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  • Authorised Use Does Not have to be Implemented to Avail of Change of Use Exemption

    In a recent referral case in Waterford, An Bord Pleanala has ruled, by a majority of 4 to 2, that a change of use from a permitted betting office which was never used for such use, to a hairdresser shop, is exempt from planning permission.  The general understanding heretofore was that only when a planning permission was fully implemented, could exempted development then be availed of.  Therefore this decision could well become a landmark case.

    The case relates to a building on Cork Road, Waterford where permission was granted, inter alia, for a fast food take-away and a betting office at ground floor level.  The take-away use was implemented but the betting office unit remained empty.

    Waterford City Council issued a declaration in March 2013 which concluded that the use as a hairdresser shop is development and is exempt development.   The development is considered exempt under Class 14(d) Part 1, Schedule 2 of the Regulations – which exempts a change of use from use from a betting office to a shop (a hairdresser falls within the definition of a shop).

    The Senior An Bord Pleanala Inspector dealing with the case however disagreed:-

    “The key issue in this case centres on the original use of the unit …  The betting office (Unit 2) was never occupied as such, the first occupation of that unit being as a hairdresser/ barber shop.  Although the permitted use of the unit was as a betting shop, this was never implemented and it cannot be said, therefore, that the original use of the unit was as a betting shop.  I conclude that the use of the unit prior to occupation by the hairdresser/ barber was as an unoccupied unit.   This clearly, in my view, represents a material change of use having regard to the difference in planning terms between an unoccupied unit and a barbers shop …   The use of the unit, which is permitted to be used as a bookmaker but has never been used for such a use, as a hairdresser shop does not, therefore, benefit from the exemptions under article 6 or 10 of the Regulations and is not exempted development”

    An Bord Pleanála disagreed with their Senior Inspector and concluded that:

    • the permitted use of Unit      2 is a betting shop
    • the change of use from betting      office to barber’s shop constitutes a material change of use,
    • class 14 of Part 1 of      Schedule 2 of the Planning Regulations provides for an exemption for this      material change in use, and
    • the said Regulations do      not require that an authorised use be implemented before availing of the      exemption permitted under this class

    Therefore the Board ruled that the use of the unit which is permitted to be used as a bookmaker but has never been used for such a use, as a hairdresser shop at Unit 2, is a material change of use is development and is exempted development.

    This decision may raise concerns over planning permission being obtained for one use and then changed to another without the original ever being implemented so as to get around potential objections.

    Published on October 7, 2013 By:David Mulcahy · Filed under: Exempted Development, Important An Bord Pleanala Decisions; Tagged as: ,
    1 Comment

One Response to “Authorised Use Does Not have to be Implemented to Avail of Change of Use Exemption”

  1. Lisa Brennan said on

    David,
    I agree with the Senior Planner it should not be exempt and change of use should have been applied for through the planning process. I am the tenant in the adjacent takeaway and a bookmakers not a hairdressers would have been our preference as neighbours. As it happens at present the “office space” above the said unit is being developed into a Beauty Salon with no planning permission or change of use applied for !! My complaint has been submitted to Waterford City Council today !!

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