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28 1963

LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACT, 1963

PART VIII.

Miscellaneous.

Prosecution of offences by planning authority.

80. —(1) An offence under this Act may be prosecuted by the planning authority in whose area the offence is committed.

(2) A planning authority shall not prosecute in a case in which an offence under section 53 of this Act is alleged to have been committed in relation to an advertisement unless the advertisement is exempted development and they have decided that the advertisement would injure the amenities of their area and, in the case of an advertisement advertising a public meeting, unless the advertisement has been in position for seven days or longer after the date of the meeting.

(3) Where—

(a) an offence under section 46 or section 52 of this Act, or

(b) an offence under section 53 of this Act consisting of defacing any structure, door, gate, window, tree or post,

is alleged to have been committed, any officer of the planning authority, duly authorised by them in writing and producing, if so required, his authority, may demand the name and address of any person whom he reasonably believes to be guilty of the offence.

(4) Any person whose name and address has been demanded under the foregoing subsection and who fails to comply with the demand shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five pounds.

Restriction on exercise of power of entry of planning authority and obstruction of approved entry.

81. —(1) Where (in the case of occupied land) the occupier or (in the case of unoccupied land) the owner refuses to permit the exercise of a power of entry conferred by this Act on a planning authority, the authority shall not exercise the power save pursuant to an order of the District Court approving of the entry.

(2) The following provisions shall have effect in relation to an application for an order under this section:

(a) the application shall be made, on notice to the person who refused to permit the exercise of the power of entry, to the justice of the District Court having jurisdiction in the district court district in which the land or part of the land is situate,

(b) the application shall be granted unless the proposed entry is to be made pursuant to section 31 , 32 or 33 of this Act on a structure and the said person satisfies the court in a case of non-compliance with a condition, that the condition was complied with or, in any other case, that the structure is not an unauthorised structure,

(c) an order made on the application may require that entry shall not be effected during a specified period of one week or less commencing on the date of the order.

(3) Any person who, by act or omission, obstructs an entry approved of by order under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding twenty-five pounds; and if in the case of a continuing offence the obstruction is continued after conviction, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding five pounds for each day on which, the obstruction is so continued.

Supplemental provisions relating to references and appeals.

82. —(1) Regulations may provide for any matters of procedure in relation to references or appeals.

(2) Regulations shall be made under this section providing—

(a) for oral hearing of any reference or appeal in respect of which oral hearing is requested by any party,

(b) for any such oral hearing being conducted by a person appointed for that purpose by the Minister,

(c) for the furnishing to the Minister, by any person so appointed, of a report on the oral hearing and for the consideration by the Minister of the report before he gives his decision.

(3) Where a question of law arises on any reference or appeal—

(a) the Minister may refer the question for decision by the High Court,

(b) an appeal shall lie to the High Court on the question and may be taken at any time within the period of three months after the giving of the decision or such longer period as the High Court may in any particular case allow.

(4) A person conducting an oral hearing of any reference or appeal may require any officer of a planning authority to give to him any information in relation to the reference or appeal which he reasonably requires for the purposes of the reference or appeal, and it shall be the duty of the officer to comply with the requirement.

(5) (a) A person conducting an oral hearing of any reference or appeal may visit and inspect any land to which the reference or appeal relates.

(b) Any person who obstructs the exercise of the power conferred by this subsection shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding five pounds.

(6) A person conducting an oral hearing of any reference or appeal may take evidence on oath and for that purpose may administer oaths, and a person giving evidence at any such hearing shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(7) (a) Subject to the following paragraph, a person conducting an oral hearing of any reference or appeal may, by giving notice in that behalf in writing to any person, require that person to attend at such time and place as is specified in the notice to give evidence in relation to any matter in question at the hearing or to produce any books, deeds, contracts, accounts, vouchers, maps, plans or other documents in his possession, custody or control which relate to any such matter.

(b) The following provisions shall have effect for the purposes of the foregoing paragraph:

(i) it shall not be necessary for a person to attend in compliance with a notice at a place more than ten miles from his ordinary place of residence unless such sum as will cover the reasonable and necessary expenses of the attendance have been paid or tendered to him;

(ii) the planning authority shall, at the request of the person conducting the oral hearing, pay or tender to any person whose attendance is required such sum as the person conducting the hearing considers will cover the reasonable and necessary expenses of the attendance;

(iii) any person who in compliance with a notice has attended at any place shall, save in so far as the reasonable and necessary expenses of the attendance have already been paid to him, be paid those expenses by the planning authority, and those expenses, save as aforesaid, shall, in default of being so paid, be recoverable as a simple contract debt in any court of competent jurisdiction;

(iv) every person to whom a notice has been given who refuses or wilfully neglects to attend in accordance with the notice or who wilfully alters, suppresses, conceals or destroys any document to which the notice relates or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any document to which the notice relates shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding twenty pounds.

