Local Government (Planning and Development) Act, 1990

Acquisition of Land (Assessment of Compensation) Act, 1919	1919, c. 57
Companies Act, 1963	1963, No. 33
Harbours Act, 1946	1946, No. 9
Health Act, 1970	1970, No. 1
Housing of the Working Classes Act, 1890	1890, c. 70
Lands Clauses Consolidation Act, 1845	1845, c. 18
Local Government Act, 1941	1941, No. 23
Local Government (Planning and Development) Act, 1963	1963, No. 28
Local Government (Planning and Development) Act, 1976	1976, No. 20
Local Government (Roads and Motorways) Act, 1974	1974, No. 6
Local Government (Sanitary Services) Act, 1962	1962, No. 26
National Monuments (Amendment) Act, 1987	1987, No. 17
Public Health Acts Amendment Act, 1890	1890, c. 59
Public Health (Ireland) Act, 1878	1878, c. 52
Vocational Education Act, 1930	1930, No. 29
Waterworks Clauses Act, 1847	1847, c. 17

Number 11 of 1990

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT)ACT, 1990

AN ACT TO AMEND AND EXTEND THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS, 1963 TO 1983, AND, FOR THE PURPOSES OF THOSE ACTS, TO AMEND CERTAIN PROVISIONS OF THE WATERWORKS CLAUSES ACT, 1847, THE PUBLIC HEALTH (IRELAND) ACT, 1878, AND RELATED ENACTMENTS.

[10th June, 1990]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I PRELIMINARY

Short title, collective citation and construction.

1.—(1) This Act may be cited as the Local Government (Planning and Development) Act, 1990.

(2) The Local Government (Planning and Development) Acts, 1963 to 1983, and this Act may be cited together as the Local Government (Planning and Development) Acts, 1963 to 1990.

(3) This Act and the Local Government (Planning and Development) Acts, 1963 to 1983, shall be construed together as one Act.

Interpretation.

2.—(1) In this Act—

"the Board" means An Bord Pleanála;

"habitable house" means a building or part of a building which—

( a ) is used as a dwelling, or

( b ) is not in use but when last used was used, disregarding any unauthorised use, as a dwelling, or

( c ) was provided for use as a dwelling but has not been occupied;

"the Minister" means the Minister for the Environment;

"the Principal Act" means the Local Government (Planning and Development) Act, 1963 .

(2) In this Act unless otherwise indicated, a reference to a section, Schedule or Part is to a section, Schedule or Part of this Act and a reference to a subsection or paragraph is to the subsection or paragraph of the provision in which the reference occurs.

(3) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any other enactment.

Repeals and saver.

3.—(1) The following provisions are hereby repealed: section 45 (2) and Part VI of the Principal Act and section 24 of the Public Health (Ireland) Act, 1878.

(2) Section 2 of the Acquisition of Land (Assessment of Compensation) Act, 1919, as amended by section 69 (1) of the Principal Act shall, notwithstanding the repeal of section 69 of the Principal Act by this Act, apply to every case, other than a case under this Act, where any compensation assessed will be payable by a planning authority or any other local authority.

(3) Section 25 (8) of the Local Government (Planning and Development) Act, 1976 , is hereby amended by the deletion of the words "and the matter falls to be determined by arbitration in pursuance of section 68 of the Principal Act, the following provisions shall apply:" and the substitution of ", the claim shall, in default of agreement, be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919, in the like manner in all respects as if such claim arose in relation to the compulsory acquisition of land, but subject to the proviso that the arbitrator shall have jurisdiction to make. a nil award and to the following provisions:".

PART II COMPENSATION GENERALLY

Compensation claims: time limits.

4.—A claim for compensation under this Act shall be made not later than six months after—

( a ) in the case of a claim under section 11, the notification of the decision of the planning authority or the Board, as the case may be,

( b ) in the case of a claim under section 17, the time when the notice takes effect,

( c ) in the case of a claim under section 18, the removal or alteration of the structure,

( d ) in the case of a claim under section 19, the discontinuance or compliance,

( e ) in the case of a claim under section 20, the removal or alteration of the hedge,

( f ) in the case of a claim under section 21, the date on which the consent is refused or is granted subject to conditions,

( g ) in the case of a claim under section 22, the time when the order creating the public right of way commences to have effect,

( h ) in the case of a claim under section 23, the time when the damage is suffered, and

( i ) in the case of a claim under section 24, the action of the planning authority.

Determination of compensation claim.

5.—A claim for compensation under this Act shall, in default of agreement, be determined by arbitration under the Acquisition of Land (Assessment of Compensation) Act, 1919, but subject to—

( a ) the First Schedule in respect of a reduction in the value of an interest in land,

( b ) the proviso that the arbitrator shall have jurisdiction to make a nil award, and

( c ) the application of the First Schedule to a claim for compensation under Part IV for a reduction in the value of an interest as if a reference to "the relevant decision under Part IV of the Principal Act" or to the "said decision" was, in relation to each of the sections in that Part mentioned in Column A of the Table to this section, a reference to the matter set out in Column B of that Table opposite the reference in Column A thereof to that section.

