Report on Multi-Unit Developments - Law Reform Commission

subject, the authority may form the opinion... that planning
permission should not be granted to the applicant concerned in
respect of that development.‖ 64
1.50 The Commission understands that, at the time of writing (June 2008),
section 35 of the 2000 Act has never been used. This may have been because,
prior to the enactment of the Planning and Development (Strategic
Infrastructure) Act 2006, planning authorities required the approval of the High
Court before refusal under section 35 could be used.
1.51 The changes made by the 2006 Act allow for a more efficient use of
section 35 of the 2000 Act and the Commission welcomes the reference to this
sanction in the Department‘s 2008 Circular. 65 The effect of the changes is that a
developer must apply to the High Court to overturn the decision to refuse
planning permission under section 35. 66 This is likely to lead to actual use of
section 35 and, at the least, will have persuasive effect when it is known that
planning authorities are less constrained by the restriction imposed by section
35 as originally enacted. Section 35 is not restricted to the functional area of a
given planning authority but extends to previous non-compliance in any
planning authority area in the State. 67 The Commission underlines the need to
ensure information sharing and co-operation across planning authorities. If this
is done, rogue developers who have breached planning permission and have
become subject to section 35 in one planning area should not, in the future, be
able to avoid the effect of this by moving to develop instead in another planning
authority‘s functional area (the Commission is aware from extensive media
discussion that some developers have been able to do this). In this respect, the
Commission agrees with the view in the Departmental 2008 Circular that
section 35, as amended, is a potentially useful deterrent which could lead to
higher rates of compliance with planning conditions.
(3) Warning and Enforcement Notices
1.52 Warning notices and enforcement notices are forms of administrative
sanctions widely used by planning authorities. They act as a relatively mild but
effective means of enforcement. Warning notices are issued ―to warn the
64
S. 35(1), Planning and Development Act 2000.
65
See Annex to Circular Letter PD 1/08, Framework for a Comprehensive Taking in
Charge Policy, paragraph 3.8.
66
S.35(6) of the Planning and Development Act 2000 as amended by s.9 of the
Planning and Development (Strategic Infrastructure) Act 2006.
67
The language of s.35 does not limit refusal for failure to comply with past
permission to failure to comply with past permission from a given local authority.
37