S.I. No. 111/1992 - Building Control Act, 1990 (Appeals) Regulations, 1992.

S.I. No. 111 of 1992.

BUILDING CONTROL ACT, 1990 (APPEALS) REGULATIONS, 1992.

The Minister for the Environment, in exercise of the powers conferred on him by sections 7 and 18 of the Building Control Act, 1990 (No. 3 of 1990), hereby makes the following Regulations:—

1 Citation.

1. These Regulations may be cited as the Building Control Act, 1990 (Appeals) Regulations, 1992.

2 Commencement.

2. These Regulations shall come into operation on the 1st day of June, 1992.

3 Interpretation.

3. (1) In these Regulations, any reference to an article which is not otherwise identified is a reference to an article of these Regulations.

(2) In these Regulations, any reference to a sub-article or paragraph which is not otherwise identified is a reference to a sub-article or paragraph of the provision in which the reference occurs.

(3) In these Regulations, a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by any subsequent enactment.

(4) In these Regulations, save where the context otherwise requires—

"the Act" means the Building Control Act, 1990 ;

"appeal" means an appeal under section 7 (1) (a) or 7 (1) (b) of the Act;

"application" means—

( a ) an application under section 4 of the Act for a dispensation from, or a relaxation of, a requirement of Building Regulations, or

( b ) an application for a fire safety certificate;

"the Board" means An Bord Pleanála;

"building control authority" means a building control authority as defined in section 2 of the Act;

"Building Control Regulations" means the Building Control Regulations, 1991;

"Building Regulations" means the Building Regulations, 1991;

"fire safety certificate" means a certificate under section 6 (2) (a) (ii) of the Act;

"party" means a party to an appeal, namely—

( a ) the appellant,

( b ) the building control authority against whose decision an appeal is made,

and "parties" shall be construed accordingly;

"register" means a register pursuant to article 19 of the Building Control Regulations.

(5) Where a requirement of or under these Regulations requires submissions or observations to be made, or plans, documents, particulars or other information to be submitted to the Board within a specified period and the last day of that period is a Saturday, a Sunday, a public holiday (within the meaning of the Holidays (Employees) Act, 1973 ) or any other day on which the offices of the Board are closed, the submissions or observations, or plans, documents, particulars or other information (as the case may be) shall be regarded as having been received before the expiration of that period if received by the Board on the next following day on which the offices of the Board are open.

4 Provisions as to making of appeals.

4. (1) An appeal shall—

( a ) be made in writing,

( b ) state the name and address of the appellant,

( c ) state the subject matter of the appeal,

( d ) state in full the grounds of appeal and the reasons, considerations and arguments on which they are based, and

( e ) be accompanied by such fee (if any) as may be payable in respect of such appeal in accordance with regulations under the Act.

(2) An appeal which does not comply with the requirements of sub-article (1) shall be invalid.

(3) Without prejudice to article 8, an appellant shall not be entitled to elaborate upon, or make further submissions in relation to, the grounds of appeal stated in the appeal or to submit further grounds of appeal and any such elaboration, submissions or further grounds of appeal that is or are received by the Board shall not be considered by it.

(4) ( a ) An appeal shall be accompanied by such documents, particulars or other information relating to the appeal as the appellant considers necessary or appropriate.

( b ) Without prejudice to article 9, the Board shall not consider any documents, particulars or other information submitted by an appellant other than the documents, particulars or other information which accompanied the appeal.

(5) An appeal shall be made by—

( a ) sending the appeal by registered prepaid post to the Board, or

( b ) leaving the appeal with an employee of the Board at the offices of the Board during office hours.

5 Time for appeals etc.

5. (1) An appeal may be made within a period of one month beginning on the day of the decision of the building control authority on an application.

(2) An appeal received by the Board after the expiration of the period mentioned in sub-article (1) shall be invalid.

(3) Where the last day of the period specified in sub-article (1) is a Saturday, a Sunday, a public holiday (within the meaning of the Holidays (Employees) Act, 1973 ) or any other day on which the offices of the Board are closed, an appeal shall, notwithstanding sub-article (2), be valid as having been made in time if received by the Board on the next following day on which the offices of the Board are open.

