7th Schedule SID (Applicant): Planning Application (Stage 3)

5. Planning Application (Stage 3)

• 5.1 General
• 5.2 Notice of Application
• 5.3 Making an Application
• 5.4 Electric Copy
• 5.5 Weekly Lists
• 5.6 Planning Authority
• 5.7 Processing the Application
• 5.8 Matters to be Considered
• 5.9 Contravention of Development Plan
• 5.10  Decision
• 5.11 Costs of the Application

5.1 General

Where the The Commission has issued notice to a prospective applicant that a proposed development is deemed to be strategic infrastructure development (conclusion of Stage 1), an application for permission in writing for that proposed development may only be made to the the Commission and must be accompanied by an EIAR. An application form is available and should be completed and submitted with the application documents. (Electronic applications are not acceptable at present). If the Commission considers the application or the EIAR is inadequate or incomplete it may refuse to deal with the application or it may require further information.

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5.2 Notice of Application

Before making an application to the Commission, a prospective applicant must publish a notice in one or more newspapers circulating in the area of the application site indicating the following:-

• the nature and location of the proposed development,
• that permission is being sought from the Commission and that an Environmental Impact Assessment Report (EIAR), and a Natura Impact Statement (NIS) where relevant, have been prepared,
• the times and places and the period (not less than 6 weeks) during which the application and EIAR/NIS may be inspected or purchased (this time period should commence at least 5 working days after the application has been submitted to the Commission),
• that submissions and observations may be made to the Commission relating to the implications for the proper planning and sustainable development of the area and the likely effects on the environment or any European site, if the development is carried out,
• that the Regulations require that any such submission or observation shall state the subject matter of the submission or observation and the reasons, considerations and arguments on which it is based in full. (Article 217 of the Planning and Development Regulations refers),
• that it is at the absolute discretion of the Commission whether to hold an oral hearing on the case. (For further details see Strategic Infrastructure Development information on this website),
• indicating the types of decision the Commission can make in relation to the application,
• where the proposal will require an integrated pollution prevention and control (IPPC) or Waste Licence or the Chemical Act Regulations apply, an indication of that fact – see also 5.7.4 following,
• the name/address of the stand-alone website, and
• how a person may question the validity of any decision by the Commission and where practical information on the review mechanism may be found.

In addition, site notices, the use of local or national media or the holding of public meetings relating to the proposed application may be required. The Commission will have specified its requirements, if any, in that regard at the pre-application stage.

A sample public notice is available from the Commission.

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5.3 Making an Application

5.3.1 Documents to be Submitted

In making an application for permission, the applicant is required to submit the following in writing to the Commission:-

• A completed application form,
• Copies of plans and particulars of the proposed development, including the EIAR, and any plans, particulars or other information required by the Commission (the number of copies and their format will be clarified during the pre-application consultation stage),
• Screening opinion in relation to article 6 of the Habitats Directive and Natura Impact Statement in relevant cases. (The number of copies and their format will be clarified during the pre-application consultation stage).
• A copy of the published notice(s) including any site notice (if required),
• A list of the bodies notified of the application and an indication of the date they were notified,
• A list of any other public notices or other public consultations, and an indication of the date or dates of such notice(s) or consultations (including any notice or consultation required by the Commission and indicated to the prospective applicant in pre-application discussions),
• The application fee is payable when the application is being lodged.

Application documents, including the EIAR and the NIS where relevant, must be comprehensive and complete on lodgment of the application. The holding of an oral hearing should not be automatically expected with all cases and should not be regarded as a stage in the process where deficiencies can be corrected. Attention is drawn to the Commission's power under s.37E(2) to refuse to deal with any application where the Commission considers that the application or EIAR is inadequate or incomplete, and to the Commission's absolute discretion as to whether an oral hearing should be held in any particular case. Unsolicited additional information in the form of survey material or reports generally should not be submitted following lodgement of the application and may be returned to the Applicant. Any unsolicited information lodged in exceptional circumstances only should be confined to non-contentious matters such as clarification of particulars already submitted (as per the Development Management Guidelines 2007). This also applies where the applicant is requested by the Commission to respond to observations made in advance of an oral hearing.

5.3.2 Copies to Planning Authority

Before an application for permission is made to the Commission, the applicant will be required to send a prescribed number of copies of the application and the EIAR/NIS to the relevant planning authority in whose area the proposed development would be situate.

5.3.3 Copy to Prescribed Bodies

The applicant will also be required to send a copy of the application and the EIAR/NIS to any prescribed bodies (listed in article 213) who were identified by the Commission for that purpose at the pre-application consultation stage. (The Commission may require that more than one copy is sent). The application and EIAR/NIS will be accompanied by a statement inviting submissions or observations from the bodies to the Commission relating to the implications for the proper planning and sustainable development of the area, the likely effects on the environment and the likely effects on any European site, if the proposed development is carried out. A sample notice to prescribed bodies is available from the Commission.

