Development Management: Guidelines for Planning Authorities

1. Page 81

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   ¾ Any prescribed body which although entitled to be notified of the planning application by the planning authority was not sent such a notification29; ¾ In a case where an EIS is required, a non-governmental organisation whose aims and objectives relate to environmental protection and who satisfies the other requirements of section 37(4)(d) of the Planning Act, as amended; ¾ Any person who did not make a submission or observation but who has an interest in adjoining land and on application to the Board has been given leave to appeal. The Board may grant leave to appeal where the person shows that the decision of the planning authority to grant permission differs materially from the application because of the conditions imposed and that the conditions imposed will materially affect his/her enjoyment of the land or reduce the value of the land30. It should be noted that there is no appeal to the Board: ¾ Against a decision of a planning authority to refuse permission on the basis of the past failures of a developer or a related person to comply with a previous permission (section 35 of the Planning Act)31; ¾ Against a decision to grant permission consequent on the grant of an outline permission in respect of any aspect of the decision which was decided in the outline permission, or ¾ Against a decision of a planning authority on an application for permission in respect of a development in a strategic development zone. There is obviously no prohibition on an appeal against the original decision of the planning authority to make a grant of outline permission. 8.3 The period for making an appeal An appeal under section 37 must be made within four weeks beginning on the date of the decision of the planning authority, except where leave to appeal has been granted by the Board. In such a case the appeal must be made within two weeks beginning on the day of receipt of the notification of the grant of leave to appeal. 29 Section 37(4) of the Act 30 Section 37(6) of the Act 31 In this case the applicant must apply to the High Court if he/she wishes to have the decision overturned. 80

2. Page 82

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   8.4 Appeal Procedure Section 127 of the Planning Act sets out the requirements for making a valid appeal under section 37. As stated above, an appeal must be made within the period specified. An appeal must also: ¾ Be made in writing; ¾ State the name and address of the appellant and of the person, if any, acting on his or her behalf; ¾ State the subject matter of the appeal; ¾ State in full the grounds of the appeal and the reasons, considerations and arguments on which they are based; ¾ In the case of an appeal by a person who made submissions or observations, be accompanied by the planning authority’s acknowledgement of such submissions or observations; ¾ Be accompanied by such documents, particulars or other information relating to the appeal as the person making the appeal considers necessary or appropriate. (It is not permitted to elaborate in writing upon, or to make further submissions in writing in relation to the appeal, or to submit further grounds for appeal); ¾ Be accompanied by the prescribed fee; ¾ Be made within the period specified. If these requirements are not all complied with, the appeal is declared invalid by the Board and will not be considered. A person who has made an appeal can withdraw it at any time before the Board makes a decision. When an appeal is withdrawn, notice of the withdrawal is served on other parties to the appeal or any party who made submissions or observations. 8.5 Notification The planning authority must issue notification of a final decision to grant or refuse planning permission, to the applicant and any person or body who made a submission, within 3 working days of the day of the decision. It is most important that the planning authority ensures that all those who made submissions are notified of the decision, and that the time limit is strictly adhered to, in order to give time to parties to prepare an appeal. In terms of providing good customer service it would be helpful if the notification were accompanied by details of the procedure for making an appeal and the fee required. 81

