Using "exemption limits' despite planning granted

Using "exemption limits' despite planning granted

Postby pico » Tue Feb 09, 2010 3:28 pm

A client is asking me to certify exemption from planning permission for an extension recently constructed.

The 30 sq.m. extension satisfies all the 2001 Regs exemption criteria. However, Planning Permission was originally granted with conditions for a 60 sq.m.extension a couple of years ago, but the client did not proceed with this due to budgetary constraints.

My question is whether the granted Planning Permission prevails, and excludes availing of the exemption from planning allowed. I seem to remember something to this effect. Can anybody clarify?
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Re: Using "exemption limits' despite planning granted

Postby saintleger » Tue Feb 09, 2010 6:24 pm

If you apply for planning permission for something and it is refused, you cannot then turn around and say "oh well, it's actually exempted development, so I'm going to go ahead and do it anyway". This might be the idea you have in your head. However, that's not the same situation as the one above. Having a grant of planning permission in the back pocket doesn't mean you can't carry out developments that are exempt from planning permission.
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Re: Using "exemption limits' despite planning granted

Postby pico » Fri Feb 12, 2010 10:47 am

Indeed, I think that is what was confusing me.
Thanks for clarifying, st leger.
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Re: Using "exemption limits' despite planning granted

Postby damproof » Mon Feb 15, 2010 11:16 pm

saintleger wrote:If you apply for planning permission for something and it is refused, you cannot then turn around and say "oh well, it's actually exempted development, so I'm going to go ahead and do it anyway".

What makes you say this? if its exempt, its exempt. Your actions in applying for permission don't impact on the exemption regulations in any way.

Pico that 30sqm extension is fine if it conforms to the exemption and all the clauses outlined in schedule 2 of the planning regs
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Re: Using "exemption limits' despite planning granted

Postby saintleger » Tue Feb 16, 2010 12:03 pm

damproof wrote:What makes you say this? if its exempt, its exempt. Your actions in applying for permission don't impact on the exemption regulations in any way.


I came across it before. I'll dig out the reference.
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Re: Using "exemption limits' despite planning granted

Postby saintleger » Tue Feb 16, 2010 1:49 pm

saintleger wrote:If you apply for planning permission for something and it is refused, you cannot then turn around and say "oh well, it's actually exempted development, so I'm going to go ahead and do it anyway".


damproof wrote: What makes you say this? if its exempt, its exempt. Your actions in applying for permission don't impact on the exemption regulations in any way.


Dublin County Council v. Tallaght Block Co, case law, back in 1983, court ruled that if you apply for permission for something (in that case, retention, but I think the general principle was accepted), and are subsequently refused and enforcement proceeedings taken against you, you cannot then attempt to mount a defence by claiming it was exempted development. This might be what pico had in mind, and which was causing him or her confusion.

I'm sure there must be more recent case law on the topic, I'd be interested to hear of other cases.

As I stated in my original post, this is clearly a different scenario to pico's current case.

There are some exemptions where the criteria is not quantitative (square footage) but qualitative concepts like character, or abandonment of use, so people sometimes apply for permission "to be on the safe side". It is in cases like this, if refused, that applicants might be tempted to try and claim that it was exempted anyway, and the refusal doesn't count.
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Re: Using "exemption limits' despite planning granted

Postby corkblow-in » Tue Feb 16, 2010 5:25 pm

It seems to me that people are tying themselves in knots....

Permission was granted for a structure - structure not built. Then structure which is within the parameters of exempted development is constructed on the site. The permission that did apply on the site is abandoned.

or am I over-simplifying it?
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Re: Using "exemption limits' despite planning granted

Postby saintleger » Tue Feb 16, 2010 6:17 pm

corkblow-in wrote:It seems to me that people are tying themselves in knots....

Permission was granted for a structure - structure not built. Then structure which is within the parameters of exempted development is constructed on the site. The permission that did apply on the site is abandoned.

or am I over-simplifying it?