(8) In this section—

reference” means a reference under section 5 of this Act,

appeal”, except in paragraph (b) of subsection (3), means an appeal to the Minister under this Act or any order made under this Act.

Power of authorised person to enter on land.

83. —(1) An authorised person may, subject to the provisions of this section, enter on any land at all reasonable times between the hours of 9 a.m. and 6 p.m. for any purpose connected with this Act.

(2) An authorised person entering on land under this section may do thereon all things reasonably necessary for the purpose for which the entry is made and, in particular, may survey, make plans, take levels, make excavations, and examine the depth and nature of the subsoil.

(3) Before an authorised person enters under this section on any land, the appropriate authority shall either obtain the consent (in the case of occupied land) of the occupier or (in the case of unoccupied land) the owner or shall give to the owner or occupier (as the case may be) not less than fourteen days' notice in writing of the intention to make the entry.

(4) A person to whom a notice of intention to enter on land has been given under this section by the appropriate authority may, not later than fourteen days after the giving of such notice, apply, on notice to such authority, to the justice of the District Court having jurisdiction in the district court district in which the land or part of the land is situate for an order prohibiting the entry, and, upon the hearing of the application, the justice may, if he so thinks proper, either wholly prohibit the entry or specify conditions to be observed by the person making the entry.

(5) Where a justice of the District Court prohibits under this section a proposed entry on land, it shall not be lawful for any person to enter under this section on the land, and where a justice of the District Court specifies under this section conditions to be observed by persons entering on land, every person who enters under this section on the land shall observe the conditions so specified.

(6) Subsections (3), (4) and (5) of this section shall not apply to entry for the purposes of Part IV of this Act and, in a case in which any such entry is proposed, if the occupier (in the case of occupied land) or the owner (in the case of unoccupied land) refuses to permit the entry—

(a) the entry shall not be effected unless it has been authorised by an order of the justice of the District Court having jurisdiction in the district court district in which the land or part of the land is situate and, in the case of occupied land, save after at least twenty-four hours' notice of the intended entry, and of the object thereof, has been given to the occupier,

(b) an application for such an order shall be made on notice (in the case of occupied land) to the occupier or (in the case of unoccupied land) to the owner.

(7) Every person who, by act or omission, obstructs an authorised person in the lawful exercise of the powers conferred by this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds; and if in the case of a continuing offence the obstruction is continued after conviction, he shall be guilty of a further offence and liable on summary conviction to a fine not exceeding five pounds for each day on which the obstruction is so continued.

(8) In this section—

authorised person” means a person who is appointed by the planning authority or the Minister to be an authorised person for the purposes of this section;

appropriate authority” means—

(a) in a case in which the authorised person was appointed by a planning authority—that authority, and

(b) in a case in which the authorised person was appointed by the Minister—the Minister.

Consultation by State authorities.

84. —(1) Before undertaking the construction or extension of any building (not being a building which is to be constructed or extended in connection with afforestation by the State), a State authority—

(a) shall consult with the planning authority to such extent as may be determined by the Minister, and

(b) if any objections that may be raised by the planning authority are not resolved, shall (save where the construction or extension is being undertaken by the Minister) consult on the objections with the Minister.

(2) In this section “State authority” means any authority being—

(a) a member of the Government,

(b) the Commissioners of Public Works in Ireland, or

(c) the Irish Land Commission.

Cables, wires and pipelines.

85. —(1) A planning authority may, with the consent of the owner and of the occupier of any land not forming part of a public road, place, erect or construct cables, wires and pipelines (other than waterpipes, sewers and drains), and any apparatus incidental to such cables, wires and pipelines, on, under or over such land, and may from time to time inspect, repair, alter or renew, or may at any time remove, any cables, wires or pipelines placed, erected or constructed under this section.

(2) A planning authority may, with the consent of the owner and of the occupier of any structure, attach to such structure any bracket or other fixture required for the carrying or support of any cable, wire or pipeline placed, erected or constructed under this section.

(3) A planning authority may erect and maintain notices indicating the position of cables, wires or pipelines placed, erected or constructed under this section and may, with the consent of the owner and of the occupier of any structure, affix such a notice to such structure.

