COVID-19: Update on Planning Legislation

We previously reported on the effect of the Emergency Measures in the Public Interest (COVID-19) Act 2020 (Act), on Planning legislation. In that article Sharon Delaney outlined that the Act provides for the suspension of planning timelines for the duration of the emergency period.  The Government introduced an initial extension period in respect of time limits across the planning regime which ran for a 23 day period from 29 March to 20 April 2020 inclusive. The Government has now made a further Order extending the period for a further 19 days from 20 April to 9 May inclusive.  Here, Aidan Marsh takes a further look at the revised planning timelines, as well as other Ministerial orders in the planning area.

Key points

• Planning timelines are paused for an combined period of 42 days
• The impact of this on the planning process depends on when the application was lodged
• Planning decisions made less than four weeks before 29 March may be appealed
• Oral hearings will not take place until after the emergency period
• The Minister has issued Orders to allow restaurants to operate take-away business and to relax rules for developments by or on behalf of the State necessary to address the COVID-19 civil emergency.

Extension period

It is important to stress that the effect of the emergency pause period does not freeze the planning system, rather it extends the timelines within which decisions can be made. The Act provides that the duration of the period is to be “disregarded” in the calculation of any “appropriate period, specified period or other time limit” referred to in Planning legislation.

Planning Applications

Planning applications can continue to be made by post, and authorities can engage with applicants by electronic means. The pause period relates to activated planning processes, particularly ones which require public consultation. This will impact on the time taken to process planning applications, in the following ways:

• If an application was lodged before 21 February 2020, the public participation phase is completed and no longer available. The planning authority can make a determination during the emergency period;
• If an application was lodged after 21 February 2020 but before 29 March 2020, the public participation phase has not yet completed and to ensure due process is afforded, the planning authority cannot make a decision until after 9 May 2020;
• If an application is lodged after 29 March 2020, it cannot be decided by the planning authority until the public consultation period commences, which will now be after 9 May 2020.

Appeals of Planning Applications to An Bord Pleanála

The period to lodge an appeal is extended by length of the emergency period (currently 42 days). Any planning application that was determined by a planning authority not more than four weeks prior to 29 March, may be appealed to the Board, and the time for appeal is extended by the length of the emergency period.   

 All oral hearings scheduled to take place during the emergency period will not go ahead and will be rescheduled to a later date when it is safe to do so.

Where the public consultation period ended prior to the emergency period, the Board is free to proceed with the determination of an appeal and make a decision as long as Board members are able to convene meetings.

Enforcement Orders

The period to initiate enforcement proceedings is extended by the emergency period. It is unclear however whether the time limits attaching to compliance steps also benefit from the pause period.

 Judicial Review:

The eight week period from the date of a decision of An Bord Pleanála to apply for judicial review is extended by the emergency period.

Other planning orders

The Minister has issued an Order to allow, for the period of the emergency, restaurants to provide a take-away service.  In addition, the Minister has issued Orders to relax Planning and Building Control rules in respect of certain classes of development by or on behalf of a State authority. This may include the change of use and repurposing of existing buildings and facilities, and/or the provision of temporary new-build accommodation and structures to address the COVID-19 civil emergency.

Conclusion

The purpose of the planning provisions in the Act is to protect the integrity of the public consultation element of planning procedures. The Government has extended the restrictions until at least 9 May. This could be further extended as many times as is considered necessary, until the long stop date of 9 November 2020.

For more information please get in touch with Aidan Marsh (Commercial Property).

To discuss any other COVID-19 related issues impacting your business, please get in touch with Damian Maloney (Corporate and Commercial), Edward Evans (Corporate & Commercial), Gerry Gallen (Commercial Property), Sandra Masterson Power (Employment), Paul Gough (Employment), Dorit McCann (EU, Competition & Procurement), Fidelma McManus (Housing), Barry Cahir (Litigation and Insolvency), Thomas O'Dwyer (Litigation), Sharon Delaney (Litigation), or your usual Beauchamps contact.