Planning and Development Act, 2018 signed by President Higgins

On the 19th of July 2018 President Higgins signed the Planning and Development Amendment, Act 2018. This Act (formerly the Planning and Development Bill, 2016) has spent over two years going through all various stages in the Oireachtais and has undergone several alterations arising from Government and opposition amendments. At time of writing this article the final enacted Bill(/Act) had not yet been published, the Oireachtais can only do so (incorporating all the various amendments along the way) once it has been signed the president, however, the most up to date version of the Bill as passed by both houses of the Oireachtais (and dated 11th July 2018) is available via the link at the bottom of this newsletter article. When the Act is published, there will need to be a series of commencement orders (i.e. Ministerial Orders) issued to commence certain sections of the Act as it won’t all be commenced at the same time. Some sections will commence immediately on enactment. Each commencement notice will be circulated with an explanatory circular to local authorities. The Act is entitled as:

“An Act to amend and extend the Planning and Development Acts 2000 to 2018 and for that purpose to establish an office, to be known as the Office of the Planning Regulator, to evaluate and carry out assessments relating to planning matters and provide observations and recommendations in relation to those matters, to conduct reviews and examinations and to conduct education and training programmes and research in relation to planning matters; to provide for the organisation and staffing of that Office; to provide for a National Planning Framework; to provide for certain planning and development requirements to be taken into account by Irish Water; to make miscellaneous and consequential amendments to the Planning and Development Act 2000 and to various other Acts in so far as they relate to planning and development; to amend the Derelict Sites Act 1990; to give effect to Directive 2014/89/EU of the European Parliament and of the Council of 23 July 20141 establishing a framework for marine spatial planning; and to provide for matters connected therewith.”

While the headline items from the Act are undoubtedly the establishment of the Office of the Planning Regulator, as well as the provision of the legislative support and context for the National Planning Framework (NPF) and Maritime Spatial Planning, there are other significant changes to the Primary Act which will be of note to all practitioners, those of most interest are highlighted and discussed further below.

Office of the Public Regulator
The establishment of the Office of the Public Regulator (OPR) has been awaited since the final report of the Mahon Tribunal was published in 2012. The Act establishes the OPR and sets out its functions. The OPRs functions include:

  • Evaluation and assessment of development plans, including draft development plans, variations to development plans, local area plans (including amendments or revocations) and regional spatial and economic strategies, during their preparation and provision of recommendations to planning authorities and regional assemblies.
  • Inform the Minister if, in the OPRs opinion the relevant plan is not consistent with its observations especially where the inconsistency would affect the overall strategy for proper planning and sustainable development of the plan area.
  • Conduct research at the request of the Minister, education and training programs, and reviews of the performance of the Board and Planning Authorities,
  • Oversight of the delivery of effective planning services to the public by planning authorities.
  • Annual reporting and provision of observations in relation to planning legislation.
  • Evaluation and assessment of strategic transport plans made by the National Transport Authority.

The Minister can also assign further functions to the OPR as required, although it is clear in the legislation that the OPR’s primary functions are entrenched in plan making, informing legislation, education and optimising planning processes. The OPR does not have any function in relation to individual planning applications or appeals.

National Planning Framework
The Act also provides the legislative context for the National Planning Framework (NPF) and outlines its objectives which include,

  • Establishing a broad national plan for the Government in relation to the strategic planning and sustainable development of urban and rural areas;
  • Securing balanced regional development by maximising the potential of the regions; and
  • Securing the co-ordination of regional spatial and economic strategies, and city and county development plans.

The Act also sets out the matters to be addressed in the NPF which includes the promotion of co-ordination between the terrestrial and marine sectors. The NPF is to be reviewed every six years (i.e. it will either be replaced with a new one or a statement will be published to confirm why the Government has not decided not to revise it).

Operational Updates and Amendments
Part 3 of the Planning and Development Amendment Act 2018 also provides a range of miscellaneous amendments to the Planning and Development Acts 2000 to 2016. These include some minor changes – such altering all references to the manager of a local authority to “Chief Executive”, however, other more significant operational changes have been made, which will be of interest to practitioners, these include:

  • Condition Compliance Submissions Legislative Timeframe

A long-standing issue within the planning system seems to have been addressed under the 2018 Amendment Act. Local Authorities have now been given 8 weeks within which to agree condition compliance issues. Once a condition compliance submission has been lodged, the Planning Authority must either (a) reach agreement with the person on the relevant points, (b) advise the person in writing that they cannot agree, or (c) refer the matter to the Board for its determination. This must occur within 8 weeks or such longer period (that must be agreed with the person(/applicant). Should agreement not be reached the person(/applicant) can appeal the matter to the Board (within 4 weeks of the Planning Authority’s notification). If the planning authority does not respond within 8 weeks or such longer period as may have been agreed, then that authority shall be deemed to have agreed the points of detail as so submitted.

