Section 5 of the Planning & Development Acts

wpi

Is there anybody out there that has sucessfully used a section 5 in planning. I am the third party in this case and not happy with a councils decision on a neighbours property, but I am too late to appeal to the Bord.

Poor Uncle Tom

Please explain..

http://www.irishstatutebook.ie/2000/en/act/pub/0030/sec0005.html

picorette

wpi, can you give me more detail?
As far as I am aware a section 5 declaration would be requested by the property owner / occupant rather than a third party.

wpi

Picorette, Anybody can use a section 5. It is the only way to get the Bord back in the loop . I am trying to correct a situation that the planners have created. They don`t want egg on their faces , so they are ignoring all our letters, hoping we will give up. They win a lot of arguments this way.

muffler

Can you tell me what this section 5 is please?

alphamale 1

Its an exemption from the locsl authority.

Do many people know of applicant's affected by third party appeals by the NRA and stopping planning permissions to applicant's out in the countryside

picorette

I stand corrected regarding who can apply for a Section 5, the purpose being solely to clarify whether something is development or exempted development. IMO it could not be used to question where a planning permission is granted.

The wording of Section 5 of the Planning & Development Act 2000 is:
'If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter'.

parka

manchild wrote: »

I wish to install a window at ground level to the side of my house. Do i require planning permission for this. It will overlook no one and is 4 meters from boundry wall.

No, however check with the Planners first. I submitted a Section 5 for a similar scheme and the Planning dept deemed it sufficient and that planning was not required.

wpi

With section 5 a person can ask the planners to justify and qualify their decision on a particular application. If you don`t like their explanation or you dont get any reply within 4 weeks you can go to the Bord and get them involved. It is technically a back door into the Bord if you have missed your appeal time for some reason. The Bord will make an independant appraisal of all the points in question, irrespective of the previous planning decision.
You pay €80 to the planning authority and €220 to the Bord.

Poor Uncle Tom

I'm afraid that's not my understanding of Section 5. And I have had a successful determination under section 5.

wpi

What was your situation.

archtech

wpi wrote: »

Is there anybody out there that has sucessfully used a section 5 in planning. I am the third party in this case and not happy with a councils decision on a neighbours property, but I am too late to appeal to the Bord.

You can't use Section 5 in this case. You could use section 5 is if you consider that something was done or not done which deviated from the planning permission or its conditions, however development of the site (normally) has had to take place.
Section 5 is often used to determine if something is exempted development particularly in the case of material change of use(retail warehousing comes to mind.)



I successfully used it once where a client wanted to make some alterations to a dwelling, including elevational changes, move ope positions, change window styles from those approved, etc. It sped up the process of not having to go for planning permission and also ensured that the planning file was in order.

wpi

archtech wrote: »

You can't use Section 5 in this case. You could use section 5 is if you consider that something was done or not done which deviated from the planning permission or its conditions, however development of the site (normally) has had to take place.
Section 5 is often used to determine if something is exempted development particularly in the case of material change of use(retail warehousing comes to mind.)



I successfully used it once where a client wanted to make some alterations to a dwelling, including elevational changes, move ope positions, change window styles from those approved, etc. It sped up the process of not having to go for planning permission and also ensured that the planning file was in order.

Development has been done. The applicant has not done the development according to what was granted. He has created an entrance with no sightlines whatsoever. His planning permission asked for the proper sightlines and setback distances.
He also got planning for 250 m2 of habitable space but has created an extra 65m2 of habitable space with a first floor.
He was conditioned to use an EPA standard septic tank and special perculation, but instead he has just used an ordinary tank and not the proper perculation.

picorette

You should write to the Enforcement Department of the local authority clearly setting out the breaches of conditions.

wpi

Done that loads of times.