(4) The foregoing subsections of this section shall have effect subject to the proviso that—

(a) a consent for the purposes of any of them shall not be unreasonably withheld,

(b) if the planning authority consider that such a consent has been unreasonably withheld, they may appeal to the Minister,

(c) if the Minister determines that such a consent was unreasonably withheld, it shall be treated as having been given.

(5) The planning authority may permit the use of any cables, wires or pipelines placed, erected or constructed under this section and of any apparatus incidental to such cables, wires or pipelines subject to such conditions and charges as they consider appropriate.

Building regulations.

86. —(1) The Minister may make regulations for all or any of the matters set out in section 41 of the Public Health (Ireland) Act, 1878, and section 23 of the Public Health Acts Amendment Act, 1890 (other than paragraph (1) of the said section 41 and the last paragraph of subsection (1) of the said section 23), and accordingly no further bye-laws shall be made under those sections for any of those matters.

Regulations made under this section shall be known and in this Act are referred to as building regulations.

(2) Building regulations may prescribe standards (expressed in terms of performance, types of material, methods of construction or otherwise) in relation to all or any of the matters specified in the Fifth Schedule to this Act and may prescribe different standards for buildings of different classes.

(3) Building regulations may make provision in relation to—

(a) testing of drains and sewers,

(b) taking of samples of materials to be used in the construction of buildings, or in the execution of other works.

(4) (a) Building regulations may be made with respect to—

(i) structural alterations or extensions of buildings, and buildings so far as affected by alterations or extensions,

(ii) buildings or parts of buildings in cases where any material change takes place in the purposes for which a building or, as the case may be, a part of a building is used, and so far as they relate to the matters mentioned in this subsection, may be made to apply to buildings erected before the date on which the regulations came into force, but, save as aforesaid, shall not apply to buildings erected before that date.

(b) For the purposes of this subsection, there shall be deemed to be a material change in the purpose for which a building, or part of a building, is used if—

(i) a building, or part of a building, being a building or part which was not originally constructed for occupation as a house, or which though so constructed has been appropriated to other purposes, becomes used as a house,

(ii) a building, or part of a building, being a building or part which was originally constructed for occupation as a house by one family only, becomes occupied by two or more families, or

(iii) where regulations contain special provisions with respect to buildings used for any particular purpose, a building, or a part of a building, being a building or part not previously used for that purpose, becomes so used.

(5) Any provision contained in building regulations may be made so as to apply generally, or in an area specified in the regulations, and the regulations may contain different provisions for different areas.

(6) Planning authorities shall, in relation to building regulations, have all such functions under the Public Health (Ireland) Act, 1878 (including, in particular, section 42 thereof), as are provided by that Act for them as sanitary authorities in relation to bye-laws under section 41 of that Act.

(7) Building regulations may include such supplemental and incidental provisions as appear to the Minister to be expedient.

(8) If a person contravenes any provision contained in building regulations, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding one hundred pounds; and if in the case of a continuing offence the contravention is continued after conviction, he shall be guilty of a further offence and shall be liable to a further fine not exceeding twenty pounds for each day on which the contravention is so continued.

(9) Building regulations may provide for a combination in one document of—

(a) any application required or authorised under the regulations to be made, and

(b) any application for permission for development under Part IV of this Act;

and for the making of such combined application in such form and manner as may be specified in the regulations.

(10) Section 41 of the Public Health (Ireland) Act, 1878, and section 23 of the Public Health Acts Amendment Act, 1890, shall have effect as if—

(a) in lieu of so much thereof as provides for the making of bye-laws with respect to the matters specified in the said section 41 (other than paragraph (1) thereof) and the said section 23 (other than the last paragraph of subsection (1) thereof), they provided for the making, subject to the provisions of the Local Government (Planning and Development) Act, 1963, of regulations with respect to those matters by the Minister, and

(b) the words “Provided that no bye-law made under this section shall affect any building erected before the passing of this Act” were omitted from the said section 41.

(11) For any reference to bye-laws under section 41 of the Public Health (Ireland) Act, 1878, with respect to any matters set out in that section (other than paragraph (1) thereof) or in subsection (1) of section 23 of the Public Health Acts Amendment Act, 1890 (other than the last paragraph thereof), or to bye-laws under subsection (4) of the said section 23, which occurs in any Act or in any instrument having effect under any Act, there shall be substituted save where the context otherwise requires, a reference to building regulations.

