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An Board Pleanala made an interesting decision recently regarding the continuation of a gaming & amusement arcade they had previously granted on a temporary basis, refusing it this time around even though there was no change in planning policy.

The applicant sought continuation of existing gaming & amusement arcade at ground floor permitted under Board reference PL35.240508 at 46 Leinster Street, Athy, Co. Kildare. The Board had previously granted a temporary 3 year permission for use as a gaming and amusement arcade.

The building in which the use exits was formerly known as Hibernian Bank, and then it was used as insurance offices. It is a five bay three storey terrace building with an ornate design and granite finish. The site is located within an Architectural Conservation Area, and the building is a protected structure.

There had been an issue about compliance with a condition of the original permission regarding signage. Under the proposal a partially frosted window with minimal signage was proposed.
Kildare County Council refused permission.

In a first party appeal to An Bord Pleanala the appellant Read the rest of this entry »

An Bord Pleanala recently considered an appeal from local elected representatives and a local residents association to grant partial permission for a housing scheme of 74 units (58 permitted) close to Adamstown in Lucan, South County Dublin. The appeal site was zoned residential and their Inspector noted it appears to be the last zoned site of significant size in this area outside of the Adamstown STZ.

The Inspector noted that the original proposed development was for 74 units, which equates to a density of just under 30 per hectare. The 54 units granted equates to 24 units per hectare. The 69 units requested by the applicant in his appeal is 28 units per hectare. All these figures were deemed to be far below the ‘minimum’ of 50 units set out in Policy H4 and the related 2009 Guidelines, and very far below the overall density targets in the nearby STZ.

The Inspector therefore concluded that “the use of the site for residential development is in accordance with the zoning objective of the site, but subject to a density requirement of a minimum of 50 dwelling units per hectare, and in accordance with the detailed design and amenity standards as set out in the development plan (section 1.4), the 2009 Sustainable Residential Guidelines, DMURS and other related national and regional guidance … I can see no justification set out in any of the documents that would permit such a significant departure from the policy objectives set out in the development plan and in national statutory guidance”

The Board Read the rest of this entry »

A question was put to An Board Pleanala by Kilkenny County Council as to whether the intensification of use of Kilkenny Airfield for sponsored parachute jumping is or is not development and is or is not exempted development.

There is currently a grassed landing strip measuring approximately 900 m on the site.

The submission from Kilkenny County Council noted that Kilkenny Airfield was established in the early 1960s and an airfield was first licensed in April 1965. It is the contention of the planning authority that due to the frequency of the parachuting trips and the number of people involved that there is an impact on the surrounding environment in terms of residential amenity, and traffic and that the intensification is affecting the proper planning and sustainable development of the area to such an extent that it can be considered material in planning terms.

The observers to the assessment drew the attention of the Board to the increase in noise results from skydiving planes climbing at high revs to heights suitable for skydiving and other noise associated with skydiving activities, increased traffic on the cul de sac road.
Read the rest of this entry »

An Bord Pleanala have refused permission for 11 no. turbines in Ardglass, East Cork, by Order dated 2nd December 2014. The turbines would have measured 156m (the Spire in Dublin is approx. 120m). A number of sources have quoted these turbines as being the tallest on-shore turbines proposed in Ireland.

The Board refused permission having regard to:
(a) the Cork County Development Plan 2009- 2015,
(b) the Wind Energy Guidelines 2006,
(c) the number, scale and height of the proposed turbines,
(d) the location of the site in a quiet rural elevated upland plateau, and
(e) the lack of significant landscape features in the area,
stating that they were not satisfied that on the basis of the documentation submitted that the proposed development, by reason of the open and exposed nature of the receiving landscape, and by reason of proximity to noise sensitive receptors, would not result in serious injury to the visual and residential amenities of the area.

The Board was also not satisfied that the planning application would not have a significant adverse impact on the ecology of the area, including protected species, and that insufficient information was contained within the file to allow it to conduct a screening for Appropriate Assessment.

Finally, the Board also considered that Read the rest of this entry »

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 Read the rest of this entry »

A question came before An Board Pleanála as to whether the occasional, infrequent and informal use of part of an equestrian centre as a dining area ancillary to a principal equestrian use, is or is not development or is or is not exempted development.

The subject case relates to a 20 year old indoor portal framed arena which is part of wider complex of buildings and equestrian facilities in a rural area on the outskirts of Mullingar town. The original planning permission did not include any kitchen or dining facility. The referring party stated that the purposes of dining facilities were for patrons of the equestrian facility during occasional events.

The planning authority considered that a material change of use is involved referring to lack of provision for such a use in the planning permission, the use is advertised on the website for the centre and the intensity of the use during event and summer camps.