3. Page 83

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   Where an appeal is made to the Board, the Board notifies the relevant planning authority and sends it a copy of the appeal. It is a mandatory requirement that the planning authority notify a person who made a submission or observation on the planning application that the decision on a planning application has been appealed32. This enables a person who participated in the decision making process at the planning authority stage to make a further submission or observation to the Board. This notification must be given as soon as possible and should in any case be given within 5 working days to enable an interested party to comply with the four-week deadline. 8.6 Forwarding relevant documents to the Board As pointed out in the Report of the Comptroller and Auditor General on Planning Appeals of April 2002, the efficiency of the appeals process is affected by local planning procedures, as no work on an appeal file can be undertaken until the planning authority submits the planning application file. The importance of timely and efficient submission of application files to the Board is crucial to the effectiveness of the appeals system. The Board requires the following documentation to be sent to it within a period of two weeks commencing on the day on which a copy of the appeal is sent to the planning authority: ¾ A copy of the planning application concerned and any drawings, maps, particulars, evidence, environmental impact statement, other written study or further information received or obtained from the applicant in accordance with the permission regulations. A copy of the site notice and published notice should also be included, as should a copy of records of any preapplication consultations; ¾ A copy of the outline application where the application is consequent on a grant of outline permission. The application should be accompanied by the drawings and maps etc. referred to above; ¾ A copy of any technical or other report(s) prepared by or for the planning authority in relation to the planning application; ¾ A copy of the decision order of the planning authority in respect of the planning application and a copy of the notification of the decision given to the applicant; ¾ A copy of any submissions or observations received by the planning authority from any persons or bodies in accordance the permission regulations. (It would be helpful if a list of all 32 Article 69(1) of the Regulations 82

4. Page 84

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   prescribed bodies notified of the planning application, stating whether any response was received, were also supplied); ¾ Particulars of the applicant's interest in the land or structure, as supplied to the planning authority; ¾ A copy of any request to the applicant for further information relating to the application together with copies of any documents or other information submitted in response to such request; ¾ Particulars and relevant documents relating to previous decisions affecting the same site or relating to applications for developments in near proximity where similar planning issues may have arisen, including details of any enforcement taken. In the case of a grant of permission, history documents should include details of the final grant, including the decision order of the authority, site location map and any report(s). Where a decision was appealed, it is recommended that the appeal reference number of the Board be supplied; ¾ Certification that the planning authority holds no further material relevant to the case. In addition to the above material the planning authority should also endeavour to furnish to the Board any non-statutory plans or studies or any other material which may have been referred to in the report on the planning application. 8.7 Documents to be made available to the public As has been set out at paras. 5.3, 5.5 and 6.11 above, the following documents must be put on the planning file, which is available for inspection or purchase. ¾ The planning application including any documentation received from the applicant in accordance with the permission regulations (as soon as possible after it is received); ¾ Any submissions or observations on the application received by the planning authority. To comply with best practice each file should contain a list of all observations or submissions received on an application (as soon as possible after they are received); ¾ A copy of any report prepared by or on behalf of the planning authority in relation to the application (within 3 working days of the making of the planning decision); ¾ A copy of the decision and the notification of the decision to the applicant (within 3 working days of the making of the planning decision); 83

5. Page 85

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   ¾ Any documents relating to a contribution or any other matter referred to in section 34(5) of the 2000 Planning Act (within working 3 days of the making of the planning decision); As soon as a copy of an appeal is sent to the planning authority by the Board the planning authority must, in accordance with Article 68 of the Planning Regulations, make a copy of the appeal available for inspection or purchase; accordingly a copy of the appeal should be put on the planning file. As stated in Chapter 2, records of pre-application discussions should also be placed on the planning file. In the interests of transparency the planning authority should make available all documents that may have influenced the planning decision. 8.8 Written submissions by the planning authority In general most appeals will be dealt with by way of written submissions. The planning authority should engage fully with this process. It is desirable that the planning authority, in addition to providing the necessary information, participates fully in the appeal process by submitting strong and rational arguments in support of its decision particularly in relation to matters of policy. When the planning authority receives an appeal from the Board, a copy should be forwarded to the planner who reported on the planning application. A clear and comprehensive response that deals with all relevant issues pertinent to the appeal should be prepared. Where issues arise which concern other sections/departments in the planning authority, the grounds of appeal should be referred to those sections for a written response within a specified deadline. It is important that these reports be as comprehensive as possible as once they are submitted to the Board they cannot be elaborated on. The absence of an adequate response may seriously weaken the prospect of the decision of the planning authority being upheld. Any submission by the planning authority should be made within the statutory period of four weeks. If no substantive response is to be made by the planning authority, a letter indicating this should be sent to the Board. 8.9 Requests for additional information/further submissions or observations Where the Board requests submissions or observations or further documents in relation to any new matter which has arisen relating to an appeal, or relating to a matter which was not raised by parties to the appeal, the planning authority should ensure that it responds as fully as possible, within the period stipulated for a response, in order to ensure that the Board has all relevant facts before it in reaching a decision. Where there is no response to such a 84

