequently. Care needs to be taken in the wording of these conditions; for example, some minor details (e.g. type of paving) will not need to be agreed before development commences, but could be negotiated during the construction phase. Conditions requiring matters to be the subject of consultation with, or to be agreed with, a named officer of the planning authority, or with a particular department or branch of the local authority, or with another public authority, should not be attached to a permission. An applicant should not be required by condition to ascertain and comply with the requirements of a particular officer or department of the local authority or to comply with some general requirements of the authority that are not clearly spelled out in the permission or elsewhere. If the matter in question is of genuine planning concern, it should be dealt with in the decision order, or be made the subject of a further permission or an agreement with the planning authority; if the matter is not proper to planning, it should be omitted entirely from the decision. 7.10 When are compliance conditions appropriate? Planning permissions often include conditions requiring developers to carry out certain actions prior to or during the course of development. Chapter 2 emphasised the value of pre-application consultations in relation to specifying the information needed to be submitted with an application; full submission of such information should minimise the requirement to seek further information or to impose compliance conditions. Compliance conditions are resourceintensive in terms of subsequent implementation and this needs to be borne in mind when attaching such conditions. One of the main difficulties associated with compliance submissions from a developer’s viewpoint is that there is no statutory period within which the planning authority must respond, and that costly delays can occur at the critical start-up phase. However, there is also an onus on developers to ensure that compliance submissions are complete and relate adequately to the specific terms of the relevant planning conditions. 27 Section 34(5) of the Act enables conditions to state that points of detail relating to a grant of permission may be agreed between the planning authority and the person to whom the permission is granted and that in default of agreement the matter is to be referred to the Board for agreement. 71
- Accordingly, the number of compliance conditions should be kept to a minimum, to ease the burden on both developers and planning authorities. While as a general principle compliance conditions should be kept to a minimum, they can be of value in certain circumstances, such as: ¾ Where they relate to matters of detail which could cause the applicant undue expense (e.g. detailed design of external facades) before the principle of development has been established through a grant of planning permission; ¾ Where they relate to matters of detail which the planning authority may wish to have an input, such as the layout/landscaping of public open spaces; ¾ Where they relate to the implementation or monitoring of mitigation measures proposed in a planning application or accompanying EIS. Conversely, there are situations where compliance conditions would not be appropriate, such as: ¾ Where the details would be required by the planning authority or the Board in order to decide on the overall merits of the planning application, which situation would apply, for instance, in the case of proposals in connection with the restoration of a protected structure; ¾ Where an inadequate EIS has been submitted, or the information supplied does not adequately address issues in relation to potential impact on a site of international importance for nature conservation (Natura 2000), e.g. where drainage outfalls might affect an environmentally sensitive site, or inadequate mitigation measures have been proposed (for further information see PD 2/07 and NPWS 1/07); ¾ Where compliance with the condition might affect the amenities of a third party, without that party having the right to comment on the compliance submission. In such cases, if the development is acceptable in principle, further information should be sought. 7.10.1 Dealing with compliance submissions Planning authorities need to put in place effective management and tracking systems to ensure that compliance submissions are processed speedily – it is recommended that all but exceptionally complex submissions (e.g. reports of archaeological excavations, which may need to be referred to statutory bodies) should be dealt with within four weeks. While certain submissions may need to be circulated for comment to other sections/departments within 72
- the authority, computerised tracking systems are available to log the progress of submissions. It is clearly unacceptable that developers should be induced by economic pressures (such as the cost of holding land) to commence or proceed with development in the absence of a timely response from the planning authority, with all the potential legal and financial risks involved. Currently many planning authorities have a backlog of compliance submissions awaiting finalisation. In clearing this backlog as expeditiously as possible, it is recommended that priority be given to dealing with (a) major developments, and (b) more recent submissions (on the basis that older submissions may be of little practical value at this stage - this could be confirmed with applicants). Staff resources should be allocated to clearing the backlog within a specified period, so that in future all submissions will be processed within the 4-week period and no further backlog will be allowed to develop. 7.11 Conditions requiring the ceding of land Conditions should not be attached to planning permissions requiring land to be ceded to the local authority for road widening or other purposes, nor should conditions require applicants to allow the creation of public rights-ofway, other than such access roads as are considered a necessary part of the development, or to agree to transfer part of their land to some third party as, say, the site for a school or a church. Conditions of this sort are not lawful. It is in order to require a developer to reserve land free of any development in order, for example, to permit the implementation of a road improvement proposal, or to reserve land as a site for a school or other community facility. It is not lawful, however, to require by condition a transfer of an interest in land to the local authority or other person/body. Elements of “planning gain” – not strictly required as part of the development, but of benefit to the public (e.g. transfer of specified land or buildings for public use) - may be accepted as part of a permitted development. (In such cases, it may be appropriate to refer in the decision to specific application documents that set out the offer). However, it is important to ensure that the decision whether to grant or refuse planning permission is not contingent on an offer of planning gain28. 7.12 Conditions requiring development contributions (sections 48 and 49 of the Planning Act) Development contribution conditions may only be attached if they accord with the provisions of either section 48 or section 49 of the Planning Act and these are based on the application of the terms of one or more development contribution schemes which have been formulated and adopted in accordance 28 See the Supreme Court ruling on planning gain in the case of Ashbourne Holdings Ltd. V. An Bord Pleanála. 73