The An Board Pleanala Inspector noted that while it is clear that a restaurant use is a separate class of use to an equestrian facility there is scope to consider the development within the totality of the use of the site i.e. the character of the use of land is determined by its primary use and not by parts of its use. The key issue for the Inspector was determining the material nature of the change of use. The capacity of the site to absorb the development was assessed therefore having regard to potential injury of amenity, traffic safety and public health.

The Inspector formed the view that Read the rest of this entry »

An Bord Pleanala have granted planning permission to Coillte Teoranta for an 18 turbine windfarm near Ballyroan village in County Laois, despite significant local objections, the Council refusing permission, the Board’s inspector recommending refusal and concerns raised by the Department of Arts, Heritage and the Gaeltacht regarding protected species.

Laois County Council had refused permission on the basis of the inadequacy of information received in the EIS and the potential impact on Natura 200 sites.

The An Bord Pleanala Inspector recommended refusal on the basis of visual impact arising from excessive quantity and overall height of the turbines, the overbearing impact on the residents of in the vicinity and the absence of detailed information showing haul routes.

The Board however granted permission noting Read the rest of this entry »

The Molloy Case (Molloy & Ors – v – The Minister for Justice, 2004) found that in circumstances where a planning permission is capable of being implemented and there has been no material structural alteration to the land or property which would render the planning permission incapable of being implemented, a valid planning permission cannot be lost or abandoned. So, for example, in a situation where a planning permission was granted for a car dealership but that use ceased for a period having been implemented, the use as a car dealership can be reawakened if there has been no material structural alteration to the premises.

A question recently came before the Board as to whether the resumption of a former fuel service station use at Cloncollig Commercial Park, Tullamore, County Offaly is or is not development or is or is not exempted development. The Molloy case was relied upon by the referrer but the Board found that the principles of Molloy did not apply and that the use as a petrol station had been abandoned.

The lands in question had an authorised use as a filling station permitted and enacted pursuant to planning permission granted in 2001. Planning permission was subsequently granted in 2006 for the demolition of existing structures on site and the redevelopment of the site for a motor retail outlet although the Board were not clear if this planning permission was implemented.

The Board noted Read the rest of this entry »

An Bord Pleanala have refused permission to demolish an abattoir and construct an Equestrian Tourism Facility in the grounds of Turnings House outside Straffan in County Kildare. The proposal involved an equestrian tourism building incorporating a language school for foreign students with overnight accommodation for up to 60 students and staff, along with 40 stables and associated equestrian works.

This was a second attempt by the applicants who had previously been refused permission by the Board for reasons relating to flooding, assimilative capacity of a nearby river and unsustainable form of development at this location given the constraints of the surrounding area. An in-between application has been refused by the Council. The proposal also included road improvements, 28 car parking spaces, three coach parking spaces, construction of flood berms, and associated works.

Kildare County Council refused permission on the grounds Read the rest of this entry »

It has generally been held that varying a condition of a planning permission is not allowable on the basis that it does not constitute development in its own right. Therefore, in order to get around this issue, the practice has been to propose some minor development (usually works) and seek to vary the condition of planning as part of the application. However, a recent decision by An Bord Pleanala means that there are circumstances where a planning application to vary a condition alone may be sufficient.

The case involves an application to Dun Laoghaire County Council seeking variation of a condition of a planning permission (previously granted by An Bord Pleanala) to remove the restrictions on the occupancy, leasing, sale or other disposal of the existing Commissioners of Irish Lights office building at Harbour Road, Co. Dublin. Due to changing circumstances there has been a significant reduction in manpower and as a consequence there is spare capacity in the building for parties other than the Commissioners of Irish Lights.

The Council granted permission which included a condition which stated that there was no restriction on the ground floor office use of the building; the office use did not have to relate to the Commissioners of Irish Lights. This decision was then appealed to An Bord Pleanala by a third party.

The appellants planning consultant argued that Read the rest of this entry »

An Bord Pleanala have overturned the decision of Offaly County Council to grant permission for 10 wind turbines south of the village of Cloghan in County Offaly. This decision is of significance given the large-scale wind farm proposals envisaged for the county and the wider midlands area. The decision is also significant as it highlights that the visual impact on open landscapes, such as bogland which is widespread in the midlands, is a material consideration in terms of wind farm development.

The applicant had applied for permission for 10 wind turbines on a site of 15.8 hectares owned by 7 different landowners. Each turbine would have a hub height of up to 110 metres and rotor diameter of up to 120 metres, with an overall maximum tip height of up to 170 metres. Associated site development works were also proposed. The predominant use in the area is for peat purposes, including cutover bogs for commercial purposes and agricultural lands.

The Planning Authority decided to grant planning permission for the proposed development subject to 18 no. conditions including the restriction of the height of the turbine to 110m hub and rotor of 120m.

