Sem 8 Exempted Development 2025 PDF

‘Exempted Development’ LW6101 Introduction to Planning Law Exempted Development Planning permission not required for exempted development Principle exemptions provided for under s.4 PDA 2000 as amended. Further exemptions provided for under P&D Regs 2001 as amended. May be provided for unde...

‘Exempted Development’ LW6101 Introduction to Planning Law Exempted Development Planning permission not required for exempted development Principle exemptions provided for under s.4 PDA 2000 as amended. Further exemptions provided for under P&D Regs 2001 as amended. May be provided for under other statutes from time to time. Certain qualifications on the benefit of exempted development - Art 6 and 9 P&D Regs. Most significant qualifications require that development include: must not be a class of development subject to Environmental Impact Assessment (EIA) or Appropriate Assessment must not contravene a condition attached to a planning permission must not consist of or comprise the extension, alteration, repair or renewal of an unauthorised structure or a structure the use of Rationale for exempted development – see s4(2) PDA – to remove certain minor or insignificant development from requirement to obtain pp; or to avoid unnecessary duplication of control where development subject to authorisation and public participation/consultation requirements under other legislation  Definition ‘Exempted Development’ – PDA S. 4(1) PDA 2000: to include dev for purpose of agriculture; dev by or on behalf of, or jointly with a Local Authority in its functional area; dev undertaken by LA/statutory undertakers; works re interior of structure; dev re forests & woodlands; dev within curtilage incidental to enjoyment; casual trading area; Land Reclamation S. 4(2) PDA 2000: Min may make Regulations exempting any class where: Dev within class not of size/effect to offend proper planning & dev of area [de minimus] Dev authorised under any enactment requiring authorisation and public consultation [unnecessary duplication] Regulations made under s4(2) may also provide, in the case of structures or Exempted Development S4(4) PDA - Exempted dev generally not available in respect of dev subject to Environmental Impact Assessment (EIA dir) or Appropriate Assessment (Habitats Dir) Notwithstanding s4(4) S.4(4A) PDA – Minister may make Regs prescribing any dev req to be authorised under leg (other than PDA) requiring licence, consent, approval and where EIA or AA required to be exempted dev S4(5) Minister must consult with State Authority where reg relates to function of that authority ‘Exempted Development’ – further defined P&D Regs Part 2 P&D Regs 2001: various types of dev listed under Arts 7 & 8 and Schedule 2, provided they comply with conditions/limitations under Arts 6 & 9 (re public safety / traffic hazard; character of landscape; alteration, removal or repair of an unauthorised structure etc. Schedule 2 exemptions - 4 headings: General; advertisements; rural; ‘Exempted Development’ (cont.) Exemptions should be ‘strictly construed’ – Moore v Minister for Arts, Heritage and the Gaeltacht IEHC 150 (PDA) Dillon v. Irish Cement (SC 1986) (Regs) Onus of proving exempted status on developer – Fingal Co. Co. v. Crean Re s. 51 /154 prosecution (enforcement), s. 156(6)–rebuttable presumption dev not exempted Where exemption applies, Court give benefit even where result unintended under leg – Murray v. Buckley (SC 1991) (1,500 sq ft garage – regs at time did not specify size) Other legislative provisions may de-exempt exempted dev e.g. contravenes approved scheme applying to area of special planning control or for landscape conservation reasons Declaration and Referral on development and exempted – s5 PDA On payment of prescribed fee any person may request the relevant PA to provide declaration on what is or is not development or what is or is not exempted development. Must provide PA with relevant information s. 5(3)(a) – may refer determination of PA to ABP within 4 weeks of date of det on payment of fee s. 5(3) – where no determination made within timeframe, may refer within 4 weeks of due date of det on payment of fee PA may refer any question as to what is or is not dev or ex dev to ABP Details of any dec issued by PA or ABP must be entered in the S. 5 – PA/ABP Jurisdiction to determine what is or is not development or exempted development Simple procedure that can determine whether a particular development needs pp, initially by PA and thereafter ABP – FIE v Minister for Communications Climate Action and Environment (No 1) IEHC 555 S5 declaration does not grant permission for dev and is not a mechanism for enforcement – it simply provides clarity on the status