TABLE

Column A Section	Column B
18	The removal or alteration of a structure consequent upon a notice under section 36 of the Principal Act.
19	the discontinuance, or the compliance with conditions on the continuance, of the use of land consequent upon a notice under section 37 of the Principal Act.
20	the removal or alteration of a hedge consequent upon a notice under section 44 of the Principal Act.
21	the refusal of consent required under an order under section 45 of the Principal Act, or the grant of such a consent subject to conditions.
22	the making by the planning authority of an order under section 48 of the Principal Act creating the public right of way.
24	the action of the planning authority pursuant to section 85 of the Principal Act.

Regulations in relation to compensation.

6.—Regulations made by the Minister may provide for—

( a ) the form in which claims for compensation are to be made,

( b ) the provision by a claimant of evidence in support of his claim and information as to his interest in the land to which the claim relates,

( c ) statement by a claimant of the names and addresses of all other persons (so far as they are known to him) having an interest in the land to which the claim relates and, unless the claim is withdrawn, the notification by the planning authority or the claimant of every other person (if any) appearing to them or him to have an interest in the land,

( d ) the information and documents to be submitted with an application for an order under section 14,

( e ) the information and documents to be submitted by the planning authority in relation to an application for an order under section 14.

Prohibition of double compensation.

7.—Where a person would, but for this section, be entitled to compensation under this Act in respect of any matter or thing and also to compensation under any other enactment in respect of the same matter or thing, he shall not be entitled to compensation in respect of such matter or thing both under this Act and under the other enactment, and shall not be entitled to any greater amount of compensation under this Act in respect of such matter or thing than the amount of the compensation to which he would be entitled under the other enactment in respect of such matter or thing.

Recovery of compensation from planning authority.

8.—(1) All compensation payable under this Act by the planning Recovery of authority shall, when the amount thereof has been determined by agreement or by arbitration in accordance with this Act, be recoverable from that authority as a simple contract debt in any court of competent jurisdiction.

(2) All costs and expenses of parties to an arbitration to determine the amount of any compensation shall, in so far as such costs and expenses are payable by the planning authority, be recoverable from that authority as a simple contract debt in any court of competent jurisdiction.

(3) Sections 69 to 79 of the Lands Clauses Consolidation Act, 1845, as amended or adapted by or under the Second Schedule to the Housing of the Working Classes Act, 1890, or any other Act, shall apply in relation to moneys by this section made recoverable as a simple contract debt as if such moneys were a price or compensation under the said Act as so amended or adapted.

(4) Where money is paid into court under section 69 of the Lands Clauses Consolidation Act, 1845, as applied by this section, by the planning authority, no costs shall be payable by that authority to any person in respect of any proceedings for the investment, payment of income, or payment of capital of such money.

Registration of compensation.

9.—(1) Where, on a claim for compensation under Part III, compensation has become payable of an amount exceeding one hundred pounds, the planning authority shall prepare and retain a statement of that fact, specifying the refusal of permission or grant of permission subject to conditions, or the revocation or modification of permission, the land to which the claim for compensation relates, and the amount of the compensation.

( 2 ) ( a ) A planning authority shall enter in the register kept in pursuance of section 8 of the Principal Act particulars of the statements prepared by them under this section.

( b ) Every such entry shall be made within the period of fourteen days beginning on the day of the preparation of the statement.

Recovery by planning authority of compensation on subsequent development.

10.—(1) No person shall carry out any development to which this section applies, on land in respect of which a statement (in this section referred to as a compensation statement) stands registered (whether under section 72 of the Principal Act or section 9 of this Act) until such amount as is recoverable under this section in respect of the compensation specified in the statement has been paid or secured to the satisfaction of the planning authority.

(2) This section applies to any development (other than exempted development), being development of a kind specified in section 13 (2):

Provided that—

(i) this section shall not apply to any development by virtue of a permission to develop land under Part IV of The Principal Act referred to in section 13(5) where such permission was granted subject to conditions other than conditions of a class or description set out in the Fourth Schedule,

(ii) in a case where the compensation specified in the statement became payable in respect of the imposition of conditions on the granting of permission to develop land, this section shall not apply to the development for which that permission was granted.

(3) Subject to subsection (4), the amount recoverable under this section in respect of the compensation specified in a compensation statement—

( a ) if the land on which the development is to be carried out (in this subsection referred to as the development area) is identical with, or includes (with other land) the whole of, the land comprised in the compensation statement, shall be the amount of compensation specified in that statement;

( b ) if the development area forms part of the land comprised in the compensation statement, or includes part of that land together with other land not comprised in that statement, shall be so much of the amount of compensation specified in that statement as is attributable to land comprised in that statement and falling within the development area.

(4) For the purposes of paragraph (b) of subsection (3), the following provisions shall have effect:

( a ) the planning authority shall (if it appears to them to be practicable to do so) apportion the amount of the compensation between the different parts of the land according to the way in which those parts appear to them to be differently affected by the refusal of permission or grant of permission subject to conditions;

( b ) if no apportionment is made, the amount of the compensation shall be treated as distributed rateably according to area over the land to which the statement relates;

( c ) if an apportionment is made, the compensation shall be treated as distributed in accordance with that apportionment as between the different parts of the land by reference to which the apportionment is made, and so much of the compensation as, in accordance with the apportionment, is attributed to a part of the land shall be treated as distributed rateably according to area over that part of the land;

( d ) if any person disputes an apportionment under this subsection, the dispute shall be submitted to and decided by a property arbitrator.

