Key Contacts: Alice Whittaker – Partner | Alison Hardiman – Consultant | Leonora Mullett – Partner | Rachel Minch – Partner
Introduction
The Planning and Development Act 2024 (‘the Act’) was signed into law by President Higgins on 17 October 2024.
The Act comprises 26 Parts, many of which are split into Chapters. There are 637 Sections and Seven Schedules. It runs to almost 870 pages. When the Bill was first published, its goal was to provide a well-resourced, plan-led and fit for purpose planning system to last into the future, and to ensure that the legislation is aligned with up-to-date policy, and is more accessible and streamlined from a legal perspective.
Much of the debate around the Bill over the past two years has focused on the delicate balance between the need to achieve finality in planning decisions, with robust and timely decision-making by expert planning bodies based on comprehensive forward land use plans, with the rights of the public to participate in the decision making process and to challenge decisions in the Courts.
The new Act therefore brings into play complex overlapping and often conflicting issues around Ireland’s international legal obligations under the Aarhus Convention and the Paris Agreement, for instance, EU Directives and Regulations, and domestically under the Irish Constitution.
Tellingly, the President of Ireland, on signing the Act, issued a statement which responded to concerns raised in submissions on the Constitutionality of aspects of the Bill and concluded that “the President’s decision to sign this legislation leaves it open to any citizen to challenge the provisions of the Bill in the future.”
Given these complexities, it should not be surprising that the Act is long, that it will require further amendment shortly, and that detailed regulations will be required to implement it in stages before it can be fully commenced. The Government intends to publish a plan for the commencement of the new Act on a phased basis, possibly over a period of up to two years.
Up-coming Talks and Seminars on the Act
Having closely examined all aspects of the Bill as it progressed in the Oireachtas, our Climate and Environment Group in Philip Lee LLP are analysing the Act and its practical implications for our clients and their sectors during this next transitional phase.
Clients need to understand the changes that will be brought about by the Act, and to anticipate amendments that may be made to the Act and the further regulations which will be made to commence and implement it. This work is of vital importance, to safeguard the viability of important infrastructure projects and to future-proof the ongoing work of strategic plan-making.
Our leading lawyers will speak about the Act at several upcoming events, including the Law Society’s Environmental and Planning Law Committee Annual Conference 2024 on 21 November 2024. We will also be announcing client seminars on the Act very shortly.
In the meantime, this note highlights some interesting aspects of the Act.
Enhanced Plan-led System
The prevailing wisdom is that plan-led decisions and developments are more robust, and that land use plans instil confidence and certainty in the planning system. The expectation is that effective plan-making will reduce the volume of judicial review challenges. This remains to be seen.
The Act introduces significant changes to the system of making land use plans. In addition to longer-lasting Development Plans intended to provide greater certainty, the Act includes a new legal framework for establishing ‘Urban Development Zones’, and for plan-making for ‘Urban Areas’, ‘Priority Areas’, and ‘Coordinated Areas’. The new Act aims to ensure that all land use plans sit within the overarching National Planning Framework and are consistent with National Planning Statements. In similar terms, marine development shall sit within the National Marine Planning Framework and shall be generally consistent with any Marine Planning Policy Statement.
Quality plans require considerable technical and legal resources, if they are to facilitate rather than hinder sustainable development. There was welcome news on 15 October 2024, when the Government announced in parallel with the new Act an increased budget provision for local authorities together with a new ‘Ministerial Action Plan on Planning Resources’.
These much-needed resources, and more, will be of fundamental importance in addressing major national challenges faced regarding the efficient delivery of key infrastructure, both on and offshore, for housing, renewable energy and energy storage, electricity grid, transport, digital communications, and water (including wastewater), while protecting our environment, our heritage and biodiversity.
An Bord Pleanála to An Coimisiún Pleanála
It is likely that the part of the new Act relating to An Bord Pleanála will be commenced before any other part. The name of An Bord Pleanála will change to An Coimisiún Pleanála – or ‘the Commission’ – and the organisation will be fundamentally restructured and reorganised.
Decisions on applications, appeals, referrals and requests will be made by 15 Planning Commissioners, including a Chief Commissioner and Deputy Commissioner. The Commission will be focused almost exclusively on decision-making. They will work in divisions to ensure decisions are made efficiently and expeditiously. This is essential to build up relevant expertise and capacity within the divisions, and to meet the new timeframes for decisions as set out in the Act, and particularly the stricter timelines for renewable energy and grid infrastructure as required by European law (described below).