6 Observations on appeals.

6. (1) On receipt of an appeal the Board shall send a copy thereof to the building control authority against whose decision the appeal is made.

(2) A building control authority to whom a copy of an appeal has been sent under sub-article (1) may, within a period of one month beginning on the day on which a copy of the appeal is sent to it by the Board, make in writing to the Board such submissions or observations on the appeal as the authority thinks fit.

(3) Without prejudice to article 8, a building control authority shall not be entitled to elaborate upon any submissions or observations made in accordance with sub-article (2), or make further submissions or observations in relation to, the appeal and any such elaboration or submission that is or are received by the Board shall not be considered by it.

7 Documents, information, etc. in relation to appeals.

7. (1) Where an appeal is made to the Board the building control authority concerned shall, within a period of fourteen days beginning on the day on which a copy of the appeal is sent to it by the Board, submit to the Board—

( a ) a copy of the application concerned and any plans, documents, particulars, evidence or further information received or obtained by it from the applicant,

( b ) a copy of any report prepared by or for the building control authority in relation to the application,

( c ) a copy of the decision of the building control authority on the application and a copy of the notification of the decision given to the applicant, and

( d ) in the case of an appeal under section 7 (1) (b) of the Act, a copy of the grant of any dispensation or relaxation of a requirement of Part B of the First Schedule to the Building Regulations given under section 4 of the Act in respect of the building or works to which the appeal relates.

8 Power of Board to request submissions or observations.

8. Where the Board is of opinion that, in the particular circumstances of an appeal, it is appropriate in the interests of justice to request any party who has made submissions or observations to the Board to make submissions or observations in relation to any matter which has arisen in relation to the appeal, the Board may, in its discretion, notwithstanding article 4 (3) or 6 (3), serve on any such party a notice under this article—

( a ) requesting that party, within a period specified in the notice (not being less than fourteen or more than twenty eight days beginning on the date of service of the notice) to submit to the Board submissions or observations in relation to the matter in question, and

( b ) stating that, if submissions or observations are not received before the expiration of the period specified in the notice, the Board will, after the expiration of that period and without further notice to the party, pursuant to article 10 determine the appeal.

9 Power of Board to require submission of documents etc.

9. Where the Board is of opinion that any plan, document, particulars or other information is or are necessary for the purpose of enabling it to determine an appeal, the Board may serve on any party a notice under this section—

( a ) requiring that party, within a period specified in the notice (being a period of not less than fourteen days beginning on the date of service of the notice) to submit to the Board such plan, document, particulars or other information (which plan, document, particulars or other information shall be specified in the notice), and

( b ) stating that in default of compliance with the requirements of the notice, the Board will, after the expiration of the period so specified and without further notice to the party, pursuant to article 10 dismiss or otherwise determine the appeal.

10 Powers of the Board where notice served under article 8 or 9.

10. Where a notice has been served under article 8 or 9, the Board, at any time after the expiration of the period specified in the notice, may, having considered any submissions or observations or plan, document, particulars or other information (as the case may be) submitted by the party on whom the notice has been served, without further notice to that party determine or, in the case of a notice served under article 9, dismiss the appeal.

11 Convening of meetings.

11. Where it appears to the Board expedient or convenient for the purposes of assisting the determination of an appeal the Board may, in its absolute discretion, convene a meeting of the parties.

12 Time for determination of appeals.

12. (1) It shall be the objective of the Board to ensure that every appeal is determined within four months beginning on the date of receipt by the Board of the appeal.

(2) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of an appeal, to determine the appeal within the period referred to in sub-article (1) the Board shall, by notice in writing served on the parties, inform those parties of the reasons why it would not be possible or appropriate, as the case may be, to determine the appeal within that period and shall specify the date before which the Board intends to determine the appeal.

(3) Where a notice has been served under sub-article (2), the Board shall take all such steps as are open to it to determine the appeal before the date specified in the notice.