Poor Uncle Tom

wpi wrote: »

Development has been done. The applicant has not done the development according to what was granted. He has created an entrance with no sightlines whatsoever. His planning permission asked for the proper sightlines and setback distances.
He also got planning for 250 m2 of habitable space but has created an extra 65m2 of habitable space with a first floor.
He was conditioned to use an EPA standard septic tank and special perculation, but instead he has just used an ordinary tank and not the proper perculation.

wpi, if this is the case then a section 5 is not for you. Enforcement is the department you need. Call into the offices of the LA and ask to know what is happening with your complaints. Check the planning file and see what paperwork is on it, make any copies you need. Keep a record of dates, times, meetings, etc. If you are not getting any satisfaction then complain to the Ombutsman, but remember, after a complaint is made to enforcement, they must inspect the site and write to the applicant giving them (usually) 28 days to rectify and/or respond.

muffler

Posts from the Planning issues thread now moved to here

sydthebeat

wpi wrote: »

Development has been done. The applicant has not done the development according to what was granted.

1. He has created an entrance with no sightlines whatsoever. His planning permission asked for the proper sightlines and setback distances.

2. He also got planning for 250 m2 of habitable space but has created an extra 65m2 of habitable space with a first floor.

3. He was conditioned to use an EPA standard septic tank and special perculation, but instead he has just used an ordinary tank and not the proper perculation.

1. he has 5 years to comply with the conditions. Yes, he should comply now, but legally he has 5 years... (unless the conditions stated 'prior to commencement...')

2. has this meant a change in the front or side elevations from what he got permission?

3. how do you know?.... firstly theres no such thing as an EPS standard septic tank... theres either septic tanks or effluent treatment systems, and in some cases both!! Secondly, how do you know what he has put into his percolation area?

wpi

Answers to Sydthebeat

1 The planning condition states that prior to occupation of dwelling , fences must be set back to achieve the required sightlines. He cannot set back one side of the entrance as the fence belongs to me.
If he has 5 years to comply , a few people may be killed in the mean time.

2 This was a retention application. Retention means retaining what is actually there at the time of application. In this case there was a first floor with 65m2 of habitable rooms and a main staircase in situ at the time of application. This should have been shown on the drawings for everyone to see, instead it was ommitted. When it was brought to the planners attention, the application should have been disqualified and rejected.

3 Condition states ; Prior to the dwelling being occupied the waste water treatment system shall be installed in accordance with the manufacturers instructions, relevant agreement certification and EPA Waste Water Treatment Manual- Treatment Systems for single houses.

I observed the system being installed by a bunch of amatuers. Ordinary brown Wavin pipes with holes manually drilled were used for the perculation. 804 type stone was used around these pipes and backfilled with topsoil. There was no engineer present while this was going on but strangely enough there is a letter of compliance from an engineer in his planning file.

Carlow52

Poor Uncle Tom wrote: »

I'm afraid that's not my understanding of Section 5. And I have had a successful determination under section 5.

IMO not a very helpful contribution.:(

muffler

Carlow52 wrote: »

IMO not a very helpful contribution.:(

Why?

Poor Uncle Tom

Carlow52 wrote: »

IMO not a very helpful contribution.:(

In post No.2, I provided a link to Section 5 of the Planning & Development Act 2000.

Section 5 is a determination by An Bord Pleanala of what constitutes Development or Exempted Development under the Act., and is used in cases where an Agent disagrees with a LA's assesment of such.

Section 5 is not a back door means of overturning a planning permission.

My comment above, was in order to keep things brief and not to clutter the thread with unnecessary information, and I do have a successful determination under Part 5 of the Act, where I stated that a particular development was exempted from the provision of the Planning and Development Act and the LA said it was not. An Bord Pleanala found that it was an Exempted Development.

sydthebeat

wpi wrote: »

Answers to Sydthebeat

1 The planning condition states that prior to occupation of dwelling , fences must be set back to achieve the required sightlines. He cannot set back one side of the entrance as the fence belongs to me.
If he has 5 years to comply , a few people may be killed in the mean time.

