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Key Contacts
The Planning and Development Bill 2023, which has been close to two years in the making, was passed by the Dáil last night (the Bill). It replaces the Planning and Development Act 2000 (the 2000 Act), and the vast amount of legislation that has amended it since.
The Bill is over 750 pages, divided into 25 parts, with six schedules and will be the third largest piece of legislation enacted in the State’s history. Once signed into law, the Bill becomes an Act and will have to be commenced by Ministerial Orders. This is likely to happen in phases, as it did when the 2000 Act replaced the Local Government (Planning and Development) Act 1963. So, there will be some complexity in the meantime where elements of both the “old” and “new” planning law will apply.
Our Environmental & Planning team are carefully reviewing the Bill and have set out some of the key changes below. A consolidated version of the Bill with all amendments as passed by the Dáil is not yet available. The below high-level summary is based on the July 2024 administrative reprint of the Bill published by the Houses of the Oireachtas Bills Office.
1. Part 3: plans, policies and related matters
Part three reflects one of the central aims of the Bill – to move towards a more strategic, national, plan led approach to development by emphasising the planning policy hierarchy to ensure consistency and integration of national and regional plans into the local plan making process.
The more strategic and long-term focus of the Bill is reflected in:
2. Part 4: development consents
Part 4 of the Bill consolidates the various processes for obtaining planning permission and draws a clear distinction between the different categories of consents, as follows:
The maritime consenting process, introduced by the Maritime Area Planning Act 2021, is also integrated into the Bill.
The Bill also sets out mandatory time limits for determining planning applications.
3. Part 6: environmental assessments
Part 6 of the Bill replaces the provisions in Part X of the 2000 Act on Environmental Impact Assessment (EIA), the provisions in Part XA of the 2000 Act relating to the environmental assessment of applications for substitute consent (which is now called “retrospective consent” in the Bill) and the provisions in Part XB of the 2000 Act on Appropriate Assessment (AA). However, the substance of what is required for the purpose of carrying out EIA and AA remains broadly similar.
There are important new additions in the space of imperative reasons of overriding public interest (IROPI). Where a plan or project is determined to have an adverse effect on the integrity of a European site, one of the steps that a competent authority must take is to determine whether there are IROPI for carrying out the plan/project. The Bill now deems IROPI to exist for plans/development for the following renewable energy projects:
4. Part 9: judicial review
The Bill makes key changes to judicial review (JR).
Removal of the application for leave
Previously, individuals or organisations had to make an “application for leave” to seek judicial review which acted as a preliminary screening stage. This requirement has now been removed.
Initiation of judicial review
To commence JR proceedings, an application must be made to the High Court by way of notice of motion, notifying relevant parties. The time-limit for bringing a JR remains the same (i.e. eight weeks from the date of the decision, the act or the failure to perform the particular function).
Applicant must provide a statutory declaration
To commence JR proceedings, an applicant must provide the High Court with a statutory declaration confirming that the proceedings are not brought for the purpose of either (a) delaying the carrying out of any development or proposed development or (b) securing any payment to, or the doing of any other thing for the benefit of, any person.
Standing requirements
The Bill defines "sufficient interest" as being directly or indirectly materially affected by the matter. This is the starting point for determining standing. However, for certain environmental cases, such as those involving EIA or AA, an applicant will be regarded as having a sufficient interest (regardless of direct or material impact) where they are:
The requirement on applicants to show “substantial grounds” has been dropped.
Unincorporated bodies, like residents' associations, can bring a JR under specific conditions. They must:
The bill also introduces a stricter procedural focus for the amendment of pleadings and when JRs can be taken.
Amendment of pleadings: The Bill requires applicants to raise all grounds for review in the initial application without the ability to amend them later. Amendment will only be possible if there is good/sufficient reason and the circumstances relied upon for the extension were/are outside of the control of applicant. This will be a much stricter test than that applied in the current regime.
Exhaust appeal/administrative remedies: Applicants must exhaust available appeal procedures or administrative remedies before seeking judicial review, with exceptions for specified bodies such as environmental NGOs.
Appeal from High Court to Supreme Court: The Bill imposes strict limits on appeals from High Court decisions. There is no appeal to the Court of Appeal, and leave is required to appeal to the Supreme Court.
