Local Government (Planning and Development) Act , 1990

PART I Preliminary

1 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.

2 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.

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3.—(1) The following provisions are hereby repealed: section 45 (2) and Part VI of the Principal Act and section 24 of the Public Health (Ireland) Act, 1878.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

4 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.

5 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.

6 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) a 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.

7 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.

8 Recovery of compensation from planning authority.

8.—(1) All compensation payable under this Act by the planning 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.

9 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.

10 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

11 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.

12 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.

13 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).