2 This was a retention application. Retention means retaining what is actually there at the time of application. In this case there was a first floor with 65m2 of habitable rooms and a main staircase in situ at the time of application. This should have been shown on the drawings for everyone to see, instead it was ommitted. When it was brought to the planners attention, the application should have been disqualified and rejected.

3 Condition states ; Prior to the dwelling being occupied the waste water treatment system shall be installed in accordance with the manufacturers instructions, relevant agreement certification and EPA Waste Water Treatment Manual- Treatment Systems for single houses.

I observed the system being installed by a bunch of amatuers. Ordinary brown Wavin pipes with holes manually drilled were used for the perculation. 804 type stone was used around these pipes and backfilled with topsoil. There was no engineer present while this was going on but strangely enough there is a letter of compliance from an engineer in his planning file.

1. if its an application for retention is a bit silly putting in a 'prior to occupation' clause as the dwelling is obviously already occupied. If the council have granted him permission to setback boundaries that he doesnt own, without requiring him to get permission from the landowner..... then that is a grave error on the councils behalf, NOT the applicant. He cannot be expected, now, to augment lands he does not own.

2.No. retention means retain exactly what has been referred to in the newspaper and site notice, not whats actually there. Without knowing the exact wording theres no point in i speculating.

3. how do you know the manufacturer of the treatment system (which COULD be a septic tank) simply requires a standard percolation area?? If he is not in compliance with this condition then you DO have recourse for action, but you need to be sure of:
(a) what was actually required to be incorporated
(b) what was actually incorporated
(c) whether what was actually incorporated is substantially similar to what was required.

wpi

Regarding issue 1

About 4 years ago , my neighbour applied for planning for extensions. Instead he built a new house. In his application he showed his sightlines going across my land. I lived in UK at the time and I did not see his application.
The Council made him go for retention of the new house when they found out that he had not complied with the original planning. That was when his sightline issue came to light. He has made several retention applications since and they have all been refused because of the sightlines. Recently they granted him retention , but the sightlines have not been addressed.
To make matters worse , he reported me to the council saying that my house was not exactly compliant. I had to go for retention also. I was granted retention with a few conditions. One was to rebuild a sod and stone ditch in the original position along my road frontage. I got the roads engineer to correctly position the ditch for me. Now this ditch has completely removed his sightlines. I subsequently got a letter from the council saying that it is now my fault that my neighbour has no sightlines.
How do you win with this council.

sydthebeat

wpi wrote: »

Regarding issue 1

About 4 years ago , my neighbour applied for planning for extensions. Instead he built a new house. In his application he showed his sightlines going across my land. I lived in UK at the time and I did not see his application.
The Council made him go for retention of the new house when they found out that he had not complied with the original planning. That was when his sightline issue came to light. He has made several retention applications since and they have all been refused because of the sightlines. Recently they granted him retention , but the sightlines have not been addressed.
To make matters worse , he reported me to the council saying that my house was not exactly compliant. I had to go for retention also. I was granted retention with a few conditions. One was to rebuild a sod and stone ditch in the original position along my road frontage. I got the roads engineer to correctly position the ditch for me. Now this ditch has completely removed his sightlines. I subsequently got a letter from the council saying that it is now my fault that my neighbour has no sightlines.
How do you win with this council.

seems as if theres bad blood between you....

lifes too short....

onq

wpi wrote: »

Development has been done. The applicant has not done the development according to what was granted. He has created an entrance with no sightlines whatsoever. His planning permission asked for the proper sightlines and setback distances.
He also got planning for 250 m2 of habitable space but has created an extra 65m2 of habitable space with a first floor.
He was conditioned to use an EPA standard septic tank and special perculation, but instead he has just used an ordinary tank and not the proper perculation.

1. Formally refer the matter in writing to the planning authority citing the above alleged breaches of planning law asking them "to investigate and if necessary take appropriate action."

2. Assuming they agree they may take the matter further.

3. Assuming they agree with you and all of this is provable beyond a reasonable doubt, you may, if you wish, consider taking action under Section 160 of the planning and development act 2000.

ONQ.