Encouraging alternatives to grant of certiorari: The Bill provides the High Court with flexibility in handling cases where a public body has made a mistake. Instead of quashing the decision, the Court can order the public body to correct the mistake within a specified timeframe.
The Bill introduces significant changes to costs in environmental legal proceedings. Costs protections apply to “Aarhus Convention (AC) proceedings”, appeals on AC proceedings and references to the Court of Justice of the European Union. “Aarhus Convention (AC) proceedings” mean (a) judicial reviews brought under the Bill and (b) any other proceedings brought under the Bill in which an applicant challenges an act or omission by any person that contravenes a provision of the Bill (or any secondary legislation made under the Bill) relating to the environment.
A pivotal feature of the Bill is the establishment of the "environmental legal costs financial assistance mechanism," designed to support individuals or groups involved in environmental legal proceedings who do not fully win their cases.
This new legal costs regime will require detailed regulations. Further clarity is needed on how this new regime will operate and the specifics of this will require close scrutiny, once published.
5. Part 12: appreal procedures, planning register and records, and miscellaneous powers and procedures
Notably, the Bill requires the Commission to determine an appeal, application, referral or request within defined time-periods failing which the Commission may be required to pay a proportion of fees paid to it to the person who made the appeal, application, referral or request.
6. Part 17: An Coimisiún Pleanála
Part 17 of the Bill provides for the re-structuring and re-organisation of An Bord Pleanála (the Board) under the new name of An Coimisiún Pleanála (the Commission). This entity will have broadly similar powers to the Board, with an increased focus on efficiency, compressed timelines for decision making, and transparency.
The newly branded Commission will comprise of a chief planning commissioner, a deputy planning commissioner and 13 ordinary planning commissioners. The Minister may increase the number of ordinary planning commissioners where additional resourcing is needed to enable the Commission to carry out its functions.
With a view to ensuring oversight over the decision-making function of the Commission, the Governance Board of the Commission or CEO are required to conduct reviews of the Commission's organisation and procedures at least every three years (or at more frequent intervals deemed appropriate or as directed by the Minister). The Minister may impose requirements on the Commission in respect of its functions or decision-making procedures following this review.
7. Part 20: financial and miscellaneous provisions
The Bill provides for a new criminal offence of requesting payments or benefits in exchange for not opposing a development or for withdrawing opposition to a development. Requests made in good faith for compensation for loss of enjoyment of land or a maritime site by an owner or occupier are, however, exempted.
The Bill also introduces a new requirement for submissions, observations, appeals and JR proceedings to be accompanied by a statutory declaration that they are not being made, or taken, to delay the development or secure any benefits. Withdrawals of such submissions and proceedings must also be accompanied by a statutory declaration to the effect that they are not made to secure any benefits. The Bill also provides that failing to comply with these requirements or making false declarations is an offence.
8. Part 21: strategic development zones
The concept of a strategic development zone (SDZ) is being phased out under the new planning regime. Sites already designated as SDZs will continue as such unless the designation is revoked. However, new SDZs cannot be designated unless they are ancillary to already designated sites.
9. Part 22: urban development zones
The Minister can designate sites as candidate Urban Development Zones (UDZ) if they are believed to provide significant benefits to the State and be in the common good. Similarly, planning authorities can designate sites as candidate UDZs in their development plan if the Minister recommends them or if they believe the designation will provide significant benefits and be in the common good.
In conclusion, it is likely to take several months before all sections of the Bill are commenced and the new Planning Regulations are introduced. Nevertheless, the passing of the Planning and Development Bill by the Oireachtas marks a significant milestone in the overhaul of the planning system which the Government committed to deliver within its lifetime.
We will be issuing more detailed analysis of the Planning and Development Bill in the coming weeks together with updates on when the commencement orders are made and the new Planning Regulations are introduced. So please stay tuned!
ALG’s Environmental & Planning group is the largest such specialist team in Ireland with two partners, a consultant, four senior associates, three solicitors and one lawyer. Its depth of expertise and experience is recognised as market leading.
For further information in relation to this topic, please contact Alison Fanagan, consultant, Alan Roberts, partner, Jason Milne, partner or your usual ALG Environmental & Planning contact.
Date published: 10 October 2024
