Sunday 12 November 2006

The Irish Development Plan and its material contravention

The Irish Development Plan

This material covers development plans and material contravention of development plans.

I. Development Plan (Part II of the P & D Act 2000)

The Development Plan is the basic policy document of the planning authority, in other words it’s the main public statement of planning policies for the local community. The plan consists of a written statement of objectives and a map or series of maps. These planning objectives are for the next six years.

In the words of the Act (s.9(2)(3) a development plan shall relate to the whole functional area of the authority.

Where’d it come from?

Without going into the history here, each planning authority was obliged to make a development plan within three years of the commencement of the 1963 Planning Act and thereafter they were required to review it at no greater than five yearly intervals (note: but it could be shorter), the 2000 Act has continued this approach but changed the time period to six years time periods, and also changed, as we shall see, the process somewhat. After a development plan has been adopted by a council it can subsequently be varied by addition, deletion or alteration or replaced by an entirely new development plan. Provision is made for the Minister to extend the period for reviewing the development plan, and a plan made outside the statutory deadline without the Minister’s prior assent is not valid. The making of a development plan is a reserved function.

What must be in a development plan?

Section 10(1) of the Act says: “A development plan shall set out an overall strategy for the proper planning and sustainable development of the area of the development plan and shall consist of a written statement and a plan or plans indicating the development objectives for the area in question”.

Development plans, the document you can buy over the counter at any county council office, are in the form of a written statement supplemented by maps. Over the years they have gotten bigger and bigger – some of you will remember last week’s lecture where I showed the long and detailed table of contents for the Galway County Development Plan. They are now long because of what it “must” contain, but also because of what it can contain. Let me explain. The Act lists those objectives which are discretionary and those which aren’t, and both lists are long!

· What must plans include (mandatory; s. 10.(2))?

· Plans may include (discretionary): Under Section 10(3). If you thought the list of mandatory objectives was quite extensive, the First Schedule of the Act (a schedule is a list at the back of an Act), provides a very very long list of other objectives which may be included.

Even after all of these, the Minister may prescribe additional objectives for inclusion in development plans!

What else except objectives must a development plan include?

Those preparing it must take cognisance of environmental issues. In preparation for Strategic Environmental Assessment (EU Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment), the Act (Section 10.5.(a)) says: “A development plan shall contain information on the likely significant effects on the environment of implementing the plan”. Section 10.5 (b) says the Minister may by regulations make further provisions in relation to the manner in which paragraph (a) may be complied with.

A large number of the objectives which are included in a development plan will be spatial in nature, in other words they will be located on a map. Indeed, when I worked with Fingal County Council on their last plan review, almost the entire plan was produced using geographical information systems or map based software. Many of you will have heard of or even seen these types of map, often referred to as zoning maps, these contain the detailed land use objectives for the period of the plan, so land may be zoned agricultural, residential, commercial, educational, recreational and a myriad of other designations, and where local areas are concerned such designations can reach down to street scale or below where, say, conservation issues are at stake.

Interestingly, it is worth noting that a zoning is not permanent! Section.10(8) says: There shall be no presumption in law that any land zoned in a particular development plan (including a development plan that has been varied) shall remain so zoned in any subsequent development plan. The reason for this is to try to encourage landowners who own zoned land to develop it. When land is zoned it means planners wish to see the land developed as part of, say a county strategy, when it is not it can place pressure on planners for more rezonings, which is often the objective of the developer(s) in question. So, taking housing as an example, there is plenty of zoned housing land all over Ireland, but much of it is not being developed, so councillors, noting the pressures from shortages of housing on local people, pressure for rezoning of land for housing and the most appropriate sites for housing, being already zoned, remain zoned whilst more, less appropriate land is rezoned. To try to prevent this, the Government introduced the idea that a zoning can be lost. In reality it’s very hard to do, as the All Party Oireachtas Committee on the Constitution found out this year.

Let’s look at how to prepare a draft development plan, that is: at the planning practice and procedures involved.

Section 11.(1) says: “Not later than 4 years after the making of a development plan, a planning authority shall give notice of its intention to review its existing development plan and to prepare a new development plan for its area”

A notice must be sent to the Minister, any prescribed authorities, any adjoining planning authorities, the Board, any relevant regional authority and any town commissioners and city and county development boards within the functional area of the authority and must be published in one or more newspapers circulating in the area to which the development plan relates (the content of the notice is stated in the Act, but strong coffee wouldn’t keep you awake for me to describe it).