The decision was appealed Read the rest of this entry »

An Bord Pleanala have overturned the decision of Clare County Council to refuse a 10 year permission for a 5 turbine windfarm at Moneypoint Generating Station on the north shore of the Shannon Estuary. Each wind turbine will have an overall maximum dimension of 152 metres, comprising a tower 95-100 metres high, with a diameter of about four metres at the base, to which three blades of 52-55 metres length will be attached.

The Council had refused permission based on the inadequacy of the Natura Impact Statement submitted by the applicant (ESB Wind Developments Ltd).

The Board took the NIS submitted with the appeal into consideration along with their own Appropriate Assessment screening and determined that the proposed development, on its own or in combination with other plans or projects, would not adversely affect the integrity of a European site in view of the site’s conservation objectives.

The Inspector had recommended the omission of one turbine but, after studying the Environmental Impact Statement, additional information, technical reports including that of the Senior Executive Chemist together with submissions received from the applicant, the Board did not consider that there was a specific environmental risk arising from piling of ash as indicated for Turbine 1 given that this is inert and is located outside the engineered landfill area. Consequently, the risk of environmental pollution to the Special Area of Conservation would be negligible.

Permission was granted subject to 14 conditions including a 25 year lifetime; cumulative shadow flicker arising from the proposed development, shall not exceed 30 minutes in any day or 30 hours in any year at any dwelling; fitting turbines with appropriate equipment and software to control shadow flicker at dwellings and a wind farm shadow flicker monitoring programme to be submitted to the planning authority for written agreement.

A question came before An Bord Pleanala as to whether the parking of a mobile sign in the Little Island Business Park, Little Island, Cork for the purpose of advertising ‘Carpets Direct’ is or is not exempted development.

Despite the plethora of such signs around the country, many which do not have the benefit of planning permission, the Board’s Inspector noted that this appeared to be the first occasion on which this particular type of signage has been the subject of a referral to An Bord Pleanala in order to determine if it is exempt from planning permission.

An Bord Pleanála concluded that the parking of the mobile sign at this location for the purpose of advertising constitutes a material change of use of the land on which it is located, being the use of land for the exhibition of advertisements.

They also concluded that the parking of the mobile sign would not come within the meaning of development consisting of the carrying out of works for the maintenance, improvement or other alteration of a structure nor does it come within the scope of any of the exemptions provided for in the Planning and Development Regulations 2001, as amended.

In terms of the specific sign which formed the basis of this assessment it was further found that any potential exemption that might apply in this instance is nullified by the fact that it would contravene the terms of a planning permission and any potential exemptions that might arise are also nullified as the parking of this sign at the location proposed would endanger public safety by reason of traffic hazard.

Therefore An Bord Pleanála decided that the said parking of a mobile sign in the Little Island Business Park, Little Island, Cork for the purpose of advertising ‘Carpets Direct’ is development and is not exempted development.   Whilst each case is based on its own merits it seems clear that planning permission is required for such mobile signage as it involves a material change of use of the land.

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:-

Read the rest of this entry »

West Coastal Windpower Ltd had proposed a 45-turbine windfarm involving 126 metre high turbines, nearly double the height of Liberty Hall.  The application constituted strategic infrastructure development and was made directly to An Bord Pleanala.

There were a significant number of objectors to the proposed development and An Bord Pleanala held an oral hearing to discuss the proposal in detail.

The An Bord Pleanala Inspector recommended that permission be refused for 4 no. reasons relating to  1) negative impact on residential amenity and tourism, 2) proximity to a river containing the freshwater pearl mussel, 3) impact on future bird populations in the area, particularly the Whooper Swan and 4) the proposal being contrary to the Wind Energy Strategy for County Clare which identifies the appropriate scale of development for such areas to be medium 6-10 turbines and too close to existing/permitted windfarms in the area.

The Board agreed with their inspector refusing permission on the basis of 3 no. reasons, with the Inspector’s recommendation regarding bird populations being the only reason omitted from the final order.

This decision brings into question the concept of strategic infrastructure development whereby speed of decision and some degree of certainty in terms of a decision (given the applicant is dealing with An Bord Pleanala directly) was to be expected. However in this instance the very principle of such a large scale development must surely have been raised in pre-planning discussions given the local authority strategy that was in place.  The applicant has now been left with an expensive bill to pay the Board and objectors.

An Bord Pleanala have granted permission for a large multi purpose/events centre in Albert Quay East, Cork City with a gross floor area of 8,425sq.m.  The venue will be used for concerts, conferences, sporting and leisure events and trade shows.

The site is located in an area zoned as Commercial Core Area in the Cork City Development Plan 2009-2015 with the objective “to support the retention and expansion of a wide range of commercial, cultural, leisure and residential uses in the commercial core area (apart from comparison retail uses)”.  The An Bord Pleanala Inspector recommended a refusal on the basis of overdevelopment.