Indeed, that is exactly the case, you're not oversimplifying it at all. Nobody is arguing otherwise, we're all agreed on that. However, I raised another issue when I replied originally, and damproof wondered where I had gotten it from. I probably complicated matters by attributing my quote to him, and his to me, I just noticed that! Have edited now.
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Re: Using "exemption limits' despite planning granted

Postby Bren88 » Wed Feb 17, 2010 8:09 am

damproof wrote:What makes you say this? if its exempt, its exempt. Your actions in applying for permission don't impact on the exemption regulations in any way.

Pico that 30sqm extension is fine if it conforms to the exemption and all the clauses outlined in schedule 2 of the planning regs


This first bit is wrong.

If you are granted permission for something, that happens an exempt development, then the exemption no longer applies.

Eg, you apply for a 40 sq.m extension, that meets all exemption conditions* and the council grant with conditions attached. You now have to meet those conditions if you build, even though you could of built without conditions if you didn't get planning.


*I know it would be wasting money to do so, but say it was originally 50 sqm, but was scaled back and nobody spotted the exemption.





As for the OP, the 60 and 30 m extensions are different and separate, so the exemption still applies.
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Re: Using "exemption limits' despite planning granted

Postby kidsbo » Wed Feb 17, 2010 2:04 pm

i think there was a more recent case where somebody applied to retain works but were refused. They then argued that the works were in place for more than 7 years before any notices or orders in relation to enforcement were issued by the Council. the judge found that the the making of the retention application did not alter the fact that the works were immune from prosecution under the seven year rule and therefore they could remain in place despite the failed planning application. maybe the same principle applies??
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Re: Using "exemption limits' despite planning granted

Postby onq » Wed Mar 03, 2010 11:19 pm

I don't think there is a planning issue if matters proceed in the sequence described by the OP.

I am however, aware of a current case where a recent purchaser applied for permission.

There were Observations from local residents followed by an Appeal.

The applicant also sought a Section 5 Declaration that certain works constituted exempted development and this was confirmed by the Local Authority.

These works formed part of the application, but were originally lodged put in for completion sake I expect - it makes for a "cleaner" Opinion of Compliance with Planning Permission.

It seemed to the residents as though the applicant intended to carry out the exempted development in early course.

They lodged and Observation on the Appeal part of which asked the Board to address the issue of whether the application before it would be compromised by the applicant carrying out these exempted development works prior to the Determination of the Appeal and subsequent Grant of Permission.

Normally Condition One wording requires the development "to be carried out in accordance with the plans and particulars lodged".

Or course that can't happen if part of it is already built and I'm fairly sure the Board can only grant what was applied for - or not.

Of course the applicant might not build soon but instead might wait on the Grant of Permission or Refusal and then proceed.

We're awaiting the outcome with interest.

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Re: Using "exemption limits' despite planning granted

Postby onq » Wed Mar 03, 2010 11:39 pm

pico wrote:A client is asking me to certify exemption from planning permission for an extension recently constructed.

The 30 sq.m. extension satisfies all the 2001 Regs exemption criteria. However, Planning Permission was originally granted with conditions for a 60 sq.m.extension a couple of years ago, but the client did not proceed with this due to budgetary constraints.

My question is whether the granted Planning Permission prevails, and excludes availing of the exemption from planning allowed. I seem to remember something to this effect. Can anybody clarify?


I would carefully peruse the conditions of the original permission, as they might highlight any restrictions that might also apply even to exempted works.

Here is the list of planning legislation from the DOE website - they might question it if you only referred to the 2001 regulations
http://www.environ.ie/en/DevelopmentandHousing/PlanningDevelopment/Planning/PlanningLegislation-Overview/PlanningRegulations/
You could always ask the RIAI for their current view on the correct wording or use one of their forms.

In addition you should check that the house is not affected by restrictions in the Development Plan or any variation thereof, for example being situate within an Architectural Conservation Area, or being part of an Historic Conservation Area/ Area of Archaeological Interest or being a Protected Structure or lying within the curtilage of a Protected Structure [a gate lodge or mews, for example] or such like.
Finally I would run it past the Area Planning Officer or the Enforcement Inspector [whose ear you have cultivated no doubt...] to be sure - takes five minutes.