The Commission will work in accordance with standard decision-making procedures prepared by the executive and approved by a Governing Board. As is currently the case, Inspectors and other persons may be assigned to prepare reports and recommendations for the Commission. If the Commission’s decision differs from a recommendation, the decision shall give the main reasons for not following that recommendation.
The Minister will establish a Governing Board to oversee the Commission and the executive functions. The Governing Board will comprise between five and nine suitably qualified individuals. They will oversee procedures, significant expenditures, strategy implementation, and related governance matters. The Governing Board will formally appoint each new Chief Executive for the Commission.
In the interim, the current chairperson of An Bord Pleanála will stand appointed as CEO. The CEO will not be involved in decision-making. The CEO is responsible for strategy, organisational and operational matters, staffing, and ensuring appropriate support for the functioning of the Commission. A CEO may hold the role for up to two consecutive five-year terms.
‘Chapter 4’ Development
As is currently the case, applications for certain types of large, strategically significant and nationally important developments will be made directly to the Commission under Chapter 4 of Part 4 of the new Act. This will include similar application types to those which are made directly to An Bord Pleanála under the Planning and Development Act, 2000, as amended (‘2000 Act’). It is expected that regulations will further refine and define ‘Chapter 4’ development, which currently includes:
- strategic infrastructure development listed in Schedule 1 (similar to Schedule 7 of the 2000 Act),
- electricity transmission infrastructure (similar to section 182A of the 2000 Act),
- strategic gas infrastructure (similar to section 182C of the 2000 Act),
- ‘Chapter 4’ maritime development (similar to Chapter III of Part XXI of the 2000 Act),
- ‘Chapter 4’ local authority development and ‘Chapter 4’ state authority development (similar to Part XI of the 2000 Act), and
- development requiring retrospective consent (similar to Part XAB of the 2000 Act).
‘Chapter 4’ Application
Before an application can be made to the Commission for ‘Chapter 4’ development, there is mandatory pre-application consultation with the Commission. Under the new Act the Commission will decide when consultation is at an end. At that point, the Commission will provide a ‘Chapter 4 PAC notification’.
Before requesting pre-application consultation, the developer must satisfy certain criteria specified in the new Act, unless the development consists of emergency or state development or is otherwise exempted from this requirement by regulations. The same criteria must be satisfied before an application can be made to the Commission. These eligibility criteria are clearly designed to preserve the capacity of the Commission, but will come as a surprise to some developers of Chapter 4 development.
Where a developer had already secured a notice or opinion from An Bord Pleanála following the conclusion of pre-application consultation on a proposed strategic infrastructure development (under section 37E of the 2000 Act) or marine development (under section 287 of the 2000 Act), this shall be deemed to be a ‘Chapter 4 PAC notification’ under the new Act. This will allow (and require) the application for permission to be made to the Commission as a ‘Chapter 4’ application, following the repeal of the relevant part of the 2000 Act.
The new Act lacks any similar facility where a developer had already secured an opinion from An Bord Pleanála following the conclusion of pre-application consultation on a proposed electricity transmission infrastructure or strategic gas infrastructure development (under section 182E of the 2000 Act). This is a gap.
For developers with applications at an advanced stage of preparation when the relevant parts of the 2000 Act are repealed, these provisions are likely to prove problematic. The Government intends to publish a plan for the commencement of the new Act on a phased basis, which should assist developers in providing a little bit of certainty as to when the transition is likely to occur.
Standard Development
An application may be made to the planning authority or coastal planning authority for any development that is not ‘Chapter 4’ development. Some electricity and gas transmission infrastructure development will be deemed ‘standard’ where it only involves the maintenance or upgrade of existing infrastructure. This reflects current practice under the 2000 Act.
There are eligibility criteria prescribed in the new Act that must be satisfied before an application can be made for standard development, but pre-application consultation is not mandatory save for:
- large housing developments,
- other developments with 1,000m2 gross floor space or more, and
- other development that the Minister may prescribe by regulations.
Relevant Planning Considerations
The new Act consolidates into a single section the matters to which a planning authority, coastal planning authority and the Commission are required to have regard when determining planning applications, appeals, referrals and requests. This section will operate as a handy checklist, but it is far from exhaustive.
