After almost a full year of pre-legislative scrutiny and technical refinement, the Planning and Development Bill 2023 was published at the end last year. It is hoped that the Bill will be enacted in early 2024. Our Planning & Environment team reviews this landmark proposed legislation and highlight some points of interest for developers.

The Planning and Development Bill 2023 was published at the end of 2023. It has been refined overall and certain provisions expanded upon since the previous draft of the Bill was published. In a previous article, we analysed the Government’s Guide to the Bill. In this article, we review the current text of the Bill and highlight some further points of interest.

National Planning Statement

A new planning policy hierarchy will be introduced which will empower the Minister for Housing, Local Government & Heritage to issue, with Government approval, a National Planning Statement (NPS). The NPS will set policy and provide related guidance regarding planning matters. It will be mandatory for all other plans to be aligned with the NPS. However, the associated guidance outlining how the NPS should be implemented will be discretionary, allowing for some degree of flexibility.

The NPS will replace section 28 Ministerial Guidelines and section 29 Ministerial Policy Directives which may currently be made under the Planning and Development Act 2000, as amended (PDA).

Material contravention of plans

Sections 96 and 107 of the Bill relate to an application for permission for development in material contravention of certain plans. These sections narrow the ability of a planning authority and An Coimisiún Pleanála (the Commission), being the rebranded An Bord Pleanála (Board), on appeal to grant permission that materially contravenes a development plan or other plans.

For example, the rationale for granting permission in material contravention of a development plan available under the PDA, namely that “permission for the proposed development should be granted having regard to the pattern of development, and permissions granted, in the area since the making of the development plan”, has not been carried forward in the Bill. Instead, there will be greater focus on whether a proposed development is compliant with national and regional policies to justify granting the permission.

In addition, the deciding authorities under the Bill appear to be bound by the development plan unless a material contravention is expressly sought, which is not presently the case for the Board for certain direct applications under the PDA.

Modification and extension of planning permission

Chapter 5 of the Bill outlines the procedures for applications for alterations of, and extensions to the duration of, planning permissions. These procedures apply to both land and maritime based developments. When a request for the alteration or extension of planning permission is made, the deciding authority will consider whether it is material or not. Where a proposed modification requires an environmental impact assessment (EIA) and/or appropriate assessment (AA), or where the deciding authority is of the opinion that the amendment is a material alteration, then it will be considered a material modification and will be subject to public consultation before a decision can be made. Where the modification is non-material, the deciding authority is obliged to grant the alteration or extension.

There is no requirement in the Bill to have substantial works carried out to avail of an extension. This is a change from the current provisions of the PDA. In addition, planning permission may be extended, following public consultation, where an EIA/AA is required. This is also not currently permitted under the PDA.

Reform of section 5 procedure

The existing process regarding declarations on exempted development under section 5 of the PDA will be substantially modified under sections 10 and 11 of the Bill.

The Bill provides that a planning authority, or the Commission on appeal or referral, must give on request a declaration as to whether a project constitutes development and if so, whether it is exempted development. A request for such a declaration shall be determined within eight weeks of the date of the application or within three weeks of the date of expiration of the period specified in a notice where further information is requested. The Commission must generally determine a referral within 18 weeks of it being received.

The principal changes to the process are:

• Only the owner or occupier of land or a person with the owner/occupier’s consent may apply for a declaration
• The declaration given is not binding on persons who were not involved in the application
• The procedure may be used as a means of confirming whether any particular works are within the scope of a grant of planning permission

Section 10(5)(b)(ii) of the Bill provides that where a declaration is made, the planning authority must forward the declaration and the main reasons and considerations on which it is based to the person who made that request and to the owner or occupier of the land in question if different to the applicant.

Section 10(11) of the Bill provides that a person is not entitled to make a request for a declaration regarding a question that is, in substance, the same as a question where the planning authority or the Commission has already made a declaration unless there has been a material change in circumstances since the making of the first declaration.

Section 11 of the Bill also provides that a relevant declaration will be conclusive evidence of the matters stated therein in relevant proceedings brought by an enforcement authority or the Director of Public Prosecutions. However, this appears to apply only to a person who requested the relevant declaration.

Particulars of every declaration of a planning authority or the Commission for a request will be entered in the register. In addition, where the planning authority or the Commission makes a decision, it will publish the relevant documents on its website and make them available for inspection and purchase by members of the public.

Judicial review reform

Correction of errors

In our previous article, we noted that the judicial review process will be streamlined. One way in which it is proposed to streamline the process is by permitting the Commission to correct an error of law or fact in a decision that is subject of judicial review proceedings. This was a controversial proposal at pre-legislative scrutiny stage. However, it has been retained in the current text of the Bill.

There are two ways by which the Commission may correct such an error. However, both ways require the High Court to exercise its discretion:

1. Where an applicant has succeeded on at least one ground and the High Court is satisfied that the ground concerned is based on an error with a decision or on the face of a document, and amending the decision or document would address the ground, render the ground moot in whole or in part, or act as a satisfactory remedy, and it is within the power of the relevant body to make the amendment
2. Regarding a ground pleaded concerning an error, where the Commission or notice party in the proceedings admits or acknowledges that it made the error and the High Court is satisfied that the error is one where it is appropriate for it to exercise its powers

Where the High Court exercises its discretion, instead of quashing a decision, it may order the Commission to make the amendment. Alternatively, it can order an adjournment of the proceedings to allow the Commission to perform its function. It may also make such orders consequential on, or necessary to give effect to, a decision as it sees fit.

Unincorporated Residents Associations

Unincorporated residents’ associations (URA) will be deemed to have sufficient interest to bring judicial review proceedings provided certain administrative conditions are met. This is a key change to the original draft of the Bill which proposed to exclude unincorporated bodies from bringing judicial review proceedings. The conditions which must be met are as follows:

• The URA is a partnership within the meaning of the Partnership Act 1890
• The URA is a limited partnership within the meaning of the Limited Partnerships Act 1907
• The URA may sue or be sued in the High Court in its own name under Order 14 of the Rules of the Superior Courts (S.I. No. 15 of 1986), or
• The URA:
  • Has a constitution
  • Holds a vote among its members, in accordance with its constitution, on whether to apply for judicial review proceedings regarding the ground
  • Is authorised to bring the proceedings regarding the ground by no less than two thirds of the members casting a vote, and
  • Provides, with its application for judicial review proceedings, an affidavit sworn or attested to by a person on its behalf. The affidavit must confirm the URA’s compliance with the conditions. It must also confirm the total number of members of the URA, and exhibit a list of the names and addresses of the members of the URA who, in the vote authorising the URA to seek judicial review, cast a vote in favour of bringing the proceedings.

Environmental Legal Costs Financial Assistance Mechanism

A significant reform which has been retained in the approved Bill is the introduction of the Environmental Legal Costs Financial Assistance Mechanism (ELCFAM). 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. Costs paid under the ELCFAM will be on a fixed scale established specifically for these type of cases. 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 ELCFAM proportionate to the applicant’s means assessment.

Conclusion

The Bill was referred to the Select Committee on Housing, Local Government and Heritage on 7 December 2023. The Select Committee will propose any further amendments to the Bill. These will then be debated after the Dáil resumes on 17 January 2024. It is hoped that the Bill will be enacted in the first quarter of 2024.

Please get in touch with a member of our Planning and Environment team if you would like to discuss.

The content of this article is provided for information purposes only and does not constitute legal or other advice.