(5) Where, in connection with the development of any land, an amount becomes recoverable under this section in respect of the compensation specified in a compensation statement, then no amount shall be recoverable, in so far as it is attributable to that land, in connection with any subsequent development thereof.

(6) An amount recoverable under this section in respect of any compensation shall be payable to the planning authority, and—

( a ) shall be so payable either as a single capital payment or as a series of instalments of capital and interest combined (the interest being determined at the same rate as for a judgment debt), or as a series of other annual or periodical payments, of such amounts, and payable at such times, as the planning authority may direct, after taking into account any representations made by the person by whom the development is to be carried out, and

( b ) except where the amount is payable as a single capital payment, shall be secured by that person in such manner (whether by mortgage, covenant or otherwise) as the planning authority may direct.

(7) If any person initiates any development to which this section applies in contravention of subsection (1) of this section, the planning authority may serve a notice upon him specifying the amount appearing to them to be the amount recoverable under this section in respect of the compensation in question, and requiring him to pay that amount to them within such period, not being less than three months after the service of the notice, as may be specified in the notice, and, in default of the said amount being paid to the planning authority within the period specified in the notice, it shall be recoverable as a simple contract debt in any court of competent jurisdiction.

PART III COMPENSATION IN RELATION TO DECISIONS UNDER PART IV OF PRINCIPAL ACT

Right to compensation.

11.—If, on a claim made to the planning authority, it is shown that, as a result of a decision under Part IV of The Principal Act involving a refusal of permission to develop land or a grant of such permission subject to conditions, the value of an interest of any person existing in the land to which the decision relates at the time of the decision is reduced, that person shall. subject to the provisions of this Part, be entitled to be paid by the planning authority by way of compensation—

( a ) such amount, representing the reduction in value, as may be agreed,

( b ) in the absence of agreement, the amount of such reduction in value, determined in accordance with the First Schedule, and

( c ) in the case of the occupier of the land, the damage (if any) to his trade, business or profession carried out on the land.

Restriction of compensation.

12.—(1) Compensation under section 11 shall not be payable in respect of the refusal of permission for any development—

( a ) of a class or description set out in the Second Schedule, or

( b ) if the reason or one of the reasons for the refusal is a reason set out in the Third Schedule.

(2) Compensation under section 11 shall not be payable in respect of the imposition, on the granting of permission to develop land, of any condition of a class or description set out in the Fourth Schedule.

(3) Compensation under section 11 shall not be payable in respect of the refusal of permission, or of the imposition of conditions on the granting of permission, for the retention on land of any structures to which section 28 of the Principal Act relates.

(4) Where, under section 29 of the Principal Act, it is the duty of a planning authority to acquire an interest in land, compensation under section 11 shall not be payable in relation to that interest.

Notice preventing compensation.

13.—(1) Where a claim for compensation is made under section 11, the planning authority concerned may, not later than three months after the claim is received and having regard to all the circumstances of the case, serve a notice in such form as may be prescribed on the person by whom or on behalf of whom the claim has been made stating that, notwithstanding the refusal of permission to develop land or the grant of such permission subject to conditions, the land in question is in their opinion capable of other development for which permission under Part IV of The Principal Act ought to be granted.

(2) For the purpose of subsection (1), other development means development of a residential, commercial or industrial character, consisting wholly or mainly of the construction of houses, flats, shops or office premises, hotels, garages and petrol filling stations, theatres or structures for the purpose of entertainment, or industrial buildings (including warehouses), or any combination thereof.

(3) A notice under subsection (1) shall continue in force for a period of five years commencing on the day of service of the notice unless before the expiration of that period—

( a ) the notice is withdrawn by the planning authority, or

( b ) a permission is granted under Part IV of The Principal Act to develop the land to which the notice relates in a manner consistent with the other development specified in the notice, subject to no conditions or to conditions of a class or description set out in the Fourth Schedule, or

( c ) the notice is annulled by virtue of subsection (5).

(4) Compensation shall not be payable on a claim made under section 11 where—

( a ) a notice under subsection (1) is in force in relation to that claim, or

( b ) a notice under subsection (1) was in force in relation to that claim but has ceased to be in force by reason of the expiration of the period mentioned in subsection (3) and an application for permission under Part IV of The Principal Act to develop the land to which the notice relates in a manner consistent with the other development specified in the notice has not been made within the said period, or

( c ) a notice under subsection (1) was in force in relation to the claim but has ceased to be in force by virtue of paragraph (b) of subsection (3).

(5) A notice under subsection (1) shall be annulled where, upon an application for permission under Part IV of The Principal Act to develop the land to which the notice relates in a manner consistent with the other development specified in the notice, such permission is refused or is granted subject to conditions other than conditions of a class or description set out in the Fourth Schedule.

(6) No claim for compensation under section 11 shall lie in relation to a decision under Part IV of The Principal Act referred to in subsection (5).

(7) Section 29 (1) (b) of The Principal Act is hereby amended by the deletion after the word "Act", of the words "or for which the planning authority have undertaken to grant such permission,".

Restrictions on section 12 and 13.