I recall being about to certify an attic conversion with several rooflights to the rear, understanding that the conversion was exempt and just happened to discuss it with the Area Planner to be told that the Council's current view was than any more than two rooflights to the rear wasn't exempted...

HTH

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Re: Using "exemption limits' despite planning granted

Postby onq » Wed Mar 03, 2010 11:46 pm

Bren88 wrote:This first bit is wrong.

If you are granted permission for something, that happens an exempt development, then the exemption no longer applies.

Eg, you apply for a 40 sq.m extension, that meets all exemption conditions* and the council grant with conditions attached. You now have to meet those conditions if you build, even though you could of built without conditions if you didn't get planning.
.


Bren88 this is very interesting and it would be great if you could post a relevant link or case law.

It begs the following questions:
  • why one would apply for an exempted development, or having done so,
  • how would the local authority be within their rights to impose conditions they couldn't impose otherwise if you proceeded with an exempted development, or, if they did,
  • why someone wouldn't appeal the conditions.

TIA

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Re: Using "exemption limits' despite planning granted

Postby saintleger » Thu Mar 04, 2010 6:06 pm

Hi ONQ,

I know you were asking Bren88, but here's my tuppence worth FWIW.

why one would apply for an exempted development

  • As usual, I can't find the link I'm looking for, but I remember a few years back the OPW applied for permission for repairs to some glasshouse or something in the Aras or Farmleigh. Their rationale in doing so, even though it didn't strictly need a planning application, was that in the interests of openness and transparency and consultation, people should be allowed to make formal written submissions, which they would not be able to do with a section 5.
  • If you're not sure if something is exempt, rather than putting in a section 5 and being told it's not exempted development and having to start from scratch with a planning application 6 weeks down the line, you might throw in a planning application. This would be more common with protected structures, or changes of use.
  • And as you mentioned yourself, people sometimes apply for things that are in their own right exempted development, but they bundle it in with something that is not. For example, applying for change of use and change of signage - sometimes the signage would be exempt, but the application goes in for the whole thing. If the LA conditions out the signage, you can't turn around and claim it's exempt.

how would the local authority be within their rights to impose conditions they couldn't impose otherwise if you proceeded with an exempted development,


The legislation is drafted to allow this. The exemptions are not absolute, and they are subservient to any pre-existing or imposed conditions.

The PDA 2000 S. 34 (4) lists out all the conditions LA's can attach to a grant of permission.

Then, Planning and Development Regulations 2001, article 9, states that exempted development is not exempted if, inter alia, the carrying out of such development would "contravene a condition attached to a permission under the Act or be inconsistent with any use specified in a permission under the Act".

why someone wouldn't appeal the conditions.

You certainly could, but the Board might well uphold them.

Edit: just saw your second last post, you clearly know about conditions! Maybe I misinterpreted your last post?
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Re: Using "exemption limits' despite planning granted

Postby onq » Thu Mar 04, 2010 7:08 pm

saintleger wrote:<snip>

Edit: just saw your second last post, you clearly know about conditions! Maybe I misinterpreted your last post?


Well, I might, but sometimes stupid questions elicit learned responses, like yours :)

I'll have to have a read of article 9 in the PDR 2001.

Perhaps there's something else you can help me with.

There is supposedly a generative or qualifying section concerned with exempted development - not part of the schedule in the regs, but either somewhere else in or the PDA 2000 or some - like a major section with sub-points.

I used to have the reference but lost it and cannot now recall it offhand.

Any help would be great and sorry for being so vague.

TIA

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Re: Using "exemption limits' despite planning granted

Postby saintleger » Fri Mar 05, 2010 10:36 am

onq wrote:
There is supposedly a generative or qualifying section concerned with exempted development - not part of the schedule in the regs, but either somewhere else in or the PDA 2000 or some - like a major section with sub-points.
ONQ.


