Planning and Development (Amendment) Act 2010

23.

Amendment of section 34 of Principal Act.

23.— Section 34 of the Principal Act is amended—

( a) in subsection (6)—

(i) by the substitution of “concerned would contravene materially the development plan or local area plan” for “concerned would contravene materially the development plan”,

(ii) by the substitution of the following for subparagraph (ii):

“(ii) copies of the notice shall be given to each of the following—

(I) the applicant,

(II) a prescribed body which has been notified of the application by the planning authority, and

(III) any person who has made a submission or observation in writing in relation to the development to which the application relates,”,

(iii) in subparagraph (iii) by the substitution of “authority” for “authority, and”, and

(iv) by the insertion of the following subparagraph after subparagraph (iii):

“(iii a) not later than 6 weeks from the publication of the notice under subparagraph (i), the manager shall prepare a report for the planning authority advising the authority of his or her opinion regarding the compliance or otherwise of the proposed development under any relevant Ministerial guidelines under section 28 or any relevant policies or objectives of the Government or Minister of the Government or with any regional planning guidelines and the report shall be considered by the authority before a resolution is passed under subparagraph (iv), and”,

( b) in subsection (8)—

(i) by the substitution of the following for paragraphs ( b) and ( c):

“( b) Where a planning authority, within 8 weeks of the receipt of a planning application, serves notice in accordance with the permission regulations requiring the applicant to give to the authority further information or to produce evidence in respect of the application, the authority shall make its decision on the application as follows:

(i) within 4 weeks of the notice being complied with, or

(ii) if in relation to further information given or evidence produced in compliance with the notice, the planning authority—

(I) considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and

(II) gives notice accordingly to the applicant,

within 4 weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority.

( c) Where, in the case of a planning application accompanied by an environmental impact statement or a Natura impact statement, a planning authority serves a notice referred to in paragraph ( b), the authority shall make its decision as follows:

(i) within 8 weeks of the notice being complied with, or

(ii) if in relation to further information given or evidence produced in compliance with the notice, the planning authority—

(I) considers that it contains significant additional data which requires the publication of a notice by the applicant in accordance with the permission regulations, and

(II) gives notice accordingly to the applicant,

within 8 weeks beginning on the day on which notice of that publication is given by the applicant to the planning authority,”,

and

(ii) by the substitution of the following for paragraph ( f):

“( f) (i) Where a planning authority has failed to make a decision in relation to an application within the period specified in paragraph ( a), ( b), ( c), ( d) or ( e) as appropriate (referred to in this paragraph as the ‘first period’) and becomes aware, whether through notification by the applicant or otherwise, that it has so failed, the authority shall proceed to make the decision notwithstanding that the first period has expired.

(ii) Where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant.

(iii) Where a planning authority fails to make a decision within a period of 12 weeks after the expiry of the first period a decision (referred to in this paragraph as the ‘deemed decision’) of the planning authority to grant the permission shall be regarded as having been given on the last day of that period of 12 weeks.

(iv) Any person, who has made submissions or observations in writing in relation to the planning application to the planning authority, may at any time within the period of 4 weeks after the expiry of the period of 12 weeks referred to in subparagraph (iii), appeal the deemed decision.

(v) Subparagraphs (i) to (iv) shall not apply where there is a requirement under Part X or Part XAB to carry out an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment, in respect of the development relating to which the authority has failed to make a decision.

(vi) Where the planning authority has failed to make a decision in relation to development where an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment is required within the first period and becomes aware, whether through notification by the applicant or otherwise, that it has so failed—

(I) the authority shall proceed to make the decision notwithstanding that the first period has expired,

(II) where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant,

(III) provided that no notice under paragraph ( b) or ( c) was served on the applicant prior to the expiry of the first period, where a planning authority proceeds to make a decision under clause (I) in relation to an application, it may serve notice on the applicant, requiring the applicant to give to the authority further information or to produce evidence in respect of the application under paragraph ( b) or ( c), and paragraph ( b) or ( c) shall apply to such notice subject to any necessary modifications,

(IV) subject to service of a notice under paragraph ( b) or ( c) in accordance with clause (III), where a planning authority fails to make a decision before the expiry of the period of 12 weeks beginning on the day immediately after the day on which the first period expires, the authority shall, subject to clause (V), pay the appropriate sum to the applicant, and shall pay a further such sum to the applicant where it fails to make a decision before the expiry of each subsequent period of 12 weeks beginning immediately after the preceding 12 week period,

(V) not more than 5 payments of the appropriate sum shall be made by a planning authority to an applicant in respect of the failure by the authority to make a decision in relation to an application,

(VI) where a planning authority makes a decision in relation to an application more than one year after the expiration of the first period the authority, before making the decision—

(A) notwithstanding that notice has been previously published in relation to the application, shall require the applicant to publish additional such notice concerning the planning application in accordance with the permission regulations (and the planning authority shall refund the costs of so publishing to the applicant),

(B) notwithstanding that notice of the application has previously been given to prescribed bodies, shall give additional such notice in accordance with the permission regulations, and

(C) notwithstanding anything contained in paragraph ( b) or ( c), or that the authority has previously been given further information or evidence under those paragraphs may require the applicant to give to the authority further information or to produce evidence in respect of the application as the authority requires and paragraph ( b) or ( c), as appropriate, shall apply to such additional request subject to any necessary modifications,

and the planning authority shall consider any submissions made in accordance with the Regulations following on such additional notices, or additional further information or evidence produced under this clause.

(vii) Any payment or refund due to be paid under this paragraph shall be paid as soon as may be and in any event not later than 4 weeks after it becomes due.

(viii) In this paragraph, ‘ appropriate sum ’ means a sum which is equal to the lesser amount of 3 times the prescribed fee paid by the applicant to the planning authority in respect of his or her application for permission or €10,000.”,

( c) by the substitution of the following subsections for subsection (12):

“(12) A planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced the application would have required that one or more than one of the following was carried out—

( a) an environmental impact assessment,

( b) a determination as to whether an environmental impact assessment is required, or

( c) an appropriate assessment.

(12A) For the purposes of subsection (12), if an application for permission had been made in respect of the following development before it was commenced, the application shall be deemed not to have required a determination referred to at subsection (12)( b):

( a) development within the curtilage of a dwelling house, for any purpose incidental to the enjoyment of the dwelling house as a dwelling house;

( b) modifications to the exterior of a building.

(12B) Where a planning authority refuses to consider an application for permission under subsection (12) it shall return the application to the applicant, together with any fee received from the applicant in respect of the application, and shall give reasons for its decision to the applicant.

(12C) Subject to subsections (12) and (12A), an application for development of land in accordance with the permission regulations may be made for the retention of unauthorised development, and this section shall apply to such an application, subject to any necessary modifications.”.