The Cabinet recently approved the Planning and Development Bill 2023. The Bill will now go before the Oireachtas for approval. While the text of the Cabinet-approved Bill has not yet been published, the Government has recently published a Guide to the Bill. Our Planning & Environment team reviews the Guide to see what might be expected to be included in the approved Bill.
We previously considered key reforms contained in the original draft of the Planning and Development Bill published earlier this year. Now that the Draft Bill has been approved by Cabinet, the Bill will go before the Oireachtas for its approval and is a step closer to being enacted. The text of the approved Bill has not yet been published. However, the Government’s Guide offers insight into details of key reforms and how they are proposed to work in practice.
The original proposal to change the name of An Bord Pleanála to An Comisiún Pleanála has been retained. More importantly, however, is that the Commission will have a three-pillar structure with demarcation between planning decision-making, governance, and corporate. Staff numbers will be increased from the current 238 to over 300. This reformed structure and increased staffing are intended to improve the decision-making process by allowing ‘Planning Commissioners’ to focus on planning decisions, making the process faster and more transparent.
The original proposal to impose mandatory timelines on the decision-making process, including appeals, has been retained. This will involve planning applications being separated into four different types of application:
- Standard planning application
- Applications made directly to the Commission, eg SID applications
- Alterations, extensions, and revocations of permissions, and
- Local authority and State development applications
The mandatory timelines imposed will reflect the complexity of the type of application. They are expected to range from the standard 8 weeks for standard planning applications up to 48 weeks for more complex SID applications.
Planning policy hierarchy
A new planning policy hierarchy will be introduced, headed by Government approved National Planning Statements (NPS) and the National Planning Framework. It will be mandatory for regional assemblies and local authorities to adhere to NPS when adopting regional and local plans. However, discretionary guidance on NPS will allow for some flexibility in how they are implemented.
In addition to Development Plans which will have a 10-year lifespan, local authorities will be able to choose from a suite of other plans to adopt. These will include Urban Area Plans for densely populated areas and Coordinated Area Plans for areas covered by more than one local authority.
Judicial Review reform
It is intended to streamline the judicial review process through several reforms including:
- The removal of the “application for leave” stage. This is a new change and is intended to reduce costs and Court applications.
- Prohibiting applicants from amending their grounds for judicial review beyond those stated in the original Statement of Grounds. The Court will only be permitted to grant permission to amend grounds in limited circumstances.
- Applicants for judicial review, except for environmental NGOs, need to have exhausted all available administrative avenues before being permitted to bring judicial review proceedings. For example, an individual must have made a submission to the planning authority whose decision is at issue in order to later make an application to take a judicial review on that application.
- The original draft of the Bill proposed that judicial review proceedings could be stayed to allow the Board to correct any error of law or fact in its decision. This proposal has been amended but no details of the amendment have yet been published.
- Unincorporated residents’ associations will be permitted to bring judicial review proceedings provided certain administrative conditions are met. This is a key change to the original draft Bill which proposed to exclude unincorporated bodies from bringing judicial review proceedings.
Environmental Legal Costs Scheme
A significant reform which has been retained in the approved Bill is the introduction of the Environmental Legal Costs Scheme (ELCS). This will be a means-tested legal aid scheme for applicants in judicial review and other Aarhus Convention (environmental) cases where parties will be required to bear their own costs. Legal fees paid under the ELCS will be on a fixed scale. If an applicant is successful in its case, it will be able to recover its costs in line with the scale. If an applicant is unsuccessful, it may receive a contribution to its costs from the ELCS, proportionate to the applicant’s means assessment.
It is intended to improve transparency and access to planning documents through the rollout of an e-planning system rather than through the Planning and Development Bill. This clarification is in response to issues raised by the Joint Oireachtas Committee concerning accessibility and availability of documentation.
Section 5 declarations
There will be a reform of the existing Section 5 of the Planning and Development Act 2000. This legislation permits a person to apply to a local authority for a declaration as to whether a development is an exempted development. This will be reformed so that only the owner or occupier of land or a person with their consent may apply for such a declaration. The declaration provided will not be binding on persons not involved in the application. The purpose of this reform is to prevent the Section 5 procedure being used as a sort of collateral enforcement action which it was never intended to be.
It is expected that the text of the approved Bill will be published in the coming weeks. The Guide suggests we should expect there to be some key changes made to the original Draft Bill. It appears some of the Joint Committee recommendations have been addressed, such as allowing unincorporated residents’ associations to bring judicial review proceedings. The next step in the legislative process is for the Oireachtas to debate the Bill later this year.
For more information and expert advice, 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.