5.4 Electronic Copy

In addition to the above, the Commission may require that any or all of the application documents to be submitted to it and the planning authority be in electronic form. The Commission may also require the applicant to create a specific website to include all of the application documentation. In such cases, the Commission will specify the time period during which the public would continue to have access to the website and will require the applicant to certify that the documentation on the website is identical to the application documentation lodged with the Commission.

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5.5 Weekly Lists

The Commission's weekly list will record applications for permission for strategic infrastructure development and will be available for public inspection at the Commission's offices and on the Commission’s website.

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5.6 Planning Authority Report

There is a requirement for the planning authority for the area to prepare and submit a report to the Commission within ten weeks of the receipt of the application by the Commission. This provision applies to applications made under Section 37E of the Planning and Development Act, 2000. The report will set out the views of the authority on the effects of the proposed development on the environment and/or the proper planning and sustainable development of the area of the authority having regard to the usual considerations as set out in section 34(2) of the 2000 Act, as amended. This report must first be submitted to the elected members of the authority and any recommendations made by them by way of resolution must be appended to the report sent to the Commission along with the administration record of the meeting. In order to facilitate planning authorities in this regard, prospective applicants are advised to consult with local planning authorities at an early date prior to the submission of an application for permission.

The specific issues to be addressed in the submissions and observations of the planning authority will vary from case to case depending on the nature of the proposed development and the receiving environment. The following list of topics will give general guidance to planning authorities – not all will be relevant to each case.

• Main relevant Development Plan provisions relating to the subject site and surrounding area including any relevant Core Strategy provisions. A clear indication of the current status of the relevant Development Plan and any Draft Plans should be given, together with any relevant issues arising.
• Details of other relevant Plan provisions (e.g. Local Area Plans) and a statement regarding status of these Plans (adopted or in draft form).
• Relevant planning history relating to the subject site and the surrounding area.
• Relevant enforcement information relating to the subject site.
• Relevant national, regional and local policies.
• Any Special Amenity Area Order (SAAO) which may be affected by the proposed development.
• European designations, Natural Heritage Areas, which may be affected by the proposed development (whether in or proximate to same).
• Comments regarding article 6 of the Habitats Directive in relation to Appropriate Assessment in relevant cases.
• Protected Structures, Architectural Conservation Area (ACA) etc.
• Waste policy, including reference to Regional Waste Strategies which may be relevant to the proposed development.
• Any views on the adequacy of the public water supply (noting that Irish Water may be a Prescribed Body).
• Any views with public sewerage facilities and capacity to facilitate the proposed development (noting that Irish Water may be a Prescribed Body).
• Availability and capacity of public surface water drainage facilities.
• Flood risk assessment in accordance with The Planning System and Flood Risk Management – Guidelines for Planning Authorities (November 2009).
• Assessment under the Water Framework Directive and associated regulations.
• Assessment of landscape status and visual impact, as appropriate.
• Carrying capacity and safety of road network serving the proposed development.
• Environmental carrying capacity of the subject site and surrounding area, and the likely significant impact arising from the proposed development, if carried out.
• Description of any public use of adjoining, abutting or adjacent lands in the applicants ownership, and the planning authority's view on any condition which may be appropriate for the purpose of conserving a public amenity on those lands.
• Planning authority view in relation to the decision to be made by the Commission.
• Planning authority view on conditions which should be attached in the event of the Commission deciding to grant permission. (Where an IPPC or Waste licence is required, the Commission cannot impose conditions relating to the control of emissions from the activity for which a license is required).
• Planning authority view on community gain conditions which may be appropriate.
• Part V (social and affordable housing) provisions (only likely to be applicable occasionally).
• Details of relevant section 48/49 development contribution scheme conditions which should be attached in the event of a grant.
• Details of any 'special' contribution conditions which should be attached in the event of a grant along with detailed calculations and justification for the conditions.

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5.7 Processing the Application

5.7.1 Submissions and Observations

Any person has the right to make a submission or observation to the Commission in relation to a proposed development. Any such submission must be received by the Commission within the period specified in the public notice and be accompanied by the required fee. The legislation does not provide for further follow-up written submissions unless specifically invited by the Commission. The opportunity for elaboration of submissions may arise at an oral hearing, if held, subject to the inspector's discretion. The Commission will have regard to all submissions or observations made in accordance with the 2000 Act and Regulations in making its decision.

