Largest Overhaul of the Planning and Development Regime in Over 20 Years

The draft Planning and Development Bill (the draft Bill) was approved by the Irish Government in December 2022 and was published in late January 2023. The draft Bill has not been finalised, as there are placeholders for technical issues such as timelines for various processes.

Some of the key changes are as follows:

The Commission

An Bord Pleanála, Ireland’s national planning appeals body, will be re-named An Coimisiún Pleanála, or “the Commission”. According to the draft Bill, the Commission is being restructured and will be made up of the Governing Executive and the Planning Commissioners. The Governing Executive is effectively the management arm and the Planning Commissioners will carry out the functions of the Commission such as determining appeals and applications etc.

Among its functions, the Office of the Planning Regulator (OPR) will be required to conduct reviews of the performance by the Commission and by planning authorities of their respective functions and to report to the appropriate Minister.

Strengthening national policy

Under the draft Bill, new, national policy will be issued as “National Planning Statements" (NPS). Existing section 28 ministerial guidelines and section 29 policy directives will remain in force until revoked by the Minister or replaced by an NPS.

An NPS will comprise national policies and measures on planning matters to support proper planning, sustainable development and guidance on the implementation of these measures. Importantly, a local authority’s development plan must be materially consistent with a NPS.

Development plans: more strategic and longer term

Under existing legislation, the lifetime of a development plan is six years. The draft Bill proposes that a development plan will now have a lifetime of 10 years. This can be extended for another two years in exceptional circumstances. There is an interim stage. After four years from the adoption of the plan, the chief executive must prepare an “interim implementation report” and may put forward recommendations to the locally elected members to adopt as a variation.

The development plan must set out various strategies, objectives and records as prescribed under the Bill.

Judicial review changes

Part 9 of the proposed legislation sees changes to Judicial Review (JR), with the requirement for Courts to determine JR applications as expeditiously as possible and with due regard to the interest of saving costs.

Timelines for various steps in the JR process will be introduced including requiring the applicant to serve the papers on the respondent and notice party within 10 days of the date of issue of the proceedings. This therefore will likely provide an opportunity to oppose leave to apply for JR. Where leave is opposed, the applicant must show that it meets various “standing” criteria in order to bring the proceedings. For example, for a certain company bringing environmental proceedings, the company must have existed for not less than one year before bringing the proceedings.

Any of the bodies concerned will be able to make an amended decision, correcting any error of law or fact contained in the decision, or may carry out any act or perform the function concerned. The relevant body will be able to apply for a stay on the determination of JR proceedings while doing so.

Mandatory timelines for all decisions

As is the position under the PDA, local planning authority decisions of planning applications are subject to mandatory timelines under the bill.

The Commission will also be subject to mandatory timelines for determining planning applications that are submitted to it in the first instance, e.g. Strategic Infrastructure Developments, and all planning appeals. Technical drafting placeholders have also been included in certain sections where the actual timelines have yet to be prescribed for decision making by the Commission. If the determination deadline is not met, the Commission will be subject to a fine, which will be prescribed under regulations.

Retrospective consent

The process for substitute consent under the PDA will be replaced by a system for “retrospective consents” under the Bill. The most significant proposed amendment is the requirement on the Commission to issue a direction, subject to confirmation having considered the applicant’s submissions, that all or part of the activity on the applicable site cease while the application is being considered.

Where the Commission has received an application for retrospective consent and is considering that application, it shall serve on the applicant a direction requiring the applicant to cease, within the period specified in the direction, all or part of the applicant’s activity or operations on or at the site of the development which is the subject of the application, pending the determination of the application.

Conclusion

It is evident that the Irish Government is responding to the need to have a more efficient, user-friendly and well thought out planning regime. Large scale projects of national importance are getting weighed down by the inability to get out of the planning space as they are being held back by long delays for planning decisions and potentially protracted judicial review proceedings.

The draft Bill also appears to be placing greater emphasis on the initial stages of the planning procedures by implementing a more strategic approach, such as in respect of development plans, perhaps in the hope that many of issues that are resulting in judicial reviews and opposition can be dealt with at these early stages.

The Government intends to enact the Bill in Q2 2023, and there may be significant amendments made as the Bill passes through the Houses of the Oireachtas.

For more information, please 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.