Planning and Development Act 2024
|
Refusal of planning permission for past failures to comply | ||
|
173. (1) When considering any application for permission under this Part, where the planning authority or the Commission is satisfied that a person to whom this section applies— | ||
(a) is not in compliance with— | ||
(i) a permission, | ||
(ii) a permission within the meaning of the Act of 2000, or | ||
(iii) a permission under section 9 of the Planning and Development (Housing) and Residential Tenancies Act 2016 , | ||
(in this section referred to as a “previous permission”) granted to the person, | ||
(b) is not in compliance with a condition to which a previous permission is subject, | ||
(c) has carried out a substantial unauthorised development, or | ||
(d) has been convicted of an offence under this Act or the Act of 2000, | ||
the authority or the Commission may form the opinion— | ||
(i) that there is a real and substantial risk that the proposed development in respect of which the application relates would not be completed in accordance with such permission if granted, or with a condition to which such permission if granted would be subject, and | ||
(ii) that accordingly planning permission should not be granted to the person concerned in respect of that development. | ||
(2) (a) In forming its opinion under subsection (1), the planning authority or the Commission shall have regard to— | ||
(i) any information furnished to the planning authority or the Commission in connection with the application, | ||
(ii) any information available to the planning authority or the Commission concerning development carried out by a person to whom this section applies pursuant to a previous permission, | ||
(iii) any information otherwise available to the planning authority or the Commission concerning a substantial unauthorised development carried out by a person to whom this section applies, or | ||
(iv) any information concerning a conviction for an offence under this Act or the Act of 2000. | ||
(b) In forming its opinion under subsection (1), the planning authority or the Commission shall only consider those failures to comply with any previous permission, or with any condition to which that permission is subject, that are of a substantial nature. | ||
(3) An opinion under subsection (1) shall not be a decision on an application for permission for the purposes of this Part. | ||
(4) If the planning authority or the Commission considers that there are good grounds for it being able to form the opinion under subsection (1) and, accordingly, to exercise its power under subsection (5), it shall serve a notice on the applicant to that effect specifying— | ||
(a) the grounds under subsection (1) that the planning authority or the Commission intends to take into consideration in the proposed exercise of its power under subsection (5), and | ||
(b) that the applicant is invited to make submissions to the planning authority or the Commission, within a period specified in the notice, as to why the planning authority or the Commission should not exercise its power under subsection (5), including that the views of the planning authority or the Commission are incorrect or that there are not good grounds for forming the opinion under subsection (1). | ||
(5) If the planning authority or the Commission, having considered any submissions made to it in accordance with a notice under subsection (4), proceeds to form the opinion under subsection (1) in relation to the application concerned, it shall refuse to grant the permission concerned and notify the applicant accordingly. | ||
(6) The applicant may, within 8 weeks beginning on the date of receipt of the notification under subsection (5), notwithstanding section 379 and Part 9 , apply, by motion on notice to the planning authority or the Commission, to the High Court for an order annulling the decision of the planning authority or the Commission and, on the hearing of such application, the High Court may, as it considers appropriate, confirm the decision of the planning authority or the Commission, annul the decision and direct the planning authority or the Commission to consider the applicant’s application for permission without reference to this section or make such other order as it sees fit. | ||
(7) If, in pursuance of subsection (6), the High Court directs the planning authority or the Commission to consider the applicant’s application for planning permission without reference to this section, the planning authority or the Commission shall make its decision on the application in accordance with this Part. | ||
(8) No appeal shall lie to the Commission from a decision of a planning authority to refuse to grant planning permission under subsection (5). | ||
(9) A reference in this section to an application for permission shall be construed as a reference to— | ||
(a) an application for permission for development under Chapter 3 or Chapter 4, | ||
(b) an application for retention permission under Chapter 3, | ||
(c) an application for retrospective consent under Chapter 4, | ||
(d) an appeal to the Commission of any decision by a planning authority under Chapter 3, and | ||
(e) a request for the alteration or extension of any permission under Chapter 5. | ||
(10) In this section “a person to whom this section applies” means— | ||
(a) the applicant for the permission concerned, | ||
(b) a partnership of which the applicant is or was a member and which, during the membership of that applicant, carried out a development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act, | ||
(c) a registered society under the Industrial and Provident Societies Acts 1893 to 2021 that— | ||
(i) carried out a development pursuant to a previous permission, | ||
(ii) carried out a substantial unauthorised development, or | ||
(iii) has been convicted of an offence under this Act, | ||
or, during any period to which subparagraph (i) or (ii) relates or to which any conviction under subparagraph (iii) relates, the registered society was, during that period, controlled by the applicant— | ||
(I) where, pursuant to section 15 of the Friendly Societies and Industrial and Provident Societies (Miscellaneous Provisions) Act 2014 , “control” has the same meaning as in subsection (5) of section 220 of the Companies Act 2014 , or | ||
(II) as a shadow director within the meaning of subsection (1) of section 2 of the Companies Act 2014 , | ||
(d) a company (within the meaning of the Companies Act 2014 ) that— | ||
(i) is related (for the purposes of subsection (10) of section 2 of the Companies Act 2014 ) to the applicant for the proposed development, or | ||
(ii) has control (within the meaning of subsection (5) of section 220 of the Companies Act 2014 ) of such applicant, and that has— | ||
(I) carried out development pursuant to a previous permission, | ||
(II) carried out a substantial unauthorised development, or | ||
(III) has been convicted of an offence under this Act, | ||
or | ||
(e) a company (within the meaning of the Companies Act 2014 ) that carried out development pursuant to a previous permission, carried out a substantial unauthorised development or has been convicted of an offence under this Act, where— | ||
(i) the company is under the control (within the meaning of subsection (5) of section 220 of the Companies Act 2014 ) of the applicant for the proposed development, or | ||
(ii) the applicant for the proposed development is a shadow director (within the meaning of the Companies Act 2014 ) of the company. |