The main things to remember about the notice are: It must state the planning authority’s intention to review the existing development plan and to prepare a new development plan. Tell the public that submissions or observations may be made in writing to the planning authority within not be less than 8 weeks. It must tell people the time and places where they can review and inspect the first draft plan.

Having given notice that it intends to review a development plan and to prepare a new development plan, a planning authority must consult with the general public and other interested bodies. This can be via public meetings, efforts to encourage or seek (say, by invitation) written submissions regarding all or any aspect of the proposed development plan and may invite oral submissions to be made to the planning authority regarding the plan.

It must also consult the providers of energy, telecommunications, transport and any other relevant infrastructure and of education, health, policing and other services in order to ascertain any long-term plans for the provision of the infrastructure and services in the area of the planning authority and the providers must furnish the necessary information to the planning authority.

Not later than 16 weeks after giving notice of intention to review and make a new plan, the manager of a planning authority must prepare a report based on any submissions or observations from consultations, submissions, observations, etc.

The report is quite simple. It

(1) Lists the persons or bodies who made submissions, observations or were consulted,

(2) Summarizes the issues raised in submissions and consultations,

(3) Importantly, the manager must give his or her opinion of the issues raised,

(4) The report must then give the manager's recommendations on the policies to be included in the draft development plan.

This report is then given to the members of the authority (the councillors) for their consideration. Having considered it, they may issue directions to the manager regarding the preparation of the draft development plan (but, importantly, and any such directions must take account of the statutory obligations of any local authority in the area and any relevant policies or objectives for the time being of the Government or of any Minister of the Government; and they must consider the proper planning and sustainable development of the area) and the manager shall comply with any such directions. Such directions must be issued not later than 10 weeks after the submission of the Manager’s report.

Then, not later than 12 weeks following the receipt of any directions, the Manager prepares a draft development plan (well, actually, the planner’s do it on his or her behalf) and then, again, submits this to the members of the planning authority for their consideration. The councillors must “as soon as may be”, consider this draft development plan. Once considered it is deemed to be the draft development plan; unless, within 8 weeks of the submission of the draft, the councillors, by resolution, amend the draft development plan.

Once a draft development plan is in place, the planning authority must send a notice and copy of the draft to the Minister, the Board, the prescribed authorities, any town commissioners in the area and any city or county development boards in the area, any town commissioners and city and county development boards within the area, and publish notice of the preparation of the draft in one or more newspapers circulating in its area.

Again, I’ll not go through in what’s in a notice in detail. It must include details of where it may be inspected for at least 10 weeks (it can be more); state that written submissions or observations with respect to the draft can made to the planning authority within the 10 weeks which will then be taken into consideration before the making of the plan.

Not later than 22 weeks after this notice is circulated, the manager of a planning authority must prepare another report on any submissions or observations received and again submit the report to the councillors for their consideration. Again, it must:

(1) List the persons or bodies, who made submissions, observations or were consulted, and

(2) Summarizes the issues raised in submissions, observations and consultations (and also reiterate the views he or she made during the draft development plan process).

The councillors then consider the draft plan and the manager’s report within 12 weeks. Where, following the consideration of the draft development plan and the manager's report, it appears to the members of the authority that the draft should be accepted or amended, they may, by resolution, accept or amend the draft and make the development plan accordingly.

The process can end here. However, it is most likely that the councillors decide to make material alterations to the draft plan. And there is a further procedure for this.

The planning authority must, not later than 3 weeks after the passing of a resolution to amend the draft, publish notice of the proposed amendment in at least one newspaper circulating in its area. The notice says all the normal things: where to inspect the proposal and how to make a submission, observation. The process is for just 4 weeks (people can comment only on the proposed amendment!). Then, not later than 8 weeks after giving notice of the proposed amendment, the manager of a planning authority shall prepare another report, which is the same as the previous ones, except it’s only to cover the proposed amendment. This, and the draft plan, are then submitted to the councillors for their consideration. The councillors have six weeks to do this. Then, they must, by resolution, having considered the amendment and the manager's report, make the plan with or without the proposed amendment, except that where they decide to accept the amendment they may do so subject to any modifications to the amendment as they consider appropriate.

Where a planning authority makes a development plan, it must publish a notice of the making of the plan in at least one newspaper circulating in its area. Copies are sent to required bodies and made available for public inspection.