For instance, various other legislative Acts require public authorities to carry out their functions, including decision-making, in a manner consistent with and that has regard to obligations under that other legislation. To give one example, a planning authority and the Commission must act, insofar as is practicable, in a manner that is consistent with the most recent approved
- Climate Action Plan,
- National Long Term Climate Action Strategy,
- National Adaptation Framework and Sectoral Adaptation Plans (if any),
- the National Climate Objective, and
- the objective of mitigating greenhouse gas emissions and adapting to the effects of climate change in the State,
as required by the Climate Action and Low Carbon Development Act 2015, as amended.
In another example, in performing their statutory functions a planning authority and the Commission must have regard to the latest approved National Biodiversity Action Plan, and any other biodiversity strategies adopted by the Minister under the Wildlife (Amendment) Act 2000, as amended.
There are many examples of similar such obligations embedded in other legislation, to which a planning authority and the Commission must at least have regard when performing decision-making functions. It may fall to developers to bring such relevant considerations to the attention of the planning authority and the Commission in the application for permission.
Relevant Planning Conditions
The new Act also consolidates into a single section the types of conditions which may be attached to a permission, including permissions for maritime development. This is supplemented by Schedule 5 of the new Act, which lists types of conditions which may be attached without attracting compensation claims. The Act therefore re-states the position with planning conditions under the 2000 Act, with at least one notable exception.
Under the new Act, where the duration of a planning permission is extended to allow a development to be completed at a later date than originally permitted, the planning authority and the Commission can attach to such extension permission any condition that it considers appropriate. This is potentially problematic for developers and their funders.
Permission to Alter or Extend the Duration of a Permitted Development
The new Act includes an enhanced procedure for altering the terms of an existing planning permission, other than the duration of the permission. The new procedure is akin to an application for planning permission, with public participation, environmental assessment, a fresh evaluation against the most recent development plan, rights of appeal, and the ability to attach new conditions to the grant of permission. The decision on the alteration application can be judicially reviewed.
Approximately the same procedure is used for an application to extend the duration of an existing permission. A default duration is five years, but a permission may have a duration of longer than five years in certain circumstances. The extension permission gives a developer a longer period within which to carry out and complete the development.
Under section 42 of the 2000 Act, an application to extend the duration of a permission must be made after the development has commenced, and when there are only 12 months or less remaining in the duration of the permission. The procedure under section 42 of the 2000 Act is limited in scope, and can therefore be concluded within a short period. The same is not true under the new Act.
The extension of duration procedures under the new Act include public participation, environmental assessment, further information, rights of appeal and judicial review, all in relation to a development which must have already commenced. The timing of any decision and the ultimate outcome are both highly uncertain. For this reason, the extension of duration procedures under the new Act are impractical for developers and funders.
As a further restriction, the new Act states that an application to extend the duration of an existing permission with less than three years left to run can only be made under section 42 of the 2000 Act. There are likely to be many permissions caught by this provision, which will preclude an application for an extension under the new Act even where an extension cannot be obtained under section 42 of the 2000 Act.
Avoiding the Risk of Expiring Permissions
In other ways, the new Act takes steps to avoid the risk of new permissions expiring before the development is carried out and completed. For instance, under the new Act the planning authority can grant permission for up to ten years and the Commission can grant permission for more than ten years, where justified.
The new Act also seeks to avoid the risk that a judicial review will run down a significant portion of the duration of a permission – the issue we wrote about in an earlier publication – Stop the Clock! The new Act now includes new provisions which give the developer the option of notifying the planning authority that proceedings have been issued, and later notifying the authority when the proceedings have finally concluded.
The proceedings will be finally concluded when the validity of the permission is no longer in question, or the proceedings are finally determined, and the period for any right of appeal from these decisions has expired. The period between the two notifications can be disregarded when reckoning the duration of the planning permission.
Timing of Planning Decisions
Under the Act, there are newly defined ‘relevant periods’ for the different decisions that are required to be made by the Commission. The Commission is subject to greater accountability under the new Act for any delays. The Commission must give notice of when a decision can be expected and the reason for a delay, and if the delay continues, the Commission will have to reimburse application fees and report on the delay and reasons for it to the Minister and to the Office of the Planning Regulator. Despite all of these provisions, the formal statutory periods under the new Act are not materially different to the 2000 Act.
In general, the Commission will have 18 weeks within which to make a decision on an application, appeal, referral or request (including an application to extend the duration of a permission). Where the Commission is required to carry out EIA or Appropriate Assessment, the period is 26 weeks. Where the Commission requires further information from the applicant, this can add a further 6 – 10 weeks to the process, and where the Commission holds an oral hearing, the target decision date is 12 weeks from the conclusion of the hearing.
