F359[35.—(1) Where, having regard to—

(a) any information furnished pursuant to regulations made under section 33(2)(l),

(b) any information available to the planning authority concerning development carried out by a person to whom this section applies pursuant to a permission (in this section referred to as a "previous permission") granted to the applicant or to any other person under this Part or Part IV of the Act of 1963,

(c) any information otherwise available to the planning authority concerning a substantial unauthorised development, or

(d) any information concerning a conviction for an offence under this Act,

the planning authority is satisfied that a person to whom this section applies is not in compliance with a previous permission or with a condition to which the previous permission is subject, has carried out a substantial unauthorised development, or has been convicted of an offence under this Act, the authority may form the opinion—

(i) that there is a real and substantial risk that the development in respect of which permission is sought would not be completed in accordance with such permission if granted or with a condition to which such permission if granted would be subject, and

(ii) that accordingly planning permission should not be granted to the applicant concerned in respect of that development. ]

(2) In forming its opinion under subsection (1), the planning authority shall only consider those failures to comply with any previous permission, or with any condition to which that permission is subject, that are of a substantial nature.

(3) An opinion under this subsection shall not be a decision on an application for permission for the purposes of this Part.

F360[F359[(4) If the planning authority considers that there are good grounds for its being able to form the opinion under subsection (1) in relation to an application for permission in respect of the development concerned and, accordingly, to exercise the power under subsection (5) to refuse that permission, it shall serve a notice in writing on the applicant to that effect and that notice shall—

(a) specify the non compliance with a previous permission or condition of a previous permission, substantial unauthorised development, or conviction for an offence under this Act, as the case may be, that the authority intends to take into consideration with regard to the proposed exercise of that power, and

(b) invite the applicant to make submissions to the authority within a period specified in the notice as to why the applicant considers that the authority should not exercise that power (whether because the applicant contends that the views of the authority in relation to the failure to comply by the applicant or any other person to whom this section applies with any previous permission, or any condition to which it is subject, the carrying out of substantial unauthorised development or conviction for an offence under this Act, as the case may be, are incorrect or that there are not good grounds for forming the opinion under subsection (1)).]

(5) If the planning authority, having considered any submissions made to it in accordance with a notice under subsection (4), proceeds to form the opinion under subsection (1) in relation to the application concerned it shall decide to refuse to grant the permission concerned and notify the applicant accordingly.

(6) The applicant may, within 8 weeks from the receipt of that notification, notwithstanding sections 50 and 50A, apply, by motion on notice to the planning authority, to the High Court for an order annulling the planning authority’s decision and, on the hearing of such application, the High Court may, as it considers appropriate, confirm the decision of the authority, annul the decision and direct the authority to consider the applicant’s application for planning permission without reference to the provisions of this section or make such other order as it thinks fit.

(6A) If, in pursuance of subsection (6), the High Court directs the planning authority to consider the applicant’s application for planning permission without reference to the provisions of this section, the planning authority shall make its decision on the application within the period of 8 weeks from the date the order of the High Court in the matter is perfected but this subsection is subject to the provisions of section 34(8) as applied to the foregoing case by subsection (6B).

(6B) For the purposes of the foregoing case the provisions of section 34(8) shall apply with the following modifications:

(a) in paragraph (a) of section 34(8), after “paragraphs (b), (c), (d) and (e)”, there shall be inserted “and section 35(6A)”;

(b) for the reference in paragraph (b) of section 34(8) to “8 weeks of the receipt of a planning application” there shall be substituted “8 weeks of the date the order of the High Court in the matter is perfected”;

(c) in paragraph (f) of section 34(8), after “paragraph (a), (b), (c), (d) or (e)”, there shall be inserted “, the period specified in section 35(6A) or, as the case may be, the period specified in paragraph (b), (c), (d) or (e) as that paragraph is applied by virtue of section 35(6B)”; and

(d) any other necessary modifications.

(6C) No appeal shall lie to the Board from a decision of a planning authority to refuse to grant planning permission under subsection (5).]

(7) In this section, “a person to whom this section applies” means—

(a) the applicant for the permission concerned,

(b) any information available to the planning authority concerning development carried out by a person to whom this section applies pursuant to a permission (in this section referred to as a "previous permission") granted to the applicant or to any other person under F361[this Part or Chapter III of Part XXI,] or Part IV of the Act of 1963,

F362[(ba) a registered society under the Industrial and Provident Societies Acts 1893 to 2014 that—

(i) carried out a development pursuant to a previous permission,

(ii) carried out a substantial unauthorised development, or

(iii) has been convicted of an offence under this Act,

or, during any period to which subparagraph (i) or (ii) relates or to which any conviction under subparagraph (iii) relates, the registered society was, during that period, controlled by the applicant—

(I) where, pursuant to section 15 of the Friendly Societies and Industrial and Provident Societies (Miscellaneous Provisions) Act 2014, ‘control’ has the same meaning as in section 220(5) of the Companies Act 2014, or

(II) as a shadow director within the meaning of section 2(1) of the Companies Act 2014,]

(c) in the case where the applicant for permission is a company—

(i) the company concerned is related to a company (within the meaning of section 140(5) of the Companies Act, 1990) which F359[carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act,] or

(ii) the company concerned is under the same control as a company which carried out a development referred to in subsection (1)(b), where “control” has the same meaning as in section 26(3) of the Companies Act, 1990,

or

(d) a company which F359[carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act,] which company is controlled by the applicant—

(i) where “control” has the same meaning as in section 26(3) of the Companies Act, 1990, or

(ii) as a shadow director within the meaning of section 27(1) of the Companies Act, 1990.