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The development is described as the partial change of use of the ground floor of an existing shop (in a protected structure) to use as a coffee shop. The shop currently operates as an off-licence and the proposal is to retail different products and to use a portion of the ground floor as a coffee shop. Certain works would be required to facilitate the development.

The ground floor consists of a retail area of 18.3m2. The coffee sales area would occupy an area of 2.1 m2 within the existing retail unit.

The Council concluded that the coffee shop element was unrelated to and would not be subsidiary to the primary retail use and that planning permission is required.

The Inspector noted that the Board has adjudicated on a number of similar cases (RL 3023, RL 2941, RL 2940 and RL 2516), which are relevant in the consideration of the current proposal. Each of these cases involved either the partial use of an existing retail area for use as a coffee shop/coffee sales area (RL 3023 and RL 2941) or the change of use of the entire floor area (PL2940 and RL 2516). In each of these cases the Board concluded that a ‘coffee shop’ constituted use as a ‘shop’ as defined in article 5 and did not constitute a material change of use and was not ‘development’.

It is also worth noting two cases where the Board reached a different conclusion (RL 2221 and RL 2939). The former related to the change of use of a shop unit within an existing shopping centre to use a restaurant and the latter related to the change of use from retail clothing use to coffee shop/bistro restaurant. In these cases the entire unit was converted to a restaurant with seating.

The Inspector concluded that 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 »

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 »

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 »

The Department of the Environment, Community and Local Government has issued a public notice stating that it intends to review and update the Development Management Guidelines for Planning Authorities 2007.

The Department will consider whether changes should be made to the planning application process in order to improve efficiency while continuing to provide for appropriate and necessary public participation and environmental assessment.

The Department will also consider whether further changes should be made to the exempted development provisions of the Regulations, specifically whether it is appropriate to exempt further development from the requirement to obtain planning permission.

Comments/submissions are invited by Friday 14th March 2014.

A question came before An Bord Pleanala as to whether the creation of a loading bay with roller shutter to side of an industrial/warehouse premises at Chadwicks, Greencastle Parade, Malahide Road, Coolock, Dublin is or is not development or is or is not exempted development.

Dublin City Council issued a declaration in July 2013 stating that the said matter is development and is not exempted development. This was based on the view that the doorway aperture was quite significant in terms of scale and in proportion relative to the elevation and the overall building.

The referrer argued to the Board that the change is not so radical or significant that it would materially affect the external appearance of the structure or neighbouring structures. However the An Bord Pleanala Inspector agreed with Dublin City Councils view.

An Bord Pleanála sided with the referrer. They agreed Read the rest of this entry »

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.

A question came before An Bord Pleanala from Kildare County Council as to whether the change of use from a shop to a shop with the taking in of precious metals/jewellery in exchange for cash for pre-sales purposes, including the option of a pawning financial service for such items at “Cash Encounters” in Edward Street, Newbridge, County Kildare is or is not development or is or is not exempted development.

An Bord Pleanála has concluded that the said change of use from a shop to a shop with the taking in of precious metals/jewellery in exchange for cash for re-sale purposes, including the option of a pawning financial service for such items does not, within the specific circumstances pertaining in the referral shop unit, constitute development under section 3(1) of the Planning and Development Act, 2000, as amended, as it is considered that while the option of a pawning service does constitute a change of use, it is ancillary and minor in nature to the principal use as a shop and is not, therefore, development.

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 »

The Minister for Housing and Planning has notified local authorities of changes she is making to planning regulations to exempt further works from planning permission as follows:

• Charging points for electric vehicles
• Use of existing telecommunications infrastructure
• Works to septic tanks arising from water services authority inspections
• Works coming under consent systems under the Minister for Agriculture, Food and the Marine

The installation of electric charging points will subject to certain conditions and limitations in relation to size and advertising, including that the size of any such charging point shall not exceed 3 metres, or 0.5 cubic metres when located on a public road.

The newly amended Class 31 in the attached Regulations thus clarifies that anybody authorised to provide a telecommunications service can use existing poles to carry fibre optic or similar telecommunications cable (or erect new poles for that purpose), and can also attach small brackets or devices – subject to size limitations –  containing spare rolled up cable.

The exemption for remedial works to septic tanks / treatment systems relates to situations where an owner is directed by a water services authority to take necessary remediation measures.

The final amendment, relating to works under other consent systems (under the remit of the Minister for Agriculture, Food and the Marine), is a technical change which reinstates a previous exemption from planning for certain works (consent under other systems will still be required).

 A question came before An Bord Pleanala as to whether a proposed coffee sales area (16.8 square metres) within the existing retail unit at Keane’s Garden Centre, Kilcolgan Village, County Galway is or is not development or is or is not exempted development.

The floor area of the coffee sales area would form 21.5% of the retail unit. No seating is proposed.

Galway County Council ruled that the provision of a coffee sales area within the garden centre does not constitute ancillary development and was not exempted development.

The owner referred the matter to An Bord Pleanala arguing, inter alia, that the retail unit had the benefit of planning permission, there were no external changes, the sale of coffee would be subsidiary to the main retail use, there would be no seating and the Board had previously ruled that other small scale changes of use within retail units did not constitute development.

The Board’s Inspector ruled that Read the rest of this entry »

Following a complaint regarding flooding, Monaghan County Council referred a question to An Bord Pleanala as to whether the construction of a bridge / culvert (on agricultural lands) is or is not exempted development.

According to the An Bord Pleanla Inspector the original access in this location was a relatively simple agricultural style access with a concrete slab bridging the stream supported by concrete reinforcements on both sides of the stream. The original bridge structure did not have any concrete bottom to the stream bed. A new bridge incorporating a concrete culvert of the stream was constructed including metal side railings.

