Planning Permission Requirement
Planning permission is required whenever there are “works” to or a “material change of use” of property. The definition of works for the purpose of planning permission is very broad. “Works” include carrying out any building, engineering, mining, or other operations in, under, or over land.
A material change of use is a matter of interpretation of the entire circumstances. Whether a change of use is “material” will depend upon its impact on the environment.
Because the definition of development can be difficult to interpret, there is a procedure under section 5 of the Planning and Development Act for application to the planning authority (the Council) for its opinion. This can be appealed to an Bord Pleanala. Decisions are published.
Development by a local authority and the State is exempt from planning permission. However, it is subject to a public consultation procedure. In some cases, it may also require environmental compliance.
There are very broad exemptions from the requirement for planning permission in relation to agricultural use of land and certain agricultural works. Development consisting of the use of any land for the purpose of agriculture and development consisting of the use for that purpose of any building occupied together with land so used is exempt. This applies to the change of use and not the works. There is also an exemption for many types of agricultural work.
There are many complex conditions and exceptions for the exemptions, both general and specific to the exemption. The terms of these exemptions can be open to interpretation. There are section 5 opinions in relation to some of the relevant issues which are available online from various councils.
“Agriculture” includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in farming of land), the training of horses and the rearing of bloodstock, the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and “agricultural” shall be construed accordingly;
The following are exempt
- development consisting of the thinning, felling or replanting of trees, forests or woodlands or works ancillary to that development, but not including the replacement of broadleaf high forest by conifer species;
- development consisting of the carrying out of any of the works referred to in the Land Reclamation Act, 1949, not being works comprised in the fencing or enclosure of land which has been open to or used by the public within the ten years preceding the date on which the works are 1 or works consisting of land reclamation or reclamation of estuarine marshland and of callows, referred to in section 2 of that Act.
The above exemptions do not apply if an environmental impact assessment or an appropriate assessment of the development is required. This change was introduced by 2011 amendment. The particular regulations for an appropriate assessment may reapply the exemption.
The Minister may make regulations prescribing developments and class of developments authorised by any other statute other than planning law, whether by means of a licence consent or other approval for which an environmental impact assessment or appropriate assessment is required, to be exempted.
Some General Exemptions
The Minister has the power to make regulations providing that certain categories of works are exempt. The Planning and Development Regulations 2001 to 2020, a 550-page document, deals with many aspects of planning permission. The regulations make many types of development in rural areas exempt from planning permission, subject to conditions. There are many diverse exemptions
There are general exemptions, and those are applicable only in certain areas. The following are exempt
- Works specified in a drainage scheme confirmed by the Minister for Finance under Part II of the Arterial Drainage Act carried out by, on behalf of, or in partnership with, the Commissioners, with such additions, omissions, variations and deviations or other works incidental thereto, as may be found necessary by the Commissioners or their agent or partner in the course of the works, shall be exempted development.
- Initial afforestation shall be exempted development.
- Works consisting of field drainage for agriculture, other than drainage and/or reclamation of wetlands, shall be exempted development.
- Land reclamation works (other than reclamation of wetlands) consisting of re-contouring of land, including infilling of soil (but not waste material) within a farm holding, shall be exempted development.
- Works consisting of the removal for the purposes of agriculture of field boundaries including stone walls, clay banks or wire or post fences shall be exempted development.
- The last three exemptions shall not apply in an area to which a special amenity area order relates.
- Development consisting of the thinning, felling or replanting of trees, forests or woodlands, or works ancillary to that development, but not including the replacement of broadleaf high forest by conifer species, shall be exempted development.
- Development (other than where the development consists of provision of access to a public road) consisting of the construction, maintenance or improvement of a road (other than a public road), or works ancillary to such road development, where the road serves forests and woodlands, shall be exempted development
Special Rural Exemptions
There are exemptions in a rural area other than a city town and certain specified areas. They include a wide range of work, including
- construction or maintenance of gullies, drains, pond troughs, pit or culverts
- widening and deepening of watercourses
- the removal of obstructions from watercourses and
- the making and repairing of embankments in connection with any of the foregoing works.
There are exemptions for various classes of agricultural buildings and structures within certain sizes. Detailed conditions apply.
Development consisting of the carrying out of drainage or reclamation of wetlands is exempt if the area concerned does not exceed 0.1 ha.
Replacement of broadleaf high forest by conifer species provider the area is less than 10 ha
Peat extraction in a new or extended area of less than 10 ha or peat extraction of more than 10 ha or where the drainage of the bog commenced before a certain date; see above this provision was subject to later regulations.
Exceptions to Exemptions
The exemptions do not apply in a list of cases, including development, which
- interfere with the character of a landscape, or a view or prospect of special amenity value or special interest, the preservation of which is an objective of a development plan for the area in which the development is proposed or, pending the variation of a development plan or the making of a new development plan, in the draft variation of the development plan or the draft development plan,
- consist of the fencing or enclosure of any land habitually open to or used by the public during the 10 years preceding such fencing or enclosure for recreational purposes or as a means of access to any seashore, mountain, lakeshore, riverbank or other place of natural beauty or recreational utility,
- obstruct any public right of way,
The following exceptions to exemptions do not apply to any operation or activity in respect of which a Minister of the Government has granted consent or approval in accordance with the requirements of the Habitats Regulations 1997, provided that the grounds of imperative reasons of overriding public interest are not relied on.
- consist of or comprise the excavation, alteration or demolition (other than peat extraction) of places, caves, sites, features or other objects of archaeological, geological, historical, scientific or ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area plan for the area in which the development is proposed or, pending the variation of a development plan or local area plan, or the making of a new development plan or local area plan, in the draft variation of the development plan or the local area plan or the draft development plan or draft local area plan,
- consist of or comprise the excavation, alteration or demolition of any archaeological monument included in the Record of Monuments and Places, pursuant to section 12 (1) of the National Monuments (Amendment) Act 1994, save that this provision shall not apply to any excavation or any works, pursuant to and in accordance with a consent granted under section 14 or a licence granted under section 26 of the National Monuments Act 1930 (No. 2 of 1930) as amended,
- comprise development in relation to which a planning authority or An Bord Pleanála is the competent authority in relation to appropriate assessment, and the development would require an appropriate assessment because it would be likely to have a significant effect on the integrity of a European site,
- consist of or comprise development which would be likely to have an adverse impact on an area designated as a natural heritage area by 34 orders made under section 18 of the Wildlife Act
If it is development to which EIS / EIA applies, it is not exempt unless the development is required by or under any other statutory provision to comply with procedures for the purpose of giving effect to the EIA / EIS Council Directive.