Introduction
The new planning legislation was signed into law by President Higgins on 17 October 2024, but is not yet in force. The process of bringing the legislation into force is by commencement orders and is expected to take at least 18 months. New planning regulations are required for some of the implementation and a draft is expected in the coming months.
Minister for Housing, Local Government and Heritage, Darragh O’Brien confirmed that the new Act will be commenced on a phased basis with transitional provisions to ensure a smooth transition from the current to the updated processes. The relevant aspects of the current Planning Act 2000 remains in place until the relevant provisions of the Act are commenced.
There are some opportunities for immediate streamlining of the court processes - in particular - that could be prioritised for commencement. However, there have been indications that the judicial review sections may be the last to be commenced.
At 906 pages, the new Act is the third largest piece of legislation in the history of the Irish state. Minister O'Brien describes it as "the cornerstone for Irish planning for the coming decades".
In the Guide on the Act, Government stated:
"the Bill ensures that the planning system remains fit for purpose to meet the needs of future population, whilst balancing key pillars of the Irish planning system such as public participation, environmental considerations and delivery of key infrastructure such as roads, housing and renewable energy".
This article summarises some key provisions of the Act which are:
- Introducing National Planning Policy Statements ("NPS") and National Planning Policy Guidelines;
- Longer duration of Local Authority Development Plans – 10 years instead of 6;
- The introduction of Urban Development Zones;
- The phasing out of Strategic Development Zones;
- Social Housing – Part 7 is the new Part V;
- Changes to An Bord Pleanála;
- Consent procedures and statutory timelines;
- Reform of the judicial review procedure;
- Suspension of the duration of a permission while subject to judicial review proceedings;
- Provisions to deter abuse of planning processes; and
- Reform of the existing section 5 procedure regarding declarations on exempted development.
1. Introducing National Planning Policy Statements ("NPS") and National Planning Policy Guidelines
To ensure alignment and consistency across the three tiers of planning control in Ireland - national, regional and local - the Act introduces National Planning Statements ("NPS") which will be issued by the Minister for Housing, Local Government and Heritage, with the approval of the Government. NPS will contain two separate parts: (1) a high level statement of national planning policies and measures to be integrated into regional and local plan making and (2) practical guidance to planning authorities on the implementation of these policies and measures.
NPS will replace the current section 8 guidelines and section 29 Ministerial policy directives under the 2000 Act. It will be mandatory for all plans to adhere to the NPS.
2. Longer duration of Local Authority Development Plans – 10 years instead of 6
The Act extends the duration of Local Authority Development Plans from the current six years to ten years, with a review after five years. These longer plans are intended to be more strategic in nature. The review after five years is ensure that the plans can be adapted as required to take account of any changes.
Existing Local Area Plans will be replaced with three types of focused Area Plans tailored to different contexts; Urban Area Plans, Priority Area Plans and Coordinated Area Plans.
Urban Area Plans will be for regional growth centres and key towns that have been designated at regional level and which require an integrated approach to land use and transportation for the entire urban area due to the scale of planned growth.
Priority Area Plans will be for parts of towns and cities that have the capacity to deliver significant housing or other development or that have a particular need for a bespoke plan for regeneration and renewal.
Coordinated Area Plans will be prepared jointly by two or more planning authorities for the development of an urban area that straddles their functional areas.
3. The introduction of Urban Development Zones
The Act introduces the concept of Urban Development Zones (“UDZ”), to be a focus of State investment in key enabling infrastructure to ensure the potential for development can be realised in a timely manner.
Entities such as Local Authorities and the Land Development Agency will be empowered under the Act to designate areas with significant potential for development, including housing, as Candidate Urban Development Zones (a “candidate UDZ”) if they are of the view that the particular development may be of significant economic, social or environmental benefit to the State and would be in the common good.
A planning authority must prepare a planning framework in respect of the relevant site before they designate the site as a candidate UDZ in its development plan. A development scheme must also be prepared indicating the manner in which the candidate UDZ will be developed. Where a draft development scheme includes residential development the Local Authority must ensure the scheme is consistent with the housing strategy prepared in accordance with the Act.
