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  • Can Exemption Apply to Building in Grounds of Protected Structure which not listed in the Development Plan

    A question arose as to whether or not works undertaken to an outbuilding adjacent to a protected structure can be classified as exempted development at Erin Lodge, Athy Road, County Carlow.

    The structure which is the subject of the referral is located within the garden of a dwellinghouse, which is listed on the record of protected structures in the Carlow Town Development Plan. The outbuilding is a small pitched roof stone structure with an elongated lean-to shed to the immediate rear.

    The works undertaken included the replacement of an existing metal sheet roof with a new metal sheet roof; plastering and the incorporation of a new window opening on the southern elevation at first floor level.
    Carlow Town Council determined that the works undertaken at the outbuilding constitute development which was not exempted development. The owner/occupier of the residential dwelling and outbuilding referred the question to An Board Pleanala.

    The grounds for referral included, inter alia, the building is not listed in the Development Plan as a protected structure. The listing in the Development Plan must be informative and must therefore refer to all the physical structures which it is intended to protect. The Act requires that every protected structure be included in the record of protected structures. The works undertaken at the shed cannot be considered to be unauthorised development. The works were necessary to protect the building from endangerment.

    An Board Pleanala’s Senior Planning Inspector noted that “There can be little doubt in my view that development has taken place” and the key question was if these works were exempted development.

    In this regard the Inspector noted that while the legislation specifically refers to the requirement of a Development Plan to include every structure in its record of protected structures, the same legislation also defines in section 2, what constitutes a protected structure – including any other structure lying within the curtilage.

    The Inspector went onto to note that “The fact that the Development Plan failed to specifically make reference to the outbuilding in this instance would not in my view supersede or hold more weight than the definition of a protected structure set out in section 2 of the Act. While it may have been more appropriate that the Development Plan specifically refer to the outbuildings in the record of protected structures, I consider that the outbuilding in this instance forms part of the curtilage of the protected structure”.

    With this established it was left to determine whether or not such works are exempt are determined by the provisions of section 57(1) of the Act. In this regard the Inspector considered the works which have been carried out have materially affected the character of the protected structure and therefore cannot be considered exempted development.

    An Bord Pleanála has concluded that –
    (a) the alterations undertaken constitute works,
    (b) these works might have come within the scope of Section 4(1)(h) of the Planning and Development Act, 2000,
    (c) the subject outbuilding is located within the curtilage of a protected structure, and forms part of that protected structure, and contributes to its architectural interest,
    (d) it is considered that the works undertaken in this instance materially affect the character of the outbuilding, which forms part of a protected structure, by reason of their nature and scale, including the removal and replacement of fabric, the use of modern materials, and the making of other alterations that do not reflect the original design of the outbuilding, and
    (e) works have, therefore, been undertaken to a protected structure that materially affect the character of an element of the structure which contributes to its special architectural interest, and the subject works cannot, therefore, avail of any exemption provided for under the relevant legislation:

    Therefore An Bord Pleanála decided that works undertaken to an outbuilding within the curtilage of a Protected Structure are development and are not exempted development, at Erin Lodge, Athy Road, County Carlow.

    Published on December 5, 2014 By:David Mulcahy · Filed under: Exempted Development, Important An Bord Pleanala Decisions; Tagged as: ,
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