6. Page 86

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   request within the time specified, the Board will deal with the appeal without further notice. 8.10 Oral hearings Any party to an appeal is entitled to request an oral hearing on payment of the correct fee and within the appropriate time period. The Board has absolute discretion to hold an oral hearing with or without a request from a party. It will normally hold one where this would help to clarify a particularly complex case or where it considers that significant national or local issues are concerned, or where it considers that in a case involving significant national or local issues, written submissions need to be supplemented by an oral hearing of the issues. The planning authority might consider requesting an oral hearing where a decision to refuse a material contravention application has been appealed. In such a case the planning authority may find it beneficial to present the case to uphold the development plan orally and in a public forum. A person conducting an oral hearing may request any officer of the planning authority to attend and/or provide any information that he or she reasonably requires for the purposes of the appeal. This request must be complied with. In advance of an oral hearing, the planning authority should prepare its case with great care. It should be borne in mind that the planning authority must explain fully its decision and should engage with the process to support its decision in a well-organised and comprehensive manner. Where matters arise which are pertinent to other sections/departments in the local authority, a detailed report should be prepared by that section/department. Copies of the planning authority’s response should be available for circulation at the hearing. The authors of all reports, or suitably briefed substitutes, should be present and available for questioning by the inspector and the parties to the appeal, as their absence may seriously weaken the case of the planning authority being presented. 8.11 Appeals against conditions An appeal can be made against a condition or conditions that have been attached by the planning authority to a decision on a planning application subject to specific exceptions outlined in 8.12 below. The Board has complete discretion to give to the planning authority whatever directions it considers appropriate relating to the attachment, amendment of or removal from the grant of permission of the condition or conditions the subject of the appeal, or any other conditions. However in appeals relating to section 48/section 49 financial contributions conditions only, the Board is restricted to consideration of the matters under appeal. 85

7. Page 87

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   8.12 Contribution conditions An appeal cannot be made against a contribution condition attached to a decision on an application where the contribution is in accordance with a Development Contribution Scheme or Supplementary Development Contribution Scheme made under section 48 or section 49 of the Planning Act, except where the applicant contends that the terms of the contribution scheme have not been properly applied. In preparing a contribution condition it is important to ensure that the requirements of the condition conform to the detailed provisions of the relevant contribution scheme, otherwise it may be open to the applicant to bring an appeal to the Board against the improper application of the terms of the scheme. An appeal is allowed in the case of a condition regarding the payment of a special contribution33. Where an appeal in relation to a section 48/section 49 contribution is made and there is no other appeal, the planning authority is required to issue the grant of permission after the expiration of the period for making an appeal, provided that the appellant furnishes security for the payment of the full amount of the contribution specified in the condition, pending the decision of the Board. 8.13 Prohibition of an identical application Where a decision is under appeal an application for permission for the same development may not be accepted by a planning authority before the Board has determined the appeal or it is withdrawn or dismissed. Where such an application is made it must be sent back by the planning authority together with the fee. 8.14 Appeal decisions Future planning decisions on the same site need to have due regard to previous Board decisions. Any decision of the Board should be carefully examined by the planning authority to see whether it raises any policy issues in relation to the development plan particularly where the decision of the planning authority has been reversed. An Bord Pleanála publish statistics which show, by county/city planning authority, the percentage of appeals where the decision of the local authority is confirmed, varied or reversed. The Report on Service Indicators in Local 33 Section 48(2)(c) of the Act 86

