Planning and Development Bill 2022
Locations
The Department has confirmed that the Bill will be subject to pre-legislative scrutiny before it is finalised, and suggested that this new legislation will "bring greater clarity, consistency and certainty to how planning decisions are made" and further, that the planning system itself will be “more coherent and user-friendly” for both the public and professionals as a result. Some of the key provisions and differences with the 2000 Act are discussed below.
Plans and Policies, in particular Development Plans
The Bill introduces measures to make local authority development plans more concise and focussed whilst remaining strategic in nature[1]. Currently, local authorities make development plans that identify what individual lands are zoned for, whether that is of a residential, commercial or industrial nature. Under the Bill, development plans will be made more specific in order to indicate, for example, the type of development that will be allowed to take place in localities and to provide more detail on the style of the proposed development before planning applications are submitted[2]. The duration of a development plan will be extended from six years to ten years[3], with review after year five.
The Minister has new powers to issue a National Planning Statement which comprises two parts: National Planning Policies and Measures and National Planning Policy Guidance the latter of which provides guidance on the implementation of those policies and measures[4]. The Bill sets out certain criteria[5] to be taken into account by the Minister when formulating a National Planning Statement which includes the pattern, layout and form of amenity space, the objective of achieving consolidation of urban centres and the promotion and regulation of renewable energy development in appropriate locations. A National Planning Statement requires the approval of the Government and the Minister may consult with other Ministers, public bodies, stakeholders and members of the public as he or she considers appropriate.
The development plan is required to be materially consistent with the NPF, the RSES, any relevant National Planning Policies and Measures, and any relevant transport strategy of the NTA. In this regard, the National Planning Policies and Measures ("NPPMs") in the Bill are taking the place of SPPRs under the 2000 Act.
Ministerial guidelines under section 28 of the 2000 Act will be replaced by National Planning Policy Guidance which will have stronger legal status than their predecessors[6]. In respect of development plans, a planning authority will be required to take due account of any relevant National Planning Policy Guidance which is an enhanced obligation compared to the 'have regard to' requirement under the 2000 Act in respect of s.28 guidelines (see for example the judgment of Mr Justice Humphreys in Cork County Council v Minister for Housing, Local Government and Heritage & Ors at para 57 (xi) where he describes the use of "an intensifier such as to have "due" regard to something…that generally connotes an additional degree of weight to be given to the matter to which regard is to be had with a general enhancement of the level of reasons that have to be given for not affording such weight").
Where a development plan departs from any relevant guidance contained in National Planning Policy Guidance, the written statement accompanying the development plan will be required to include a statement of reasons as to why, in the opinion of the planning authority, the departure is not detrimental to the proper planning and sustainable development and is justified having regard to the proper planning and sustainable development of the area (this appears to build on the requirements under section 28(1)A and B of the 2000 Act).
The Bill also gives the Office of the Planning Regulator ("OPR") wider scope to issue draft directions and make recommendations to the Minister in respect of local authority development plans. Under the 2000 Act, the OPR can make a recommendation to the Minister only where it is of the opinion that a development plan fails to set out an overall strategy for the proper planning and sustainable development of the area but section 62(10) of the Bill would require the OPR to issue a draft direction also in circumstances where there is material inconsistency with, amongst other things, the NPF, RSES or NPPMs, or departure from National Planning Policy Guidance without adequate explanation or where the development plan is otherwise in contravention of the Act.
The Bill introduces mandatory timelines for all consent processes - including An Bord Pleanála ("ABP") decisions. If ABP or Planning Authorities, in certain circumstances fail to make decisions within these timelines, it would face fines. The exact timelines will be included in the finalised Bill.
Judicial-review - new rules on timelines, standing, correcting errors and costs
There would also be changes to judicial reviews– with reforms to include how judicial reviews are brought and new prescribed timelines for various steps in the process. The application for judicial review must be brought within 8 weeks from the date of the decision, date of the act done or the date of the failure to perform a function, as the case may be. The first return date shall be no later than 6 weeks from the date of issue and at that point the respondent or notice party can indicate to the court whether they shall be opposing the grant of leave[7].
A company (within the meaning of the Companies Act 2014) shall be regarded has having sufficient interest to bring judicial review if it is registered for more than one year, its constitution includes objects related to the promotion of the environment, it has least ten members and it has passed a resolution in accordance with its constitution to bring the proceedings.
This can be contrasted with the 2000 Act wherein at Section 50A(3)(b)(ii)(I) it refers a 'body' or 'organisation' (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection.
Under the proposals, ABP would be able to correct an error of fact or law in a planning decision[8], and would be able to apply for a stay[9] on the decision of JR proceedings while making these corrections.
The Bill will include costs protection[10] for judicial-review cases "relating to non-compliance with national law, or the law of the European Union, relating to the environment", with no order for costs, except where the court considers that the proceedings are frivolous or vexatious, or an abuse of process.
Reorganisation of An Bord Pleanála into An Coimisiún Pleanála
The Bill seeks to restructure An Bord Pleanála, to be renamed An Coimisiún Pleanála ("the Commission"), and to reorganise the existing powers and processes of that body.
This reorganisation will see the separation of both decision-making and the corporate roles, with the former being carried out by Planning Commissioners and the latter by a Governing Executive (comprising a Chief Executive and up to 7 Ministerial appointees who are not staff of the Commission). The Governing Executive shall ensure that there are sufficient resources and personnel available to the Planning Commissioners to enable them to discharge their functions and, in particular, to determine appeals, referrals and applications in an expeditious manner. The Governing Executive shall also approve and have published written procedures to be followed by the Planning Commissioners when performing their functions, as well as a code of conduct for dealing with conflicts of interest and promoting public confidence in the integrity of the Commission's business. The Chief Executive shall be accountable for the Commission's affairs to the Public Accounts Committee.
On the decision-making side, there will be a Chief Planning Commissioner, Deputy Chief Planning Commissioner and 13 ordinary Planning Commissioners. These will be appointed by Government on the basis that the persons have a satisfactory mix of experience and knowledge of, infrastructure delivery, housing, physical planning, sustainable development, architecture, heritage, community affairs, social affairs, planning and environmental law and corporate governance. Insofar as possible there will be an equitable balance between men and women amongst the ordinary Planning Commissioners. These roles will replace the existing chairperson, deputy chairperson and board member roles. It shall be an offence for a person to communicate with any Planning Commissioner (or other person whose services are availed of by the Commission) for the purpose of improperly influencing the consideration of a decision of the Commission.
Conclusion:
Irish planning legislation has not been given such an overhaul since 2000. The new Planning and Development Bill seeks to streamline the legislation, by stripping out duplication that has built up through legislative updates and bolting on the requirements of EU directives over the years and making the legislation easier to navigate.
Minister for Housing Darragh O’Brien has now formally requested pre-legislative scrutiny of the draft Bill by the Joint Oireachtas Committee on Housing, Local Government and Heritage. This process began on 7 February 2023 and will continue over the coming weeks.
Written by: Alice Normoyle, Jonathan Moore, Rory Ferguson and Patrick Reilly