5.7.2 Additional Information

The Commission has the absolute discretion to require an applicant to submit additional information, including a revised EIAR/NIS. Such a request would be made by way of notice to the applicant and may require new public notices. The Commission has the power to request any person (whether or not that person made submissions or observations on the application) who, in the opinion of the Commission, may have information which is relevant to the determination of the application to make (further) submissions or observations to it. The Commission may make any information relating to the application available for inspection, notify any person or the public that information is so available and invite further submissions or observations, if appropriate, within a specified period.

Applicants are reminded that the Commission's discretion to seek additional information/further submissions will not necessarily be used to remedy deficiencies in the original application submissions. Use of these powers can create delays and prevent the expeditious handling of casework.

The Commission may request an applicant to submit an Natura Impact Statement (NIS) in accordance with section 177T(5) of the Planning and Development Act 2000 as amended. Where such a statement is requested a notice must be published by the applicant not more than 2 weeks prior to submitting the NIS. Article 214B of the Planning and Development Regulations sets out details in relation to the information to be contained in the public notice. Submissions or observations may subsequently be made to the Commission relating to the effects of the proposed development on any European site. When an NIS is submitted to the Commission in these circumstances a fee is payable. In the event of an applicant not submitting a Natura Impact Statement when requested within the specified period the application shall be deemed to be withdrawn.

5.7.3 Oral Hearings and Meetings

While it is the policy of the Commission to generally direct the holding of an oral hearing in such cases it may not do so in all cases, particularly where the Commission considers that the nature of the issues arising can be adequately and appropriately assessed by way of written submissions. Where an oral hearing is to be held the inspector has discretion as to its conduct. In addition the Commission may at its absolute discretion, given the nature of the proposed development and issues arising, and following a recommendation of the inspector, consider directing a limited agenda for the oral hearing. All parties will be so notified in writing by the Commission should such a direction be made.

The Commission may hold a meeting or meetings where such is likely to resolve any issue with the applicant or any disagreement between the applicant and any other party or where the meeting would facilitate the efficient holding of an oral hearing. A meeting may take place either before an oral hearing, or during an adjournment of an oral hearing or after an oral hearing. A written record will be taken of any meeting and this record will be made available by the Commission to all participants.

The inspector or inspectorate team dealing with the application will not be available for discussions with the applicant or any other party except through formal meetings or oral hearings.

Where an oral hearing is directed, the hearing will be held in accordance with the Commission’s Oral Hearing Guide.

5.7.4 Environmental and Safety Issues

Where the proposal is for development which would require an IPPC or a Waste Licence, the Commission will generally request the Environmental Protection Agency (EPA) to make observations within a specified period and it must have regard to any such observations received. Any observations from the EPA would be made without prejudice to any other functions of the Agency. Where a proposal is for development which requires an IPPC or Waste Licence, any public notice of the proposed application must state that fact. The provisions of the European Union (EIA) (IPPC) Regulations 2012 and the European Union (EIA) (Waste) Regulations will apply in such cases.

In cases where the Chemicals Act Regulations apply, the Commission will notify the Health and Safety Authority and may seek relevant technical advice on the risk or consequences of a major accident arising from the carrying out of the proposed development. Where a proposal is for development to which the Chemicals Act Regulations apply, any public notice of the proposed application must state that fact.

5.7.5 Considering a Grant of Permission

The Commission has the absolute discretion to indicate that it is considering granting permission subject to the submission of revised particulars, plans or drawings. Such an indication would be given by way of notice to the applicant, planning authority, prescribed bodies and observers to the application and may also involve a public notice.

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5.8 Matters to be Considered

The decision of the Commission will be made on the basis of the proper planning and sustainable development of the area and on the likely effects of the development on the environment. In reaching its decision, the Commission will have regard to the following:-

• The application,
• The EIAR,
• Any submissions or observations made to the Commission in accordance with the statutory provisions,
• Assessment of the significant effects of the proposed development on the environment,
• The report of the planning authority and any recommendations made by resolution by the elected members and the administrator's record of the meeting which were appended,
• Any additional information submitted in response to a Commission request,
• The written record of any meetings held in connection with the application,
• The provisions of the development plan(s) and/or Local Area Plan(s) for the area, including any impacts on protected structures,
• The provisions of any Special Amenity Area Order relating to the area,
• Any European site or Natural Heritage Area designation relating to the site or any impact on such a designated ecological site, including any Natura Impact Statement and Appropriate Assessment where relevant,
• The proximity of any SEVESO site,
• Any transboundary effects,
• Any relevant policies of the Government, a State Authority, the Minister or any Minister of the Government,
• Any relevant provisions of the 2000 Act as amended or associated Regulations,
• The national interest and any effect the performance of the Commission's functions may have on issues of strategic economic or social importance to the State,
• The National Planning Framework and any regional planning guidelines for the time being in force, and
• The report and recommendation of the Inspector assigned to the case, including the report of any oral hearing held.