- with those sections of the Act, or on the need for a special financial contribution. There are three categories of conditions under which the payment of financial contributions may be required Section 48 (general) schemes relate to the existing or proposed provision of public infrastructure and facilities benefiting development within the area of the planning authority and are applied as a general levy on development. Section 49 (supplementary) schemes relate to separately specified infrastructural services or projects – such as roads, rail or other public transport infrastructure – which benefit the proposed development. Although there is no entitlement to appeal against the principle of attaching a condition formulated in accordance with a general or supplementary scheme, the contribution requirements of any such scheme may be the subject of a valid appeal where the applicant considers that the terms of the scheme in question were not properly applied. The planning decision should clearly set out how the relevant terms were interpreted and applied to the proposed development; as well as being best practice this will help to minimise unnecessary appeals. Finally ‘special’ contribution requirements in respect of a particular development may be imposed under section 48(2)(c) of the Planning Act where specific exceptional costs not covered by a scheme are incurred by a local authority in the provision of public infrastructure and facilities which benefit the proposed development. A condition requiring a special contribution must be amenable to implementation under the terms of section 48(12) of the Planning Act; therefore it is essential that the basis for the calculation of the contribution should be explained in the planning decision. This means that it will be necessary to identify the nature/scope of works, the expenditure involved and the basis for the calculation, including how it is apportioned to the particular development. Circumstances which might warrant the attachment of a special contribution condition would include where the costs are incurred directly as a result of, or in order to facilitate, the development in question and are properly attributable to it. Where the benefit deriving from the particular infrastructure or facility is more widespread (e.g. extends to other lands in the vicinity) consideration should be given to adopting a revised development contribution scheme or, as provided for in the Planning Act, adopting a separate development contribution scheme for the relevant geographical area. Conditions requiring the payment of special contributions may be the subject of appeal. 7.13 Residential development The following types of conditions relate specifically to residential development. ¾ Conditions requiring security for completion: It is essential that 74
- permissions for residential development are subject to a condition under which an acceptable security is provided by way of bond, cash deposit or otherwise so as to secure its satisfactory completion. The amount of the security, and the terms on which it is required to be given, should enable the planning authority, without cost to themselves, to complete the necessary services (including roads, footpaths, water mains, sewers, lighting and open space) to a satisfactory standard in the event of default by the developer. The condition should require that the lodgment of the security should be coupled with an agreement that would empower the planning authority to realise the amount of the security at an appropriate time and apply it to meet the cost of completing the specified works. Planning authorities should also ensure that the bond is of sufficient duration to allow them time to inspect the development after the expiration of permission and still call in the bond if necessary. A security condition could also provide for the recalculation of the amount specified in the condition by reference to the House Building Cost Index (or other appropriate Index) if the development to which the permission relates is not commenced within a specified period after the granting of the permission. The bond should be refunded on satisfactory completion of the development. ¾ Conditions in relation to phasing: In the case of large schemes, it may be appropriate to attach a condition regarding the phasing of the development in order to ensure that residents do not have to live in uncompleted estates for lengthy periods. It is desirable that any such condition should be worked out in consultation with the developer. A phasing condition could include requirements relating to the completion of roads, public lighting, open spaces, etc. which are necessary for, or ancillary to, the completed units in each phase. Such an arrangement would permit the security for satisfactory completion to be related to a particular phase or phases of the development and thus enable completion of sections of the scheme to be advanced while, at the same time, facilitating the developer by obviating the need for a very large security appropriate to the entire development. Care should be taken in devising any phasing arrangement to ensure that main sewers, surface water drainage systems, main distributor roads, etc., are completed at an appropriate stage so that the first and each subsequent phase will, on completion, be fully serviced and independent in the event of other phases not proceeding. ¾ Conditions at outline permission stage: It is particularly important that conditions relating to basic services, significant design criteria, financial contributions, security for completion, road reservations and other such fundamental matters are attached, where appropriate, to outline permissions for housing development. If this is not done, difficulties may arise at the permission consequent stage. 75
- 7.14 Reasons for refusal of planning permission Notwithstanding any pre-application consultations which may have taken place, some applications will be refused, and it is in the interests of all that the same care and attention is devoted to the drafting of refusal decisions as is given to grants of permission. Section 34(10) of the Planning Act requires that a decision (and the notification of the decision) shall state the main reasons and considerations on which the decision is based. This is of fundamental importance to applicants so that they can assess options open to them as a consequence of the refusal. Reasons for refusal should therefore be clear and unambiguous, as informative and helpful as possible, should be self-contained statements, and should be related specifically to the particular development proposal. All substantial reasons for refusal should be stated since it is in the interest of prospective developers to be aware of all the fundamental objections to their proposals if they are considering whether to amend the scheme and re-lodge or to appeal. It is essential to avoid a situation where some fundamental reason for refusal is not given and the subsequent amended application is refused for that reason. Also, as stated in para. 6.8 information deficits should be referred to in the planning decision so that the applicant is made aware that there could be further obstacles to the grant of permission other than the reasons listed. 