Planning and Development Act 2024

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Declaration on development, exempted development, etc.

10. (1) In this section—

“relevant act or operation” means—

(a) in relation to the making of a request by a person referred to in paragraph (a) of the definition of “relevant person”, an act or operation carried out or proposed to be carried out on land owned by that person,

(b) in relation to the making of a request by a person referred to in paragraph (b) of the definition of “relevant person”, an act or operation carried out or proposed to be carried out on the maritime site concerned,

(c) in relation to the making of a request by a person referred to in paragraph (c) or (d) of the definition of “relevant person”, an act or operation carried out or proposed to be carried out on land by that person with the consent of the owner of the land,

(d) in relation to the making of a request by a person referred to in paragraph (e) or (f) of the definition of “relevant person”, an act or operation carried out or proposed to be carried out on the land or maritime site concerned, or

(e) in relation to the making of a request by a statutory undertaker, an act or operation carried out or proposed to be carried out on land or a maritime site by or on behalf of that statutory undertaker;

“relevant change in use” means—

(a) in relation to the making of a request by a person referred to in paragraph (a) of the definition of “relevant person”, a change in use or proposed change in use of land owned by that person,

(b) in relation to the making of a request by a person referred to in paragraph (b) of the definition of “relevant person”, a change in use or proposed change in use of the maritime site concerned,

(c) in relation to the making of a request by a person referred to in paragraph (c) or (d) of the definition of “relevant person”, a change in use or proposed change in use of land by that person with the consent of the owner of the land, or

(d) in relation to the making of a request by a person referred to in paragraph (e) or (f) of the definition of “relevant person”, a change in use or proposed change in use of the land or maritime site concerned;

“relevant person” means—

(a) the owner of land,

(b) a person who, in accordance with subsection (2) of section 85 , is eligible to make an application for permission for maritime development under Chapter 3 or 4 of Part 4 ,

(c) the occupier of land who—

(i) carries out or proposes to carry out an act or operation on the land, or

(ii) makes or proposes to make a change in use of the land,

with the consent of the owner of the land,

(d) a person (other than the person referred to in paragraph (c)) who—

(i) carries out or proposes to carry out an act or operation on the land, or

(ii) makes or proposes to make a change in use of the land,

with the consent of the owner of the land,

(e) a company within the meaning of the Companies Act 2014 —

(i) formed and registered not later than one year before the making of the request concerned,

(ii) whose constitution includes objects that relate to the promotion of environmental protection of relevance to the request concerned,

(iii) that has pursued those objects for a period of not less than one year before the making of the request concerned,

(iv) that has not fewer than 10 members at the time of the making of the request concerned, and

(v) that has passed a resolution—

(I) in accordance with the constitution of the company, and

(II) before the making of the request concerned,

authorising the company to make the request,

or

(f) a prescribed person.

(2) (a) Upon the payment of the prescribed fee, a relevant person or a statutory undertaker may, in relation to a relevant act or operation wholly outside the outer maritime area, make a request in writing to the planning authority within whose functional area the relevant act or operation is, or is proposed to be, carried out for a declaration on the question of—

(i) whether or not that act or operation constitutes or would constitute development, and

(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.

(b) Upon the payment of the prescribed fee, a relevant person may, in relation to a relevant change in use (wholly outside the outer maritime area), make a request in writing to the planning authority within whose functional area the relevant change in use is, or is proposed to be, made for a declaration on the question of—

(i) whether or not that change in use constitutes or would constitute development, and

(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.

(c) Upon the payment of the prescribed fee, a person who carries out or proposes to carry out development in accordance with a permission for such development granted under this Act or the Act of 2000 may, in relation to development (wholly outside the outer maritime area), make a request in writing to the planning authority within whose functional area the development is, or is proposed to be, situated for a declaration on any question relating to—

(i) the meaning or scope of the permission, or

(ii) any condition to which the permission is subject.

(3) (a) A request under subsection (2) shall be accompanied by all such information and documentation as is necessary to enable the planning authority to perform its functions under this section in relation to the request.

(b) For the purposes of the performance of its functions under this section, a planning authority may, by notice in writing, require a person who makes a request under subsection (2) to provide the planning authority with such further information and documentation as it may specify not later than 2 weeks (or such longer period as may be prescribed) from the date of the notice.

