Environmental Sciences and the Law – Introduction to Planning Law – © Brian Foley, 2006

Introduction to Planning Law

Overview of the Planning System

The Legislative Framework

For the most part, planning law is sourced in the Planning and Development Act, 2000 (hereafter referred to as PDA, 2000), the Planning and Development (Amendment) Act 2002 (PDA, 2002) and Planning and Development Regulations 2001 (PDR, 2001).[1]

The PDA 2000 was intended as a consolidation of the previously existent mish-mash of planning legislation founded on the original Local Government (Planning and Development Act), 1963. However, the consolidation exercise was not altogether successful. If one reads the PDA, 2000 one will surely be struck by its length, complexity and arguably unnecessary prolixity. Stylistic concerns aside, the PDA, 2000 remains, even after the consolidation exercise, as a cause of numerous difficult legal problems because numerous sections are imprecisely drafted and wording is complex, and consequently very open to interpretation.

Planning Law and Environmental Protection

In theory, planning law has a key role to play in environmental protection. In theory, the planning agencies (i.e. planning authorities and an Bord Pleanála) could apply environmental considerations in their decision as whether to refuse or deny planning permission. This is particularly relevant in cases of cross-over between the planning code and licensing legislation like the Waste Management Act, 1996 and the IPPC regime of the Environmental Protection Agency Act, 1992.

This is because there are a range of activities which need to be licensed under these acts which is a function of the EPA. However, the same activities may require planning permission. The decision as to whether to grant a license will include matters which, in theory, a planning agency may wish to take into account when deciding on a planning application.

The difficulty was that once upon a time, a planning agency could not refuse planning permission on the basis that the development would cause environmental pollution because s.98 of the Environmental Protection Agency Act, 1992 specifically prohibited this. Nor could the planning agency impose conditions to limit emissions from the development. The problem this caused was a risk that no single institution could take a “holistic” consideration of any particular development or activity.

The situation is somewhat different now as s.98 has been amended by s.256 of the PDA 2000. Now, a planning agency may refuse planning on the basis of unacceptable environmental pollution, but it cannot grant planning with conditions attached to control emissions from a development. Similar provisions have been made in respect of Waste licences granted by the EPA under the Waste Management Act, 1996. Moreover, these provisions provide for consultation to take place as between planning agencies and the EPA. Thus the situation now seems to be that planning may be refused where environmental pollution is an issue, but specific control of emissions is a matter entirely for the EPA.

The Basic Requirement for Permission

Generally speaking all “development” in Ireland needs planning permission.[2] This means that one has to apply for planning permission to the relevant planning authority who decides the matter. If one is uphappy with this decision one can appeal to An Bord Pleanála.[3] If one is unhappy still, it is possible to seek judicial review of a decision of An Bord Pleanálain the High Court, but the grounds upon which the High Court will set aside a decision of An Bord Pleanálaare quite narrow.[4]

It must be noted that judicial review is notan “appeal” from the decision of An Bord Pleanála in the sense that the application will be “re-heard”. Rather, it constitutes a review of whether proper procedures have been adhered to or, in exceptional cases, whether the decision of An Bord Pleanála was “unreasonable” in the sense that the Board had no evidence before it upon which it could make the decision it did.[5] As a general proposition, a court will not second guess a planning agency on a matter of pure planning policy.

The general requirement for planning permission is subject to two exceptions. The first, as described below, is the concept of exempted development. The second exception is that developments which a local authority wishes to pursue in its own functional areado not need planning permission (which, strictly speaking is a species of exempted development).[6]

As noted above, it is a general requirement that development secure planning permission. If a development which otherwise requires planning permission does not secure such permission, it is illegal. It is therefore subject (within a certain time period) to enforcement proceedings which can ultimately lead in a court ordered removal of the development.

