Planning Law

Enforcement of Planning Law

The Local Authority has extensive powers to enforce breaches of planning law. In addition, any individual can apply to enforce planning law in the Circuit or High Court by way of a court order to enforce planning breaches. It is not necessary that the individual has any interest in the enforcement, although they usually will.

The Local Authorities have powers to serve warning notices, enforcement notices or may seek an injunction in order to enforce planning laws.   Ultimately, works done  in breach of planning law may be ordered to be undone  and  rendered compliant.

It is an offence not to comply with the terms of a warning or enforcement notice. Failure to comply is prosecuted in the District Court. A significant daily fine applies for as long at the breach of planning permission is not complied with. If a planning law breach is not enforced within seven years of the breach, it is immune from enforcement under planning law. This is not the equivalent of a planning permission and suffers from certain disadvantages relative to having a planning permission.

Planning permission

The Council (acting as Planning Authority) decides planning applications in accordance with its Development Plan and other material considerations that are relevant.  The Development Plan is an overall statement of the plans and objectives for the area as adopted by the Council. The Council  may grant planning permission, either unconditionally, or (more likely) subject to conditions or they may refuse planning permission.

A planning permission generally lasts for five years.  Planning permissions are effective for planning law purposes.  It does not confer any right to build, where any title and other compliance requirements arise.  It may still be necessary to comply with any other special rules that apply and comply with terms of the title under which the property is held. For example,  there may be covenants on the terms of the title to property which restricts development or requires the consent of a third party to it.

A planning authority can impose such conditions as it thinks fit, provided that they are for planning purposes and reasonably related to the development. Either the applicant for planning permission or third parties who have made observations on the application, can appeal to An Bord Pleanala against the grant or refusal of planning permission or against conditions in  the planning permission.

The appeal will be held by Inspectors of the Board. It may be determined by written representations or where appropriate by an oral enquiry.

Local Authority Development

Development by local authorities in their own functional area is exempt.  It does not require planning permission.  However, most local authority development must go through a form of public consultation procedure, in which third parties’ views and input must be sought.  It is not equivalent to a planning process.

Local authority development is subject to a certain amount of third-party control in cases which are the subject of an Environmental Impact Statement requirement.  These are required by European Union law.  Where the requirement applies, the local authority must prepare an environmental impact assessment which must be approved by Bord Pleanála.

A local authority must not undertake development within its area, which materially contravenes its development plan.  This prohibition does not apply to certain types of development, some of which are mentioned below.

LA Consultation Procedures

Prescribed types of local authority development must undergo a public consultation procedure.  The types of development concerned are prescribed by the Planning and Development Regulations.  The requirement applies to a wide range of development including construction of houses and most works exceeding a certain amount in value. The  requirements apply to following classes of work whether or not in excess of the amounts:

The local authority must publish details of the proposed development in a newspaper and fix a site notice to the place where the development is proposed.  It should specify the nature and extent of the development proposed and indicate that submissions and observations may be made relating to the development.  They must be made in writing to the local authority and must deal with planning and development considerations. There are requirements to give notice to certain prescribed bodies, depending on the nature and extent of the development.

The Manager of the authority is to prepare a report for the elected members.  This is to set out the nature and details of the proposal, its principle features and an evaluation of whether it is consistent with the proper planning and sustainable development of the area to which the development relates, having regard to the development plan. It is to give  reasons.

The report must list the bodies and persons who have made submissions and observations.  It must summarise the issues, including those raised on submissions and observations and the Manager’s response.  It must contain a recommendation as to whether or not the proposed development should be proceeded with, as proposed, varied or not at all. The proposal is deemed approved, subject to any resolution to the contrary by the elected members.

The local authority may not resolve against works which are inconsistent with the waste management plan. The power to resolve against works may not be undertaken in respect of works which are required by law to be undertaken.  This might be interpreted narrowly or widely.  In the widest sense, it could cover all works for which the authority has a general statutory duty to undertake.

State Sector Development

Formerly, the State itself was assumed to be exempt from the Planning Acts under general State privilege.  State authorities are presumptively subject to planning permission. There are a range of public authorities, ranging from ministers / departments of the Government to state authorities, which are in the broad public sector, to greater or lesser extents.

The present position, under the 2000 Act, is that development by a State authority may be exempt and not subject to public consultation or may be subject to a public consultation procedure, similar to that for local authorities.  The Minister may specify development which, for the purpose of public safety, order or the administration of justice, national security or defence is exempt and does not require public consultation.

State Consultation Procedures

Where public consultation is required, the State authority must give the planning authority for the area, notice of the proposal including, particulars, plans, and other information. The State authority publishes a notice of the proposed development in a newspaper and affixes a site notice.  This contains information on the nature of the development.  It sets out where the drawings and particulars are available for inspection, for a period of the six weeks following publication.  It invites submissions and observations.  Similar requirements apply to the site notice and newspaper notice.

The proposal must be made available for inspection. This must include documents, particulars, plans and other information. Submissions and observations may be made to the State authority in relation to the development.

The state authority has to give notice to certain parties, including the planning authority.  Where it affects a protected structure or is within an architectural conservation order area or proposed area, notice must o be given to the Minister for Arts, Heritage and the Gaeltacht.

The plans are to remain available for inspection for the requisite period.  They are to contain details of the documents setting out the nature of the development, location, plan, particulars of the appearances via drawings attached.

The State authority, in deciding whether the proposed development is to be carried out, must have regard to the submissions and observations made by the planning authority and others.  It may carry out the proposal as originally proposed or as varied and amended or may choose not to carry it out at all.

After making a decision it must give notice to the planning authority.  Notice must also be given to certain persons who have made submissions and observations.  Where a large number of observations have been made, a general public notice may be given.  Notice of the decision may be published in a newspaper.