# Exempt Development under part 8 & 9 of the Planning Regs.



## o'grainne (16 Apr 2012)

Hi All,
A set of Free-standing Gates have been erected on two footpaths by the Local Authority. When these gates are closed they close of a public road and block vehicular access to certain streets for Residents and Businesses.
No notice has been given to residents or businesses affected regarding the closing times or an alternative access route given. 

When contacted the Local Authority stated  that the work involved is Development  but is Exempt Development  because it has been carried out by and on behalf of and in partnership with An Garda Siochana and does not require planning permission or a formal Part 8 or Part 9 process as set out in the planning legislation.

But according to information available regarding Exempt Development ;

_Are there any limitations to exempted development?

All forms of development, which are normally exempted,* lose this status and require planning permission if they:*_
_
•contravene a condition of a planning permission (you should always check the planning permission under which your premises was constructed or change of use permitted); 
•endanger public safety by causing a traffic hazard or obstructing the view of road users; 
•build forward of the building line; 
•involve a new or wider access to a public road; 
•affect a building, feature, site, etc., listed for preservation in the development plan or draft development plan (check your local development plan); 
•*obstruct a public right of way; *
•include any works to, or changes to, an unauthorised structure or one where there is an unauthorised use. ("Unauthorised" means without the benefit of planning permission or exempted development status.) _


No reason has been given by the Local Authority as to why they in partnership with An Garda Siochana require these gates. 

*Under the Roads Act Act 1993 - Section 75 Roads Regulations 1994 - Article 12.*

_( c ) state the reason why it is proposed to temporarily close the road;
_

These gates can be closed and locked to all vehicles at various times (mainly at night)  without notice to residents or businesses and without an alternative access. 

*Under the  Roads Act 1993 - Section 75 Roads Regulations 1994 - Article 12. 2) *


_The notice of intention required to be given by sub-article (1) shall—
( a ) specify the road which it is proposed to temporarily close;
( b ) state the period for which it is proposed to temporarily close the road;_

My query is does Obstructing a Public Right of Way with these gates lose them their Exempt Status?

Thank you.


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## lowCO2design (17 Apr 2012)

how did you contact the the council? you would probably want to do so in writing to get any sort of a decent answer to your query

 the 'on behalf of and in  partnership with An Garda Siochana' is the interesting bit.. 

if you cannot get satisfaction from written correspondence, i suggest you may wish to involve a local planning consultant - its  difficult to comment here without all the facts..


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## o'grainne (17 Apr 2012)

Hi lowCO2design,

I had to request a declaration of exempted development from  the Local Authority for a  _Declaration under Section 5(3) of the Planning Act  as to whether the erection of a pair of Freestanding Gates on the Public Footpath  is or is not development and is or is not exempted development._

The answer I received was;



_The erection of a pair of Freestanding Gates on the Public Footpath  is development.




The works are development which have been carried out by the Local Authority on   behalf of and in partnership with An Garda Siochana and do not require planning permission or a formal Part 8 or part 9 process as set out in the planning regulations._

I have a bit of an idea of how Part 8 & 9 of the regulations work, i.e. in certain instances Local Authorities can build without Planning Permission, but according to information available regarding Exempt Development, * All* Forms of Exempt Developments  which are normally exempted, lose this status and require planning permission if they:
*Obstruct a Public Right of Way*

Exempt development; No. 18;
http://www.limerickcity.ie/media/PG 1 - EXEMPTED DEVELOPMENT - June 2011.pdf

*Does the City Council need permission to do its own work?*
_No, not in the normal way, but, is subject to the consultation procedures contained in the Planning & Development Act 2000-2010 (As Amended) and Planning & Development Regulations 2001 (As Amended).
_
http://www.limerickcity.ie/Planning/PlanningProcess/ExemptedDevelopment/#does_the_city

No Consultation regarding these gates has been undertaken  by this Local Authority. 

No reason given as to why these gates are required.

So it leaves me wondering if all the required proper procedures have been complied with?


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## Guns N Roses (17 Apr 2012)

o'grainne said:


> When these gates are closed they close of a public road and block vehicular access to certain streets for Residents and Businesses.


 
Can I ask how you have determined that the road in question is indeed a "Public Road" and that a "public right of way" exists over it?


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## o'grainne (17 Apr 2012)

*Public Roads*

_A public road means a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority.  The maintenance of a public road includes the provision and maintenance of public lighting._

[broken link removed]


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## o'grainne (17 Apr 2012)

Also this road/street is situated in the centre of a town and allows for the free movement of vehicles and pedestrians.


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## lowCO2design (17 Apr 2012)

lowCO2design said:


> if you cannot get satisfaction from written correspondence, i suggest you may wish to involve a local planning consultant - its  difficult to comment here without all the facts..


i can recommend one if you'd like but they don't come cheap,  you may wish to submit your concerns to http://www.pleanala.ie/
first or seek legal advice..

I know in Cork similar gates have appeared in the past - 'for the greater good' usually due to anti-social behaviour or worse..


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## Guns N Roses (17 Apr 2012)

o'grainne said:


> _A public road means a road over which a public right of way exists and the responsibility for the maintenance of which lies on a road authority. The maintenance of a public road includes the provision and maintenance of public lighting._


 
I know what the defination of a Public Road is.

My question is how do you know that the road in question satisfies these conditions?

Have you any documentation that shows that a public right of way exists over the road?

Has the Local Authority acknowledged that it is in fact a Public Road and have they documentation to prove that?

Did the LA build the road in question?

Do they own the land on which it is built?

Have they been maintaining it?

Is it on the LA's Road Schedule List?

LA's don't generally close Public Roads without sorting out the paperwork first.

It sounds like that the road in question may not be a Public Road and that the LA are simply closing an unauthorised access.


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## o'grainne (17 Apr 2012)

Hi,

Many thanks for the advice and offer of a planning consultant, think it will be the Board Pleanala Route.

There is no dispute in this case as to whether or not there is a Public Right of Way through this Road/Street, it is a Public Thoroughfare.
It is in the ownership of the Local Authority, it has existed since the building of the town,  they maintain it etc. and the information received from them does not provide any evidence to support any other conclusion.

It would be like closing off the access from Grafton St on to Wicklow St in Dublin with gates at different times, with no alternative access and without any consultation with local businesses or residents.

That's what my question was based on, the gates are exempt, but when closed they obstruct this public road, which an exempt development is not meant to do.

Thanks for input.


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## Superman (19 Apr 2012)

Not certain that an application to An Bord Pleanala will be of any use - if the local authority believes no planning is required.  

You might need to get a judicial review... expensive...


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## csirl (19 Apr 2012)

Have you checked whether or not the council make a decision to extinguish the 'right of way'? It's possible that they went through this procedure at some stage in the recent past.

One word of caution - just because a route looks like a thoroughfare and is frequently used by people, it does not necessarily mean it is an official right of way.


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