14.—(1) Where, in a case determined on an appeal under Part IV of The Principal Act, permission to develop any land has, save in a case referred to in subsection (2), been refused or has been granted subject to any condition relating to any of the matters set out in paragraphs 8 and 9 of the Fourth Schedule, nothing contained in section 12 shall prevent compensation being paid if, an application having been made in that behalf within two months after the notification of the decision by the Board, or within such longer period as the Minister may allow, the Minister makes an order declaring that he is satisfied that it would not be just and reasonable in the particular circumstances that payment of compensation should be prevented by the provisions of section 12.

(2) Subsection (1) does not apply—

( a ) where there has been a refusal of permission for the erection of any advertisement structure or for the use of any land for the exhibition of any advertisement,

( b ) where there has been a refusal of permission for development including any structure or any addition to or extension of a structure if the reason or one of the reasons for the refusal is that the structure, addition or extension

(i) would infringe an existing building line or, where none exists, a building line determined by the planning authority or by the Board;

(ii) would be under a public road;

(iii) would endanger the health or safety of persons occupying or employed in the structure or any adjoining structure; or

(iv) would be prejudicial to public health, and

( c ) where a notice has been served under section 13 (1).

(3) Where in a case in which a notice has been served under section 13 (1), save in a case referred to in paragraphs (a) and (b) of subsection (2), upon a subsequent application for permission under Part IV of The Principal Act to develop the land to which the notice relates in a manner consistent with the other development specified in the notice, such permission is granted subject to any condition relating to any of the matters set out in paragraphs 8 and 9 of the Fourth Schedule, then nothing contained in section 12 or section 13 shall prevent compensation being paid if, an application having been made in that behalf within (but not after) two months after the notification of the decision, the Minister makes an order declaring that he is satisfied that it would not be just and reasonable in the particular circumstances that payment of compensation should be prevented by the provisions of section 12 or section 13.

Special provision for structures substantially replacing structures demolished or destroyed by fire.

15.—(1) Nothing in section 12 shall prevent compensation being paid—

( a ) in a case in which there has been refusal of permission for the erection of a new structure substantially replacing a structure (other than an unauthorised structure) which has been demolished or destroyed by fire or otherwise within the two years preceding the date of application for permission or there has been imposed a condition in consequence. of which such new structure may not be used for the purpose for which the demolished or destroyed structure was last used, or

( b ) in a case in which there has been imposed a condition in consequence of which the new structure referred to in paragraph (a) or the front thereof, of the front of an existing structure (other than an unauthorised structure) which has been taken down in order to be re-erected or altered, is set back or forward.

(2) Every dispute and question whether a new structure would or does replace substantially within the meaning of subsection (1) a demolished or destroyed structure shall be determined by the Board.

Restriction on assignment of compensation under section 11.

16.—A person shall not be entitled to assign to any other person all or any part of any prospective compensation under section 11, and every purported assignment or promise, express or implied, to pay any other person any money in respect of any such compensation is void.

Compensation where permission is revoked or modified.

17.—(1) Where permission to develop land has been revoked or modified by a notice under section 30 of the Principal Act—

( a ) if, on a claim made to the planning authority, it is shown that any person interested in the land has incurred expenditure in carrying out works which are rendered abortive by the revocation or modification, that authority shall pay to that person compensation in respect of that expenditure;

( b ) the provisions of this Act shall apply in relation to the notice where it revoked the permission or modified it by the imposition of conditions—

(i) in case it revoked the permission, as they apply in relation to refusal of permission to develop land, and

(ii) in case it modified the permission by the imposition of conditions, as they apply in relation to a grant of permission to develop land subject to conditions,

subject to the modifications that a reference to the time when the notice takes effect shall be substituted for any reference to the time of a decision and, in section 12 (4), the reference to section 29 of the Principal Act shall be construed as a reference to that section as applied by section 30 of that Act.

(2) For the purposes of this section, any expenditure reasonably incurred in the preparation of plans for the purposes of any works or upon other similar matters preparatory thereto shall be deemed to be included in the expenditure incurred in carrying out those works but, except as aforesaid, no compensation shall be paid by virtue of this section in respect of any works carried out before the grant of the permission which is revoked or modified, or in respect of any other loss or damage arising out of anything done or omitted to be done before the grant of that permission.

PART IV COMPENSATION IN RELATION TO SECTIONS 36, 37, 44, 45, 48, 83 AND 85 OF PRINCIPAL ACT

Removal or alteration of structure (1963, section 36).

18.—(1) If, on a claim made to the planning authority, it is shown that, as a result of the removal or alteration of any structure consequent upon a notice under section 36 of the Principal Act, the value of an interest of any person in the structure existing at the time of the notice is reduced, or that any person having an interest in the structure at that time has suffered damage by being disturbed in his enjoyment of the structure, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or the amount of such damage.

(2) Where, under section 29 of the Principal Act as applied by subsection (9) of section 36 of that Act, it is the duty of the planning authority to acquire an interest in land, compensation in relation to that interest shall not be payable pursuant to this section.

Discontinuance of use (1963, section 37).

19.—(1) If, on a claim made to the planning authority, it is shown that, as a result of the discontinuance, or the compliance with conditions on the continuance, of any use of land consequent upon a notice under section 37 of the Principal Act, the value of an interest of any person in the land existing at the time of the notice is reduced, or that any person having an interest in the land at that time has suffered damage by being disturbed in his enjoyment of the land, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or the amount of such damage, provided that no compensation shall be paid under this section in relation to damage resulting from the imposition under section 37 of the Principal Act of conditions on the continuance of the use of land, being conditions imposed in order to avoid or reduce serious water pollution or the danger of such pollution.

