A document sent by Dublin City Council planning department to an applicant for a Section 5 exemption regarding planning for an IPAS centre would appear to confirm that such developments are required to be notified to the local authority before development of an IPAS centre begins or is allowed to continue.
The fact that existing contractors are making such applications to confirm what they claim are existing exemptions is in itself of interest, and suggests that they are in need of clarification regarding the exemptions which have allowed them to go ahead with the centres in the first instance.
Forbairt Órga Teoranta had applied in May to seek confirmation that they still had an exemption to house asylum seekers at the Clifton Court Hotel as they had been doing since May 2022 when their contract began – a contract set to last until May 2032.
That application no longer appears on the City Council portal and the company registered a new application – seeking to know if they still had an exemption for the “continued use” as asylum accommodation – last Friday, July 18.
The reason that was necessary is that the City Council has informed Forbairt Órga Teoranta that “further information is necessary before the application can be considered.” The planning authority has sought two specific clarifications.
Firstly, whether the hotel will cease to be used for that purpose before the end of 2028; and secondly, “whether Dublin City Council were notified of the change of use prior to the commencement of development and to provide evidence of the same.”
In its response to the request for further information, the company bluntly states that “We confirm that this will not be discontinued before 31st December, 2028 and Dublin City Council were not notified of the change of use prior to commencement.”
In justifying this seeming failure, they state that Class 20F – which requires both conditions – was not in effect in June 2022 when the Clifton Court Hotel began to operate as an IPAS accommodation centre. They claim that they were granted an exemption under 14(h) of the earlier regulation 582/2015. They are therefore resubmitting on the basis that that exemption ought still to apply.
All of this is of interest to planning exemption nerds – and sheds new doubts not only on the continued use of the Clifton Court Hotel but on any other existing or proposed accommodation developments which have not provided the information outlined.
The relevant regulations now are those contained in Statutory Instrument 376/2023 which includes the stipulation under Section 3 that “The use for the purposes of accommodating persons seeking international protection shall be discontinued not later than 31 December 2028.”
The reference to the need to notify the local authority is contained in Section 5. That clearly states that “The relevant local authority must be notified of locations where change of use is taking place prior the commencement of development.”
The request for clarification on whether FÓT will discontinue the use of the Clifton Court Hotel as asylum accommodation by the stipulated date is very interesting given that the company apparently has a ten-year contract.
There have been other cases where companies have since then been given contracts that go beyond that date – and they could not possibly be covered by the old regulation as it has been superseded by 376/2023. An example of this is where Utmasta were given a 20 year contract in January for Dundrum House – yet another question to be answered.
For the present, however, it is the clear requirement that the contractor is obligated under the current regulations to notify the authority that is of most interest.
As we reported last week, Councillor Linda de Courcy was provided with clear evidence that no such notification had been sent to South Dublin County Council for Citywest and Crooksling.
The Dublin City Council document also clears up whatever confusion – however created – in relation to which Section 5 is being referred to.
In the context of applications to the local authority, it is quite clear that it refers to Section 5 of SI 376/2023.
It had been suggested by some – for reasons best known to themselves and in response to the information given to Councillor de Courcy – that she was looking at the wrong regulations. She was not.
She was specifically referring to the requirement in 376/2023 and in their response SDCC referred to that very instrument, the same one on which Dublin City Council is requesting further information from an applicant.
If there is confusion regarding the planning regulations then perhaps it is on the part of the State.
Last week, the Saggart Village Residents’ Association attended a meeting with the Community Engagement Team of the Department of Integration. It was attended by a number of local groups, though some declined on the basis of their frustration at previous fruitless engagements with representatives of the State and even their own elected local representatives.
That annoyance was also voiced by those who did attend and it is recorded in the minutes that “All attendees voiced significant frustration at the decision making process”.
Among them being the “lack of engagement,” that the decision by the State to buy Citywest “didn’t take Saggart into account at all,” and that “Councillors and TDs have gone missing.”
When challenged over the definitive “change of use” from a hotel to a permanent asylum accommodation centre, the CET simply noted that all of this was exempt from planning “and trumps other considerations including environmental requirements”.
According to attendees, the CET, when asked about the exemptions which bypass the normal planning procedures, appeared to contradict themselves and to be uncertain of what the amended regulations actually do mean. They claimed that there was a Section 5 exemption under the Planning and Development Act 2020.
They noted that this “allowed individuals to request a formal declaration from a planning authority to determine if a specific request requires planning permission or is considered exempted development.”
South Dublin County Council in response to a Freedom of Information request said that they had received no such notification, that there were therefore no documents related to it, and that in any event “Section 5 ‘Exempted Development’ declarations are not mandatory under the Planning and Development Act, 2000. No application has been submitted to this Planning Authority regarding any change of use on the Citywest Hotel site since its recent acquisition.”
And lest there be any doubt about this, Section 5 of the Planning and Development Act 2020 (as amended) clearly states:
“5.—(1) If any question arises as to what, in any particular case, is or is not development or is or is not exempted development within the meaning of this Act, any person may, on payment of the prescribed fee, request in writing from the relevant planning authority a declaration on that question, and that person shall provide to the planning authority any information necessary to enable the authority to make its decision on the matter.”
So matter whether it is Section 5 of 2020 as amended, or subsection 5 of 376/2023 which inserted a new Class 20F there is a requirement to engage with the local authority, even if simply to notify them that the applicant intends to proceed with a development that is not indeed subject to the normal planning regulations.
There would appear to be Kafkaesque levels of bureaucratic confusion and obfuscation. Either the legislation is wrong, or the Department officials do not know what it means, or the local authority planners do not know what it means.
The CET went on to say that “there was no legal requirement for Tertrach to inform the council, and the council did not receive such a notification.”
Well, there is such a requirement for any centre that proposes to remain in operation after the end of 2028. Not only is it in 376/2023 but the clarification sought by Dublin City Council of the application for the Clifton Court Hotel makes it clear that is a requirement and that it cannot be proceeded with without proof of such notification.
So where does that leave us?
Where it ought to leave us is that where any development has not complied with the requirements outlined then it is up to the local authority to initiate enforcement proceedings.
If I build an unauthorised structure in my back garden the Council will tell me to take it down, and will ensure that if I do not take it down, that down it shall come. The same ought to apply here, surely?