4. Application to Board for Permission – Section 37E
- 4.1 Notice of Application
- 4.2 Report of Planning Authority
- 4.3 Submissions or Observations
- 4.4 Oral Hearings / Meetings
- 4.5 Public Inspection of Files – Role of Planning Authority
- 4.6 Statutory Objective
- 4.7 Conditions
- 4.7 Board Decision and Reasonable Costs
An application for planning permission cannot be made for development listed in the 7th Schedule of the Act either to the Board or a planning authority unless the Board has given an opinion under section 37B as to whether the proposed development is strategic infrastructure or not. If it forms the opinion that it would be strategic infrastructure, the application cannot be made to the planning authority; any such application must be made directly to the Board.
Before an application for permission under section 37E is made to the Board, the prospective applicant must publish notices of such application and invite submissions and observations to be made to the Board within a specified timescale (not less than 6 weeks), send copies of the application, the EIAR and the NIS where relevant to any prescribed bodies and to the planning authority(s) in whose area the proposed development would be situate. The notices will be required to state that any such submissions and observations shall set out their subject matter and the considerations and arguments on which they are based in full and that it is at the Board's absolute discretion as to whether an oral hearing is held or not.
While the number of copies of the application the EIAR and NIS to be sent to the planning authority(s) by the prospective applicant has not been prescribed in Regulations, the Board will require at least 5 hard copies and 2 electronic copies to be sent.
The Board will generally require publication of notices in a national and local newspaper approved by the relevant planning authority for the area in which the proposed development is to be situated.
When an application for a strategic infrastructure development has been made to the Board, the planning authority should not request further information directly from the applicant, as such correspondence and information will not form part of the application and will not be in the public domain.
Where a section 37E application for permission is made, the planning authority(s) for the area(s) must, in accordance with section 37E(4) of the Act, prepare and submit a report to the Board within 10 weeks of the making of the application to the Board. It is anticipated that extensions of time will only be granted in very exceptional circumstances. The report should set out the views of the authority on the effects of the proposed development on the environment, the likely effects on any European site where relevant and the proper planning and sustainable development of the area of the authority, having regard, in particular, to the matters specified in section 34(2) of the 2000 Act.
Planning Authorities should note that this 10 week period only relates to 37E applications and not to applications relating to electricity, gas, and State and railway order infrastructure. In those cases, the planning authority submissions must be lodged within the same time limit as the public has to make submissions.
The planning authority is requested to carry out an early examination of the documentation sent to it in order to determine its adequacy for the purposes of the preparation of its report. Any perceived shortcomings should be notified to the Board in writing at an early stage.
Before submitting the report to the Board in relation to a proposed development, the manager of the planning authority must submit a copy of the report to the members of the authority seeking their views, and must append any recommendations made by them, by resolution, to the report together with the administrator’s record. The report should be submitted to the Board in hard copy. (See also section 7 in relation to issues which should generally be addressed in the report).
Any person or body may make a submission or observation in relation to an application for permission within the timescale specified in the public notice relating to the effects on the proper planning and sustainable development of the area, on the environment and on any European site where relevant. Such submissions are subject to a fee of €50 except for prescribed bodies (the planning authority as a prescribed body is not subject to payment of this fee). Generally, there is no entitlement to elaborate on submissions or observations to the Board. However, the Board may ask any person to elaborate upon any submissions or observations made, and this may include the planning authority. In addition to the planning authority report referred to at (2) above, the Board may require the relevant planning authority to furnish additional information relating to the effects of the proposed development on the proper planning and sustainable development of the area and on the environment. Such a request would include a timescale for response. Any such submissions should be in hard copy.
The Board must have regard to all submissions made relating to the proposed development where they are made in accordance with the Act or Regulations, and the decision by the Board on the planning application must state this fact.
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The Board has an absolute discretion to hold an oral hearing. While it is the policy of the Board to generally direct the holding of an oral hearing in such cases it may not do so in all instances, particularly where the Board considers that the nature of the issues arising can be adequately and appropriately assessed by way of written submissions. Where an oral hearing is being held, the planning authority will be notified and will be expected to attend and participate. This will include attendance by officers of the relevant Departments of the planning authority. Where an oral hearing is to be held the inspector has discretion as to its conduct and an agenda will normally be circulated in advance. In addition, the Board 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 notified in writing by the Board should such a determination to be made.
In addition to holding an oral hearing, the Board also has an absolute discretion to hold a meeting with the applicant or any other person or body where considered expedient or necessary to resolve any issue. Such a meeting may be held before, during an adjournment, or after an oral hearing and could involve the planning authority with or without the applicant. Where such a meeting is held the Board must keep a written record of the meeting and make this available for public inspection. A copy of the record will be placed with the planning application documents and will also be sent to the relevant planning authority for attachment to the file to be made available for public inspection at the planning authority’s offices while the application is being processed.
Separate guidelines have been issued by the Board in relation to the procedures to be followed at oral hearings.
It is a requirement of the Act that the documentation relating to an application for permission should be made available for public inspection. The public notice must specify the times and places, and the period during which the application may be inspected and purchased, and invite submissions or observations to the Board. Records of any meetings held must be placed with the planning application documents. Any additional information submitted in response to a request by the Board will also be placed with the planning application documentation. Before determining the application, the Board has the absolute discretion to make any information relating to the application available for inspection and to notify the public of its availability.