Relaxation of building regulations.

87. —(1) Subject to the provisions of this section, if the Minister, on application made in accordance with the provisions of this section, considers that the operation of any requirement in building regulations would be unreasonable in relation to the particular case to which the application relates, he may, after consultation with the planning authority, give a direction dispensing with or relaxing that requirement.

(2) If building regulations so provide as regards any requirement contained in the regulations, the power to dispense with or relax that requirement under subsection (1) of this section shall be exercisable by the planning authority (instead of by the Minister after consultation with the planning authority), but any provisions contained by virtue of this subsection in building regulations shall except applications made by local authorities and may except applications of any other description.

(3) Building regulations may provide as regards any requirements contained in the regulations that the foregoing subsections of this section shall not apply.

(4) An application under this section shall be in such form as may be prescribed by building regulations and shall contain such particulars as may be so prescribed.

(5) The application shall be made to the planning authority and, except where the power of giving the direction is exercisable by the planning authority, the planning authority shall at once transmit the application to the Minister and give notice to the applicant that it has been so transmitted.

(6) If within a period of two months beginning with the date of an application (being an application with respect to which the power of giving the direction is exercisable by the planning authority), or within such extended period as may at any time be agreed in writing between the applicant and the planning authority, the planning authority do not notify the applicant of their decision on the application, a decision by the planning authority to grant the application shall be regarded as having been given on the last day of that period.

(7) An application by a local authority shall be made to the Minister.

Appeal against refusal by planning authority to relax building regulations.

88. —(1) If a planning authority refuse an application to dispense with or relax any requirement in building regulations which they have power to dispense with or relax, the applicant may by notice in writing appeal to the Minister within one month from the date on which the planning authority notify the applicant of their refusal.

(2) Where an appeal under this section is allowed, the Minister shall give such directions for dispensing with or relaxing building regulations as may be appropriate, and the planning authority shall comply therewith.

Petrol pumps, etc., on public roads.

89. —(1) The planning authority may grant to any person a licence to erect, construct, place, and maintain—

(a) a petrol pump, oil pump, air pump or other appliance for the servicing of vehicles,

(b) a vending machine,

(c) a town or landscape map for indicating directions or places,

(d) a hoarding, fence or scaffold,

(e) an advertisement structure,

(f) a cable, wire or pipeline,

(g) any other appliance or structure specified by the Minister by regulations as suitable for being licensed under this section,

on, under, over or along a public road.

(2) A person applying for a licence under this section shall furnish to the planning authority such plans and other information concerning the position, design and capacity of the appliance or structure as the authority may require.

(3) A licence may be granted under this section by the planning authority for such period and upon such conditions as the authority may specify, and where in the opinion of the planning authority by reason of the increase or alteration of traffic on the road or of the widening of the road or of any improvement of or relating to the road, the appliance or structure causes an obstruction or becomes dangerous, the authority may by notice in writing withdraw the licence and require the licensee to remove such appliance or structure at his own expense.

(4) (a) Any person may, in relation to the granting, refusing, withdrawing or continuing of a licence under this section or to the conditions specified by the planning authority for such a licence, appeal to the Minister.

(b) Where an appeal under this section is allowed, the Minister shall give such directions with respect to the withdrawing, granting or altering of a licence under this section as may be appropriate, and the planning authority shall comply therewith.

(5) (a) The Minister may make regulations prescribing the amount of the fee to be paid to the planning authority for the grant of a licence under this section, and any such fees shall be applied by the planning authority in the manner directed by the regulations.

(b) Different fees may be prescribed under this subsection in respect of different appliances and structures.

(6) Nothing in this section shall be construed as affecting the application to petrol pumps of the regulations for the time being in force relating to the storage or sale of motor spirit or to authorise the use of a petrol pump otherwise than in accordance with those regulations.

(7) A person shall not be entitled solely by reason of a licence under this section to erect, construct, place or maintain on, under, over or along a public road any appliance or structure.

(8) Subject to subsection (9) of this section, any person who—

(a) erects, constructs, places or maintains an appliance or structure referred to in subsection (1) of this section on, under, over or along any public road without having a licence under this section so to do, or

(b) erects, constructs, places or maintains such an appliance or structure on, under, over or along any public road otherwise than in accordance with a licence under this section, or

(c) contravenes any condition subject to which a licence has been granted to him under this section,

shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding ten pounds; and if in the case of a continuing offence the contravention is continued after conviction, he shall be guilty of a further offence and shall be liable on summary conviction to a fine not exceeding two pounds for each day on which the contravention is so continued.

