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Unauthorised Development

Planning legislation provides that certain types of development are exempted from planning control. Development is exempt from the planning code mainly in cases where:

  • there would be only a limited impact on the surrounding environment, or
  • it is regulated under a separate code which allows for public consultation prior to authorisation being granted.

The Minister can prescribe certain classes of development as exempt (e.g., the extension of any house subject to certain conditions such as it being less than 40 sq. m), but does not have the power to exempt specific developments (e.g. the Minister cannot rule that an extension to a particular house qualifies for an exemption). This is consistent with a general prohibition on Ministerial involvement in individual planning cases. Also, the Minister cannot prescribe developments subject to planning control to be exempt if they would require assessment under the Environmental Impact Assessment Directive or the Habitats Directive.

Planning law also provides a mechanism to determine whether or not a particular development needs planning permission or, indeed, whether the activity should be considered development or not. Under this provision, it is possible to seek a declaration on this question from the planning authority rather than having to take legal action. This provision is contained in section 5 of the 2000 Act. 

Section 5 allows any person (including third parties) to make a written request to the planning authority for such a declaration, by including all relevant information and the required fee. The planning authority may request further information to be provided either by the applicant or another interested party. The authority must then issue a declaration within 4 weeks (or 3 weeks from the receipt of further information) giving the reasons for its decision. This is known as a ‘section 5 declaration’. Once the planning authority makes a declaration, there is a 4-week window in which to seek a review by An Bord Pleanála (in effect, an appeal). Alternatively, if the planning authority fails to make a decision within the set time period, the matter can be referred - also within 4 weeks - to the Board for a determination. A planning authority itself may seek a declaration from the Board where it is in doubt about whether or not a development is exempt.

Planning regulations contain detailed lists of developments that are exempt from the requirement to have planning permission.