(c) A planning authority may, for the purpose of the performance of its functions under this section, request a person (other than the person who made the request under subsection (2)) by notice in writing to provide the planning authority with such information and documentation as is specified in the notice not later than 2 weeks (or such longer period as may be prescribed) from the date of the notice.

(4) Where a relevant person requests a declaration under subsection (2) in respect of land or a maritime site and the relevant person is not the owner of that land or maritime site, that relevant person shall, when making the request, notify the owner of the land or maritime site, as the case may be, in writing of the making of the request.

(5) A planning authority shall, when making a declaration under this section, have regard to the declarations contained in the copies of the records forwarded to it in accordance with paragraph (d) of subsection (10).

(6) A planning authority shall, not later than the period of—

(a) 8 weeks from its receiving a request under subsection (2), or

(b) 3 weeks from the expiration of the period or periods specified in a notice or notices under paragraph (b) or (c) of subsection (3),

whichever occurs later, decide whether or not it has sufficient information to enable it to make a declaration under this section and, if it decides that it does have such sufficient information, it shall, within that period, make a declaration in relation to the request concerned and forward the declaration and the main reasons and considerations on which it is based—

(i) to the person who made that request, and

(ii) where that person is not the owner or occupier of land to which the request relates, to such owner or occupier.

(7) Where a planning authority decides under subsection (6) that it does not have sufficient information to make a declaration under this section—

(a) it shall, by notice in writing, inform the person who made the request under subsection (2), and

(b) the request shall be deemed to have been withdrawn on the date specified in that notice.

(8) (a) A person (in this subsection referred to as the “appellant”) to whom a declaration has been forwarded in accordance with subsection (6) may, not later than 4 weeks from the date of the declaration and on payment to the Commission of such fee as may be approved under section 381 , appeal the declaration to the Commission.

(b) An appellant may withdraw an appeal under this subsection before the appeal is determined by the Commission.

(c) Subject to paragraphs (d), (e), (f), (g) and (h), this section shall apply to the Commission in relation to an appeal as it applies to a planning authority in relation to a request under subsection (2), and for the purposes of such appeal—

(i) references in that subsection to a request under that subsection shall be construed as references to an appeal under this section,

(ii) references in this section to a person who made such a request shall be construed as references to the appellant, and

(iii) references in this section to the planning authority shall be construed as references to the Commission,

and a declaration of the Commission, or a decision of the Commission under subsection (6) that it does not have sufficient information to make a declaration under this section, in relation to an appeal under this section shall operate to annul the declaration of the planning authority from which the appeal was brought.

(d) For the purposes of the performance of its functions under this section in relation to an appeal, the Commission may, by notice in writing, require the appellant to provide it with such information and documentation as is specified in the notice within such period (which shall not be later than 2 weeks from the date of the service of the notice) as is so specified.

(e) Notwithstanding the failure of the appellant to comply with a requirement in a notice under paragraph (d), the Commission may give a declaration in relation to the request concerned under subsection (2) where it is satisfied that it has sufficient information in relation to the matter to enable it to do so.

(f) For the purposes of the performance of its functions under this section in relation to an appeal, the Commission may, by notice in writing, request a person (other than the person who made the request under subsection (2)) to provide it with such information and documentation as is specified in the notice not later than 2 weeks from the date of the notice.

(g) Notwithstanding the failure of a person to whom a notice has been given under paragraph (f) to accede to the request in the notice, the Commission may make a declaration in relation to the request concerned under subsection (2) where it is satisfied that it has sufficient information in relation to the matter to enable it to do so.

(h) The Commission shall determine an appeal under this section within the period specified under section 361 .

(9) Particulars of every declaration under this section of a planning authority or the Commission in relation to a request under subsection (2) shall be entered in the register.

(10) (a) In this subsection—

“decision” means—

(i) in relation to the consideration by a planning authority of a request under subsection (2), the declaration made by the planning authority in relation to that request, and

(ii) in relation to the consideration by the Commission of an appeal under this section—

(I) a decision to dismiss the appeal, or

(II) a declaration under this section;

“relevant documents” means a copy of the question set out in the request under subsection (2) and any information, particulars, evidence, written study or further information received or obtained from—

(i) the person who made the request under that subsection or the person who brought the appeal under subsection (8), as the case may be,

(ii) any other person,

(iii) a copy of any report prepared by or on behalf of the planning authority or the Commission, as may be appropriate, in relation to the request or appeal, or

(iv) a copy of the decision.

(b) The Commission shall keep a record of each appeal under this section, including the main reasons and considerations on which the declaration made in such appeal is based.