The Government can then designate such areas or parts of such areas as Urban Development Zones. Before proposing such designation to the Government the Minister must consider issues including:
- any submissions, eg, from the Office of the Planning Regulator or the National Transport Authority;
- the likely effects of the designation of the site as an urban development zone on any matter of economic, social or environmental importance to the State, including climate action;
- the extent to which development included in the planning framework could contribute significantly towards the objectives for the time being of the Government and any objectives set out in a regional spatial and economic strategy;
- whether the designation of the site as an urban development zone will make development included in the planning framework more likely; and
- whether the designation of the site as an urban development zone is likely to have significant effects on the environment.
Any planning applications for development within a UDZ are to be granted where the development is consistent with the development scheme. There is no right to appeal the decision of the Local Authority to the Commission (the new name for An Bord Pleanála – see below).
4. The phasing out of Strategic Development Zones
The Act restates certain provisions in the 2000 Act in relation to the streamlined planning procedures for existing strategic development zones (“SDZs). Sites already designated as SDZs will continue in being for the purpose for which they were designated but no further SDZs will be created.
The Act provides for a review of existing SDZ orders and empowers the Government to revoke or amend certain orders.
5. Social Housing – Part 7 is the new Part V
Part 7 re-enacts with some modifications the relevant provisions of Part V of the 2000 Act.
The provisions in respect of the making of housing strategies are re-enacted. Part 7 provides that before making a development plan a Local Authority will prepare a housing strategy to ensure adequate provision is made for housing the existing and future population of the area and that adequate land is zoned for housing and sufficient social, affordable and cost rental housing in provided in each local authority area.
Part 7 further provides for the making of a joint housing strategy by two or more planning authorities in respect of the combined area of their development plan.
6. Changes to An Bord Pleanála
Significant changes are made to An Bord Pleanála which is to be renamed An Coimisiún Pleanála (the “Commission”).
There will be a new organisational structure of the Commission, with the decision making function separated from the corporate and organisational roles.
A new Governing Board, led by a Chairperson, will be responsible for the Commission’s governance and organisation. The Governing Board will also approve and publish written procedures to be followed by the Planning Commissioners.
The current An Bord Pleanála chairperson, deputy chairperson and board member roles will be replaced with the Planning Commissioners consisting of a Chief Planning Commissioner, a Deputy Chief Planning Commissioner and 13 ordinary Planning Commissioners.
A chief executive officer will be appointed by the Governing Board and will ensure sufficient resources and personnel are available to the Planning Commissioners to enable them to determine appeals and applications in an expeditious matter.
7. Consent procedures and statutory timelines
Consent procedures
Four “headline” consent procedures are set out in the Act, which will replace more than ten processes provided for in the 2000 Act. These four consent procedures are;-
- Standard development;
- Applications directly to the Commission;
- Applications for alterations, extensions and revocations of permission; and
- Local Authority and State Authority development which does not require planning permission.
Statutory Timelines
The 2000 Act imposed statutory timelines for applications to Local Authorities but not for applications or appeals to An Bord Pleanála.
To give confidence and certainty to applicants the Act imposes time limits throughout the consenting process, for decisions by the Commission. There are obligations on the Commission to communicate with applicants if there will be delays to decision-making, though the Commission can make decisions after the time limit.
Permission for development in material contravention of a development plan
The ability of Local Authorities to grant permission for development in material contravention of a development plan is narrowed by the Act. Such permission requires a resolution passed by at least three quarters of the total number of the members of the planning authority following a proposal of the chief executive of the planning authority.
Procedures for applications for alterations of and extensions to the duration of planning permissions
The existing procedures for applications for alterations and extensions to the duration of planning permissions in the 2000 Act are largely repeated in the Act with some modifications. The 2000 Act provides that a planning authority can extend the duration of a permission if satisfied that the development was commenced before the expiration of the original period, substantial works were carried our pursuant to the permission during the original period and the development will be completed within a reasonable time. The requirement for substantial works to have been carried out is not repeated in the new Act.
