The Planning and Development, Maritime, and Valuation (Amendment) Act 2022 was signed into law on 24 July 2022. This new legislation will amend the Planning and Development Act 2000, as amended (the PDA).

The main changes introduced by the new legislation are as follows:

Short-term letting in rent pressure zones

The new legislation includes measures to bring more homes back into the long-term rental market in Rent Pressure Zones (RPZs). Online platforms will not be able to advertise properties in RPZs which do not have the requisite planning permission or are exempted development. Non-compliance with these provisions will be an offence for both the individual property owners concerned and the online platforms.

Opinion on planning permission and design options

A person who intends to apply for certain planning permissions (permission for development under section 34 of the PDA, strategic infrastructure developments under Schedule 7 of the PDA, permission in respect of cables, wires and pipelines under sections 182 B and 182 D of the PDA), can, under the new legislation, obtain an opinion as to flexibility with regard to the application for permission by convening a meeting with the relevant consenting authority before submitting their application.

In the request for such a meeting, the prospective application is required to include a description of the nature of the details of the proposed development which are unlikely to be confirmed at the time of the proposed application and the circumstances that indicate that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed the details. The prospective applicant must provide an undertaking to provide with the proposed application two or more options, parameters or a combination of both in respect of these details on the basis of which the application may be decided.

Where the consenting authority is satisfied that it is appropriate that the application be made and decided before the prospective applicant has confirmed certain details of the application it is be required to provide an opinion to that effect. Conversely, where it is not satisfied it must notify the prospective applicant of this. Notably, an opinion will only be made public when the planning application is made.

Where permission is granted pursuant to this procedure, it will include a condition in respect of any detail of the development which was not yet been confirmed at the time.

Planning applications to planning authorities

Amendments are proposed to Section 34(12) of the PDA which concerns planning applications to planning authorities. Amendments made at Section 34(12) extend the current obligation that only the Environmental Impact Assessment (EIA)/ Appropriate Assessment (AA) position at the time an existing development took place (which may be disputed or unclear) will be considered; under the new legislation, planning authorities and the relevant consenting authority will now have to consider both past and present EIA or AA requirements applicable to an existing development in question. However, the relevant consenting authority will refuse to consider an application on appeal if an EIA/AA is required. In such a situation, the application to retain unauthorised development shall be deemed to be withdrawn.

Simultaneous applications for future development

The new legislation also amends the process around simultaneous applications for future development under section 37L of the PDA. The amendments introduced under the new legislation widen the availability of the future development to all types of development (not just for future quarrying as was previously the case).

Under the new legislation, the relevant consenting authority will be required to decide on the application for future development at the same time or as soon as possible after a decision on the application for substitute consent. This amendment is to encourage the regularisation and remediation of unauthorised developments. It should be noted that if the substitute consent application is refused, the future development proposal must also be refused.

Overhaul of substitute consent process

The new legislation will amend Part XA of the PDA to streamline substitute consent procedures for applications to regularise existing developments requiring a retrospective EIA or AA, by providing for a single-stage application process and removing the initial leave to apply stage.

As the leave to apply stage is deleted under the new legislation, the definition of ‘exceptional circumstances’ is also amended to reflect the movement of the exceptionality criteria to the substantive application stage.

Limiting leave to apply for judicial review

An amendment to Section 50A of the PDA seeks to limit the circumstances in which leave to apply for judicial review will be granted. A new provision provides that leave will not be granted unless the applicant has exhausted any available appeal procedures or any other administrative remedy available to him or her in respect of the decision or act.

Where the Court decides to quash a decision or other act, the applicant for permission or approval will be entitled to request the matter to be reconsidered by the relevant consenting authority, unless the Court would not consider it appropriate.

Amendments to Maritime Area Planning Act 2021

The new legislation also introduces a number of key changes to the Maritime Area Planning Act 2021, including:

• A new Chapter on judicial review of matters relating to a maritime spatial plan (‘MSP’) or designated maritime area plan (‘DMAP’). Under the new section 33A, a public body which is concerned with a matter under this part may refer the matter to the High Court for a decision. The only manner in which a person may challenge the validity of a decision or act done by a public body under this part in relation to a MSP or DMAP is through judicial review.
• Amendment of the provision relating to the appointment of a chief executive of the Maritime Area Regulatory Authority (‘MARA’).
  
• Specification that the development permission and the maritime area consent (‘MAC’) must be fully consistent with each other or that the updated provisions relating to reconciling the MAC and the development permission detailed below are followed before any right is conferred.
  
• Provision for amendment to the MAC where there is an irreconciliation between a provision of the MAC and a provision of a development permission for the maritime usage the subject of the MAC. This amendment will be to the extent necessary to remove that irreconciliation in favour of the provision in the development permission and all other provisions of the Maritime Area Planning Act 2021, as amended.
  
• Provision for special enforcement notices which will be issued by MARA when MARA is of the opinion that a relevant ground applies to a holder and the gravity or potential gravity of such ground is so great that the procedure related to a special enforcement notice should apply rather than the standard enforcement notice procedure.
  
• Specification of grounds for termination of a relevant authorisation, including for example failure to comply with development permission in respect of maritime usage the subject of permission where the failure is not remedied.
  

Commencement

Sections 3 to 7 of Part 2, and Part 4 of the new legislation came into operation on enactment. The remainder of the new legislation requires that a commencement order be made by the Minister for Housing, Local Government and Heritage to come into operation. The Minister may make the order generally or with reference to a particular purpose or provision. The Minister may appoint different days for the commencement of different purposes or provisions.

Conclusion

The new legislation introduces a number of key changes to planning procedures in Ireland.

The amendments relating to design options provide much needed clarity on foot of a recent High Court judgment in a planning-related judicial review case. This degree of flexibility at planning application stage is desirable, while also ensuring appropriate safeguards for the public consultation phase and environmental assessment, providing clarity for the consenting authority and stakeholders.

The changes to the substitute consent regime are also welcomed. To proceed with development which has not been subjected to EIA and/or AA, in the absence of substitute consent, represents a significant risk. In addition, the substitute consent process in Ireland has been in flux in recent years, with the added complexity of an applicant wishing to seek substitute consent first having to make an application to the relevant consenting authority for leave to apply for substitute consent. The new legislation is a welcome move to streamlining and adding clarity to substitute consent procedures in Ireland, providing for a single-stage application process by removing the redundant leave to apply stage.

For more information, please 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.