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Monday 21 January 2019

Legal Advice: Don't get caught offside by planning laws' fine detail

Farm buildings exempt from normal planning requirements can include milking parlours (subject to the total size of all buildings on the farm)
Farm buildings exempt from normal planning requirements can include milking parlours (subject to the total size of all buildings on the farm)

Theresa Murphy

Development and modernisation is key to business success and a farm is no different.

In many instances this requires farmers to develop, construct and extend the facilities on their farms. However, there are a number of potential planning obstacles that should be kept in mind before undertaking any development works.

Irish planning laws have come under fire on many occasions in recent years and in a recent case heard in Galway District Court, there was a particularly critical view taken of the local council's prosecution of a 64- year-old farmer who had erected a number of pillars and gates on his land. He was using these to gather his sheep either for loading on to trucks, shearing or dipping.

Galway County Council had contended that it was similar to a cattle crush and that it was an authorised structure that required planning permission.

Type of farm developments

However, although he found in the council's favour, Judge John King was critical of the decision to prosecute this matter saying it was "like using a cannon to swat a fly". This case raised the issue of what type of farm developments may require planning permission and what developments are exempted from the need for planning permission.

Development is generally defined in planning legislation as meaning the carrying out of works on, in, over or under land, or the making of any material change in the use of land or buildings.

Any such works require planning permission unless they are exempted.

Determining if a development requires planning permission in advance should be an important consideration for farmers considering applying for any grant -aided developments.

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In many cases, if planning is found to have been a requirement after the works are carried out, there may be a claw back of grant aid.

While there are a number of different varieties of building/structure which are exempted from the requirement of planning permission on farms, one of the most commonly used exemption is a Type 1, which is a roofed structure housing cattle, sheep, donkeys, horses, deer or rabbits, provided that its floor area does not exceed 200 square metres and that the total floor area of all Type 1 structures within the farmyard complex (or 100 metres of it) does not exceed 300 square metres.

Another common exemption is a Type 3 which includes milking parlours and silage making/storage structures on the same terms. Type 4 exempted developments include a store, barn, shed, glasshouse etc not exceeding 300 square metres in floor area and not used for housing animals or storing effluent - provided that the total floor area of all Type 3 structures within the farmyard complex (or 100 metres of it) does not exceed 900 square metres.

Many of the exemptions listed that apply to farm buildings and structures do not apply in areas of conservation.

Certain types of other activities are exempted development for the purpose of the regulations including land reclamation (including field drainage, removal of fences, improving existing fences, improvement of hill grazing or reclamation of estuarine marsh land or callows), intensive agriculture, provided the land involved is less than 100 hectares, replacement of broadleaf high forest by conifer species provided the area involved is less than 10 hectares.

Some further points to note is that exempted farm buildings may only be used for agriculture.

Buildings and structures must have adequate slurry/effluent storage for its size, use and location, and satisfy Department of Agriculture requirements in this regard even if the development is exempt from planning permission.

There is a minimum distance requirement from a public road of at least 10 metres. Also the height above ground level must not exceed 8 metres within 100 metres of any public road

Distance from any house (other than own), school, church, hospital or public building must be at least 100 metres unless consent is obtained in writing from the owner or occupier or person in charge. Unpainted metal sheeting cannot be used for roofing or side cladding.

The accompanying requirements are too numerous to list in full. You should always engage a professional before commencing any kind of structure to determine whether planning permission is required.

Planning permission applications

The fees payable to the local authority for agricultural buildings are €80 for each building, or €1 for each square metre of gross floor area in excess of 200 square metres, whichever is the greater.

This is subject to a maximum of €300. Fees for the retention of unauthorised structures are one and a half to three times the normal rate. It should be noted that the gross floor area comprises the total internal floor area and includes the feed passage overhang.

A newspaper notice must be placed two weeks prior to making the planning application. The full page of the newspaper showing the notice must be submitted with the application.

The site notice must also be erected two weeks before the application is made and must now be retained on the site for a minimum period of five weeks from the date a valid application is received by the planning authority. A copy must be submitted with the application.

Most planning authorities have a document available on their websites called "Making a Planning Application" free for download. It outlines what exactly has to be submitted to the authority for a planning application to be processed.

As with any legislation, planning laws and the exemptions and requirements for development are detailed and complex and as one Galway farmer learned, are to be taken seriously before any actions are undertaken on your farm.

Theresa Murphy is a barrister based in Ardrahan, Co Galway

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