Unfortunately, it does not appear that the Board have been issued with a statutory timeframe within which to deal with such condition compliance referrals.

  • Consideration of Permission for Planning Applications

The new Act allows a Planning Authority “have regard to” additional matters when forming a decision on any planning application. Under the amendment the authority can consider whether the applicant has not completed any previous developments in a satisfactory manner, as well as previous convictions against the applicant with non-compliance of the 2000 Act. The 2018 Act also states that the failure to complete a previous development to the satisfaction of a planning authority can be used as a refusal reason which would exclude compensation. It should also be noted that the development that has not been completed in a satisfactory level does not need to be in the functional area of the adjudicating local authority.

  • Statutory Requirement for Pre-planning meeting for proposals greater than 10 dwellings or 1,000sqm.

The New Act states that for planning applications in excess of 10 residential units, or over 1,000sqm (or a combination of both) it will be required to hold pre-planning discussions with the relevant planning authority(/authorities). Once requested the planning authority has 4 weeks (or additional period that can be agreed with the applicant) within which to organise the pre-planning meeting. Should the authority not conform with this deadline the applicant can lodge the planning application following the expiration of the 4-week window. 

  • Amendment to Seventh Schedule of the Principle Act

Data Centres or facilities “used primarily for the storage, management and dissemination of data, and the provision of associated electricity connections infrastructure” with a gross floors area exceeding 10,000 square metres are now brought into the Strategic Infrastructure Development (SID) process requiring direct engagement with and application to An Bord Pleanála.

  •  Amendments to the Planning and Development Act of 2016.

The 2018 Act contains several amendments and clarification of definitions to the Planning and Development Act 2016, (under which the Strategic Housing Development (SHD) process was provided). The amendments predominantly refer to definitions and clarifications of process relating to SHD, however, a couple of amendments to the extension of duration (EOD) process under Section 42 of the Act (as amended by S.28 of the Planning and Development Act 2016) are incorporated. These amendments –

    • Requires a planning authority to be satisfied that an Environmental Impact Assessment (EIA) or Appropriate Assessment (AA) or both were not required before permission was granted, in the instance of an EOD application under Section 42(1)(a) – i.e. in the event of substantial works being carried out, and
    • Clarifies that a decision to extend the appropriate period of a permission cannot be made more than twice, and that the combined duration of any two such extensions shall not exceed 5 years.

This section of the amendment Act comes into operation on the passing of the Act.

  • Exempted Development Update

The restriction on exempted development provisions for private roads serving forestry/woodlands has been relaxed. Previously such roads could only be considered as exempt development if they did not provide access onto public roads, now such roads can be considered exempted development as long as they do not provide access to a national road within the meaning of the Roads Act 1993. Thus altering Section 4(1)(ia) of the Planning and Development Act, 2000 (as amended).

  • Planning Register

As well as the standard requirements local authorities will now be required to include any details agreed between the authority and person carrying out the development under Section 34(5) – this includes any “prior to commencement” condition agreements on the Planning Register.

  • Members of Local Authorities submission charges

The Amendment Act will allow the Minister to make regulations that will provide for the waiving of fee’s for submissions by members of Local Authorities when commenting on planning applications when they are made in their capacity as a member of the relevant authority. The Amending Act clarifies that members are exempt from fee’s in relation to making submissions on planning applications within their own electoral area.

  • Power to Vary Appropriate Period

Section 41 of the Act has been amended to allow a Planning Authority to specify the period during which to permission is to have effect, which can be (a) in the event of all development requiring permission not less than 2 years, and for residential development not more than 10 years. When considering the duration of the permission any information available to the planning authority concerning the implementation by the applicant of any housing development in the previous 5 years can be considered as well as the likelihood of the permission being implemented within the period sought. This provision, when implemented could be a tool used to address the hoarding of permissions by individuals and/or companies. The temporary special durations of permission previously available to NAMA under Section 42A of the Act has now also been repealed.

  •  Revocation or Modification of Planning Permission

The Minister now may at the request of the Minister for Justice and Equality, Minister of Foreign Affairs and Trade, or the Minister of Defence (and with the approval of Government) make an order revoking, or modifying a grant of permission (regardless of when it as granted) if they are satisfied that the granted permission is likely to be harmful to either the security of the state or relations with other states and that revocation or modification of the permission is necessary in the public interest.

  • Marine Plans

The Amendment Act also provides the framework for the Minister carrying out and publishing a Marine Spatial Plan, the objectives and scope of this(/these) plan(/s) are listed. Marine spatial plans for the time being in force shall be known collectively as the National Marine Planning Framework.

Link to latest version of the Bill as passed by both houses of the Oireachtais:

https://data.oireachtas.ie/ie/oireachtas/bill/2016/1/eng/ver_c/b01c16dp-c-sent.pdf

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