Reopening bricked up rear Garden entrance

Class 5 Exempt Development.

The construction, erection or alteration, within or bounding the curtilage of a house, of a gate, gateway, railing or wooden fence or a wall of brick, stone, blocks with decorative finish, other concrete blocks or mass concrete.

1. The height of any such structure shall not exceed 2 metres…

worth mentioning, but not relevant in this case. OP is proposing a pedestrian gate, not road access.

It’s true he needs access/usage rights to the property behind in order to bring something that way. But strictly speaking that applies to use separately, and not he can construct it under planning law.

only relevant if he is proposing a driveway or similar road access imo

Access to the "road" means vehicular access. The purpose of the de-exemption is traffic safety.

Of course they can. Animals, falling trees, weather can also affect traffic.

But none if that changes the fact that planning law above relates to vechicle access and safety.

It says access to the road. Which, in a planning context, means access to the carriageway.
It seem like you were not aware of Article 9 until it mentioned above, and while I appreciate your legal knowledge generally. Is it fair to say planning law is not an area you are specifically familiar with?

But it's big leap from that to conclude that the limitation on the exemption only concerns itself with gates that provide vehicular access to the public road. If that was the policy, it would have been trivially easy to say so, but it doesn't say so. Plus, there is no implication in the text that that is the policy. We can infer that the concern is an entrance through which may enter things that present a danger in the context of a road used by vehicles. We can't infer that those things are nevertheless ignored unless they themselves happen to be vehicles.

It may have be easy so, but planning law is full or articles and clauses that are not perfectly clear. In particular exempted development. A large part of the application of law is policy - in this case the policy makes do not have the power to re-word laws to be precise.

For the sake of clarity, I'm not inferring, concluding or making a leap based on the text of article 9. I speaking from professional knowledge and experience.

Remember, in this context we are talking about a entrance that opens into what might be a lane running behind the back gardens of private houses. The lane may well have a carriageway; it doesn't necessarily have a separate footway, so the same space may be shared by cars, bikes and pedestrians. It's obvious that the entry of bikes or pedestrians into such a lane could give rise to precisely the danger that the limitation is concerned with.

A lane behind a house probably would be a width of less than 4m. So it wouldn't apply in any case. Carriageways over 4m (two lane roads) would typically have a footway.

If the entrance opened directly on to a carriageway over 4m. If then it would not be exempt. But that is obviously access to the carriageway.

It may have been granted previously. But bricking it up was exempt development, which supersedes the grant.
At this stage whether it exist or not makes no difference. It the same as opening up an entirely new opening

Was the entrance directly on to the carriageway itself. Or on to the footway of a road with a "public carriageway wider than 4m"

Egressing directly on to the carriageway (over 4m) is not exempt. It impacts traffic and is obviously access to the carriageway. You could drive a motorcycle out - which has obvious dangers.
A pedestrian entry, that is one egressing to a footpath or pedestrian area, is exempt.

You got a raw deal then. Councils do make mistakes, which is why an appeal body exists. But ABP have determined that article 9 is not intended for those situations and does cover apply to pedestrian entrances.

There should be something. I'll have a dig...

Here you go. This was a doorway in wall that was a boundary wall stepping directly on to a footpath. The board overruled the council and their own inspector. They outline a really clear logic that should apply to your case.

An Bord Pleanala Cade Ref: RL09.RL2734 (Kildare County Council)
The Board direction at the bottom of that page is the best reference. Direct Link

The Board also noted that Article 9(1)(a)(ii) states, inter alia, that development to which Article 6 relates shall not be exempted development for the purposes of the Act if the carrying out of such development would consist of or comprise the formation, laying out or material widening of a means of access to a public road the surfaced carriageway of which exceeds 4 metres in width.

The Board did not agree with the interpretation of the Planning Authority and of the Inspector in relation to the applicability of this restriction in the case of a pedestrian access onto a footpath, which would otherwise be exempted development under the provisions of Class 5 of Part 1 of Schedule 2 to the Regulations.

The Board concluded that the restriction under Article 9(1)(a)(ii), placed on the formation of an access onto a public road more than 4m wide is concerned essentially with the question of traffic safety. The interpretation favoured by the planning authority and by the Inspector would remove the exemption provided for a pedestrian gateway under Class 5 of Part 1 of Schedule 2 to the Regulations in many cases where the gate opens onto a public footpath, with no implications for traffic safety. The Board considered that this is not the intended objective of the regulations.

Notwithstanding the definition of “public road” given in the Roads Act, 1993, as applied per Section 2(1) of the Planning and Development Act, 2000, the Board considered that, applying a purposive interpretation of the Regulations, the word “access” as applied at the said Article 9(1)(a)(ii) refers to an access suitable for a vehicle and not to a pedestrian access onto a footpath.

____________________________________________________________

AND WHEREAS

An Bord Pleanála has concluded that –

(a) the formation of a pedestrian doorway is development which comes within the scope of the exempted development provisions of Class 5 of Part 1 of Schedule 2 to the Planning and Development Regulations, 2001,
(b) the restrictions on exempted development contained at Article 9(1)(a)(ii) of Planning and Development Regulations, 2001, do not affect the exemption under the said Class 5 for a solely pedestrian access onto a public footpath and
(c) the formation of the doorway for pedestrian use is, therefore, exempted development.

Let us know how you do. Councils can be notoriously stubborn. But it's all there in black and white.

@Peregrinus - the above may be of interest to you also.

Also worth suggesting the OP do a planning search on their property too, it may have already been subject to a planning decision.

Council refused planning on the advice to refuse from roads,

In one section they say

The gate is out of harm’s way and does not create a public safety hazard.

But then recommend refusal as its set a undesirable precedent of potentially neighbours looking for a pedestrian gate leading to a potential public and safety hazard.

@mellor any more precedents I can use for an appeal??