Planning and environmental issues
Which government authorities regulate planning and zoning for real estate development and use in your jurisdiction and what is the extent of their powers?
Responsibility for regulating development and designated use of real estate typically lies with local planning authorities. Appeals are referred to An Bord Pleanála (The Planning Board) (ABP), which was set up by the government to operate an open and impartial planning appeal system.
The ABP is statutory authority and deals with all planning appeals in Ireland. Anyone applying for planning permission in Ireland and anyone who made written submissions or observations to the planning authority on a planning application can appeal a planning decision made by a local authority to the ABP.
Local planning authorities and the ABP may grant (subject to conditions) or refuse planning permissions.
What are the eligibility, procedural and documentary requirements to obtain planning permission?
The process involves the submission of a planning application form and drawings describing the proposals to the relevant local planning authority.
Notice of the planning application must be made in an approved newspaper and on a site notice within the two-week period before the submission of the planning application.
A report will be prepared by a planning officer (ie, the individual within the local planning authority with responsibility for dealing with the planning application) who will recommend whether planning permission should be granted or refused. Depending on the nature of the proposal, the final decision on the application will be made either by planning officers under powers delegated to them by the local planning authority or referred to a committee or executive board for determination.
Can planning decisions be appealed? If so, what is the appeal procedure?
If planning permission is refused or is granted subject to conditions which are unacceptable, an appeal may be made by the applicant to the ABP. Third parties which made submissions on the planning application have the same rights to appeal as the applicant.
What are the consequences of failure to comply with planning decisions or regulations?
Where an unauthorised development has been carried out, a warning letter may be sent by the appropriate planning authority demanding an explanation or response from the party concerned within four weeks and outlining the penalties and cost implications involved.
The planning authority shall then make a decision on whether to issue an enforcement notice, which is effectively a stop order on any ongoing unauthorised development or may require the demolition of any unauthorised structure. The exercise of this power is a discretionary decision on behalf of the planning authority.
The penalties for unauthorised development are:
- for conviction on indictment: a fine not exceeding €12,697,381 or imprisonment for a term not exceeding two years, or both; or
- for summary conviction: a fine not exceeding €5,000 or imprisonment for a term not exceeding six months, or both.
What regime governs the protection and development of historic and cultural buildings?
Local planning authorities are required to keep a record for the purpose of protecting structures which form part of the architectural heritage and which are of special architectural, historical, archaeological, artistic, cultural, scientific, social or technical interest.
What regime applies to government expropriation of real estate?
A number of statutory bodies have authority to issue compulsory purchase orders (CPOs) which enable them to acquire land without the consent of the owner. Generally, CPOs are used by statutory bodies in the context of, for example, road improvement schemes. The party from whom land is acquired is entitled to receive compensation based on the market value of the property.
What is the required notice period for expropriation and how is compensation calculated?
There are a number of time limits which apply after objections have been lodged or notice of the CPO served and these are described at Section 217 of the Planning and Development Act 2000.
Compensation is required to leave the party in the same financial position they were in before the CPO process commenced.
What environmental certifications are required for the development of real estate and how are they obtained?
Depending on the nature of any development, environmental licences and permits may be required. For example, certain developments require a licence from the Environmental Protection Agency for the designated use in addition to the planning permission.
What environmental disclosure obligations apply to real estate sales?
A seller is required to make full disclosure of any issue (including environmental issues) which may adversely affect the asset. In addition, a seller is required to reply to standard buyer requisitions (which include specific environmental requisitions) relating to whether the property is a ‘European site’ (ie, a site affected by the European Communities (Natural Habitats) Regulations 1997) and whether any notice, certificate, order, permit, licence or consent under any environmental laws affect the property.
What rules and procedures govern environmental clean-up of property? Which parties are responsible for clean-up and what is the extent of their liability?
The European Communities (Environmental Liability) Regulations 2008 (SI 547/2008) governs environmental liability based on the ‘polluter pays’ principle. An operator whose activity causes the imminent threat of or causes environmental damage is therefore liable for any preventative or remediation measures.
The Irish Environmental Protection Agency is the authority responsible for all aspects of the regulations.
Are there any regulations or incentive schemes in place to promote energy efficiency and emissions reductions in buildings?
Subject to some limited exceptions, there is a statutory requirement on a seller to provide a building energy rating, which provides an indicator of the energy performance of a building. Currently, there are no incentive schemes to improve the energy performance of a building.