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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- ¾ Examine the issue in relation the definition of development and exempted development as set out in the Planning Act and Regulations; ¾ Address the adequacy of further information where such information has been obtained. The Report should structure the above considerations in a way that is clear to the applicant and to the wider public and that enables informed judgements to be made as to the merits of a referral to the Board. The decision of the planning authority on the question at issue should be clearly stated. 9.5 Availability of relevant documents The Planning Act does not specifically provide for documents relating to requests for declarations being made available to the public for inspection during the course of its consideration by the planning authority, or subsequent to the decision being made by the planning authority. However, it is recommended that the planning authority should make such information available. It will be noted that there is provision in the Act for any person other than a party to a referral to make an observation in relation to a referral to the Board; it would be difficult for a third party to make an observation if the relevant documents in the possession of the planning authority were not readily accessible. 9.6 Referrals to the Board under section 5 The question as to what, in any particular case, is or is not development or is or is not exempted development may be referred to the Board for decision. 9.7 Who can make a referral to the Board under section 5? The following may make referrals to the Board under section 5: ¾ A person issued with a declaration by a planning authority may, on payment of a prescribed fee, refer a declaration for review to the Board within 4 weeks of the date of the issue of the declaration. If the declaration has been requested by a third party, the owner/occupier also has a right, within the same 4-week period, to make a referral to the Board. ¾ Where a planning authority fails to issue a declaration within the prescribed time, the person who made the request for the declaration may, on payment to the Board of a prescribed fee, refer the question for decision to the Board within 4 weeks of the date on which a declaration was due to be issued. 90
- ¾ A planning authority may, on payment to the Board of such fee as may be prescribed, refer any question as to what, in any particular case, is, or is not, development or is, or is not, exempted development, to be decided by the Board. 9.8 Referral Procedure Section 127 of the Planning Act sets out the requirements for making a valid referral. A referral must: ¾ Be made in writing; ¾ State the name and address of the person making the referral and of the person, if any, acting on his or her behalf; ¾ State the subject matter of the referral; ¾ State in full the grounds of referral and substantiated reasons, considerations and arguments on which they are based. These should be purpose designed and in this regard planning authorities should not rely on sending copies of enforcement files or of correspondence without specifying the grounds for referral; ¾ Be accompanied by such documents, particulars or other information relating to the referral as the person making the referral considers necessary or appropriate. (There is no entitlement to elaborate in writing upon, or to make further submissions in writing in relation to, the referral, or to submit further grounds for referral); ¾ Be accompanied by the prescribed fee; ¾ Be made within the period specified. If these requirements are not all complied with, the referral is declared invalid by the Board and will not be considered. A person who has made a referral can withdraw it at any time before a decision is made by the Board. When a referral is withdrawn, notice of the withdrawal shall be served on other parties to the referral or any party who made submissions or observations. 9.9 Forwarding of relevant documents to the Board The planning authority must, within a 2-week period commencing on the date of receipt of notice from the Board of a referral, provide to the Board any information or documents in its possession relevant to the referral (section 128 of the Act). 91
- 9.10 Decisions by the Board The decision of the Board on the question referred to it must state the main reasons and considerations upon which it is based. The Board must inform the planning authority and any party to the referral of its decision and the details of the decision must be entered in the Planning Register by the planning authority. The Board must keep a record of any decision made by it on a referral and of the main reasons and considerations on which the decision is based and must make this record available for purchase and inspection. The Board is also required to forward to each planning authority a copy of the record of its referral decisions from time to time, but at least once a year. The planning authority must have regard to the decisions on this record in making decisions on future declarations. Details of referrals and the related Inspectors’ Reports are available on the Board's website. 9.11 Other Referrals In addition to referrals under section 5 and those under section 57(8), as amended, (works affecting a protected structure) the Planning Act allows for referrals to the Board under 4 other sections. These are: ¾ Section 34(5), as amended: Points of detail on conditions of a permission; ¾ Section 37(5)(c): Applications for same developments; ¾ Section 96(5): Social Housing; ¾ Section 193(2): Replacement Structures. These additional referral cases are solely in response to disputes arising between an applicant and a planning authority and the referral procedure outlined above applies to the making of all such referrals. 9.12 Oral Hearings The general advice given in relation to oral hearings in para. 8.9 applies to referrals also. In addition, in the case of the other referrals listed above, the Board may convene a meeting of the parties if it considers that it would expedite the determination of the referral. A record must be kept in writing of such a meeting. 92