of an existing or prospective dev – FIE v An Bord Pleanála IESC 14 May be first step in enforcement proceedings but not necessary step – not an end it in itself – enforcement must still demonstrate “unauthorised development” PA and ABP no enforcement role under s.5 but may involve PA/ABP interpreting pp - Palmerlane Ltd v An Bord Pleanála ; Grianán an Aileach Interpretative Centre Ltd v Donegal County Council ; Heatons Ltd v Offaly County Council ; Krikke v Barranafaddock Sustainability Not within the jurisdiction of PA/ABP under s 5 What is or is not unauthorised development - Cleary Compost and Shredding Ltd v An Bord Pleanála IEHC Whether the development in question has be benefit of the 7 year enforcement rule or Whether proceedings are statute barred – 7 year limitation period - Krikke v Barranafaddock Sustainability Electricity Ltd IEHC 825 S. 5 - JURISDICTION OF THE COURT Wording of s.5 suggests jurisdiction lies with PA or ABP at first instance Grianán an Aileach Interpretative Centre Ltd v Donegal County Council 2 I.R. 625 -s.5 reference procedure precluded the High Court from determining whether development was exempted or not (stand-alone jurisdiction) – but retain jurisdiction within enforcement proceedings In a number of cases HCt and SCt have made determinations on what is or is not development/exempted where the issue was integral to an enforcement action - Wicklow County Council v O’Reilly IEHC 667 Decision under s.5 may still be challenged by way of Judicial Review – Agricultural Development S. 4(1)(a) PDA: ‘Development consisting of the use of any land for the purposes of agriculture and development consisting of the use for that purpose of any building occupied together with land so used’ (wide definition of agriculture – s2 PDA) Turbary, woodlands partially excluded by EU Law requirements re EIA, Habitats, etc. Exemption applies to use of land for agriculture or change of use to agricultural use – Irish Wild Bird Conservancy v. Clonakilty Golf and Country Club Ltd (HC 1996); Cunningham v An Bord Pleanala IEHC 234 – doesn’t cover significant ‘works’ – Dolan v. Cooke Schedule 2, Part 3 (2001 Regs) includes certain dev re ‘rural areas’ as exempted dev –e.g. agricultural structures for animals, minor works, land reclamation, intensive agriculture, initial forestation Local Authority Development - main categories exempted development under section 4(1) PDA 2000 - Construction/maintenance of roads; dev on behalf of / in partnership with LA; works re sewers, pipes, cables, wires, etc. Where EIA required under s. 176, LA must prepare an EIAR and seek ABP’s approval under s. 175(1); further details on documents to be provided to ABP set down under Art 118 (P&D Regs) Part XI Development (dev by local and state authorities), prima facie exempted but must comply with certain procedures under section 179 PDA and Part 8 (Arts 81-85) P&D Regs - sets out relevant public consultation procedures e.g. (newspaper notices / site notices; written submissions; Manager written report describe, evaluate dev with regard to Dev Plan giving reasons, summarise submissions, etc.) Dev where pp required Local Authority Development Other Controls: S. 15(1) PDA: ‘duty of PA to secure objectives of dev plan’; s. 178 prohibits PA from effecting dev which ‘materially contravenes’ dev plan. McGarry v. Sligo Co. Co. describes significance of dev plan: ‘env contract between PA and community’ (halting sites / landfills); Keogh v. Galway Corporation (No. 1) ; Roughan v. Clare Co. Co. ; LPAs have a duty of uberimmae fidei (utmost good faith) to disclose proposed developments that may contravene Dev Plan (Scannell). Courts have frequently restrained PA’s from materially contravening their Dev Plans. ‘material contravention’ a question of law – Wicklow Heritage Trust v. Wicklow Co Co ; various tests. e.g: would PA consider mat contra if private developer; significance of proposed change of use, location, planning history of site, obj of Dev Plan; depends on (likely) grounds of objection - Roughan v Clare Co Co Exceptions to prohibition of material contravention - Housing (Traveller Accommodation) Act 1998 – traveller accommodation programme; s. Other Controls of PA development cont Environmental controls under other legislation e.g s.50 Roads Act 1993 – must prepare EIAR for specified road developments; national monuments and wildlife legislation; EU directives; EPA Acts section 10 of the Heritage Act 1996 – written advice of Heritage Council Common law (nuisance / injunction) – McGarry v. Sligo Co. Co. Other Exemptions: Works affecting only the interior of a structure s.4(i)(h) PDA Forestry – s. 4(1)(i) PDA Development within Curtilage of House – s. 4(1)(j) PDA Casual trading area – s. 4(1)(k) PDA Land reclamation – s. 4(1)(l)PDA Dev required by statutory notice Development of derelict sites – s. 11(6) Derelict Sites Act 1990 Development of national roads – s. 19(6) Roads Act 1993 Condition attached to waste licence – Waste Management Acts 1996-2001 Railway development – Railway Acts Miscellaneous Changes of Use within the Same Class Schedule 2 (2001 Regs): Part I: Exempted Development – General; Part II: Exempted Development – Advertisements; Part III: Exempted Development – Rural Part IV: Exempted Development – Classes of Use Part IV lists 11 classes of use of land and the various types of use within each class, Art 10 exempts change of use within each class provided it meets seven specified conditions: no non-exempted works; doesn’t contravene planning condition; not inconsistent with use specified in permission; existing use not unauthorised; public safety / accident hazard; character of landscape; etc. Planning and Development Act 2024 - Exempted Development S.2 PDA 2024 defines exempted development as a) development of a class prescribed under section 9, or b) development that is exempted development by virtue of section 152. Exempted Development - Section 9 PDA 2024 Re-enacts s.4 PDA 2000 with modification - all exempted development is to be provided for in the Regulations (awaiting publication) Under s. 9 PDA 2024 Minister empowered to make Regs for any class of dev to be exempted Dev within class not of size/nature/effect to offend proper planning & sustainable dev of area or maritime spatial planning [de minimus] Dev authorised under any enactment requiring authorisation and public consultation [unnecessary duplication] Exempted Development status generally disapplied Where EIA or AA required - s.9(3) Protected structures - s.9(4) Unauthorised development - s.9(5) Notwithstanding s.9(3) - Minister may make Regs prescribing any dev required to be authorised under leg (other than PDA) requiring licence, consent, approval and where EIA or AAis required, to be exempted development - s.9(6) Exempted Development - s.9 PDA 2024 cont… Minister must consult with State Authority where Reg relates to function of that authority - s.9(7) Exempted status of any development carried out under the PDA 2000 is retained - s. 9(8) Dev undertaken re s. 59 and 60 PDA 2000 enforcement proceedings is exempted development State dev subject to declaration under s.181 and s. 181B PDA 2000 is exempted dev (civil emergency/EIA) Section 10 Declarations S.10 and 11 PDA 2024 re-enact with significant mod s.5 PDA 2000 - S.10 - PA or Commission may give declaration as to whether matter referred is development, and if so whether it is exempted development Main changes to previous s.5 declaration regime Limited to ‘relevant person’ - i.e. the owner or occupier of land or person with their consent Not binding on persons who were not involved Procedure can be used to confirm whether works are within scope of pp Relevant person not entitled to seek declaration that is in substance same question as existing declaration unless material change in circumstances since first dec Restriction of s.10 declaration procedure  From “any person” to ”relevant person”  Fundamental change to the planning code going back to the 1963 Act - removal of an important mechanism to support the public in ensuring that development complies with the law - stop unauthorised dev  Not enforcement mechanism but can be relied on to inform/ground enforcement proceedings  No clearly stated justifiable policy objective to remove public access - Govt view - “form of enforcement by proxy” - consider broader context of 2024 Act restrictions on access to courts - new costs regime - retrograde step re good environmental governance Local Authority Development - Section 152 PDA 2024 LA dev is exempted dev under s.152 unless EIA/AA, protected structures, or works or change of use of unauthorised dev Dev of coastal LA on maritime site in nearshore of LA, not exempted dev unless LA is owner or has maritime area development consent - s.152(2) LA dev o/s functional area is exempted dev if involves works: road maintenance, inspecting/repairing etc sewers, mains, pipes, district heating systems, cables, overhead wires, or other apparatus or req for excavation for that purpose (s.152(3) LA dev that materially contravenes Dev Plan or National Marine Planning Framework shall not be carried out - s152(4) Important control over LA dev S. 56 PDA 2024: duty of PA to secure objectives of dev plan S.152 prohibition on PA from effecting dev which ‘materially contravenes’ dev plan. Case law under equivalent PDA 2000 provisions (s.15 and 178 PDA 2000) remains relevant to the interpretation of new provisions under the PDA 2024