Exemption
The New Regulations and ‘Section 5’
As planning applications have become more complex, lengthy and costly, the attraction to developers of being able to squeeze a proposed development into a category of ‘exempt development’ has increased.
A noticeable part of my practice involves some aspect of exempt development, whether around a ‘section 5’ application, advising on whether a proposed development falls within a specific category of exemption or seeking to persuade a planning officer that an enforcement file is misconceived because the development concerned is exempt.
What has become the familiar world of exemption under s4 of the Planning and Development Act 2000 (“PDA 2000”) and, in particular, Schedule 2 Part 1 of the Planning and Development Regulations 2001 (“PDR 2001”), however, will soon become the brave new world of the Planning and Development Act 2024 (“PDA 2024”).
Sections 9 – 11 PDA 2024 provide for the scope of exempt development and the jurisdiction of planning authorities to make ‘Declarations’ as to what is development and, if development, whether exempt development.
This post looks at exemption under PDA 2024 and in particular;
development
the scope of exempt development
a back garden controversy
the new ‘section 5’
The last two headings are only available to paid subscribers.
Development
“As the law reports demonstrate, complex and difficult issues frequently arise as to what constitutes “development” for the purposes of the PDA, particularly in relation to what constitutes a “material change of use”.” (Collins J, Narconon Trust v An Bord Pleanála [2021] IECA 307 §4) This will continue to be the case under PDA 2024.
“Development” is defined in the Definitions section of the Act (s2), not in the body of the Act, as in s3(1) PDA 2000.
““Development” means (a) the carrying out of works (i) on, in, over or under land, or (ii) on, in, over or under the maritime area, or (b) the making of a material change in the use of (i) land or any structure on land, or (ii) the sea, seabed or any structure, in the maritime area, and includes the reclamation of land in the nearshore area (s2)
This is substantively the same definition as was contained in s3(1)(a) PDA 2000.
“It is well established that “material” in the phrase “material change in the use” in s3 PDA 2000 meant “material for planning purposes” (Geoghegan J, Roadstone Provinces Ltd v ABP [2008] IEHC 210, §15) This definition is somewhat circular but is usually sufficiently clear for practical purposes.
The Scope of Exempt Development
The new Act does not itself provide for any development to be exempt from the requirement to obtain planning permission. All development which is exempted for the purposes of the Act will be ‘prescribed’ (defined by Regulations) (s9(1)).
The existing Regulations providing for exempt development (consolidated in Part 1 Sch 2 PDR 2001) were reviewed as part of the Government’s preparation of what is now PDA 2024. The existing Regulations have been extensively amended over time but not comprehensively reviewed for more than 25 years. Exempt development is one of “a small number of areas for which major revision of existing regulations or entirely new regulations are required.” (Planning and Development Act 2024, Implementation Plan (March 2025) p14, “Implementation Plan”).
A public consultation on new Regulations was undertaken during the summer of 2025 generating nearly 1,000 responses.
The new Regulations “will be based on existing provisions regarding exemptions under [PDA 2000] and [PDR 2001]. All existing exemptions will be reviewed and updated where necessary. The purpose of [the consultation] is to identify classes of exemption and associated limitations which require updating for technical reasons (volume, location, specification) and to identify where new exemptions may be appropriate due to new technologies (renewable energy, energy efficiency) or emerging national priorities. The draft regulations with input from the consultations will be reviewed by legal counsel and submitted for environmental screening (SEA/AA). Following review and screenings, regulations will be finalised in draft form.” (Implementation Plan, p19)
“The ability to expand and improve existing planning exemptions to allow for the appropriate adaptation of dwellings to changing needs is a key area for consideration. Furthermore, if we can have more exemptions, this would take many applications out of the system that really don’t need to be there – freeing up local authority Planners (sic) time and allowing more resources to be focused on larger projects.” (Minister James Browne, Press Release, DoHLGH, 4 June 2025)
It is understood that revised Regulations will be published later this spring which envisage exempting from the requirement for planning permission;
reversions to residential use of commercial premises which formerly had residential use
subdivision of larger homes
larger structures in rear gardens
larger rear extensions (from 40 to 45sqm)
heat pumps anywhere around a property
‘wheelie bin’ and bicycle storage sheds, including at the front of properties
external wall insulation