(2) Subsection (1) shall not apply where the use of land is use for the exhibition of advertising unless at the time of such discontinuance or compliance, the land has been used for the exhibition of advertising for less than five years, whether such use was continuous or intermittent or whether or not, while the land was being so used, advertising was exhibited at the same place on the land.

(3) Where, under section 29 of the Principal Act as applied by subsection (8) of section 37 of that Act, it is the duty of the planning authority to acquire an interest in land, compensation in relation to that interest shall not be payable pursuant to this section.

Removal or alteration of hedge (1963, section 44).

20.—If, on a claim made to the planning authority, it is shown that, as a result of the removal or alteration of any hedge consequent upon a notice under section 44 of the Principal Act, the value of an interest of any person in the land existing at the time of the notice is reduced, or that any person having an interest in the land at that. time has suffered damage by being disturbed in his enjoyment of such land, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or such damage.

Tree preservation orders (1963, section 45).

21.—If, on a claim made to the planning authority, it is shown that, as a result of any decision of the authority to refuse a consent required under an order under section 45 of the Principal Act, or to grant any such consent subject to conditions, the value of an interest of any person in the land to which such decision relates existing at the time of the decision is reduced, or that any person having an interest in the land at that time has suffered damage by being disturbed in his enjoyment of the land, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or the amount of such damage, but—

( a ) where the order declares that, as respects any tree, trees or group of trees not comprised in woodlands, the tree, trees or group is or are of special amenity value or special interest no compensation shall be payable in relation to the tree, trees or group;

( b ) where the order declares that, as respects any trees comprised in woodlands, a condition comprising a requirement to replant is an essential condition for attachment in the interests of amenity to any consent given under the order no compensation shall be payable in relation to such a condition attached to any such consent;

( c ) where the order declares that, as respects any trees comprised in woodlands, a condition comprising a requirement to preserve a specified proportion of the trees, not being greater than twenty per cent., is an essential condition for attachment, because of special amenity value or of special interest, to any consent given under the order, no compensation shall be payable in relation to such a condition attached to any consent;

( d ) where the order declares that, as respects any trees comprised in woodlands, a condition comprising a requirement to phase the felling or extraction of trees over a period of up to 20 years in such manner as may be specified in the order, is an essential condition for attachment, because of special amenity value or of special interest, to any consent given under the order, no compensation shall be payable in relation to such a condition attached to any consent.

Creation of public rights of way (1963, section 48).

22.—If, on a claim made to the planning authority, it is shown that the value of an interest of any person in land, being land over which a public right of way has been created by an order under section 48 of the Principal Act made by that authority, is reduced, or that any person having an interest in such land has suffered damage by being disturbed in his enjoyment of the land, in consequence of the creation of the public right of way, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or the amount of such damage.

Entry on land (1963, section 83).

23.—If, on a claim made to the planning authority, it is shown that, as a result of anything done under section 83 of the Principal Act, any person has suffered damage, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such damage.

Cables, wires and pipelines (1963, section 85).

24.—If, on a claim made to the planning authority, it is shown that, as a result of the action of such authority pursuant to section 85 of the Principal Act in placing, renewing or removing any cable, wire or pipeline, attaching any bracket or fixture or affixing any notice, the value of an interest of any person in the land or structure existing at the time of the action of the planning authority is reduced, or that any person having an interest in the land or structure at that time has suffered damage by being disturbed in his enjoyment of such land or structure, such person shall, subject to the provisions of this Act, be entitled to be paid by the planning authority by way of compensation the amount of such reduction in value or the amount of the damage.

PART V CONNECTION OF PREMISES TO PUBLIC SEWERS AND WATER SUPPLIES

Connection to sanitary authority sewers.

25.—(1) This section shall apply to any structure which, at the commencement of this section—

( a ) is an unauthorised structure or a structure the use of which constitutes an unauthorised use, or

( b ) is not connected to a sewer of a sanitary authority, or to any structure which is constructed, erected or made on or after the commencement of this section.

(2) Section 27 of the Public Health (Ireland) Act, 1878, shall not apply in relation to a structure to which this section applies.

(3) Notwithstanding section 23 of the Public Health (Ireland) Act, 1878, or any other enactment, the owner or occupier of a structure to which this section applies shall not be entitled to connect his drains to any sewer of the sanitary authority in whose functional area the premises is situated except with the consent of the sanitary authority, which may be given subject to such conditions as the sanitary authority consider reasonable.

(4) Any person who connects a drain or causes it to be connected to a sewer of a sanitary authority in contravention of subsection (3) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000.

(5) The sanitary authority may close any connection between a drain and sewer made in contravention of subsection (3) and may recover from the person who made the connection or who caused the connection to be made any expenses incurred by them under this subsection and in default of the said amount being paid to the authority, it shall be recoverable as a simple contract debt in any court of competent jurisdiction.

(6) Where a notice under section 8(1) of the Local Government (Sanitary Services) Act, 1962 takes effect in relation to any premises, a consent of the sanitary authority by whom the notice has been served shall not be required under subsection (3) for the connection of the said premises to the appropriate sewer of the sanitary authority.

