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ESB planning condition removed by An Bord Pleanála

THE ESB has succeeded in its bid to remove a condition of planning for a mast in Knockanean ordering them to pay over €6,000 to Clare County Council, despite an inspector of An Bord Pleanála recommending that the development contribution be increased to €10,000.
ESB Telecoms Limited were granted permission for the retention of a 30m-high free-standing monopole telecommunications structure at Knockanean, Tulla Road, Ennis. The company was also granted permission for the attachment of five antennae and five dishes to the structure.
Clare County Council granted planning permission, subject to six conditions, including that the developer pay a sum of €6,291.77 under the council’s development contribution scheme. This payment is in respect of public infrastructure and facilities benefiting from the development.
The original planning application was granted in 2006 and the mast is being used by Vodafone, O2, Meteor and 3G. The application was subject to a five-year restriction, which necessitated this recent application for retention.
When first granted planning permission, the developers made a financial contribution of €5,598 to the planning authority.
ESB Telecoms Ltd insisted in their appeal that the retention should not be considered as a development and should not be subject to a repeat levy by the council.
It was argued in the appeal that because there has been no change in location, height or design, or any part of the existing structure or the compound on which it stands, that the development should not be subject to the council’s development contribution scheme. The appeal went on to state that the structure would not be subject to a different use and was an authorised one at the time retention was sought. It was pointed out that there have been no significant technological advances that would enable the removal of the mast.
According to ESB Telecoms Ltd, “It is considered that the contribution scheme has been incorrectly applied, as this development relates to an existing communication structure and as such should not be subject to the ­development contribution scheme ­levies, as no development has taken place.”
In response to the appeal, Clare County Council’s planning authority stated the conditions attached were based on the development contribution scheme in place at the time the decision was made. This has since been replaced by the revised 2011-2017 scheme, under which a contribution rate of €10,000 is applied for telecommunication masts. The planning authority outlined that exemptions for the contribution scheme do not cater for temporary permissions and it is considered that the scheme has been implemented correctly.
In examining the application, inspector for An Bord Pleanála, Patricia Young outlined that the development contribution scheme 2011-2017 is applicable to all development contributions payable in respect of planning permission and payments made to the council after January 1, 2011.
“The applicable development contribution for telecommunications mast is €10,000 per mast. The exemptions of the scheme make no reference to temporary grants of permissions, which were subject to the payment of previous development contributions.
“The scheme does not make a separate provision for dishes, antennae or telecommunication equipment that a developer may want to attach or put in the vicinity of a mast.
“The scheme does not allow for full or partial exemption from the requirement of payment of development contributions for previously granted temporary permissions.”
The inspector found that the scheme had been properly applied and stated it was appropriate that An Bord Pleanála seek the planning authority to amend the planning condition to the sum of €10,000, which is the applicable development contribution levy for masts under the current scheme.
However, in making their decision, the board considered that the terms of the development contribution scheme had not been properly applied and directed Clare County Council to remove the condition from the planning permission.
In deciding not to accept the inspector’s recommendation, the board considered that, “The appeal must be considered by reference of the ­development contribution scheme in operation at the time of the decision in question and it would not be a reasonable ­interpretation of the development contribution scheme class 14, which relates to the erection of a ­telecommunications mast, to require additional payments for retention of a development arising out of a condition of the previous permission requiring that the retention of the development be reviewed after five years to allow for account to be taken in changes of the technology in the interim.”
The board directed that the condition that the developer pay a sum of €6,291.77 to the planning authority be removed.
Outlining the reasons for the decision, An Bord Pleanála stated, “Having regard to the nature of development contributions as a charge to defray the cost of public infrastructure and services related to the carrying out of ­development and in the absence of a particular provision to this effect, it is not considered that the development contribution scheme provides for the payment of repeated contributions in respect of the same development.
“It is therefore considered that the terms of the said scheme have not been properly applied and that condition number five should accordingly be removed.”

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