Karen Walsh: Rules are very strict for local authority planning appeal

Most of the Planning Acts requirements for an appeal are mandatory

Karen Walsh: Rules are very strict for local authority planning appeal

A few weeks ago, a Cork couple succeeded in overturning a decision of An Bord Pleanála to grant planning permission for a wind farm near their home.

The wind farm developer, Cleanrath Windfarm Ltd, was initially turned down for planning permission to construct 11 turbines up to a height of 126m, and other structures, including an 85m meteorological mast, at Cleanrath, Co Cork by Cork County Council, only for that decision to be overturned later by An Bord Pleanala.

The couple then initiated judicial proceedings in the High Court against the decision of An Bord Pleanála, and succeeded, and the decision was overturned once more.

If you wish to lodge a planning appeal against a decision of a local authority, there are very strict rules, and common pitfalls to avoid.

For the purposes of this article, I will speak about lodging an appeal against the decision of a local authority to grant or deny planning permission.

Next week, I will speak about bringing a judicial review of a decision of An Bord Pleanála in the High Court.

Once a decision has been made by a planning authority against a refusal to grant you planning permission or conditions attached to your permission or appeal against a decision to give someone else planning permission, an affected party may appeal the decision to An Bord Pleanála within four weeks of the decision being made.

In relation to an appeal to give someone planning permission, you must have made a written submission or observation to the planning authority on the relevant application.

The law also allows a person to appeal a decision that is the subject of the planning permission, who did not make objections or submissions in the original planning application, where a person:

* has an interest in land adjoining land in respect to the application site.

* shows that the decision of the planning authority to grant permission will differ materially from the application for permission because of conditions imposed.

* and shows that the conditions imposed will materially affect the applicant’s enjoyment of land or reduce the value of the land.

To do this you must apply for leave to appeal, first.

A high percentage of applications for leave to appeal fail because the applicant for leave to appeal does not satisfy the board that he or she complies with the requirements above.

Like a planning appeal, the person seeking leave to appeal must state his or her name and address, the grounds on which he or she is basing the leave to appeal, a description of his or her interest in the land, and must attach the correct fee.

Lodging an appeal is quite technical and in all circumstances, it is appropriate to seek expert legal and engineering advice to ensure that the formalities of the appeal are complied with.

Non-compliance will result in an invalid appeal.

The requirements for an appeal are contained in the Planning Acts, and most of the requirements are mandatory, meaning failure to comply will be “fatal”, and your appeal will not be dealt with.

In order to properly lodge an appeal, the following steps must be taken:-

1.

The appeal must be in writing.

2.

It must state the name and address of the appellant or the person making the referral, not the person acting on his or her behalf.

3.

It must detail the subject matter of the appeal or referral.

4.

It must set out the full grounds of the appeal or referral and the reasons, considerations and arguments on which they are based

5.

If observations and submissions are made in relation to the original Planning Authority application, then the Planning Authority’s acknowledgement of receipt of the submission must be included.

6.

The appropriate fee must be enclosed.

7.

Finally, it must be ensured that the application is made within the specified period, which is within four weeks of the decision being made.

An application should be sent by pre-paid post to the board, or by leaving it with an employee of the board during office hours.

It is not sufficient to email and/or fax the application or leave it at the board office outside of office hours.

A valid appellant may request an oral hearing on payment of an additional fee.

An Bord Pleanála will only grant an oral hearing in cases which are particularly complex or significant, or that have significant national or local issues involved.

An Bord Pleanála aims to make a decision within 18 weeks.

If this is not possible, it will inform all parties concerned.

In general, An Bord Pleanála has a number of options:

1.

Grant planning permission.

2.

Grant planning permission with conditions.

3.

Or refuse planning permission.

  • Be sure to read next week’s column in which I will describe the judicial review process.

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