Policy Roles and the Development Plan

As we have seen, both the planning authority and An Bord Pleanála have a decision-making role to play in individual cases. However, the role of the planning authorities in respect of planning policy is a wider one. It is obliged to make a development plan whereby it specifies the development objectives for the planning authorities functional area.[7] The development plan is at the core of the planning system, for it is the plan which informs the decision of the planning authorities and An Bord Pleanála in their decisions.[8]

However, the development plan is not the only concern of planning agencies. Rather, the overriding concern is the “proper planning and sustainable development” of the area.[9] Indeed, in some cases, planning can be granted where it would be in material contravention of the development plan. This involves a special voting procedure at planning authority level,[10] and if the matter reaches An Bord Pleanála, the freedom to grant in material contravention is even more constrained – for example, the development plan must be “unclear” in respect of the development proposed or conflicting objectives must exist, and the development must be of national or strategic importance.[11]

Compensation

Clearly a failure to get planning permission can have serious consequences for a land-owner. Also, other restrictions on land use which are made permissible under the planning code can have severe effects on ones enjoyment of land. To mitigate such problems, compensation is available in certain circumstances under the planning code. These are as follows:

  • Where land is taken by compulsory acquisition.[12]
  • Where land must be ceded for socially affordable housing as part of the conditions for a grant of planning permission.[13]
  • In certain cases, where planning permission is rejected or granted with conditions.

However, compensation is not available for any rejection of an application for planning permission. Schedule 3 to the PDA 2000 contains a list of developments in respect of which a refusal of planning permission will not attract compensation. One example is where the development is going to constitute a material change in use. We will examine this in more detail later, but suffice it to say that this excludes development which cannot constitute “works” so compensation is only, in principle, available for “works” which includes building houses. Rejection of an application to change the use of, say, a bowling alley to residential use (i.e. apartments) would not therefore, attract compensation.

Schedule 4, on the other hand, contains a list of reasons for a refusal of planning which, if invoked, mean that no compensation is payable. For example, such reasons include

  • Where the development would interfere with character of landscape or an area of special amenity necessary to preserve
  • Where the development would endanger public safety because of traffic hazard or cause serious air pollution, water or noise pollution or vibrations or waste pollution or if its in an area at risk of floods.

The PDA 2000 contains a relatively complicated method for calculating the value of compensation payable which does, in some sense, reflect present market value. The exception to this is compensation for the compulsory allocation of land for socially affordable housing – the money you get for this does not reflect market value. This was considered by the Supreme Court in 1999, but ultimately upheld as constitutional.[14]

Circumstances in Which Planning Permission is Required

The Basic Definitions

Under s.32 PDA 2000, planning permission is required in respect of any developmentwhich is not exempted development. So, our first question is – what is a “development”. The “answer” is in s.3 PDA 2000 which defines development as (save where the context of the legislation requires otherwise):

The carrying out of any works on, in ,over or under land, or the making of any material change in use of any structures or other land.

So, we have two concepts to examine. The first thing we have to understand is the definition of development as “works” and the second is development as any “material change in use”.

Works

Ok, so what are “works”? Well, according to s.2 PDA 2000, the concept of “works” includes

Any act or operation of construction, excavation, demolitions, extension, alteration, repair or renewal.

“Alteration” has its own definition which states that it includes

Plastering or painting or the removal of plaster or stucco or the replacement of a door, window or roof, that materially alters the external appearance of a structure so as to render the appearance inconsistent with the character of the structure or neighbouring structures.

It would seem then that we need planning permission for nearly anything that we can possibly do to a building insofar as construction, alteration, repair, renewal, extension or demolition is required.

Moreover, in some cases, even plastering or painting requires planning permission. Of course, this is all subject to the concept of “exempted development”. As we will see, this exempts a good deal of run-of-the-mill jobs from the planning regime. For example, house extensions, so long as they are under particular sizes may be exempt.

Material Change in Use

A material change in the use of land or of a structure requires planning permission. Thus, we need to know what a “use is” and what a “material change is”. It will become obvious why this is important later, but for present purposes suffice it to note that use has its ordinary and natural meaning save that s.3 PDA 2000 provides that use, in relation to land, does not include the use of the land by the carrying out of works thereon

So, a “use” of land, does not involve the carrying out of works. As we have seen, “works” includes excavation, which means quarries constitute “works”. For example, a quarry is not a “use”.

Remember, that planning is required for a material change in use. If a quarry, or any other instance of “works” cannot constitute a “use” then it seems there can be no concept of a “material change of works”. Why would this be relevant? The main reason is that quarries tend to be relatively old businesses, many of which began before 1 October 1964 which is the first day upon which planning permission was required in this State under the Local Government (Planning and Development) Act, 1963. Quarries which were in operation before that date and which continued after that date did not need planning permission. If, then, such a use of land (but not a use in the technical sense) changed – is there a requirement for planning permission? You may be surprised at just how complicated this question has become! For the moment, however, we can begin with a relatively straight forward discussion of the notion of a “material change of use”.

