Planning and Development Bill is published

A key action on the Government's Housing for All programme was the review and consolidation of the Planning and Development Act 2000. In December 2022, following a 15-month review led by the Attorney General, the Minister for Housing, Local Government and Heritage, Darragh O'Brien, published a draft of the proposed Planning and Development Bill. Now, almost a year later, following the conclusion of the pre-legislative scrutiny of the draft bill by the Joint Committee on Housing, Local Government and Heritage, the Bill has been published.

Key provisions

Some of the key provisions in the Bill include -

• the strengthening of the legal status of Ministerial policy statements, which will be approved by Government. Regional spatial and economic strategies and development plans will be required to be 'materially consistent' with such policy statements and will also need to justify any departure from any Ministerial guidelines.
• the extension of the life of Development Plans (DPs) from six years to ten years, with a review after 5 years. It is intended that DPs will be more strategic with public engagement and major local debate happening at the plan-making rather than planning application stage.
• APB will be re-named An Coimisiún Pleanála (Commission) and its decision-making and governance structures separated. It will consist of a Chief Planning Commissioner, a Deputy Chief Planning Commissioner and up to 13 full-time Planning Commissioners, who will replace the Chairperson and Board Member roles. A new Governing Executive (led by a Chief Executive) will be responsible for the organisation’s governance and organisation.
• Statutory mandatory timelines for all consent applications and appeals made to the Commission (including Strategic Infrastructure Developments (SID)). Where the Commission fails to make decisions within these timelines, it will be subject to fines.
• Changes to the judicial review process including prescribed timelines, new criteria for being granted leave to apply and there is no longer an appeal to the Court of Appeal and only limited right to appeal to the Supreme Court where there is a question of the constitutionality of any law.

Roll back

The changes proposed to the Judicial Review (JR) system generated much discussion following publication of the draft Bill in December 2022. A lot of the focus of these discussions were on measures proposed to limit those persons entitled to bring JR proceeding to persons who are directly or indirectly materially affected by the proposed development and either participated in the planning process or, where the proposed development is one which may have significant effects on the environment, are an environmental NGO who meets certain criteria in relation to its establishment and its purposes. While some criticised this, claiming it restricted public participation in the planning process, many commentators argued the draft bill didn't go far enough in allowing persons indirectly affected to have standing to bring a JR, with a substantial body of opinion advocating standing be restricted to persons directly affected.

The Bill as now initiated does not go as far as the draft Bill. In particular, there is no requirement for persons who engage in the planning process to demonstrate they are, or may be, materially affected by the proposed development. The exception to this is unincorporated bodies, such as resident associations, who will not only need to show they are, or may be, indirectly or directly affected, but will also need to have a constitution and two-thirds of voting members must agree to proceed with the JR, with the names and addresses of those in favour of the JR filed with the application.

Another change proposed in the draft bill included a right for the planning authority or the Commission to correct an error of fact or law in its planning decisions (mend its hand so to speak) This has been retained in the Bill but is now subject to the leave of the High Court. These changes represent a significant rowing back to the changes proposed in the draft Bill.

Time Periods

Many felt that mandatory time periods for the Commission to make a decision on appeals and applications would make a significant difference to the logjam in planning applications. While it would not be appropriate to specify too short a period, particularly where the Commission is considering a large strategic infrastructure project, the Bill disappoints in prescribing overly generous time periods. For example, a SID application is to be decided within 48 weeks with provision for a further 20 weeks where additional information is requested from the applicant. Furthermore, where the Commission does not make its decision within the prescribed time the Bill has a somewhat protracted process which ultimately allows the Commission a further 13 weeks to make a decision, and even at the end of that the sanction on the Commission is relatively limited.

Legal costs

The Bill provides that the default position is that each party shall bear its own costs in JR proceedings. However, the Bill does establish a new mechanism for costs protection for applicants. Applicants who succeed in their application will be entitled to their costs, calculated in accordance with monetary amounts prescribed by the Minister. We will have to await details of these amounts to fully assess the impact of this proposed change. Furthermore, where applicants do not succeed, they may now be entitled to financial assistance with respect to their costs through a new legal aid fund to be operated on a means tested basis. On balance, the new legal costs provisions are not likely to act as a significant deterrent to applicants bringing marginal proceedings.

Comment

It's fair to say that the Planning and Development Bill succeeds in its primary objective of consolidating and simplifying our planning legislation, it will also most likely bring improvements to the planning system. However, the extent that the Bill will address the growing concerns with delays and the proliferation of legal challenges, which was a key driver in calls for changes to the planning system, is less clear.

The Bill is currently making its way through the Oireachtas and is expected to be enacted in Q1 2024.