Planning and Development Bill 2023

OVERVIEW

The Planning and Development Bill 2023 was initiated in the Dail on the 22^nd of November 2023. The Bill has now completed the second stage in the Dail and has been referred to the Select Committee on Housing, Local Government and Heritage by Minister of State Kieran O’Donnell.

When enacted, the Bill will see the repeal and replacement of the Planning and Development Act 2000, as amended, and its replacement with a comprehensive new piece of primary legislation, with secondary legislation (regulations to implement the new Bill) being progressed for issue in 2024.

This Insight provides a brief overview of the Bill, focusing on matters of most relevance to our clients in the preparation and submission of applications for development.

The Bill is available to view Here in its current form (as initiated). Amendments to the Bill wording are likely at the subsequent stages of the legislative process, prior to adoption.

John Spain Associates have reviewed the Bill, and a series of further Planning Insights will follow, addressing the most relevant sections in further detail.

SUMMARY OF KEY POINTS

Exempted Development

• Section 9 of the Bill provides for the Minister to issue Regulations listing exemptions for various types of development.
• The detailed exemptions contained within the current Planning and Development Act (e.g. section 4(1)(h) which is very regularly relied on due to its broad scope) have not been included in the Bill, with detail on exemptions left for the Regulations. Pending the publication of the Regulations, this leaves a degree of uncertainty.
• Declarations of exemption can only be sought by owners, occupiers, users of land, or statutory undertakers, not by other third parties.
• Declaration request subject to 8-week timeline (currently 4 weeks), with an additional 3 weeks if further information is requested. 

Standard Applications

• A pre-application consultation request is mandatory for developments of 10 houses or more, student accommodation of 200 bed spaces or more, and non-residential development of 1,000 square metres gross floor space or more (similar provisions are in the current Act).
• Revised plans can be submitted at appeal stage / appeal response stage, but only if they would not substantially alter the nature of the development.
• A material contravention of the Development Plan can be permitted by the Commission in limited circumstances only, and only subject to the strategic / conflicting objectives / consistency with the NPF / RSES criteria under section 107. It would be helpful if the legislation were to state that planning judgement is required to form a view on the materiality of a contravention.

Timelines For Standard Applications

The Bill introduces changes to timelines in the existing legislation for planning applications and imposes time limits (rather than objectives) for appeals.

• Standard application without EIAR / NIS – 8 week decision from Council (plus 4 week decision timeline if FI is sought and submitted).
• Standard application with EIAR / NIS – 12 week decision from Council (plus 8 week decision timeline if FI is sought and submitted).
• Where application isn’t decided within that timeframe, and the applicant doesn’t allow the Council extra time, the application will be deemed to be refused and can be appealed to the Commission.

• Standard application appeal without EIAR / NIS – 18 weeks.
• Standard application appeal with EIAR / NIS – 26 weeks.
• Where an oral hearing is held, a decision falls due 10 weeks after the conclusion of the hearing.
• Where a request for FI, revised plans etc. is made, a decision falls due 10 weeks after submission of same, or expiry of period allowed for submission.
• Where decision timeline isn’t met, the Commission must write to the appellant and applicant and give reasons, and proceed to determine within 4 weeks.
• The Commission must provide the reasons and additional timeframe in a notice on their website.
• Where the Commission misses the extended timeline, they must notify the parties again, publish another website notice, and pay the applicant a prescribed portion of the application fee. A further period of up to 6 weeks can then be provided.
• Where this final extended timeline is not complied with, the Commission must publish another notice, notify the parties, determine the appeal within 1 week, and notify the Minister and the OPR of the failure to meet the revised timeline.
• The OPR may then conduct a review of the performance of the Commission.

Alterations and Extensions to Permissions

• This Chapter of the Bill legislates for alterations (amendments) to planning permissions (not currently explicitly set out in the existing legislation) and an extension of duration of a planning application. 
• The requirement for substantial works to be carried out in order to seek an extension of duration has been removed.
• Extension of duration applications now can be subject to an appeal.
• Defines what does not constitute an alteration of terms or extension such as correction of clerical error, an alteration facilitating the terms of a permission, clarification of the terms of the permission, alteration to terms to facilitate its implementation. [S. 133(2)] (Similar to existing provisions under existing S. 146A).
• A “Material Alteration” means an alteration or extension of the duration of a permission requested under S. 135 that requires AA, EIA, the request is accompanied by EIAR or NIS in respect of the alteration, or extension or the deciding authority determines under S. 135(4) constitutes an alteration of the terms or constitutes “an alteration of the terms or extension of the duration of the permission that is otherwise material.”