Section 4 of the PDA 2000 deals with exempted development, is this the one you're looking for? Paragraph 1 sets out a list of exempted development - it's more about simple principles than the exemptions set out in the regs, which deal with the nitty gritty square metreage etc.

http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0004.html#parti-sec4

I have in the past trawled through the regs from cover to cover and back again, only to find the reference I need in section 4 of the act.
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Re: Using "exemption limits' despite planning granted

Postby Bren88 » Wed Mar 10, 2010 6:40 am

onq wrote:Bren88 this is very interesting and it would be great if you could post a relevant link or case law.

It begs the following questions:
  • why one would apply for an exempted development, or having done so,
  • how would the local authority be within their rights to impose conditions they couldn't impose otherwise if you proceeded with an exempted development, or, if they did,
  • why someone wouldn't appeal the conditions.



A lot has already been covered by the two recent replies. but i'll had a few thoughts.

They might simply apply out of ignorance, or for any of the reasons listed above. Or as o said, an extension that was originally non exempt, but design changes half way through planning resulted in it meeting the exemption limits and the plans going in anyway.
But either way the council are well with in their rights to impose such conditions. As conditions are case specific and are often very important. You could of course appeal, but it would tricky at best.


The case I referred to last post involved a house of merit. I can't confirm if it was officially a PS or simple in a prominent area, nor if the date of the incident had any bearing on the planning act and relevant laws in force (in certainly wasn't the current act).

But basically, the council wanted the applicant to carry out some maintenance on parts of the house that wouldn't be part of the PP app.


As for a link to the case. I only wish I had one. It came from word of mouth, and I never seen the official source. But the architect who told me has been around a long time and is highly regarded. I've no reason to doubt his knowledge. At the time, I just committed the situation to memory and don't the details.
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Re: Using "exemption limits' despite planning granted

Postby Solo » Thu Mar 11, 2010 2:27 am

The normal course of events is as you suggest. Applying for and being granted permission for the 60sq.m extension did not preclude your client from availing of his/her entitlement to an exempted development. There are as usual rules to be followed. CK outlined these so if your client's 40sq.m extension complies with all of the rules for an exempted development there is no problem.

The issue of roof lights in exempted developments creates a problem as some L.A.'s consider two to be the max permitted and others allow three. I am unaware of any regulation that offers clarity on this issue.

I had a client a number of years ago who wanted a ground and first floor extension but knew that if planning was applied for the neighbour on one side would object. However having looked at all of the design solutions the one that best fitted the situation required planning permission. True to prediction the neighbour objected and the permission was refused with the planners saying she did not wish to set a precedent for such development. My clients response to this was to have me send in the five variations of the design that complied completely with exempted development legislation and to invite the planner to pick which she considered to be the least ugly solution having refused the best solution. The planner declined the choice and so my client picked one and built it. The neighbour naturally complained not understanding how this development could proceed in a hideous fashion with a permission having been refused. The planner advised the neighbour that the L.A. were powerless to act.
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Re: Using "exemption limits' despite planning granted

Postby Bren88 » Thu Mar 11, 2010 5:27 am

Solo wrote:
The issue of roof lights in exempted developments creates a problem as some L.A.'s consider two to be the max permitted and others allow three. I am unaware of any regulation that offers clarity on this issue.

No regulation, but can be deamed de facto exempt under a lot of ABP rulings.

The planner advised the neighbour that the L.A. were powerless to act.


This is the inverse to the situation above. Here the LA couldn't do anything as they refused, had they allowed it, they could of applied a range of conditions
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Re: Using "exemption limits' despite planning granted

Postby onq » Tue Mar 16, 2010 12:34 am

Bren88 and saintleger

Thanks for the replies.

Been up to my tonsils for a week writing an Appeal.

saintleger,

thanks for the section 4 I think it was a different one.

How do you read thsi section in the context of limited exempted development?

"(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;"

Seems to include a multitude, but Class 1 exempted development cuts it right down to size.