The Planning Authority and the landowner were both of the opinion that the development undertaken on the site comes within the scope of Class 3 of Part 3 of the Second Schedule of the Planning and Development Regulations, 2001 (as amended). Class 3 states that the following shall be exempted development for the purposes of the act: Read the rest of this entry »

A question came before An Bord Pleanala as to whether the occasional use of agricultural lands as a grass airstrip for private use by a light aircraft at Glenealy, County Wicklow constitutes development and whether it is exempted development.  Whilst there have been numerous decisions confirming that helipads are not exempted development I understand this is the first case of its kind to come before the Board in respect of an air strip on agricultural lands.

The owner of the airstrip had previously sought a declaration on the question from Wicklow County Council who decided that that is was development and was not exempted development.

An Bord Pleanála concluded that the established use of the land is for agricultural purposes, however, a change of use of the subject lands occurs for the time that aircraft approaches, lands and takes off.  The Board therfore concluded that this is a material change of use of the land.  On the basis of the written documentation submitted on behalf of the Referrer, this change of use of this nature has occurred on circa 72 occasions in the past 12 months and is not so fleeting or infrequent as to be considered a temporary change of use.  There is no exemption for such use in planning legislation.   Therefore the Board decided that the occasional use of agricultural lands as a grass airstrip for private use by a light airplane at Glenealy, County Wicklow is development and is not exempted development.

The net effect of this decision is that retention planning permission is now required to regularize the change of use of the land.

A question came before An Bord Pleanala as to whether the erection of a raised timber deck structure to the front of a dwelling house in Shankill is development or exempted development.

The raised timber deck structure is situated to the front of the dwelling and is accessed via steps from a hard surface driveway. It is enclosed by a guard rail and newel posts.

Dun Laoghaire Rathdown County Council had previously concluded that the development is not exempted development under section 4 (1) (h) of the Planning and Development Act, 2000 as the decking structure materially affects the external appearance of this dwelling in a manner that renders the appearance inconsistent with the character of the structure and neighbouring structures.

An Bord Pleanála has concluded that the raised timber deck was exempted development under the Planning and Development Regulations, 2001 (Class 6 (a) of Part 1 of Schedule 2).

However the guard rail and newel posts were not considered exempted development under the Planning and Development Regulations, 2001.  Furthermore they were not considered exempted development under section 4 (1) (h) of the Planning and Development Act.

Therefore the Board issues a split decision with the erection of the raised timber deck to the front being deemed exempted development and the erection of the guard rail and newel posts deemed not to be exempted development.

A query came before An Bord Pleanala in as to whether the erection of a wind turbine at Kealfadda, Goleen, County Cork is or is not exempted development.

The planning authority noted that while such development is normally exempt under the Planning Regulations the restrictions on exemptions under Article 9 de-exempted the development because it is visible from a scenic route designated in the County Development Plan.  They declared that the turbine was not exempted development.

Article 9(1)(a)(vi) of the Regulations de-exempts development which would interfere with the character of a landscape, or a protected view in a development plan or even a draft development plan.

The An Bord Pleanala Inspector noted that the site is not located in a designated ‘scenic landscape’ but is visible from a number scenic routes designated in the Cork County Development Plan.  The key issue however Read the rest of this entry »

An Bord Pleanala were asked to decide whether the change of use of an industrial premises to a retail discount store at Roxboro Discount Store, Roxborough, County Roscommon is or is not development or is or is not exempted development.

The building in question is 4 kilometres outside Roscommon town. The applicant argued that the building originally had permission for a spring water bottle plant and, over time, customers came to the plant to make purchases directly.   This retail element legitimized the current bulk retail use of the building.

An Bord Pleanála agreed with their inspector that the said use is a material change of use as the use of the premises has changed from class 4, use as a light industrial building, to class 1, a shop.  It therefore constitutes development and is not exempted development.

A question came before the Board as to whether

 (1) the erection of a metal fence,

(2) the placing of a builders’ hut/trailer, and

(3) the erection of gates, approximately six metres in width,

 all on lands adjoining Sidmonton Court, Bray, County Wicklow are or are not development or are or are not exempted development.

 Dun Laoighaire Rathdown had previously found the erection of a metal fence and placing of a builder’s hut/trailer to be exempt, but the erection of gates were not exempt.  Sidmonton Court Residents’ Association sought a referral from the Board on the matter.

An Bord Pleanála concluded that – Read the rest of this entry »

Wexford County Council referred a question to An Bord Pleanala as to whether the replacement of a mobile home on site at Ballinoulart, Kilmuckridge, County Wexford is or is not development or is or is not exempted development.

It appears that there has been a mobile home, in various positions, on the subject site over a long period of time (c.1959). The mobile home is intermittently used as a holiday home.

 The Council stated that it is clear that there has been a continuation of use on the site but as the current mobile home is in a different location to the previous mobile  home, they require a determination from the Bord.

 The owner submitted that the replacement of the mobile is not development; the new mobile is precisely the same type of structure (similar dimensions and appearance) and is used for the same purpose as the previous mobile. It is submitted that there has been no material change in use of any structures on the land. Read the rest of this entry »

A question arose as to whether the use of a site for a skip business at Parkmore, Callan Road, Kilkenny is or is not development or is or is not exempted development.

The applicant’s case was based on the pre 1963 sand and gravel business which involved taking in virgin and waste sand and gravel, haulage of the material and sale of the material to builders, etc. It was submitted that a waste operation is not significantly different to the sand and gravel business.

 However, Read the rest of this entry »