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Planning Permission Guide

Guest Post by Damien O’Mahony, Planning Consultant, Keystone Planning Consultants.

General Planning and Building Control Information

Planning legislation came in force for the first time in Ireland under the Planning & Development Act 1963. In general terms any structure built or modified prior to that date does not require planning permission. However, if a building was built prior to 1963 but modified thereafter, the modification, (particularly where it involves changes to the exterior of the building), must have planning permission.

Currently, the most relevant piece of legislation is the Planning and Development Act, 2000 and most planning issues will be dealt with under that Act or subsequent legislation, including Regulations.

Planning Permission

Planning permission is required for all development of land carried out since 1^st October, 1964, the date on which the 1963 Act came into force), and which is not exempted development. Planning permission may be applied for new development or for the retention of unauthorised structures.

Part III of the Local Government (Planning and Development) Act, 2000 deals with planning permission, and sets out the procedure for applying for permission, time periods, notices, and gives the planning authority the power to impose conditions when granting permission.

Non-compliant premises can be notoriously difficult, (or in some cases, impossible), to regularise. Whilst an application for Retention may be applied for, there is no guarantee that permission to retain will be granted.

Anyone considering purchasing a property should satisfy themselves as to the following questions

1. Has there been in relation to the property any development (including change of use or exempted development) within the meaning of the Planning Acts on or after the 1^st October 1964?
2. Has Evidence of Compliance with the financial conditions by way of letter/receipt from the Local Authority been obtained?
3. Is there a Certificate/Opinion from an Architect/Engineer that the Permission/Approval relates to the property and that the development has been carried out in conformity with the Permission/Approval and with the Building Bye-Laws?

Exempted Development

Exempted development is development where an applicant is exempt from the obligation to obtain planning permission which occurs in 3 circumstances:

1. Where the development took place before 1^stof October, 1964
2. Where section 4 of Local Government (Planning and Development) Act, 2000 provides that certain types of development are exempt
3. Where the Minister made regulations providing classes of development to be exempt, which he did under the Local Government (Planning and Development) Act, 2000 and the Local Government (Planning and Development) Act, 1963

One of the most important categories of exemption is contained in the 2000 Act and includes:

1. a) where development consists of carrying out works which affect only the interior of the structure and
2. b) works which does not materially affect the external appearance of the structure.

It is good practice to obtain a Declaration confirming that particular work is exempt and the grounds which bring the development under an exempt category from a suitably qualified architect/engineer/planning consultant.

Planning Permission

Planning permission is required for all development of land carried out since 1^st October, 1964 and which is not exempted development or for the retention of unauthorised structures.

Unauthorised Development

If works, (which did not fall into an exempted category), were carried out without planning permission after October 1964 and seven years have elapsed since that work commenced without the relevant local authority initiating enforcement action - in that instance the Council is precluded from taking enforcement action in relation to the work carried out. This does not mean that you have planning permission by default. It merely means that you are safe from prosecution. A potential purchaser may be unwilling to conclude the sale without the matter being regularised. A bank will almost certainly not provide a loan or a mortgage to acquire such a property without the planning issue being resolved. Also, there have been instances where insurance policies have been declared invalid because the requirements of complying with current regulations had not been met.

However, it should be noted that unauthorised developments can only have taken place after 1^stOctober, 1964.

Enforcement

If you have carried out unauthorised development and it does not benefit from the ‘seven year rule’ under Part VIII of the Act, the Planning Authority can

1. Initiate a criminal prosecution
2. An enforcement notice under section 154/5 of the Act
3. A planning injunction under section 160 of the Local Government (Planning and Development) Act, 1963.

Failure to comply with a directive from the Planning Authority can give rise to substantial fines.

Building Control

If a property complies with planning permission, it does not mean that it complies with Building Control (under the Building Regulations). That is a separate regime. When acquiring you need to be sure that both aspects are covered. Building Control legislation sets out statutory requirements as to how buildings are constructed – fire safety, installation, disabled access, ventilation, etc. These requirements are set out in the Building Control Act 1990, (which came into force in 1992). Prior to the introduction of this act, a number of local authorities operated a Building Bye-laws system.

The Building Control Act, 1990 did away with the need to obtain bye-law approval from 1^st June, 1992. If no notice was served before 1^st December 1992 in respect of works carried out prior to 13^th December 1989 the works are deemed to have been carried out in accordance with the bye-law.

Compliance with Fire standards, however, is a different matter.
From 1^st June, 1992 the Building Regulations apply in relation to works carried out, and this includes alterations or extensions of existing buildings.
For all works and uses to which the Building Regulations apply, a Commencement Notice must be submitted to the building control authority. https://www.localgov.ie

FIRE

The Fire Services Acts & the Building Control Acts are concerned with the physical building structure and how it was or will be constructed with respect to the protection of the building and its occupants in the event of a fire.