- Chapter 10 Enforcement of Planning Control 10.1 Enforcement: general Most of the advice contained in these guidelines is aimed at improving the quality of the development management process. However, the quality of outcomes is equally important. Much public and political effort will have been devoted to the preparation of the development plan as the basis for determining planning applications, and similarly considerable resources are invested by planning authorities and prescribed bodies in processing such applications. However, the majority of complaints to the Ombudsman’s Office in recent years about planning matters related to enforcement, including the issue of inadequate response to complaints and inadequate resources allocated to enforcement. Under planning legislation any development which requires permission and does not have that permission is unauthorised development, as is a development which is proceeding in breach of conditions laid down in the planning permission. Enforcement of planning control is the responsibility of the planning authority and this is the case, of course, whether the planning decision, including conditions, was made by the planning authority or the Board. A major objective of the revision of the planning code that culminated in the 2000 Planning Act was to ensure increased compliance with planning law, in response to complaints about failures in the planning enforcement system from both individuals and local authorities. The introduction of a culture of enforcement is critical to ensure that the planning control system works properly and for the benefit of the whole community. Some high profile cases of blatant disregard for planning law have highlighted ongoing problems with compliance with the law. The EU Commission has also raised a number of issues with Ireland on unauthorised developments in the context of the implementation of the EIA Directive. Aside from the environmental consequences, lack of planning enforcement can lead to an uneven playing field for economic operators, with the result that those who break the law may secure economic advantage over competitors who comply with the law. Lack of enforcement of planning control may result in damage to communities, the environment and our natural and built heritage. It can also lead to: ¾ Erosion of public confidence and support. The public – and particularly those directly affected by unauthorised developments – expect that developments carried out either without planning permission or in substantial breach of planning conditions, will be investigated and that effective enforcement action will be taken where necessary. If genuine cases are brought to the attention of the planning authority, and no reason is given for not taking action, public support for the planning system as a whole will be 93
- undermined. Furthermore, an implied signal is sent out that noncompliance will be tolerated, thus risking more widespread breaches of the law; ¾ Substandard development: If the planning authority or the Board considered it necessary to attach a planning condition in the first instance, development should not be allowed to proceed in substantial breach of such a condition. This is particularly the case where conditions were imposed in the interest of sustainable development or public safety, or in response to the concerns of third parties or prescribed bodies. It is essential therefore that the full rigours of the enforcement provisions of the Planning Act are applied to ensure that the integrity of the system is maintained. That legislation now provides for a full and effective range of enforcement measures. 10.2 Statutory Obligations Planning authorities are reminded of their statutory obligations under Part VIII of the Planning Act, including: ¾ The issue of warning letters, in relation to any non-minor unauthorised development it becomes aware of, within 6 weeks; ¾ The carrying out of an investigation into an alleged unauthorised development, as soon as possible after the issuing of a warning letter; ¾ The making of a decision, as expeditiously as possible, as to whether to issue an enforcement notice, such a decision to be made within 12 weeks of the issue of a warning letter if at all possible; ¾ The entry of the decision, including the reasons for it, in the planning register (section 7(4) of the Planning Act also requires that the register incorporate a map to facilitate the tracing of any entry in the register); ¾ The notification of the complainant(s) regarding the decision. Where the decision is not to issue an enforcement notice a complainant must be informed of the reason for this decision. 10.3 Best practice/principles of good enforcement The following paragraphs set out a number of principles and best practices for good enforcement. 94
- 10.3.1 Resources Adequate staff, financial and other resources should be allocated to ensuring that compliance is given the importance it deserves. This will require an input from senior management. The planning authority budget should provide for adequate funding to pursue court cases where necessary, and the authority should use its powers under the legislation to require persons to pay for the costs of an investigation. The time and effort required to pursue a court case can be considerable; given this high level of input it is important that the planning authority presents the best possible case in court. Increased enforcement should lead to greater compliance with planning law, which will reduce the need for enforcement action in the long run. 10.3.2 Taking the initiative As stated above, the planning authority is obliged to issue a warning letter and investigate all potential acts of non-compliance, however it becomes aware of them. The authority’s staff should note and report any significant instances of unauthorised or non-compliant development observed during the course of routine site inspections; local planners are likely to be familiar with ongoing developments within their area. Previous enforcement experience with certain developers may indicate the need for selective checks on specific sites. 