A further change is that the 2000 Act contained an express prohibition on the extension of the duration of a permission where an environmental impact assessment or an appropriate assessment would be required. This prohibition is not repeated in the Act and such permissions can be extended provided certain procedures are followed.
8. Reform of the judicial review procedure
In an effort to reduce Court time and legal costs the Act substantially changes some of the procedures for judicial review of planning decisions such as:-
- The Act removes the requirement for an application for leave to apply for judicial review proceedings. This “leave to apply” phase is a preliminary assessment by the Court to determine if an applicant has sufficient grounds and interest for their judicial review application.
The Act provides for a procedure to allow a party to judicial review proceedings to apply to the Court to strike out the proceedings on stated criteria such as lack of standing, being out of time or failure to exhaust appeals and administrative procedures.
- An applicant must set out their grounds for bringing the judicial review in the initial statement of grounds filed with their application and there are very limited circumstances afforded to the Court to allow any amendments to these grounds.
Who can bring judicial review proceedings?
The Act provides that in order to bring judicial review proceedings, an applicant must have sufficient interest in the matter, ie, they must be directly or indirectly materially affected by the matter.
An applicant (other than an unincorporated body of persons) who is not directly or indirectly materially affected by the matter may have sufficient interest to bring judicial review proceedings where the applicant made submissions of a material nature to or before the relevant body whose decision, act or failure is at issue in the proceedings and such submission was made in accordance with the applicable requirements.
Environmental organisations can bring proceedings regardless of whether they are directly or indirectly affected by the matter. Certain governance criteria must be satisfied such as the environmental organisation must have been in existence for a period of more than one year prior to the proceeding, it must have no fewer than 10 members and it must have a constitution that includes an object related to the promotion of environmental protection relevant to the matters to which the proceedings relate.
When initially drafted the Planning and Development Bill had sought to exclude unincorporated bodies from bringing judicial review proceedings. This would have prevented residents’ associations from bringing judicial review proceedings. However, this was changed as the Bill progressed through the legislative process and the Act provides that an unincorporated body of persons (which would include a residents’ association) can have a sufficient interest to take judicial review proceedings provided certain criteria are satisfied.
The Act provides for the establishment of a scheme known as the Environmental Legal Costs Financial Assistance Mechanism to contribute to the legal costs incurred by unsuccessful applicants.
9. Suspension of the duration of a permission while subject to judicial review proceedings
The Act provides for the ability to suspend the duration of a permission while the permission is subject to judicial review proceedings, so as not to lose any time available for completing the development.
The person carrying out the development to which the permission relates can give notice in writing to the relevant planning authority of the commencement of the judicial review proceedings. The running of the duration of the permission will be suspended for the period beginning on the date of the commencement of the proceedings and ending on the date of the conclusion of the proceedings.
10. Provisions to deter abuse of planning processes
The Act provides a ban on requesting payment in return for not opposing development. This ban does not apply to requests made in food faith for the purpose of compensation for loss that is likely to be occasioned by the development.
11. Reform of the existing section 5 procedure regarding declarations on exempted development
The Act makes significant changes to the procedure whereby a planning authority, or the Commission on appeal or referral, can give a declaration as to whether the matter referred constitutes development and if so, whether it is exempted development.
Under the 2000 Act the public has a general right to seek such a declaration. This is changed in the Act which provides that other than certain environmental organisations, only the owner or occupier of the land or a person with their consent can apply for such a declaration.
A further – and very helpful - change is that the procedure can be used as a means of confirming whether any particular works are within the scope of a grant of planning permission.
Exclusion of a Planning Amnesty
The planning amnesty sought by the Law Society is not included in the Act. The Law Society made a submission to the Government when the Act was at Bill stage, highlighting the difficulties and delays in completing real estate transactions as a result of the requirement to investigate the planning history of a property for a period of 60 years while the title investigation itself is often limited to 15 years. The Law Society will continue to highlight this issue.
Please contact any member of the Environmental, Planning and Safety team, the Commercial Real Estate team and the Commercial Litigation and Dispute Resolution team if you have any questions on the Planning and Development Act 2024.