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Buachaill
Buachaill, Lawyer
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Experience:  Barrister 17 years experience
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My question related to Irish Planning LegislationWith regard

Resolved Question:

My question related to Irish Planning Legislation
With regard to the processing by a planning authority of a Section V application for a declaration of exempted development I note that the legislation prescribes that the planning authority shall issue the declaration on the question that has arisen within 4 weeks of the receipt of the request.
What recourse do I have as a person issuing the request when the planning authority fails to issue the declaration within the 4 week period?
Submitted: 1 year ago.
Category: Republic of Ireland Law
Expert:  Fran-mod replied 1 year ago.
I'm Fran, and I’m a moderator for this topic.

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Customer: replied 1 year ago.
Hi Fran
I haven't received an answer to my question & i am happy to continue waiting.
Expert:  Fran-mod replied 1 year ago.
Thanks,

I am searhing for a Republic of Ireland legal professional for you.
Expert:  Buachaill replied 1 year ago.
1. As with all planning decisions, once a decision has not been issued within the required time period by the planning authority, the applicant is taken to have been granted the permission in law. Accordingly, where the declaration of exempted development has not issued within the required 4 week period, you are in law taken to have obtained your declaration of exempted development. So you can proceed with the works which pertain to the exempted development. The law is in this fashion to prevent holdups in the planning process from derailing development.
Please RATE the Answer positively so that I may get paid
Customer: replied 1 year ago.


Since asking my initial question I had an opportunity to review the legislation.


Could you comment as to whether the following extract has any bearing on your previous determination:


Planning & Development Act 2000, Section 5 (3)(b):


'Without prejudice to subsection(2), in the event that no declaration is issued by the planning authority, any person who made a request under subsecton (1) may, on payment to the Bord of such fee as may be prescribed, refer the question for decision to the Board within 4 weeks of the date that a declaration was due to be issued under subsection (2).'

Expert:  Buachaill replied 1 year ago.
2. This provision is designed for the situation where the applicant is doubtful as to whether the development is actually exempted development and thus whether the applicant may face enforcement action in the future should the planning authority decide to prosecute. Prima facie, exempted development needs no planning permission. So an applicant is free to build the development without planning permission. All an application for a declaration that development is exempted development gets is a statement of rights. There is nothing preventing prosecution should the planning authority decide to do so, as there has been no planning application made which has been legalised by a grant of planning permission.
3. In law a declaration is merely a statement of rights. It does not bind any situation or any development created as a result of it. Applicants seeking declaration of exempted development think they are getting a cast-iron guarantee that what they do will not be subsequently invalidated. However, that is not what a declaration gives in law. A declaration in law is merely a declaration of rights. It does not bind any particular development. The provision for application to An Bord Pleanala is designed to issue a statement of rights where something is going to occur over a wider number of developments. Then a general statement of rights from An Bord Pleanala sets out the policy applicable. However, a declaration which is merely a statement of rights binds no individual particular planning situation. This is what you have to understand and this is why this provision is not used so often. You can still get prosecuted even after a declaration has issued and be required to get planning permission if it subsequently turns out that planning permission is necessary.
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Buachaill, Lawyer
Satisfied Customers: 8401
Experience: Barrister 17 years experience
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