The decision-making periods for standard development applications are similar to the 2000 Act.
National Planning Statements
The Minister shall propose National Planning Statements which must be approved by Government before they take effect. A National Planning Statement will set out national policy, the measures on planning matters to support proper planning and sustainable development, and guidance as to the implementation of the policy and measures. Strategic Environmental Assessment (SEA) and Appropriate Assessment may be required before a National Planning Statement is made. Forward plans and strategies shall be materially consistent with National Planning Statements, where they exist. The Act expressly provides for National Planning Statements to be incorporated within existing plans and strategies within a prescribed timeframe. This, it is hoped, will assist in bringing about policy consistency on a national and ongoing basis.
Environmental Assessments
The new Act consolidates provisions on Appropriate Assessment of plans and developments, and Environmental Impact Assessment of developments, under a single Part, whereas these provisions are scattered under the 2000 Act and related regulations.
The Act confirms that, where a plan or development is for or would facilitate (a) the construction or operation of a renewable energy plant, (b) the storage of renewable energy, or (c) the connection of renewable energy to the electricity, gas or heat network, such plan or development shall be considered necessary for ‘imperative reasons of overriding public interest’ (IROPI), as required by the revised Renewable Energy Directive (RED III). This IROPI designation has two key implications.
Firstly, decision-making timelines for IROPI projects should be shorter than for non-IROPI. Expedited timelines under RED III were due for transposition into Irish law by 1 July 2024. On 26 September 2024, the European Commission opened infringement procedures by sending a letter of formal notice to 26 Member States, including Ireland, for failing to fully transpose into national law the provisions of RED III for the simplification and acceleration of permitting procedures for renewable energy generation and storage projects, and their connection to the grid.
Secondly, the IROPI designation opens up the possibility that the relevant plan or development can obtain a derogation from an otherwise strict legal requirement under the Habitats, Birds or Water Framework Directives, where necessary, and in the absence of other reasonable alternatives.
Part 9 Judicial Review
In many respects, the new Act relieves applicants for judicial review of many administrative burdens that currently apply, in seeking access to the High Court to judicially review a planning decision. The new Act removes the ‘leave’ stage, which is the requirement to apply to the Court for permission to make an application for judicial review. Under the new Act, a person seeking to judicially review a decision simply files the requisite documentation in the Central Office of the High Court, and notifies the relevant parties on the same day. Provided the papers are filed in accordance with the Court’s published rules, this will be sufficient to ‘stop the clock’ for the purposes of the eight-week judicial review period, and to commence the judicial review process.
Should the decision-maker or a Notice Party wish to challenge the entitlement of the applicant to apply for judicial review, they would have to proactively apply to the Court to have the proceedings struck out. This is likely to be a relatively rare occurrence in practice.
The Act sets out criteria under which an applicant for judicial review would have to demonstrate that they have a sufficient interest in the decision or subject matter of the challenge. Certain organisations will be deemed to have the requisite legal standing to bring judicial review proceedings, with a clear preference for environmental NGOs with identifiable members and with governance structures that establish the authority of the organisation to make the application for judicial review on behalf of its members. Where a loose grouping or alliance of individuals does not meet the criteria to apply as an NGO, those individuals can still apply for judicial review in their own names, provided they have previously participated in the planning process and have obtained the requisite standing as participants in the process.
Correcting an error
The High Court will have the power to stay any judicial review proceedings to allow an error in a decision or other matter to be corrected. This should operate as an effective alternative remedy to quashing a decision that is challenged. The Commission is also given powers to make technical and clerical corrections to its decisions where required. These powers are similar to those contained in Section 146A of the 2000 Act save that the Commission now helpfully also has an express power to amend a permission or decision for the purposes of clarifying its terms.
The Act is clearly intending to try to ensure that valuable Court time and resources are not spent in argument over whether effective alternative remedies to quashing a decision are available. An applicant who raised the issue in proceedings may try to seek their costs, notwithstanding that they have not succeeded in having the relevant decision quashed. Costs by this stage of the proceedings should be reduced by the omission of the leave stage.
Further Information
There are many other interesting topics and issues under the Act, including provisions for costs protection for environmental litigation, limitations on persons raising objections, appeals and legal challenges on grounds which do not affect their interests, measures aimed at reducing abuses of the planning system for the purposes of delay or financial gain, and transitional issues that are likely to cause headaches for developers and decision-makers alike.
Please get in touch if you would like to hear more.