(7) Unless otherwise indicated, the grant of a permission under Part IV of The Principal Act, or of approval under bye-laws made under section 41 of the Public Health (Ireland) Act, 1878, or section 23 of the Public Health Acts Amendment Act, 1890, or regulations made under section 86 of the Principal Act in relation to a structure to which this section applies shall be taken to include the consent of the sanitary authority under subsection (3) to the connection of that structure to the appropriate sewer of the sanitary authority.

(8) In considering whether to give consent under subsection (3), a sanitary authority shall be entitled to have regard to the constraints described at paragraph 1 of the Third Schedule in so far as these may apply to the provision of sewerage facilities by them.

(9) In this section, each of the terms "drain", "sanitary authority" and "sewer" has the meaning assigned to it in the Local Government (Sanitary Services) Acts, 1878 to 1964.

Limitation of section 53 of the Waterworks Clauses Act, 1847.

26.—(1) Section 53 of the Waterworks Clauses Act, 1847, and any other enactment which confers a right to a supply of water for domestic purposes shall not apply in relation to a dwelling house which is an unauthorised structure or the use of which constitutes an unauthorised use.

(2) Nothing in this section shall restrict the operation of section 8 (2) of the Local Government (Sanitary Services) Act, 1962 .

FIRST SCHEDULE

RULES FOR THE DETERMINATION OF THE AMOUNT OF COMPENSATION

1. The reduction in value shall, subject to the provisions of this Schedule, be determined by reference to the difference between the antecedent and subsequent values of the land, where—

( a ) the antecedent value of the land is the amount which the land, if sold in the open market by a willing seller immediately prior to the relevant decision under Part IV of The Principal Act (and assuming that the relevant application for permission had not been made), might have been expected to realise, and

( b ) the subsequent value of the land is the amount which the land, if sold in the open market by a willing seller immediately after the said decision, might be expected to realise.

2. In determining the antecedent value and subsequent value of the land for the purposes of Rule

( a ) regard shall be had to—

(i) any contribution which a planning authority might have required or might require as a condition precedent to development of the land,

(ii) any restriction on the development of the land which, without conferring a right to compensation, could have been or could be imposed under any Act or under any order, regulations, rule or bye-law made under any Act,

(iii) the fact that exempted development might have been or may be carried out on the land, and

(iv) the open market value of comparable land, if any, in the vicinity of the land whose values are being determined;

( b ) no account shall be taken of—

(i) any part of the value of the land attributable to subsidies or grants available from public moneys, or to any tax or rating allowances in respect of development, from which development of the land might benefit,

(ii) the special suitability or adaptability of the land for any purpose if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any statutory body as defined in Rule 5; provided that any bona fide offer for the purchase of the land which may be brought to the notice of the arbitrator shall be taken into consideration,

(iii) any increase in the value of land attributable to the use thereof or of any structure thereon in a manner which could be restrained by any court, or is contrary to law, or detrimental to the health of the inmates of the structure or to public health or safety or to the environment,

(iv) any depreciation or increase in value attributable to the land, or any land in the vicinity, being reserved for a particular purpose in a development plan,

(v) any value attributable to any unauthorised structure or unauthorised use,

(vi) (I) the existence of proposals for development of the land or any other land by a statutory body, or

(II) the possibility or probability of the land or other land becoming subject to a scheme of development undertaken by such statutory body, and

( c ) all returns and assessments of capital value for taxation made or acquiesced in by the claimant may be considered.

3. (1) In assessing the possibilities, if any, for developing the land, for the purposes of determining its antecedent value, regard shall be had only to such reasonable possibilities as, having regard to all material considerations, could be judged to have existed immediately prior to the relevant decision under Part IV of The Principal Act.

(2) Material considerations for the purposes of the foregoing sub-rule shall, without prejudice to the generality thereof, include—

( a ) the nature and location of the land,

( b ) the likelihood or unlikelihood, as the case may be, of obtaining permission, or further permission, to develop the land in the light of the provisions of the development plan,

( c ) the assumption that, if any permission to develop the land were to be granted, any conditions which might reasonably be imposed in relation to matters referred to in the Fourth Schedule (but no other conditions) would be imposed, and

( d ) any permission to develop the land, not being permission for development of a kind specified in section 13 (2), already existing at the time of the relevant decision under Part IV of The Principal Act.

4. (1) In determining the subsequent value of the land in a case in which there has been a refusal of permission—

( a ) it shall be assumed, subject to sub-rule (2), that, after the refusal, permission under Part IV of The Principal Act would not be granted for any development of a kind specified in section 13 (2),

( b ) regard shall be had to any conditions in relation to matters referred to in the Fourth Schedule (but no other conditions) which might reasonably be imposed in the granting of permission to develop the land.

(2) In a case in which there has been a refusal of permission in relation to land in respect of which there is in force an undertaking under Part VI of The Principal Act, it shall be assumed in determining the subsequent value of the land that, after the refusal, permission under Part IV of The Principal Act would not be granted for any development other than development to which the said undertaking relates.

5. (1) In Rule 2, "statutory body" means:

( a ) a Minister of the Government,

( b ) the Commissioners of Public Works in Ireland,

( c ) a local authority within the meaning of the Local Government Act, 1941 ,

( d ) a harbour authority within the meaning of the Harbours Act, 1946 ,

( e ) a health board established under the Health Act, 1970 ,

( f ) vocational education committee within the meaning of the Vocational Education Act, 1930 ,

( g ) a board or other body established by or under statute,

( h ) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or

( i ) a company in which all the shares are held by a board, company, or other body referred to in paragraph (g) or (h).