All public buildings in this country, including existing and proposed new buildings (except single family dwelling houses) are subject to the provisions of The Fire Services Act 1981/2003 irrespective of when they were constructed.

All buildings (including single family dwelling houses) in this country constructed after July 1992 are also subject to the provisions of the Building Control Act 1990/2007. Compliance with part B, Fire Safety and part M, Access of the Building Control Act must be formalised by way of a fire safety certificate and a disability access certificate respectively (except single family dwelling houses).

All existing buildings in this country whether built before or after 1992 must comply with the fire safety provisions set out in the Fire Services Act 1981/2003. This in effect means that all buildings including pre 1992 buildings must provide the same standard of fire safety measures as buildings constructed after 1992, the only difference being that pre 1992 buildings are not required by law to have their fire safety formalised by way of a fire safety certificate application. However if an old building requires that construction works (except “minor works”) be carried out in order that it does comply with fire safety provisions as set out in the fire services act1981/2003, these works are then subject to the provisions of the Building Control Act 1990/2007 and a Fire Safety Certificate application is required.

1 The Local Government (Planning and Development Act) of 1963 came into effect on the 1 October 1964. Since then all development requires planning permission. Unless of course it falls under the category of exempt development.

Development is defined by section 3 of the Planning & Development Act 2000 as follows:

In this Act, "Development" means, except where the context otherwise requires, the carrying out of any works on, in, over or under land, or the making of any material change in the use of other structures or other land.

A material or significant change of use for example is changing a house to an office or vice versa, or a factory to a shop or anything similar.

Exempted developments are works or changes of use which are set out either in the Planning Acts or Regulations. They outline both Developments and Changes of Use that are exempt. They include for extensions of up to 40 square meters, domestic sheds up to 25 square meters, various agricultural, commercial and industrial exemptions. However it should be noted that all exemptions come with their own rules and requirements which should be fully understood before any work is carried out. Works to the internal of a house do not require permission or to the outside if they do not materially alter the appearance so as to make it inconsistent with neighbouring properties. For example, covering the front of a house, in a terrace of brick fronted houses, with exterior insulation could be regarded as requiring planning consent.

Attic Conversions, in general if the conditions above are met then planning is not required for an attic conversion. However different Planning Authorities take different views; you should check their website before you do any work. Please note attic conversions especially to an existing two storey house are subject to building and fire control regulations; you should not allow anyone to do work without proper professional planning and supervision.

5 Where there is doubt as to whether what you propose is Exempted Development or not, you can apply to the Local Authority for a declaration that the proposed development is exempted. Prior to going down this route, you should check the conditions in any previous planning permissions together with any other work previously carried out. This declaration can be invaluable when selling or in the case of neighbours objecting to the works when they commence.

Exempted Development status does not generally apply to protected structures (Listed Buildings). Each Local Authority will maintain such a list of properties, normally available online.

Enforcement of planning and the powers of Local Authorities are wide ranging up to and including the demolition of the offending structure, charging you for doing so together with any legal costs, fining you and even imprisonment. However after 7 years, no enforcement action can be taken, from when the offence is alleged to have been committed. However this is not a grant of permission, for instance if the building in question was damaged by fire and required to be rebuilt, permission would be required and may not be forthcoming. Anyone purchasing such a building should be wary of this.

Planning applications are decided on the basis of both Planning Legislation and more importantly set out in the relevant Local Authorities Development Plan. Prior to making any application, it is best to understand the criteria on which your application will be judged.

Checklist for Planning Compliance

You should check that a property is compliant with planning legislation: -

• Is it a final grant and not just a notification of an intention to grant? There is a marked difference between a Notification of a Decision to Grant Permission/Approval and the actual planning permission which is the Notification of Grant of Permission/Approval.
• Does it relate to the actual property in question?
• When does the permission expire? (A planning permission generally lasts for five years).
• Was the development carried out within the lifespan of the permission?
• Closely examine the conditions of the permission, especially financial conditions, if they are imposed. There may be substantial monies owing to the local authority.
• Have the building regulations or building bye-laws been complied with?
• Is there a certificate confirming compliance with planning permission and building regulations/building bye-laws?

To put one’s mind at rest it would be prudent to seek a certificate of compliance with planning permission and building regulations from an architect/engineer. If you are purchasing, your solicitor require confirmation that these matters are in order.

The certificate of compliance should

1. Contain the qualifications of the person giving the certificate
2. Confirm the means of knowledge
3. Confirm that the planning permission relates to the development in sale
4. Confirm that the design conforms with the Building Regulations
5. Confirm that the development complies with the planning permission
6. Not contain any qualifications or exceptions which are not generally acceptable
7. Be dated and signed.

Planning Register

Section 7 of the Local Government (Planning and Development) Act, 2000 provides for a planning register to be kept by a planning authority (section 2(1)). Do bear in mind, however, that the planning register may not be up to date by the authority as they may do so “as soon as may be”. Older planning files may be permanently lost or more usually archived and take some time to access.

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