(9) (a) A planning authority may, by virtue of this subsection, themselves erect, construct, place or maintain, on, under, over or along a public road any appliance or structure referred to in subsection (1) of this section, and it shall not be necessary for them to have a licence under this section.

(b) Nothing in this subsection shall be taken as empowering a planning authority to hinder the reasonable use of a public road by the public or any person entitled to use it or as empowering a planning authority to create a nuisance to the owner or occupier of premises adjacent to the public road.

(10) Where a planning authority are not the road authority for the purposes of main roads in their area, they shall not, in pursuance of this section, grant a licence in respect of any appliance or structure on, under, over or along a main road or erect, construct or place any appliance or structure on, under, over or along a main road save after consultation with the authority who are the road authority for those purposes.

Saving for national monuments.

90. —Nothing in this Act shall restrict, prejudice, or affect the functions of the Minister for Finance or the Commissioners of Public Works in Ireland under the National Monuments Acts, 1930 and 1954, in relation to national monuments as defined by those Acts or any particular such monuments.

Amendment of Section 42 of Public Health (Ireland) Act, 1878.

91. —Section 42 of the Public Health (Ireland) Act, 1878, is hereby amended by the substitution of “two months” for “one month” and “such two months” for “such month”.

Transitional.

92. —(1) An application for a special permission under the Act of 1934 which was under consideration by a planning authority immediately before the appointed day shall be treated for the purposes of this Act as an application for a permission under section 26 of this Act.

(2) A general or special permission granted under the Act of 1934 shall be treated for the purposes of this Act (including, in particular, sections 30, 31 and 35) as a permission granted under section 26 of this Act, and a record of such permission shall be included in the register.

(3) An appeal under section 59 of the Act of 1934 in relation to a grant or refusal of a special or general permission which was pending immediately before the appointed day shall be treated for the purposes of this Act as an appeal under section 26 of this Act, except that a direction shall not be given in relation to the appeal under paragraph (b) of subsection (1) of section 18 of this Act.

(4) In relation to an order made under section 14 of the Town and Regional Planning (Amendment) Act, 1939 , before the appointed day, that Act and the Act of 1934 shall be treated as continuing in force for the purpose of enabling effect to be given in relation to the order to the provisions contained in the said section 14.

(5) (a) Any bye-laws in force immediately before the operative day under section 41 of the Public Health (Ireland) Act, 1878, for any matters other than those set out in paragraph (1) of that section shall on and after that day continue to apply in relation to—

(i) plans which, in accordance with such bye-laws, were deposited before the operative day, and

(ii) work carried out in accordance with plans deposited before the operative day, with or without departure or deviation from those plans, and

(iii) works carried out and completed before the operative day.

(b) Except as provided by the foregoing paragraph, all bye-laws in force immediately before the operative day under section 41 of the Public Health (Ireland) Act, 1878, for any matters other than those set out in paragraph (1) of that section shall be repealed on the operative day, but subsections (1) and (2) of section 21 of the Interpretation Act, 1937 , shall apply in relation to the repeals effected by this paragraph as they apply in relation to the repeal of any provision in an Act of the Oireachtas.

(c) The amendment made by subsection (11) of section 86 of this Act in any enactment shall not apply so as to exclude from that enactment any reference to bye-laws made under section 41 of the Public Health (Ireland) Act, 1878, as in force before the operative day, or as continued in force by this subsection.

(d) In this subsection “the operative day” means the day on which this subsection comes into operation.

(6) (a) A licence under section 137 of the Cork Improvement Act, 1868, section 47 of the Dublin Corporation Act, 1890, or section 35 of the Local Government Act, 1925 , in force immediately before the appointed day shall be treated for the purposes of this Act as a licence under section 89 of this Act.

(b) An appeal under section 35 of the Local Government Act, 1925 , pending immediately before the appointed day shall be treated for the purposes of this Act as an appeal under section 89 of this Act.

(c) Regulations in force immediately before the appointed day under section 35 of the Local Government Act, 1925 , shall continue in force as if they were regulations under section 89 of this Act and may be amended or revoked accordingly.

(d) Subsection (8) of section 89 of this Act shall not have effect in relation to an appliance or structure referred to in subsection (1) of that section (other than a hoarding, fence or scaffold in the county borough of Dublin or in the county borough of Cork or a petrol pump) before the expiration of the period of six months beginning on the appointed day.