(2) In sub-rule (1) (h) and (i), "company" means a company within the meaning of section 2 of the Companies Act, 1963 .

SECOND SCHEDULE

DEVELOPMENT IN RESPECT OF WHICH A REFUSAL OF PERMISSION WILL NOT ATTRACT COMPENSATION

1. Any development that consists of or includes the making of any material change in the use of any structures or other land.

2. The demolition of a habitable house.

3. The demolition of a building of artistic, architectural or historical interest which it is a development objective of the development plan to preserve.

4. The erection of any advertisement structure.

5. The use of land for the exhibition of any advertisement.

6. Development in an area to which a special amenity area order relates.

7. Any development on land with respect to which there is available (notwithstanding the refusal of permission) a grant of permission under Part IV of The Principal Act for any development of a residential, commercial or industrial character, if the development consists wholly or mainly of the construction of houses, flats, shops or office premises, hotels, garages and petrol filling stations, theatres or structures for the purpose of entertainment, or industrial buildings (including warehouses), or any combination thereof, subject to no conditions other than conditions of the kind referred to in the Fourth Schedule.

8. Any development on land with respect to which compensation has already been paid under section 11, or under section 55 of the Principal Act, by reference to a previous decision under Part IV of that Act involving a refusal of permission.

THIRD SCHEDULE

REASONS FOR THE REFUSAL OF PERMISSION WHICH EXCLUDE COMPENSATION

1. Development of the kind proposed on the land would be premature by reference to any one or combination of the following constraints and the period within which the constraints involved may reasonably be expected to cease—

( a ) any existing deficiency in the provision of water supplies or sewerage facilities,

( b ) the capacity of existing or prospective water supplies or sewerage facilities being required for prospective development as regards which a grant of a permission under Part IV of The Principal Act, an undertaking under Part VI of that Act or a notice under section 13 exists,

( c ) the capacity of existing or prospective water supplies or sewerage facilities being required for the prospective development of another part of the functional area of the planning authority, as indicated in the development plan,

( d ) the capacity of existing or prospective water supplies or sewerage facilities being required for any other prospective development or for any development objective, as indicated in the development plan,

( e ) any existing deficiency in the road network serving the area of the proposed development, including considerations of capacity, width, alignment, or the surface or structural condition of the pavement, which would render that network, or any part of it, unsuitable to carry the increased road traffic likely to result from the development,

( f ) any prospective deficiency (including the considerations specified in subparagraph (e)) in the road network serving the area of the proposed development which—

(i) would arise because of the increased road traffic likely to result from that development and from prospective development as regards which a grant of permission under Part IV of The Principal Act, an undertaking under Part VI of that Act or a notice under section 13 exists, or

(ii) would arise because of the increased road traffic likely to result from that development and from any other prospective development or from any development objective, as indicated in the development plan, and

(iii) would render that road network, or any part of it, unsuitable to carry the increased road traffic likely to result from the proposed development.

2. Development of the kind proposed would be premature pending the determination by the planning authority or the road authority of a road layout for the area or any part thereof.

3. Development of the kind proposed would be premature by reference to the order of priority, if any, for development indicated in the development plan.

4. The proposed development would endanger public safety by reason of traffic hazard or obstruction of road users or otherwise.

5. The proposed development, by itself or by the precedent which the grant of permission for it would set for other relevant development, would adversely affect the use of a national road or other major road by traffic.

6. The proposed development would interfere with a view or prospect of special amenity value or special interest which it is necessary to preserve.

7. The proposed development would cause serious air pollution, water pollution, noise pollution or vibration or pollution connected with the disposal of waste.

8. In the case of development including any structure or any addition to or extension of a structure, the structure, addition or extension would—

(i) infringe an existing building line or, where none exists, a building line determined by the planning authority or by the Board,

(ii) be under a public road,

(iii) seriously injure the amenities, or depreciate the value, of property in the vicinity,

(iv) tend to create any serious traffic congestion,

(v) endanger or interfere with the safety of aircraft or the safe and efficient navigation thereof,

(vi) endanger the health or safety of persons occupying or employed in the structure or any adjoining structure, or

(vii) be prejudicial to public health.

9. The development would contravene materially a condition attached to an existing permission for development.

10. The proposed development would injure or interfere with a historic monument which stands registered in the Register of Historic Monuments under section 5 of the National Monuments (Amendment) Act, 1987 , or which is situated in an archaeological area so registered.

11. The development would contravene materially a development objective indicated in the development plan for the use solely or primarily (as may be indicated in the development plan) of particular areas for particular purposes (whether residential, commercial, industrial, agricultural or otherwise).

12. Paragraph 11 shall, subject to paragraph 13, not apply in a case where a development objective for the use specified in paragraph 11 applied to the land at any time within the five years immediately prior to the date on which the relevant application was made for permission under Part IV of The Principal Act to develop the land, and the development would not have contravened materially that development objective.