There are two ways to go about thinking about a material change of use which we can illustrate with the following cases.

Cusack v Minister for Local Government[15]

In this case, it was suggested, although in obiter dictum, that a change from a solicitors office to dentists surgery could count as a material change in use.

McMahon v Dublin Corporation[16]

This case concerned switching houses which were built for residential user (i.e. a legal word for use) to short term office space. It was suggested, again, without being conclusive on the point, that this would amount to a material change in use.

From these two cases we may believe that any change in use would count. On this approach what counts as “material” is the extent to which the new use is different to the old one. So, it seems that moving from residential to commercial use is sufficiently different. And the same can be said for moving from solicitors office to dentists surgery. If, perhaps, the solicitors office was changed to a barristers office, or a notaries office, there may not have been a material change in Cusack.

The second way to think about material change of use is represented by the following case.

Westmeath County Council v Quirke and Sons[17]

Budd J in the High Court held that because “many alterations in the activities” carried out on land would constitute a change of use it must be the case that the planning code does not require planning for every single change in use based simply on the character of the use. Rather, what is necessary is to examine each case on its own merits – examining not simply the change but the effects of the change.

This approach tends to focus the understanding of “material” on the sprit of the planning acts – i.e. under this approach, for something to constitute a “material change in use” would require more than simply looking at the change, but looking at the character of quality of the change from a planning perspective.

  • Which do you think is better? If you look back to the introduction and our brief look at the development plan, does that push you towards one perspective or the other?

Ancillary and Primary Use

In some cases there may be an issue as to whether the change in use is actually a change in use in relation to the whole “planning unit” or whether, in fact, is a change in relation to a small part of it. For example, what would we do if a garage which once had a small office, decided to get rid of the office – is there a material change in use from a “garage with an office” to a “garage”?

Rehabilitation Institute v Dublin Corporation[18]

The Rehabilitation Institute had used its premises for the training and placement of disabled persons in work and administrative work in connection with this. However, the bulk of the work done was from the administrative side with very little actual training done. The Institute formally decided to use their premises solely as office space, but an issue arose as to whether this constitutes a material change in use.

The way the court went about deciding this was to point out that the building was originally used an office with training being ancillary to that use. Therefore, since only an ancillary use was “dropped” there was no change in use, and therefore no need for planning permission.

So, it would seem that if a premises has two uses, one of which is ancillary to the other, the “dropping” of the ancillary use does not require one to seek planning permission for pursuing the primary use on its own.

Dublin Corporation v Regan Advertising[19]

In this case, the façade of premises was used to advertise business which was run out of those premises. However, the defendant company then began to use the same façade to advertise for other people – i.e. third party advertisements.

It was decided that whereas the façade was once ancillary to the main business carried on, it now had a new primary use and therefore required planning permission.

So what would you make of a case where Jack owned a garage which was divided into ¼ offices and ¾ car repair work-shop. He decides he needs more work-shop space and decides to convert the offices. Would he need planning permission? Do you think you would arrive at different conclusions depending on whether you prefer to follow the Cusack-McMahon line of thought about material changes in use, or whether you prefer Budd J’s reasoning in Quirke?[20]

Intensification of Use/Works

The core idea here is that a material change of use may occur where one intensifies the use to which land or a structure is put. Thus, one may continue to keep a premises as a solicitors office, but ones practice may grow so much that the use intensifies to a point that a material change in use has occurred. Again, it is worthwhile pointing out that your beliefs on what constitutes an intensification of works such that amounts to a material change in use are again going to be shaped by how you think one should approach the general question of a material change in use.

Galway County Council v Lackagh Rock Ltd[21]

In this case, Barron J recognised that previous cases had found an intensification of use in case where the use of the land had changed (these are the quarry cases which we will address in a moment). However, in this case there had been no change in use of the land, but simply that the production processes used had changed. He held that this amounted to an intensification of use mainly on the basis that the change was material because of the implications which it had for the proper planning of the area. Thus, it would seem that the intensification of an activity per se is not necessarily going to amount to a “material change in use” but rather than one will have to address the question of whether it is “material” in a planning sense – i.e. does it have material effects on the proper planning of the area and so on.