COVID-19 has had an unprecedented impact on everyday life in Ireland and internationally. This has led to changes in the way in which businesses and individuals operate. Huge questions are raised as to how the planning system will or can function should the health emergency continue to escalate.
Disruption and suspension of time periods
The Emergency Measures in the Public Interest Bill (COVID-19) Bill 2020 was published on 24 March and provides for the suspension of the time periods in the Planning and Development Act for the duration of the crisis. This includes the eight week period for taking a judicial review of a planning decision under Section 50 of the Planning and Development Act 2000. These changes are helpful in mitigating the immediate impacts within the planning system caused by the unprecedented disruption of the economy over the past number of weeks.
The situation is evolving quickly and both An Bord Pleanála and local planning authorities are attempting to get clarity from the Government on what measures could be put in place to allow the planning system to continue to function. This may require further emergency legislation to amend the Planning and Development Act 2000 (the Planning and Development Act) to provide for the suspension of existing procedures to allow for example the electronic receipt of appeals and filing fees.
The Department of Housing, Planning and Local Government issued a press statement this morning on the crisis and its impacts on the planning system:
“The Minister and his Department have been engaged with the local authority sector to ensure that these critical processes are identified in business continuity planning and maintained as a critical service. The Minister has also engaged with An Bord Pleanála and the Office of the Planning Regulator, regarding their business continuity arrangements.
Every effort is being made to ensure that these systems can continue to operate, with appropriate accommodations, taking account of public health advice.”
The Emergency Measures in the Public Interest Bill (COVID-19) Bill 2020
The Bill was published on 24 March 2020 and it makes exceptional provision for emergency measures in order to mitigate the impact of the COVID-19 virus on the administration of crucial public service functions.
Section 9 of the Bill proposes changes to the Planning and Development Act, the Planning and Development (Housing) and Residential Tenancies Act 2016 and others to disregard the period of the crisis for the purpose of calculating time. This means that if the Bill is passed into law, which is likely to happen, no time limits specified in the 2000 Act will apply for the designated periods. This will be relevant for the time period prescribed to appeal a decision of a planning authority to the Board and the time within which the Board is expected to dispose of appeals, and applications for strategic infrastructure.
An Bord Pleanála
At the time of writing, decisions are still being issued by An Bord Pleanála. On Monday 23 March, Glenveagh Homes and Ballymore Developments secured planning permission for 'fast-track' plans for more than 330 residential units at two separate sites in Dublin. An Bord Pleanála remains currently open and operational in accordance with its normal office hours arrangements. The operation of An Bord Pleanála is bound by law and there is no relevant force majeure provision in the Planning and Development Act which would allow for the closure of the Board’s offices. A closure of the office, should it arise, would have a significant impact on the functioning of the planning system in Ireland.
The case of Flynn and O'Flaherty Properties Ltd v Dublin Corporation confirmed that it is the date of receipt of physical documentation in the office which is required for the purposes of the Planning and Development Act. The Act presumes therefore for the functioning of the Act that An Bord Pleanála offices must be open. The last time the office closed was during the ‘Beast from the East’ weather event in 2018, where the office closed for a short period of time.
At the moment there is speculation that An Bord Pleanála may attempt to continue to function by reducing the number of staff on the premises on Marlborough Street so as to allow enough social distancing. Much of the work of An Bord Pleanála is paper based and process driven. Consequently, it is not possible for An Bord Pleanála to function fully through remote working.
Oral hearings are being postponed given the difficulty of holding gatherings of people in light of social distancing guidelines. The oral hearing in relation to the N6 Galway City Ring Road has been postponed in line with the COVID-19 (Coronavirus) Government announcement. This will increase the already significant backlog at An Bord Pleanála and will delay many substantial projects. Inspections and site visits are also likely to be postponed.
An Bord Pleanála exists in a symbiotic relationship with local planning authorities. Any impacts on local planning authorities will invariably impact on the work of An Bord Pleanála. As local authorities come under immense strain due to the requirement for social distancing, staff shortages due to illness and pressure on front-line services such as sanitation and housing, there is the potential for staff redeployments within the local authorities which could affect the function of the planning system.
On a practical level as a result of the stress on the planning system it is very likely that Strategic Housing Development applications will be significantly impacted. This will interrupt the progression of the Rebuilding Ireland Action Plan for Housing and Homelessness.
There is also likely to be consequences for renewable energy projects going through the planning system. In addition, the fact that the Central Office of the High Court remains open for service of proceedings but no return dates for matters are being given as no non-urgent civil matters are being heard, could result in a significant delay to any projects fortunate enough to be approved by An Bord Pleanála in the coming weeks. This will be of concern to developers with outstanding planning issues involving grid connection for projects which are due to participate in the Renewable Energy Support Scheme (RESS) auction process in the coming months.
Apart from the difficulties presented by the crisis in the planning system, Developers will be anxiously considering whether contractors will be able to operate on construction projects if there is to be restrictions on construction work. These difficulties will be compounded by any delay to project timelines caused by delays in the planning system.
Relaxation of planning laws
The Minister for Housing, Planning and Local Government has been consulting with Local Authorities over the last few days and yesterday announced that certain planning restrictions will be lifted to adapt to the changed practices of businesses in light of the pandemic. For example, restaurant owners will not need to get planning permission to operate their traditional sit-in premises as takeaways, where previously this would have been required. Any new hospitals, isolation units, step-down care centres or other infrastructure needed to fight the pandemic will now bypass the planning process. Businesses like supermarkets that have their opening hours limited by conditions to their planning permission will be allowed to open longer too.
These measures are welcome to provide comfort to essential services in the current environment.
The uncertainty in wider society and the economy is reflected also in the disruption to the planning system which is likely to occur. The current Planning and Development Act does not provide for these unprecedented circumstances, and it is certain that there will be very significant impacts to the proper functioning of the planning system, without further significant legislative intervention. It is important that these measures are implemented without delay in order to ensure minimal disruption to the planning system during this period of unprecedented crisis.
For more information on the likely impact of the current COVID-19 crisis on your business or operations, contact a member of our Planning & Environment team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
  IEHC 47