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5.9 Contravention of Development Plan

While the Commission may grant permission for a proposed development which would materially contravene the Development Plan for the area, the Commission gives importance to placing the proposed project in its plan and policy context, particularly the hierarchy of plans, i.e. the National Spatial Strategy, Regional Spatial and Economic Strategies and County, City or Local Area Development Plan. The Commission may also have regard to any international status or designations to which the proposed development may be subject – such as designation as a Project of Common Interest (PCI).

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5.10 Commission's Decision

5.10.1 Timeliness

There is a duty on the Commission to make its decision as expeditiously as is consistent with proper planning and sustainable development, and to avoid delays. There is a statutory objective to make decisions within 18 weeks beginning on the last day for making submissions or observations by the public following the applicant’s newspaper notice of intention to apply for permission. Where the Commission cannot meet the statutory objective period it must serve notice in writing on the applicant, the relevant planning authority and any person who made submissions or observations and give a reason why it will not decide the case within that period. It must also indicate a new date for making the decision.

5.10.2 Types of Decision

The Commission may decide to:-

• Grant permission with or without conditions,
• Grant permission with specified modifications, with or without conditions,
• Grant permission in part, with or without conditions, or
• Refuse permission.

5.10.3 Content of Decision

In making its decision, the Commission must state the following:-

• the main reasons and considerations for the decision,

• the main reasons for the imposition of any conditions,

• that the Commission had regard to any submissions and observations received in accordance with the Act and Regulations,

• the sum of money to be paid to:

  • the Commission
  • any planning authority and,
  • to any other person – (see also paragraph 5.11).

In the event of the Commission not accepting the inspector’s recommendation in relation to a grant or refusal, it is the Commission's practice to state the reason(s) for not doing so.

5.10.4 Effective date of Permission

A grant of permission will not become operative until costs determined by the Commission have been paid.

5.10.5 Notification of Decision

The Commission must send a copy of its decision to the applicant, the planning authority for the area and any person who made a submissions or observations in relation to the proposed development. The Commission also informs parties in relation to judicial review procedures.

In accordance with section 37H (1A) of the Planning and Development Act 2000, as amended, the Commission is required to publish notice of its decision under section 37G in one or more newspapers circulating in the area. The notice must state that a person may question the validity of the decision in accordance with section 50 of the Act. The notice must also state where practical information on the review mechanism can be found.

5.10.6 Conditions

When deciding to grant permission for strategic infrastructure development, the Commission may attach conditions in the normal manner e.g. as specified in section 34(4) of the 2000 Act.

Conditions may include the following:-

• A condition providing for ‘community gain’. Such a condition may require the construction or the financing, in whole or in part, of a facility or the provision of a service in the area in which the proposed development would be situated and which the Commission considers would constitute a gain to the community.
• A condition controlling the use of land adjoining, abutting or adjacent to the application site which is under the control of the applicant where it is expedient for the purposes of or in connection with the development or appropriate for conserving a public amenity on the adjoining, abutting or adjacent lands.
• A condition providing that points of detail relating to a specific issue may be agreed between the planning authority and the person carrying out the development. Any such agreement must be confined to the points specified by the Commission. In default of agreement, the matter may be referred to the Commission for determination.
• A condition requiring the payment of a financial contributions under development or supplementary development contribution schemes made by planning authorities under sections 48 and/or 49 of the 2000 Act as amended and including any special contributions under s.48(2)(c).

5.10.7 IPPC / Waste Matters

Where an IPPC or Waste Licence is required, the Commission cannot impose conditions relating to the control of emissions from the operation of the activity or for controlling emissions related to or following the cessation of the operation or the activity.

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5.11 Costs of the Application

It is a requirement that the Commission’s decision states the costs to be paid by the applicant: -

a) To the Commission for the costs incurred by it in conducting any pre-application consultations and complying with any scoping request,
(b) To the Commission for the costs incurred by it in determining the application,
(c) To the planning authority for its reasonable costs incurred during the course of consideration of the application,
(d) To any other person as a contribution towards the reasonable costs incurred by that person during the course of consideration of the application.

The Commission has absolute discretion to decide reasonable costs and payment of the costs must be complied with before a permission of the Commission becomes operative. Where there is a failure to pay costs, the Commission and any person to whom costs were awarded may recover the sum as a simple contract debt in any court of competent jurisdiction.

Any fees paid by the applicant to the Commission will be offset against the Commission’s costs.

The costs involved must be paid regardless of whether the decision is to grant or refuse permission.

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