10.3.3 Time limits Planning authorities should of course keep in mind the 7 year time limits set out in the Planning Act in relation to issuing enforcement notices or seeking injunctions and should take care not to let the 7 year period expire without taking action where action is appropriate. 10.3.4 Good Information Systems The provision of adequate information management systems can play a vital role in ensuring that the enforcement regime is efficient and effective. Software which tracks documents (such as grants of permission and commencement notices), highlights when deadlines are approaching, can scan for similar cases, etc., can significantly reduce the staff requirements and ensure that early and effective enforcement actions are taken. Staff turnover can significantly undermine consistency; however, adequate records of past cases and a suitable means of querying these records help ensure that similar cases are dealt with in a consistent manner. Planning authorities might also consider a dedicated telephone number and e-mail address – an enforcement complaints hotline – which the public might use to make complaints about unauthorised development. 95
- 10.3.5 Dealing with unauthorised development having significant adverse impacts on the environment It is vital that planning authorities take swift action in relation to unauthorised development having significant adverse impacts on the environment, which includes development which may require assessment under the terms of the EIA Directive and may include development in architectural conservation areas or areas protected under the Habitats Regulations or National Wildlife legislation. The principle underlying the EIA Directive and the Habitats Regulations is that projects that are likely to have significant effects on the environment, or may affect the integrity of a European site, respectively, should be subject to a thorough assessment of those effects prior to a decision being taken as to whether or not such a project should proceed. Swift action in such cases is vital from an environmental protection perspective. Also, of course, visible tolerance by planning authorities of breaches of the law in such cases, as indeed in all cases, undermines the whole planning code and brings it into disrepute. Accordingly, it is essential that the planning authority acts swiftly where it becomes aware of apparent unauthorised development likely to have significant adverse impacts on the environment. Such cases, and in fact, all cases, should be assessed immediately, in order to determine an appropriate course of action, e.g. immediate investigation followed by injunction (section 160) or early enforcement notice without warning letter (section 155) in serious cases. Where an enforcement notice is not complied with, a prosecution should quickly follow. It is recommended that an injunction or an enforcement order with a tight time-frame for compliance would be appropriate in the case of developments which in the planning authority’s view would be unlikely to obtain planning permission. Planning authorities are also reminded that not only should the position regarding unauthorised development be rectified, but also any damage to the environment should be made good as far as this is possible. In this regard the provisions of section 154(5)(c) and (d) which empower planning authorities to require, or to carry out, the restoration of any land, are relevant. 10.3.6 Dealing with large-scale unauthorised development The planning authority should also act swiftly in relation to large-scale unauthorised development, as visible tolerance of such developments again undermines the law and brings it into disrepute. Also, the non-application of the planning law in relation to large developments could, as stated above, give competitive advantage to the offending developers. In such cases, planning authorities should give consideration to pursuing a prosecution on indictment, notwithstanding the additional complexity of such prosecutions, given the higher penalties that can be imposed under such prosecutions. 96
- 10.3.7 Use of injunctions The planning authority should consider whether it is appropriate to seek injunctions in particular cases. These would include, as stated above, developments likely to have significant adverse impacts on the environment and large-scale developments in flagrant breach of the law, but also developments that pose significant health and safety risks or threats to amenity, developments where reinstatement would be difficult, if not impossible, and works to protected structures. 10.3.8 Enforcement notices. While the issuing of an enforcement notice, unlike the issuing of a warning letter and the carrying out of an investigation, is discretionary, the planning authority is required, in making its decision regarding enforcement, to consider “all material considerations”. Such considerations would include the nature, size and location of the development, impacts on the environment, the desirability of developers being treated equally and the need to secure increased compliance with the planning law. It is recommended that enforcement notices should issue in all cases where an investigation has established that unauthorised development is being or has been carried out, unless there are compelling and defensible reasons for not doing so. Enforcement action should always be taken in situations where permission to retain an unauthorised development has been refused, including a refusal by the Board. The actions specified in an enforcement notice should be clear and precise, be sufficient to correct the non-compliance, be fair given the nature and severity of the non-compliance and give reasonable time to ensure compliance. In cases where minor contraventions are involved it may be possible to resolve the issue through discussion and negotiation with the owner. 