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  • Varying a Condition of Planning Permission

    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.

    freeditigalphotos.net

    freeditigalphotos.net


    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 there is no provision under the Planning and Development Act for a variation of condition as proposed in the subject application. The application is therefore invalid and the planning authority had no power to issue a grant of planning permission for the subject application as described as it falls outside the scope of the planning application and therefore would be ultra vires. It was further argued that that the Board is similarly constrained.

    The applicant in turn argued that consequence of varying the condition in this instance is effectively to materially change the use of that part of the building from which the condition is proposed to be removed.
    The Planning Inspector considered that there was merit in the argument put forward by the appellant as she was unaware of any provision in planning legislation where permission can be sought for a variation of a condition as proposed in the subject application. However she recommended a grant of permission advising that the Board might seek new public notices on this issue.

    The Board decision was unanimous. It took account of the definition of ‘development’ as set out in Planning and Development Act, 2000, as amended, which refers specifically to the making of any material change in the use of any structures or other land. As such the Board appear to have agreed with the applicants view that varying the condition in this instance will materially change the use of the relevant part of the building and therefore it is development.

    The Board also concluded that the public notice had sufficient clarity to ensure that members of the public were adequately informed of the intended development.

    The Board also further noted that the proposed development represents a material change to the Board condition set out under the relevant permission, but having regard to the change in context as set out in the current Development Plan 2010- 2016 for this area whereby harbour development is not exclusively confined to maritime recreation and to the passage of time from the Board decision, the proposal was considered to be in accordance with the proper planning and sustainable development of the area.

    Published on February 12, 2014 By:David Mulcahy · Filed under: Important An Bord Pleanala Decisions; Tagged as:
    1 Comment

One Response to “Varying a Condition of Planning Permission”

  1. Hi David,

    We have a similar situation whereby we have been granted permission for a public building but the Local Authority has limited the ground floor use to administration but not public access for particular uses as required by the client. My understanding of the above is that we can now apply for the removal/ alteration of the condition attached under a new planning application in 6 months, 12 months time etc., as we see fit. Is my understanding correct? Also you might advise me of your fee rate just in case we decide that we need to appoint a planning expert such as yourself to help deal with this application.

    Niall Culleton

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