Objection Laws

Objection Laws

Postby JacobsSlave » Sat Nov 04, 2006 1:08 am

This is a tricky long winded one so bear with me.

If a person who is occupying a dwelling on land adjacent to a propsed development, wishes to object when the following circumstances have already taken place:

They did not object within the five weeks from lodgement of the existing planning.
They were told that they could not object after 4 weeks of an A.I. being recieved by the Local Council.
They were told that they could object to an bord pleanala on items which only differ from orig planning and those at A.I. stage.. but if something at original planning stage hadnt changed at A.I. stage, they could not object.
They can only object to an board pleanala on the grounds that they own the adjoining land.
If they cannot object to certain items from orig planning stage which directly interferes with there property, what other route can be taken. i.e. Developer is building a wall which is 2m high on development side, but on adjoining land it is 3m plus high and due to the proximity of the wall to the house, it will have a severe impact on natural light on the dwelling.
Due to the height difference in the land on either side of the wall, weepholes will have to be put in the wall to allow ground water to escape from development side of the wall. This ground water will flood onto the adjoining propert. Surely, even if no objection was made, that this cannot be permitted, and that the adjoining property has a right to light, regardless of what the developer got planning for.

Any comments and suggestions are welcome.:confused:
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Re: Objection Laws

Postby alonso » Sat Nov 04, 2006 6:51 pm

if you own the land adjacent to a development you may appeal the decision of the Council to grant, to An Bord Pleanala. Everything else to do with AI and all that is irrelevant, You appeal the decision on the final application as made by the Local Authority. AI just clears up issues the council has with the original. So within 8 weeks of the Decision to Grant you may appeal the decision on whatever grounds you wish, as you own the adjacent property, but your grounds for appeal must relate to the development as granted
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Re: Objection Laws

Postby publicrealm » Sun Nov 05, 2006 1:21 am

alonso wrote:if you own the land adjacent to a development you may appeal the decision of the Council to grant, to An Bord Pleanala. Everything else to do with AI and all that is irrelevant, You appeal the decision on the final application as made by the Local Authority. AI just clears up issues the council has with the original. So within 8 weeks of the Decision to Grant you may appeal the decision on whatever grounds you wish, as you own the adjacent property, but your grounds for appeal must relate to the development as granted



I would disagree with this advice.

I believe you may only appeal if the proposed development (i.e. as granted by the Planning Authority), if it is materially different from that which was initially applied for. For example if the wall in quetion was not in the original application, and was imposed by condition (or agreed by way of an unsolicited additional submission or an unadvertised response to a request for further information).

You had the same opportunity as everyone else to object in the first instance.

The exception is intended to cover circumstances where, due to subsequent agreement between the applicant and the Planning Authority, a permission includes something you could not have anticipated - and which materially impacts on your property.

If this is the case you you need to contact the Board immediately to discuss applying for leave to appeal.
(Incidentally appeals must be made, in the normal course, within 4 weeks of the relevant decision.)
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Re: Objection Laws

Postby alonso » Sun Nov 05, 2006 3:39 pm

yeh publicrealm, it seems i got that wrong. It does have to fulfil that condition.
here;s the relevant provisions of the Planning Act. I was always under the impression that there were 2 seperate conditions to appeal without having made an objection, one being an owner of the adjacent land and the other being that the permission materially altered the development. i did not know both had to be met.

so my advice to you now is to get a copy of the final decision and see if there';s any conditions attached which conform to section (d) (ii) below. This does raise the quesrion though why wasn't an objection made in the first instance or even the second?

Pt.III S.37 (6) (a) Notwithstanding subsection (1)(a), a person who has an
interest in land adjoining land in respect of which permission
has been granted may, within the appropriate
period and on payment of the appropriate fee, apply to
the Board for leave to appeal against a decision of the
planning authority under section 34.