10.3.9 Prosecution of offences It is recommended that persons who do not comply with enforcement orders should be prosecuted in all cases. Also, it is recommended that others who have committed substantial breaches of the law should also be prosecuted, regardless of whether they have now applied for or obtained planning permission or have ceased the offending development. The enforcement provisions of the planning code are designed not only to regularise the situation, i.e. to ensure that an unauthorised development obtains consent or is removed, but also to deter future unauthorised development. For this reason the law was specifically amended in 2000 to provide that, where a person applies for, and even obtains, retention permission, a court prosecution could continue for his/her breach of the law. 97
- 10.3.10 Applications for retention permission Developers should not be permitted by authorities to indefinitely postpone enforcement action through applying for retention permission. Even where the planning authority may be inclined to grant permission for the retention of the development, the authority should still seek to have a fine imposed on the developer for the past failure to comply with planning law. Where courts are inclined to grant deferrals of enforcement action on the grounds that an application for retention has been made, the authority should bring to the court’s attention the provisions of section 162(3) of the Planning Act, which provides that no action shall be stayed or withdrawn on the grounds that retention permission has been applied for or granted. Any past refusals of retention permission for the development should also be brought to the court’s attention. 10.3.11 Transparency All documentation relating to enforcement actions (correspondence, planner’s report to the Manager, Manager’s decisions, representations made under section 152 of the Planning Act, warning letters, enforcement notices, notes on site visits, etc.) should be readily available to all parties directly involved and to the general public, except: ¾ where this could prejudice a possible court action; ¾ where this would reveal the identity of complainants (in order to prevent possible intimidation). 10.3.12 Monitoring and review Each planning authority should review the operation of its enforcement system annually. The review should include an analysis of particular trends or enforcement issues within the area, and suggest actions for improved performance. The adequacy of existing procedures, staff resources, ICT systems, etc. should form part of the annual review by senior management. Planning authorities also report annually on complaints received, notices served, injunctions sought, etc.34. To help planning authorities share practical experiences and expertise in order to carry out their enforcement role as effectively as possible, the Department intends to establish a planning enforcement e-forum in 2007. The aim in doing so is to provide a web-based facility, or discussion forum, to allow planning enforcement practitioners to pose questions or offer suggestions and guidance to practitioners in other authorities on particular 34 For Report on Service Indicators in Local Authorities (Local Government Management Services Board) and Annual Planning Statistics (DEHLG) 98
- enforcement issues. It is also proposed that the site would host judgments of the courts that are relevant to the issue of enforcement, recent policy developments on enforcement from both individual planning authorities and the Department, and provide links to planning circulars and planning legislation. Planning authorities should contribute to and make use of this facility. 10.4 Past failures to comply with planning permissions Section 9 of the Planning and Development (Strategic Infrastructure) Act 2006 amended section 35 of the Planning Act to provide that a planning authority may, where it forms the opinion that there is a real and substantial risk that a proposed development would not be completed in accordance with the permission being sought, refuse permission without prior authorisation from the Courts, to a person or company who has failed substantially to comply with a previous permission (subject to giving the applicant prior notification and an opportunity to respond). This provision effectively reversed the burden of proof that applied in this provision in the 2000 Act. Where a planning authority refuses permission under section 35 of the Act, the applicant can apply to the High Court to have the refusal annulled. In this case the High Court may, as it considers appropriate: ¾ Confirm the decision of the planning authority, ¾ Annul the decision and direct the authority to consider the applicant’s application for planning permission without reference to the provisions of section 35; ¾ Make such other order as it thinks fit. Where the Court directs the planning authority to consider the application without reference to section 35, the planning authority must make its decision on the application within a period of 8 weeks from the date the order of the High Court in the matter is perfected (that is, the date on which all necessary legal steps are completed). Where the High Court confirms the decision of the planning authority, there is, of course, no provision for the applicant to appeal to the Board. Planning authorities should consider the use of section 35 in the case of developers with a history of substantial non-compliance, both as an effective deterrent and as a means of strengthening public confidence in the efficacy of the enforcement process. 99
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.