13. Paragraph 12 shall not apply in a case where a person acquired his interest in the land—

( a ) after the development objective referred to in paragraph 11 has come into operation, or

( b ) after notice has been published,

(i) in accordance with section 21 of the Principal Act, of a proposed new development plan or of proposed variations of a development plan, or

(ii) in accordance with section 21A of the Principal Act, of a material alteration of the draft concerned,

indicating in draft the development objective referred to in paragraph 11.

14. For the purposes of paragraph 13, the onus shall be on a person to prove all relevant facts relating to his interest in the land to the satisfaction of the planning authority.

15. In this Schedule, each of the terms "road authority" and "national road" has the meaning assigned to it in the Local Government (Roads and Motorways) Act, 1974 .

FOURTH SCHEDULE

CONDITIONS WHICH MAY BE IMPOSED, ON THE GRANTING OF PERMISSION TO DEVELOP LAND, WITHOUT COMPENSATION

1. A condition, under Section 26(2) ( e ) of The Principal Act, requiring the giving of security for satisfactory completion of the proposed development (including maintenance until taken in charge by the local authority concerned of roads, open spaces, car-parks, sewers, watermains or drains).

2. A condition, under Section 26(2) ( g ) of The Principal Act, requiring a contribution towards expenditure incurred by any local authority in respect of works (including the provision of open spaces) which have facilitated the proposed development.

3. A condition, under section 26 (2) (h) of The Principal Act, requiring a contribution towards expenditure (including expenditure on the acquisition of land) that is proposed to be incurred by any local authority in respect of works facilitating the proposed development.

4. A condition, under section 26 (2) ( j ) of The Principal Act, 3 requiring the removal of an advertisement structure.

5. Any condition under section 26 (2) (j) of The Principal Act in a case in which the relevant application for permission relates to a temporary structure.

6. Any condition relating to all or any of the following matters—

( a ) the size, height, floor area and character of structures;

( b ) building lines, site coverage and the space about dwellings and other structures;

( c ) the extent of parking places required in, on or under structures of a particular class or size or services or facilities for the parking, loading, unloading or fuelling of vehicles;

( d ) the objects which may be affixed to structures;

( e ) the purposes for and the manner in which structures may be used or occupied, including, in the case of dwellings, the letting thereof in separate tenements.

7. Any condition relating to the design, colour and materials of structures.

8. Any conditions reserving or allocating specified land for structures of a specified class or classes, or prohibiting or restricting either permanently or temporarily, the erection, construction or making of any particular class or classes of structures on any specified land.

9. Any condition limiting the number of structures of a particular class which may be constructed, erected or made, on, in or under any specified land.

10. Any condition relating to

( a ) the disposition or layout of structures or structures of any specified class (including the reservation of reasonable open space in relation to the number, class and character of structures in any particular development proposal);

( b ) the manner in which any land is to be laid out for the purpose of development, including requirements as to road layout, landscaping, planting;

( c ) the provision of water supplies, sewers, drains and public lighting;

( d ) the provision of service roads and the location and design of means of access to roads;

( e ) the provision of facilities for parking, unloading, loading and fuelling of vehicles on any land.

11. Any condition relating to the alteration or removal of unauthorised structures.

12. Any condition relating to the layout of the proposed development, including density, spacing, grouping and orientation of structures in relation to roads, open spaces, and other structures.

13. Any condition relating to the provision and siting of sanitary services and recreational facilities.

14. Any condition reserving, as a public park, public garden or public recreation space, land normally used as such.

15. Any condition relating to the preservation of buildings of artistic, architectural or historical interest.

16. Any condition relating to the preservation of plasterwork, staircases, woodwork or other fixtures or features of artistic, architectural or historical interest and forming part of the interior of structures.

17. Any condition relating to the preservation of caves, sites, features and other objects of archaeological, geological or historical interest.

18. Any condition relating to the preservation of views and prospects and of amenities of places and features of natural beauty or interest.

19. Any condition relating to the preservation and protection of trees, shrubs, plants and flowers.

20. Any condition prohibiting, restricting or controlling, either generally or within a specified distance of the centre line of any specified road, the erection of all or any particular forms of advertisement structure or the exhibition of all or any particular forms of advertisement.

21. Any condition preventing, remedying or removing injury to amenities arising from the ruinous or neglected condition of any structure, or from the objectionable or neglected condition of any land attached to a structure or abutting on a public road or situate in a residential area.

22. Any condition prohibiting, regulating or controlling the deposit or disposal of waste materials and refuse, the disposal of sewage and the pollution of rivers, lakes, ponds, gullies and the seashore.

23. Any condition for preserving any existing public right of way giving access to seashore, mountain, lakeshore, riverbank, or other place of natural beauty or recreational utility.

24. Any condition relating to a matter in respect of which a requirement could have been imposed under any other Act, or under any order, regulation, rule or bye-law made under any other Act, without liability for compensation.

25. Any condition relating to measures to reduce or prevent the emission or the intrusion of noise or vibration.

26. Any condition prohibiting the demolition of a habitable house.

27. Any condition relating to the filling of land.

28. Any condition in the interest of ensuring the safety of aircraft or the safe and efficient navigation thereof.

29. Any condition determining the sequence in which works shall be carried out or specifying a period within which works shall be completed.

30. Any condition restricting the occupation of any structure included in a development until the completion of other works included in the development or until any other specified condition is complied with or until the planning authority consent to such occupation.

Irish Legislation

Local Government (Planning and Development) Act, 1990