“Having regard to;  • The quantum of development being proposed on a relatively restricted site,  • The complex and counterintuitive access arrangements which  patrons would be required to adopt,  • To the likelihood of significant numbers of pedestrians congregating on a relatively narrow footpath in proximity to a busy traffic route and a proposed Bus Rapid Transit lane,    • To the single public street frontage available to accommodate access for patrons, performers and services,  • To the inadequate provision for disabled parking and bicycle parking,   It is considered that the proposed development would comprise over development of a restricted site and through the creation of congestion and conflict between pedestrians and vehicular traffic on Albert Quay East and the surrounding road network would endanger public safety by reason of traffic hazard.”

The Board however granted permission subject to 17 no. conditions.   In deciding not to accept the Inspector’s recommendation to refuse permission, the Board had agreed that the proposed development as originally conceived, with a single point of access and egress from Albert Quay, represented a potential danger to public safety by reason of traffic hazard. However, the Board considered that the revised proposal which incorporates a second point of access/egress to Albert Road overcame this concern.

This case clearly points out the necessity to review the proposed design as part of any appeal as the Board are open to design modifications, but only where they consider that the suggested modifications are reasonable and don’t deviate from the public notices. Essentially the modifications should be of a nature that they could be conditioned.

 

An application to convert enterprise/light industrial units into an anchor store with smaller retail units has been refused planning permission by An Bord Pleanala who overturned their inspector’s recommendation to grant permission. The site is zoned business and technology and formed part of a large business park (Melbourne Business Park, Cork) where there had been a history of attempts to obtain retail use.

The Cork City planners had originally lent their support to the scheme and supported a material contravention procedure.  However the elected members unanimously rejected the material contravention of the city development plan and thus the Council were obliged to refuse permission.  It is understood this is the first time there was ever a unanimous decision of this nature in the Council. The applicant appealed the decision to An Bord Pleanala who granted permission.

Following a court case which An Bord Pleanala did not contest, the judge ruled that the decision be quashed and the Board had to again consider the application.  This time around, despite the inspector’s recommendation for a grant, the Bord ruled that the application should be refused on the basis that the proposal materially contravened the development plan zoning.  Critically in considering the application for the second time the Board noted that they were restricted by 37(2) (b) (ii) of the Planning and Development Act, 2000.

 

 

An Bord Pleanala recently had to decide as to whether a proposed weekend music and campervan festival at Bellurgan Park, Bellurgan, Dundalk, County Louth is exempted development.

The festival involved:

•  Family friendly festival aimed at music and campervan/motorhome enthusiasts  to run over a three-day weekend
•  Have maximum capacity for 4,999 persons, with an anticipated 2012 attendance of 3,000 – 3,500 no. persons
•  The site will have three stages; traders; food stalls; a kids’ zone; and hot tubs and showers
•  All structures (marquees etc) will be temporary

Upon initially posing the question to Louth County Council the Council issued a declaration stating that the said matter is development and is not exempted development.

The question was then referred to An Bord Pleanala for consideration.  The Board’s Inspector Read the rest of this entry »

An Bord Pleanala have ruled that Metro North levies should not apply in respect of the redevelopment and extension of the existing service station at the Topaz Airport Service Station, Corballis, County Dublin. Given the levies imposed by Fingal County Council amounted to €364k this is a significant result for the applicant.

The Board considered that having regard to the general purpose of the petrol service station as a motor fuel facility and retail facility associated with the sale of motor fuel within the Dublin Airport Campus, which is to serve the needs of persons using motorised private transport, and the purpose of the Metro North project, which is to provide public transport which may result in the reduction in the demand for private transport, it is considered that Metro North may be a disbenefit to the proposed development as the level of private transport usage would be reduced, with consequent lessening of the demand for fuel in the area.

Furthermore, Read the rest of this entry »

Bord Na Mona has received a 10 year planning permission from An Bord Pleanála under the Strategic Infrastructure Planning Act to construct a mechanical biological treatment facility on the site of the Drehid Waste Management Facility in Carbury, Co. Kildare.

The facility will have the capacity of 250,000 tonnes per annum of waste on a 29 hectare site.  The waste will principally be municipal solid waste and forms an alternative to landfill.  At present the landfill at the existing Drehid Waste Management Facility is permitted to dispose of a total of 360,000 tonnes per annum, reverting to 120,000 tonnes per annum in December 2013.

The conditions of the permission included the applicant providing “a sum of money” towards the cost of the provision of environmental improvement and recreational or community amenities in the locality. The identification of such projects shall be decided by the planning authority in consultation with the local community.  The “sum of money” is left to be decided between the Council and the applicant.