(c) Where the planning authority or the Commission makes a decision it shall, not later than 5 working days thereafter, cause the relevant documents to—

(i) be published on its internet website, and

(ii) be made available for inspection and purchase by members of the public during normal office hours at its offices during such period (which shall not be less than 8 weeks from the date of the making of the decision) as it considers appropriate.

(d) The Commission shall, from time to time and at least once a year, forward to each planning authority a copy of all records to which paragraph (b) applies made since—

(i) the commencement of this section, or

(ii) the most recent compliance by the Commission with this paragraph,

as may be appropriate.

(e) The Commission shall give a copy of a record to which paragraph (b) applies to the planning authority in relation to whose functional area the appeal concerned relates.

(11) (a) A planning authority shall, in the case of a declaration made upon a request under paragraph (a) or (b) of subsection (2) that the act, operation or change in use or proposed act, operation or change in use concerned constitutes or would constitute development, state—

(i) whether or not the development or proposed development is likely to have significant effects on the environment (including by virtue of its nature, size and location) and requires the carrying out of an environmental impact assessment, and

(ii) whether or not the development or proposed development, either individually or in combination with any plan or project (within the meaning of the Habitats Directive), is likely to have significant effects on a European site and requires the carrying out of an appropriate assessment.

(b) The Commission shall, in the case of a declaration made on an appeal under subsection (8) that the act, operation or change in use or proposed act, operation or change in use concerned constitutes or would constitute development, state—

(i) whether or not the development or proposed development is likely to have significant effects on the environment (including by virtue of its nature, size and location) and requires the carrying out of an environmental impact assessment, and

(ii) whether or not the development or proposed development, either individually or in combination with any plan or project (within the meaning of the Habitats Directive), is likely to have significant effects on a European site and requires the carrying out of an appropriate assessment.

(12) A person is not entitled to make a request under subsection (2) for a declaration in relation to a question that is, in substance, the same as a question in respect of which the planning authority or the Commission has already made a declaration (“first declaration”), unless there has been a material change in circumstances since the making of the first declaration.

(13) The Minister may prescribe additional, consequential or supplementary matters as regards procedures in respect of a request under subsection (2) or an appeal under subsection (8), including matters relating to—

(a) the submission of information to the planning authority or the Commission for those purposes,

(b) notifications to persons concerned with the declaration or decision, as the case may be, referred to in that subsection, or

(c) steps to be taken (including matters to which regard shall be had) in the course of the making of such declaration or decision.

(14) (a) The Minister may apply to the Commission under this subsection, without charge, for a declaration as to whether an activity requiring his or her consent—

(i) pursuant to a notification under paragraph (2) of regulation 4 of the European Communities (Natural Habitats) Regulations 1997 ( S.I. No. 94 of 1997 ),

(ii) pursuant to a direction under paragraph (1) of regulation 28 or paragraph (1) of regulation 29 of the European Communities (Birds and Natural Habitats) Regulations 2011 ( S.I. No. 477 of 2011 ),

(iii) under any enactment—

(I) designating a site as a special area of conservation for the purposes of paragraph 4 of Article 4 of the Habitats Directive, or

(II) classifying a site as a special protection area for the purposes of paragraph 1 or 2 of Article 4 of the Birds Directive,

or

(iv) under section 19 of the Wildlife (Amendment) Act 2000 ,

comprises development that is not exempted development, and the Commission shall, not later than 18 weeks from the application by the Minister, make such declaration and inform that Minister of the declaration and the reasons for the declaration.

(b) An application from the Minister under this subsection shall include—

(i) all other information and documentation submitted with that application for consent,

(ii) the reasons why he or she considers that the activity may not be exempted development,

(iii) the opinion of the Minister as to whether an appropriate assessment is required, and the reasons for that opinion, and

(iv) the opinion of the Minister as to whether the development is likely to have significant effects on a European site or an area designated as a Natural Heritage Area under section 18 of the Wildlife (Amendment) Act 2000 and the reasons for that opinion, having regard to the purposes for which the site was designated.

(c) The Commission may request additional information from the Minister.

(d) If the Minister fails to comply with a request under paragraph (c) within such period as is specified in the request or such further period as the Commission may agree, the application of the Minister under this subsection shall be deemed to be withdrawn, and the Commission shall inform the Minister accordingly.