It is requested that the planning authority maintain a public file at its offices in relation to the application, similar to those which it currently maintains in relation to section 34 planning application files, and all relevant documentation should be put on this file and be available to the public for inspection. The Board will also maintain such a file at its offices. With the exception of the planning application documentation the EIAR and where relevant the NIS submitted with the application which must be forwarded to the planning authority by the applicant, the Board will forward or arrange the forwarding of all other information to the planning authority. In the event of the Board requesting and receiving a NIS from the applicant subsequent to the lodging of the application it will forward same to the planning authority with a notice stating that submissions may be made to the Board within a specified period in relation to the likely effects of the proposed development on a European site if carried out. There will be a requirement to update the file to take account of submissions made to the Board during the processing of the application.
The Board will also generally require the applicant to make the application available for public inspection on a standalone website and in some cases in other locations.
Following the determination of the application, a copy of the Board's decision and direction will be placed with the application documentation and the public will have access to the file during normal working hours in the Board's offices for a period of at least 5 years. It is envisaged that similar arrangements would be made by the planning authority.
It is the duty of the Board to ensure that pre-application consultations are completed and that decisions on applications are made as expeditiously as is consistent with the proper planning and sustainable development of the area, and to avoid delays. The Board is also required to comply with scoping requests as soon as practicable. The Board also has a statutory objective to make a decision on a section 37E application within 18 weeks beginning on the last day for making submissions or observations by the public. The planning authority’s prompt and timely responses to inputs required from the Board at the different stages in the strategic infrastructure process is important in enabling the Board to deal with casework expeditiously.
When deciding to grant permission for strategic infrastructure development under section 37E, the Board may attach conditions in the normal manner under section 34(4) of the 2000 Act. Where an IPPC or Waste licence is required, the Board cannot impose conditions relating to the control of emissions from the activity for which a license is required. The Board may request the planning authority as part of its submission on the case to provide a list of conditions it may wish to see imposed should the Board be minded to grant permission.
4.7.1 Section 48 / 49 financial contributions
The Board may attach financial contribution / supplementary contribution scheme conditions or special contribution conditions under sections 48 and 49 of the 2000 Act, as amended. It is important, therefore, that the planning authority include with its report a statement setting out its views on what, if any, financial contributions under those sections should be attached should the Board decide to grant permission. Such statement should include the detailed calculations involved and the reasons for the suggested conditions. This would be without prejudice to the authority’s view where it considers that permission should be refused. In particular, full details of calculations for special contributions are required.
4.7.2 Community Gain
The Board may impose ‘community gain’ conditions i.e. requiring the construction or the financing, in whole or in part, of a facility or the provision or financing, in whole or in part, of a service in the area. Any such condition must not be so great as to substantially deprive the person in whose favour the permission operates of the benefits likely to accrue from the grant. It is important that the manager’s report to the Board should draw attention to any facility or service in the area which, in the authority’s view, would constitute a ‘community gain’ and which might be appropriate to a condition of any permission granted.
4.7.3 Regulating the Use of Adjoining Land
The 2006 Act includes a revised provision allowing the attachment of conditions controlling the use of lands adjoining, abutting or adjacent to the application site, and which are in the control of the applicant. Any such conditions must be expedient for the purposes of or in connection with the development or be appropriate for conserving a public amenity on the adjoining, abutting or adjacent lands, but must not burden unduly the person in whose favour the permission operates. Again, the Manager’s report should address this issue, if appropriate.
4.7.4 Matters to be Agreed
Conditions may provide that points of detail relating to the grant of permission may be agreed between the planning authority(s) and the person carrying out the development, and in default of agreement the matter may be referred to the Board for determination. Planning authorities should engage with the applicant as expeditiously as possible to ensure that the development is not unduly delayed.
4.8 Board Decision and Reasonable Costs
The Board may grant permission with or without modifications for all or part of the proposed development, and may attach conditions, or refuse permission.
The Board must send a copy of its decision to the applicant, the planning authority and any other body or person who made submissions or observations in relation to the application.
The decision of the Board must state:
the main reasons and considerations for the decision,
the main reasons for the imposition of any conditions,
that the Board has had regard to any submissions or observations received in accordance with the Act or Regulations,
may award an amount as a contribution to the reasonable costs incurred by any other person or body during the course of consideration of the application.
In accordance with section 37H (1A) of the Planning and Development Act 2000, as amended, the Board 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.
Where the decision of the Board is to grant planning permission, the grant does not become operative until all costs awarded by the Board have been paid. If costs are not paid, the Board, the planning authority and each other person who is awarded costs may seek recovery as a simple debt in any court of competent jurisdiction. The Board has set a period of thirty days as the period within which costs should by paid by the applicant before it will initiate action to recover its own costs.
The planning authority should submit its claim for costs to the Board at the appropriate time(s) and it should be detailed and fully justified. The claim should be submitted within three weeks of the conclusion of any oral hearing, or, where there is no oral hearing, within three weeks of notification of that fact. Where the Board requests further information, re-opens the oral hearing or holds a meeting after a claim has been submitted, the planning authority should submit a supplementary claim to the Board within 3 weeks of making the submission or the conclusion of the hearing or meeting.
In general, it is not envisaged that the planning authority would engage specialist consultancy advice in the expectation that the Board will require the applicant to pay the cost of any such consultancy services without prior notification to, and consultation with, the Board. This is in order to avoid duplication of costs incurred by the planning authority and the Board. It is desirable that any such consultations with the Board in relation to the employment of specialist consultants should take place at an early stage following the submission of an application for permission.
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