Government Approves Draft Planning and Development Bill 2022

The Government recently approved the Draft Planning and Development Bill 2022, which, if enacted, will introduce sweeping changes to the planning system in Ireland. The aim of the Bill is to bring greater clarity, consistency and certainty to how planning decisions are made, while at the same time making the planning system more coherent and user-friendly. The Bill is a manifestation of the Government’s commitment under the “Housing for All” plan, its housing plan to 2030, to carry out a review and consolidation of the planning legislation. We examine the key changes the Draft Bill will introduce in its aim to reform the planning system in Ireland.

Strengthened legal status for Ministerial guidelines

Currently section 28 of the Planning and Development Act 2000 (as amended) provides for the issuance of policy guidance which planning authorities must have regard to. Under section 29 provision is made for Ministerial policy directives with which the relevant planning authority / An Bord Pleanála (ABP) must comply.

Under the new Bill, these Ministerial guidelines and policy directives will be updated to form “National Planning Policy Statements". These will comprise "National Planning Policies and Measures” and ‘National Planning Policy Guidance’. All will require Government approval. Alignment with the policies and measures will be mandatory, in that there will be a requirement for other plans to be materially consistent with them. The associated policy guidance will outline how these policies may be implemented. The aim of this measure is to bring greater consistency to how national policy and guidance interacts with the planning system.

Amended focus and lifespan of Local Development Plans

Local Authority Development Plans, described by the Government as the critical local expression of the future development of a city or county, will be extended from six years to ten years, with a review after year five.

Plans will need to be more strategic in nature and comprise a spatial planning framework for decision making. They will need to give a strong sense of what is being planned for particular areas at an early stage in the process before any planning applications emerge. This is designed to encourage public engagement and focus local debate on the plan-making rather than planning application stage.

Restructuring of Local Area Plan system

Greater focus will be placed on granularity in Development Plans. The automatic need based on population size to prepare Local Area Plans will be replaced by specific types of area-based plans to meet particular needs. These will include:

• Urban Area Plans
• Priority Area Plans
• Joint Area Plans
• Strategic Development Zones/Urban Development Zones

Lower order plans will be required to be aligned to higher order plans.

Mandatory timelines for all consent processes

Statutory mandatory timelines for all consent processes, including ABP decisions, will be introduced. Timelines will be introduced for appeals and consent applications made to ABP, including Strategic Infrastructure Developments. Where ABP fails to make decisions within these timelines, it will be subject to fines and will have to publish details on its website and in its Annual Report.

In addition, the ability of local authorities or ABP to make decisions that materially contravene a development plan will be limited. Provision for outline planning permission will remain but will be limited to developments of four or less housing units, including for one-off houses.

The exact timelines will be included in the finalised Bill. It is intended that the timelines for ABP will be introduced on a phased basis, starting with those for Strategic Infrastructure Developments, including energy projects.

Changes to Judicial Reviews of planning decisions

Timelines for various steps in the judicial review (JR) process will be introduced including for pleadings, hearing of cases and delivery of judgements by the Court. ABP or the local authority, as appropriate, will be able to correct an error of fact or law in a planning decision and will be able to apply for a stay on the determination of JR proceedings while doing so.

Provisions regarding standing to take a JR will be updated so that environmental NGOs who meet certain criteria in relation to their establishment and purposes can also bring challenges. In addition, where an organisation, for example a resident’s association, seeks to take a JR, it will have to be taken by an individual or individuals, rather than by the association.

In light of the recent ruling by the Supreme Court in Heather Hill[1], the Bill will also introduce costs protection for JR cases. There will not be any order for costs unless the Court considers that the proceedings are frivolous or vexatious or an abuse of process.

Re-structuring of ABP

The agency will be re-named An Coimisiún Pleanála and its organisational structure will be reformed by separating its decision-making and governance structures:

• Planning Commissioners, consisting of a Chief Planning Commissioner and up to 14 full-time commissioners, will be responsible for all decision making regarding consents and applications

• The Governing Executive, led by a Chief Executive, will be responsible for the governance and organisation of the body

Conclusion

The draft Bill represents a welcome and long overdue overhaul of the planning system in Ireland. However, a monumental task awaits the Government in passing the draft legislation into law and implementing the new measures on the ground:

• The reforms will require significant transitionary measures which may require further amendments
• Secondary legislation and guidance will need to be revised and updated
• Planning practitioners will need to be trained, and
• The foundations of the planning system will require bolstering with increased financial support

The Draft Planning and Development Bill will be published in January and progress to pre-legislative scrutiny and enactment in early 2023.

For more information on the impact of this Bill on any contemplated or existing projects, contact a member of our Planning & Environment team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Heather Hill Management Company CLG & McGoldrick -v- An Bord Pleanála, Burkeway Homes Limited and the Attorney General, Supreme Court, Murray J, 10 November 2022, [2022] IESC 43: here it was held that all of the grounds in the proceedings challenging the validity of decisions to grant development consent should benefit from costs protection.