(15) (a) Upon the payment of such fee as may be approved under section 381 , a relevant person or a statutory undertaker may, in relation to a relevant act or operation wholly or partly in the outer maritime area, make a request in writing to the Commission for a declaration on the question of—

(i) whether or not that act or operation constitutes or would constitute development, and

(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.

(b) Upon the payment of such fee as may be approved under section 381 , a relevant person may, in relation to a relevant change in use wholly or partly in the outer maritime area, make a request in writing to the Commission for a declaration on the question of—

(i) whether or not that change in use constitutes or would constitute development, and

(ii) if it does or would constitute development, whether or not it constitutes or would constitute exempted development.

(c) Upon the payment of such fee as may be approved under section 381 , a person who carries out or proposes to carry out development in accordance with a permission for such development granted under this Act or the Act of 2000 may, in relation to development wholly or partly in the outer maritime area, make a request in writing to the Commission for a declaration on any question relating to—

(i) the meaning or scope of the permission, or

(ii) any condition to which the permission is subject.

(16) This section shall apply in relation to a request under subsection (15) as if—

(a) in paragraph (a) of subsection (3)—

(i) “subsection (15)” were substituted for “subsection (2)”,

(ii) “the Commission” were substituted for “the planning authority”,

(b) in paragraph (b) of subsection (3)—

(i) “the Commission” were substituted for “a planning authority”,

(ii) “subsection (15)” were substituted for “subsection (2)”, and

(iii) “the Commission” were substituted for “the planning authority”,

(c) in paragraph (c) of subsection (3)—

(i) “The Commission” were substituted for “A planning authority”,

(ii) “subsection (15)” were substituted for “subsection (2)”, and

(iii) “the Commission” were substituted for “the planning authority”,

(d) in subsection (4), “subsection (15)” were substituted for “subsection (2)”,

(e) the following subsection were substituted for subsection (5):

“(5) The Commission shall, when making a declaration upon a request under subsection (15), have regard to all declarations contained in records to which paragraph (b) of subsection (10) applies.”,

(f) in subsection (6)—

(i) “The Commission” were substituted for “A planning authority”,

(ii) “subsection (15)” were substituted for “subsection (2)”, and

(iii) the following paragraph were substituted for subparagraph (ii):

“(ii) where that person is not the holder of a maritime area consent for the maritime site to which the request relates, the holder of such maritime area consent.”,

(g) in subsection (7)—

(i) “the Commission” were substituted for “a planning authority”, and

(ii) “subsection (15)” were substituted for “subsection (2)”,

(h) subsections (8) and (9) were deleted,

(i) the following subsection were substituted for subsection (10):

“(10) (a) In this subsection—

‘decision’ means in relation to the consideration by the Commission of a request under subsection (15), the declaration made by the Commission in relation to that request;

‘relevant documents’ means a copy of the question set out in the request under subsection (15) and any information, particulars, evidence, written study or further information received or obtained from—

(i) the person who made the request under that subsection,

(ii) any other person,

(iii) a copy of any report prepared by or on behalf of the Commission, or

(iv) a copy of the decision.

(b) The Commission shall keep a record of each declaration made in relation to a request under subsection (15), including the main reasons and considerations on which the declaration is based.

(c) Where the Commission makes a decision, it shall, not later than 5 working days thereafter, cause the relevant documents to—

(i) be published on its internet website, and

(ii) be made available for inspection and purchase by members of the public during normal office hours at its offices during such period (which shall not be less than 8 weeks from the date of the making of the decision) as it considers appropriate.”,

(j) the following subsection were substituted for subsection (11):

“(11) The Commission shall, in the case of a declaration made upon a request under paragraph (a) or (b) of subsection (15) that the act, operation or change in use or proposed act, operation or change in use concerned constitutes or would constitute development, state—

(a) whether or not the development or proposed development is likely to have significant effects on the environment (including by virtue of its nature, size and location) and requires the carrying out of an environmental impact assessment, and

(b) whether or not the development or proposed development, either individually or in combination with any plan or project (within the meaning of the Habitats Directive), is likely to have significant effects on a European site and requires the carrying out of an appropriate assessment.”,

(k) the following subsection were substituted for subsection (12):

“(12) A person is not entitled to make a request under subsection (15) for a declaration in relation to a question that is, in substance, the same as a question in respect of which the Commission has already made a declaration (‘first declaration’), unless there has been a material change in circumstances since the making of the first declaration.”,

and

(l) in subsection (13), “or (15),” were inserted after “(2)”.