Bren 88,

Yep, dem aul' negotiated permissions can be a killer! :)

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Re: Using "exemption limits' despite planning granted

Postby onq » Tue Mar 16, 2010 12:42 am

Solo wrote:(snip)

The issue of roof lights in exempted developments creates a problem as some L.A.'s consider two to be the max permitted and others allow three. I am unaware of any regulation that offers clarity on this issue.

(snip)


Some light [sic] was shed on this a couple of years ago by Dun Laoghaire Rathdown Co Co and An Bórd Pleanála.

32 Ballinclea Heights is the reference and there is mention of it in this thread here:

http://www.archiseek.com/content/showthread.php?t=6429

In general attic conversions appear to be exempted development and most rooflight installations also, particularly Velux style installations.

However I have advised on Appeals where they deemed to have infringed on someone's rear privacy and were appealed.

And in a corollary judgement to No. 32 there were restrictions placed on a gable window.

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Re: Using "exemption limits' despite planning granted

Postby saintleger » Thu Mar 18, 2010 6:05 pm

onq wrote:
How do you read thsi section in the context of limited exempted development?

"(j) development consisting of the use of any structure or other land within the curtilage of a house for any purpose incidental to the enjoyment of the house as such;"

Seems to include a multitude, but Class 1 exempted development cuts it right down to size.

ONQ.


Well, that bit of section 4 just exempts the use of any structure, not the construction of any structure. So, section 4 means that you can use your shed as a drinking den for your family and guests (as we have seen in Donegal recently), but it doesn't mean you can construct a shed to use as a drinking den for the family, you would have to depend on class 1 of the regs to exempt that development (works), and as you quite rightly state, there are a lot of conditions and limitations inherent in the schedule.
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Re: Using "exemption limits' despite planning granted

Postby onq » Fri Mar 19, 2010 3:52 am

saintleger wrote:Well, that bit of section 4 just exempts the use of any structure, not the construction of any structure. So, section 4 means that you can use your shed as a drinking den for your family and guests (as we have seen in Donegal recently), but it doesn't mean you can construct a shed to use as a drinking den for the family, you would have to depend on class 1 of the regs to exempt that development (works), and as you quite rightly state, there are a lot of conditions and limitations inherent in the schedule.


Well you know that's very interesting - I hadn't thought of it like that.

Guy down the road constructed a "shed" which then miraculously sprouted four double rooflights and he started to use it as a gym, which implies it is a habitable space.

My reading of the section I quoted is that you can use it for whatever you like within the laws of the land if it supports residential use, but it cannot become habitable space, unless the conversion itself was exempted.

The only thing that readily converts is a "garage", which IIRC can be detached from the main house.

Have you a reference for the Donegal case?
I saw it on the news but cannot seem to google it

TIA

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Re: Using "exemption limits' despite planning granted

Postby saintleger » Fri Mar 19, 2010 3:59 pm

onq wrote:Well you know that's very interesting - I hadn't thought of it like that.

Guy down the road constructed a "shed" which then miraculously sprouted four double rooflights and he started to use it as a gym, which implies it is a habitable space.

My reading of the section I quoted is that you can use it for whatever you like within the laws of the land if it supports residential use, but it cannot become habitable space, unless the conversion itself was exempted.

The only thing that readily converts is a "garage", which IIRC can be detached from the main house.

Have you a reference for the Donegal case?
I saw it on the news but cannot seem to google it

TIA

ONQ.

I think "any purpose incidental to the enjoyment of the house" would include recreational uses, including a gym, or a teenagers games room. I mean, if you want to play table tennis or lift weights in the garage, common sense dictates that you should be able to do so without applying for planning permission. The rooflights you mention are not exempted by section 4, however, as these are works, and not use. They may of course by exempted under other sections, or under the regs.

I would agree with your interpretation, that "any purpose incidental to the enjoyment of the house" means things that support and enhance the residental use, rather than actual residential space.

I don't have a link to the Donegal case, it may still be on RTE's website.
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