An Coimisiún Pleanála (formerly ABP)

• ABP to be restructured and renamed An Coimisiún Pleanála.
• Decision making powers and corporate / organisational roles are separated.
• A new Governing Board, led by a Chairperson, will be responsible for the Commission’s governance and organisation.
• Members of the Governing Board are appointed by the Minister and are neither staff of the Commission nor Planning Commissioners.
• The Planning Commissioners, consisting of a Chief Planning Commissioner, a Deputy Chief Planning Commissioner and 13 ordinary Planning Commissioners replace the chairperson, deputy chairperson and board member roles.

Compliances

• The Bill still sets out that where a Planning Authority does not decide a compliance within 8 weeks or issue an FI, deemed compliance does not occur and the only recourse is to refer the points of detail to the Commission.
• Where the Commission does not determine a compliance referral within 12 weeks, deemed compliance is achieved.
• These provisions are unhelpful, as they reverse the current situation (which is working effectively) whereby deemed compliance is achieved in 8 weeks if the Local Authority does not issue a decision in that timeframe. This will add to the Commission’s workload and may significantly slow down commencement in many cases, delaying the implementation of permissions.

Forward Planning

• New strategic ten-year Development Plans for Local Authorities (instead of 6-year DP’s).
• Section 28 Ministerial Guidelines and policy directives are to be upgraded to National Planning Statements (existing section 28 Guidelines to stay in place until replaced by National Policy Statements).
• Replace Local Area Plans with three types of focused Area Plans- Urban Area Plans, Priority Area Plans and Coordinated Area Plans.
• Introduction of Urban Development Zones in Part 22 of the Bill, which sets out the arrangements for the identification of suitable areas, the inclusion of candidate Urban Development Zones within a development plan, the designation of Urban Development Zones by Government and the making of a development scheme for all or part of the area (Similar in some respects to SDZs).

Applications Directly to the Commission

• Consolidation of previous provisions for Strategic Infrastructure Developments (SIDs), with electricity transmission and gas transmission infrastructure now brought into the same section as other strategic development types.
• Pre-application consultation required, and provisions around this have been consolidated.
• Material contravention provisions narrowed in similar fashion to standard applications.
• 48-week decision timeframe, with potential for additional 6 weeks, following which there is a financial penalty to the Commission.

Judicial Review

• Judicial review (JR) proceedings must still be brought within 8 weeks (unless exceptional circumstances apply).
• The Bill removes the requirement for an application for leave to apply for JR proceedings.
• Whereas the draft Bill provided for a decision maker to amend their decision to correct any error of fact or law during the course of JR proceedings, the Bill provides that the correction of an error can only occur where a party seeking JR has succeeded on at least one ground, where the relevant body admits the error, and where the High Court is satisfied that the error is one which it is appropriate to allow correction of.
• Application for JR can only be brought based on grounds raised in the statement of grounds filed with the application for JR, with only limited scope for the Court to allow modifications later.
• Sufficient interest defined as being directly or indirectly materially affected by the matter – criteria are set out for standing to take JR.
• Environmental organisations do not have to be directly or indirectly affected to bring JR proceedings.
• Unincorporated bodies (Residents associations etc.) can bring proceedings, subject to certain governance requirements (namely that the unincorporated body must be either a partnership, a limited partnership, able to sue in its own name or have a constitution and hold a vote of its members on whether to apply for JR proceedings with two thirds of those voting agreeing to the proceedings.)
• Any appeal from the High Court can only go to the Supreme Court (i.e. cuts out Court of Appeal).
• The Bill also provides for a scheme known as the “environmental legal costs financial assistance mechanism” whereby those taking a JR challenge can apply to the Department of the Environment for a “contribution” to their legal costs, to be paid whether or not they are successful.