(d) The Board, or any member or employee of the Board duly
authorised by the Board in that behalf, shall, where an
applicant under this subsection shows that—
(i) the development for which permission has been
granted will differ materially from the development
as set out in the application for permission by reason
of conditions imposed by the planning authority to
which the grant is subject, and
(ii) that the imposition of such conditions will materially
affect the applicant’s enjoyment of the land or
reduce the value of the land,
within 4 weeks from the receipt of the application grant
the applicant leave to appeal against the decision of the
planning authority under subsection (1).
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Re: Objection Laws

Postby JacobsSlave » Sun Nov 05, 2006 4:02 pm

cheers for that alonso. The answer to your question as to why an objection was never made is that the developer was very crafty in using a little known or read paper to advertise the planning and he also put the two planning notices up in positions where the public wouldnt see them. Unfortunately the council claim that it is too late to complain about position of the site notices now as a decision to grant has already been made. An Bord Pleanala confirmed this aswell. Is there any other legislation wich could protect adjoining land owners.
The wall which is to be 2m high on the proposed development side of the site, will be 3 plus meters on the adjoing land side and with the existing dwelling only 10m away fro this proposed 3m plus boundary wall, their right of light will be seriously reduced. The more serious matter is that due to the difference in ground levels from the development side of the wall and the adjoining land owners side, weepholes are to be incorporated into the wall to reduce the water retention on the wall. The only place any water is going to flow is onto the adjoining land owners site, which has moderately poor drainage as is, so with the earth being disturbed for the development, and the ground level increase to 1m plus above the adjoining site levels, this only spells disaster in terms of flooding of the rear garden of this adjoining dwelling/site.

Any other info or recommendations re this would be great.

Cheers:(
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Re: Objection Laws

Postby alonso » Sun Nov 05, 2006 4:52 pm

firstly, in relation to the substance of your objection, the right to light argument is a very difficult one to claim. It's related to level of daylight, not to sunshine and is therefore very different to overshadowing. A 10m distance seems to me, enough to be honest, but without full knowledge of the site, it's impossible to make a definitive comment. I presume however that the development conforms to site development standards in this regard. The drainage issue does seem crazy to allow happen and should not have been permitted. However, it's done and dusted for now.

The site notice issue is certainly worth pursuing. Again, I don't want to give a definitive legal opinion on this but it does seem wrong. Did the council accept your contention that the site notice was inadequate? i know officially they validated it so they've endorsed the location of the notices but in the intervening period has your opinion been accepted by others? If so, i believe any decision by a local authority is also open to judicial review. If a member of the public believes that the legal provisions of the planning act were not adhered to, it can be challenged in the courts and be annulled. Please, anyone reading this with any info, help out coz i don't know enough about this. In this manner, the grant of permission no longer stands and it's back to square one. It's an expensive lengthy process.

You have to prove to a judge when applying for leave for judicial review, that basically the law was broken. The act or regulations describes where and how site notices should be displayed and you'll have to prove this was not the case. If successful in your application, a case is heard, and depending on the outcome, the grant may be quashed.

The newspaper notice issue is fairly common. Although the Council provides a list of acceptable publicaitons so once it's in one of them it's ok. Applicants understandably go for the cheapest, which is usually the one with the lowest readership...
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Re: Objection Laws

Postby JacobsSlave » Sun Nov 05, 2006 8:10 pm

The council did acknowledge the objection re the position of the site notices and i believe they sent out a letter to the developer for it to be repositioned. I'm not 100% sure if it was repositioned, but it is still in a position where, unless you have x-ray specs on and know where the site notice is, then you cant see it. Another issue being raised by the owner of the adjoining property is who is resposible for the up keep of the strip of land between his boundary and the 3m plus high wall(mind you, this strip is all of 400-500mm wide) and also, who is responsible for the maintanence of the wall facing his boundary. It is 3m high, and to be plastered, so who is responsible for maintaining this? Unfortunately the PA shrugged there shoulders and did a homer...D'oh.

JacobsSlave :D
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