8. Page 88

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   Authorities now compiled on an annual basis by the Local Government Management Services Board gives similar data, but broken down into further categories (individual houses, housing developments, other development requiring EIA and other development not requiring EIA. It is important that planning authorities monitor trends and patterns of alterations and overturns to establish if there is a need for policy or practice changes on the ground and also to provide feedback to planning officers responsible for recommendations. The appeal file will be available to members of the public at the offices of the Board three working days after the making of the Board’s order on any planning appeal. Copies of the Inspector’s Report and any Board directions on the case and also other relevant documents on the appeal file will be available to interested members of the public upon payment of an appropriate copying charge. 8.15 Website Further information on making an appeal can be obtained from the website of the Board at www.pleanala.ie. The website provides access to all appeal and other decisions, directions of the Board and Inspectors’ Reports. 87

9. Page 89

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   Chapter 9 Declarations and Referrals 9.1 Declarations: introduction The following advice relates to declarations issued under section 5 of the Planning Act. Declarations issued under section 57 of the Act relate to protected structures and are dealt with in detail in Chapter 4 of the Architectural Heritage Protection Guidelines for Planning Authorities and are therefore not covered in this document. If any question arises as to what, in any particular case, is or is not development, or is or is not exempted development, under the provisions of the Planning Act and Regulations, any person may, on payment of a prescribed fee, request in writing from the relevant planning authority a declaration on that question. 9.2 Information to be provided with a request for a declaration The Planning Act requires that a person seeking a declaration under section 5 must provide to the planning authority any information necessary to enable the authority to make its decision on the matter. There is no prescribed form for the request or specified requirements with regard to the content of a request, to a planning authority, for a declaration under section 5. To clarify the question at issue it is suggested that, in the interest of good practice, the following details should be provided: ¾ Name and contact details of person(s) making the request; ¾ Name and address of an agent acting on the person's behalf (if any); ¾ Address of the site to which the question relates; ¾ The question upon which a declaration is sought should be clearly stated; ¾ Site location map of sufficient scale to facilitate the identification of the site; ¾ Drawings, plans and photographs to identify the matter to which the question relates; ¾ Any relevant planning history details. A planning authority may require any person who made a request for a declaration, or any other persons notified under section 5(2) of the Planning Act, to submit further information with regard to the request to enable it to issue the declaration. 88

10. Page 90

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    In accordance with Article 151 of the Planning Regulations the planning authority must notify the Health and Safety Authority if/when a request for a declaration is made to it relating to the provision of, or modification to, an establishment and it considers that the development would have significant repercussions on major accident hazards. Such a notice must issue as soon as possible following receipt of the request for a declaration. It must include a copy of the relevant request for a declaration and must ask for technical advice on the effects of the proposed development in relation to the risk or consequences of a major accident. 9.3 Time period for making declarations A planning authority must issue the declaration on the question that has arisen, and the main reasons and considerations on which its decision is based, to the person who made the request within 4 weeks of the receipt of the request. If further information is requested and received the planning authority must issue the declaration within 3 weeks of the date of receipt of the further information. It should be noted that if the declaration has been requested by a third party, the declaration must also be issued to the owner/occupier, who also has a right to make a referral to the Board. The details of any declaration issued by a planning authority or of a decision by the Board on a referral (see below) shall be entered in the planning register. 9.4 Preparing recommendations on declarations In making its decision on a declaration, the planning authority is restricted to considering what is, or is not, development, or is, or is not, exempted development, within the provisions of the Planning Act and Regulations. A planning report should be prepared clearly setting out the matters which have been considered in making the decision and giving the main reasons on which the decision is based. The planning report should be typed/in electronic form, logically set out and clearly signed by the person who prepared it. The Report should: ¾ Contain details of the question that is being asked, together with a brief description of the location and of the site; ¾ Contain a summary of the planning history (if any) relating to the question and site; 89

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.