(4) This article shall not apply to appeals received by the Board before the 1st day of January, 1993.

13 Powers of the Board to declare appeals withdrawn.

13. (1) Where the Board is of opinion that an appeal has been abandoned, the Board may serve on the appellant a notice stating that fact and requiring that person, within a period specified in the notice (being a period of not less than fourteen or more than twenty eight days beginning on the date of service of the notice) to make to the Board a submission in writing as to why the appeal should not be regarded as having been withdrawn.

(2) Where a notice has been served under sub-article (1) the Board may, at any time after the expiration of the period specified in the notice and after considering the submission (if any) made to the Board pursuant to the notice, declare that the appeal shall be regarded as having been withdrawn.

14 Board may dismiss appeals if vexatious etc.

14. The Board shall in the following circumstances have an absolute discretion to dismiss an appeal—

( a ) where, having considered the grounds of appeal, the Board is of opinion that the appeal is vexatious, frivolous or without substance or foundation, or

( b ) where, having regard to—

(i) the nature of the appeal (including any question which in the Board's opinion is raised by the appeal), and

(ii) any previous decision of a building control authority or the Board which in its opinion is relevant,

the Board is satisfied that in the particular circumstances the appeal should not be further considered by it.

15 Inspections and reports.

15. (1) The Board may arrange for the carrying out of inspections in relation to appeals by persons authorised for that purpose by the Board either generally or for a particular appeal.

(2) Where in relation to an appeal an inspection is carried out on behalf of the Board, by a person authorised for that purpose by the Board, the person so authorised shall make to the Board a written report on the inspection and shall include in his report a recommendation relating to the matter with which the inspection was concerned, and the Board shall, before determining the appeal in relation to which the inspection was carried out, consider the report, including any recommendation contained therein.

16 Matters to be considered when determining an appeal.

16. When an appeal is made to the Board under section 7 (1) (b) of the Act, the Board in considering such appeal shall—

( a ) be restricted to considering the extent to which the design of the building complies with the requirements of Part B of the First Schedule to the Building Regulations, and

( b ) have due regard to any dispensation from, or relaxation of, a requirement of Building Regulations granted under Section 4 or 5 of the Act in respect of, or which is relevant to, such building.

17 Determination of appeals.

17. (1) Save as is provided in sub-article (2), where an appeal is brought to the Board it shall determine the appeal as if the application to the building control authority to which the appeal relates had been made to the Board in the first instance and the decision of the Board shall operate to annul the decision of the building control authority from the date of such decision.

(2) Where—

( a ) an appeal relates only to a condition or conditions attached to a decision of a building control authority, and

( b ) the Board is satisfied, having regard to the nature of the condition or conditions, that the determination by the Board of the relevant application as if it had been made to it in the first instance would not be warranted,

the Board may, in its absolute discretion, give to the relevant building control authority such directions as it considers appropriate relating to the attachment, amendment or removal by that authority either of the condition or conditions to which the appeal relates or of other conditions.

18 Notification by Board of decision on appeal.

18. (1) The Board shall notify each party to an appeal of its decision on the appeal.

(2) Every notification given by the Board of a decision on an appeal shall specify—

( a ) where appropriate, the reference number relating to the relevant application in the register of the building control authority,

( b ) the nature of the decision,

( c ) the building or works to which the decision relates, and

( d ) the date of the decision.

19 Issue of fire safety certificate.

19. Where a building control authority is notified by the Board of its decision to allow an appeal under section 7 (1) (b) of the Act, the authority shall, as soon as may be, issue a fire safety certificate to the appellant in accordance with the decision of the Board.

GIVEN under the Official Seal of the Minister for the Environment

this 13th day of May, 1992.

MICHAEL SMITH,

Minister for the Environment.

EXPLANATORY NOTE.

These Regulations set out procedures for appeals to an Bord Pleanala against decisions of building control authorities on applications for fire safety certificates and dispensations from, or relaxations of, requirements of the Building Regulations, 1991.