A development plan made under this section shall have effect 4 weeks from the day that it is made.

There are a number of other points to make about development plans:

1. Failing to make a development plan within two years

Interestingly, where a planning authority fails to make a development plan within 2 years of the original giving of notice to do so, the manager shall make the plan subject to the proviso that so much of the plan that has been agreed by the members of the planning authority shall be included as part of the plan as made by the manager.

2. Oral submissions

At any stage of the process, a planning authority may invite such persons as it considers appropriate to make oral submissions regarding the plan or any amendment.

3. Also, the Act says: “A person shall not question the validity of the development plan by reason only that the procedures as set out were not completed within the time required”, so it is possible where necessary to alter time periods. The Council ran over its statutory deadline (after 12pm), but it was still a legal process.

4. There is a general duty is placed on each planning authority to take the steps necessary to secure the objectives contained in its development plan.

5. Coordination of plans: The Act provides for ways in which development plans can or should be co-ordinated across areas:

1. Planning authorities can work together to produce a single plan. But unless required by the Minister doesn’t have to.

2. A planning authority must, however, have regard to the development plans of adjoining planning authorities. It also must co-ordinate the objectives in the development plan with the objectives in the plans of those authorities; except where the planning authority considers it to be inappropriate or not feasible to do so.

It should also be noted that (s. 10(6)) Where a planning authority proposes to include in a development plan any development objective the responsibility for the effecting of which would fall on another local authority, the planning authority shall not include that objective in the plan except after consultation with the other local authority.

3. In making a development plan a planning authority must also take into account any significant likely effects the implementation of the plan may have on the area of any adjoining planning authority having regard in particular to any observations or submissions made by the adjoining authority (s.9(5)).

6. Coordination with national and regional plans

The Act says: A development plan shall in so far as is practicable be consistent with such national plans, policies or strategies as the Minister determines relate to proper planning and sustainable development.s.9(6)

7. Role of the Minister

Although the councillors have the function of deciding on the form and content of the development plan for their area, the Minister for the Environment has a general supervisory jurisdiction in the matter. He may require two or more planning authorities to co-ordinate their development plans in a manner specified by him (s.3.(7)(6)). Also, any dispute between the planning authorities in question arising out o making a single development plan for their area must be determined by the Minister (s.3.(7)(b)).

He may also require a planning authority to vary its development plan in a specified manner. Neither of these powers has ever been used. However, Berna Grist in her book Introduction to Irish Planning Law tells the story of the Minister of the time, Brendan Howlin, and Kildare County Council. Kildare inn the 1990s was rezoning large tracts of agricultural land for housing around the main Kildare towns – Johnstown (52 acres), Kilcock (200 acres), Clane (120 acres) and Maynooth (280 acres). The residents felt this would destroy the character of these towns (similar debates are happening everywhere now!), they wrote and asked the Minister to reverse these decisions. He didn’t do this, but he did write to the council asking them to defer further rezonings until the council had prepared a strategy for the future development of the county as a whole. This was a first and sent out the message: plan appropriately, remember it’s the Government who allocates your infrastructural funding, which services all these houses.

If during the period of the development plan, it wishes to make a decision which would materially contravene the development plan, it must vary the development plan and there is a procedure for this in the Act (section 13). Here it is in brief:

The Act says a planning authority may at any time, for stated reasons, decide to make a variation of a development plan. To do this it: The Manager (well the planners) send notice and copies of the proposed variation to the usual suspects (Minister, Board, prescribed authorities, neighbouring councils, etc.) and publishes notice of the proposed variation in one or more newspapers circulating in that area.

A notice must state the reasons for the proposed variation; that it can be inspected at x places for 4 weeks; that written submissions and observations can be made.

Not later than 8 weeks after giving notice, the manager again prepares a report on any submissions or observations received, and submits the report to the members of the authority for their consideration. The report is exactly the same as the others. The councillors then have 6 weeks to consider the report and proposed variation. They may then by resolution, as they consider appropriate, make the variation, with or without modifications, or they may refuse to make it; notice of variations, if made, must be published in a newspaper circulating in the area (and tell people they can come and inspect it and buy copies). Copies are sent to the usual suspects. A variation made to a development plan has effect from the day that the variation is made.

When we look at development control we will see that a planning authority cannot grant permission for a development which would materially contravene the development plan, except where yet another procedure is followed (section. 34(6) of the Act).

I suggest readers view development plans/draft development plans which are available on-line.

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