7.15 Refusals arising from development plans or local area plans A statement of objectives in a development plan should not be regarded as imposing a blanket prohibition on particular classes of development and does not relieve the planning authority of responsibility for considering the merits or otherwise of particular applications. A brief reference to an objective or policy statement is not, therefore, adequate as a reason for refusal if it is not made clear what the objective is, how it would be contravened by the proposed development, and why that contravention would be contrary to the proper planning and sustainable development of the area. A reason for refusal must, as far as possible, bring out the reasonableness of applying the provisions of the plan in the particular case. Accordingly, caution should be exercised when refusing permission on the grounds that the proposed development would materially contravene the development plan. Where such a reason is given it must be clearly shown that specific policies/objectives of the plan would be breached in a significant way. 7.16 Non-compensatable reasons Section 191 of the Planning Act provides that compensation will not be payable in respect of the refusal of permission for any development: ¾ Of a class or description set out in the Third Schedule to the Act; 76
- ¾ If the reason or one of the reasons for the refusal is a reason set out in the Fourth Schedule to the Act. Planning authorities will, naturally, be concerned to ensure that they do not incur a compensation liability in cases where the facts of the case are such that payment of compensation would clearly not be justified by reference to the provisions of the Planning Act. There should be no question, however, of including or “tailoring” reasons for refusal to obviate the possibility of successful compensation claims in cases where the facts of the case do not justify the reasons stated. On the other hand, where the facts do justify the use of non-compensatable reasons, care should be taken to use the precise wording used in the Planning Act, so that there can be no ambiguity about the compensation position, e.g. “the proposed development would endanger public safety by reason of traffic hazard because … ” 7.16.1 Premature development Development which is premature because of existing deficiencies in water supply, sewerage facilities and/or road network may be refused without incurring a compensation liability provided that the criteria set out in the Fourth Schedule of the Planning Act are met. In general, prematurity arises where there are proposals to remedy the deficiency. If there are no such plans to remove the constraints within a reasonable period (e.g. if there are no plans to extend public water supplies or sewerage to a particular area), this form of wording should not be used as a reason for refusal. It should be borne in mind that for a compensation claim to succeed, the applicant must demonstrate that the planning decision has resulted in a reduction in value of the land in question. Premature development in this context also includes development which would be premature pending the determination by the planning authority or the road authority of a road layout for the area. However development which is premature because of a commitment in a development plan to prepare a strategy, Local Area Plan or framework plan not yet completed should only be used as a reason for refusal if there is a realistic prospect of the strategy or plan being completed within a specific stated time frame. 7.17 Refusals of permission for Environmental Protection Agency licensable activities Section 256 of the Planning Act provides that where an EPA licence has been granted or will be required in relation to an activity, a planning authority or the Board may decide to refuse planning permission for a development 77
- comprising such an activity, where it considers that the development, notwithstanding the licensing of the activity, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area concerned. The authority or the Board may request the EPA to make observations within a specified period, before making such a decision, and shall have regard to any such observations (section 257 contains similar provisions in relation to waste licences). See also para. 7.8.4 - Conditions relating to EPA licensable activities. 78
- Chapter 8 Planning Appeals 8.1 Introduction The appeal component of the development management process is a very significant element of the planning system. Under section 37 of the Planning Act decisions on planning applications are open to appeal by applicants or third parties. In deciding an appeal, the Board, which is a quasi-judicial body, considers the entire case again, having regard to the same matters to which a planning authority is required to have regard when making a decision on a planning application in the first instance. The Board must therefore consider the proper planning and sustainable development of the area, having regard to the provisions of the development plan and the other considerations set out in section 34(2) of the Act, which include Guidelines issued by the Minister for the Environment, Heritage and Local Government and other relevant Ministerial or Government policies. The Board must also consider any submissions or observations made in accordance with the Planning Regulations. The Board also considers any new matters arising in the appeal. The Board has the power under the Planning Acts to overturn or uphold a decision of the planning authority or to vary the conditions attached to a grant of permission. The system is designed to be open, fair and independent. Since 1995 the entire appeal file, including the Inspector’s Report, is open to public inspection for a period of at least five years after the appeal has been determined by the Board. The appeal decision, Board direction and Inspector’s Report are also available on the Board’s website. Under section 127 of the Act, an appeal against the decision of a planning authority on a planning application must be lodged with the Board in writing within four weeks beginning on the date of the planning authority’s decision. The appeal must be accompanied by a fee and satisfy a number of statutory requirements, which are dealt with in the following paragraphs. The Board has a number of other important functions, including section 5 declarations and referrals which, as they are closely related to the planning application process, will be dealt with in these Guidelines (see Chapter 9). 8.2 Who may appeal? The following may appeal the decision of a planning authority on a planning application to the Board: ¾ The applicant; ¾ Any person or body or interested party who made a submission or observation in writing to the planning authority on the planning application, in compliance with the permission regulations. In order for the appeal to be valid, a person who made such a submission or observation is required to enclose the acknowledgement; 79
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.