Wednesday 4 August 2010

The Legal synopsis of the Planning and Development (Amendment) Act 2010

This online synopsis has been produced by Alison Fanagan and Noeleen McHenry of A&L Goodbody Solicitors (written on the 20th July).

The Planning and Development (Amendment) Act 2010 (the 2010 Act), which was approximately 2 years in development, has passed through the Dáil and Seanad and is expected to be signed into Irish law by the President in the week commencing 19 July 2010. It will still require to be formally "commenced" so it is not yet operative, but there are key changes made that have implications for developers and other applicants for planning permission, funders of any development or proposed development, and other interested third parties such as objectors. We have concentrated on some of the key issues below.

1. Impact on local planning procedures

The 2010 Act seeks to ensure that the provisions of development plans and local area plans are consistent with national and regional development objectives set out in the National Spatial Strategy (NSS) and in Regional Planning Guidelines (RPG). In the past, local authorities were obliged to "have regard" to the NSS and RPG, but not to necessarily comply with them. This is perceived to have caused problems, particularly with inappropriate, intensive, residential and retail development. The 2010 Act requires local authorities to develop a "core strategy" to ensure adherence to the NSS and RPG, and to vary development plans where this is not demonstrated. Local authorities are also obliged to comply with Ministerial Directions, and to ensure that their development plans are consistent with environmental protection and conservation, especially the Habitats Directive. The status or importance accorded to Ministerial policy is greatly enhanced under the 2010 Act, and accordingly, the power of elected officials has been diluted.

These detailed measures are designed to restrict the autonomy of local authorities and councillors to grant permissions which are at variance with the NSS and RPGs, to seek to ensure greater consistency throughout the country, and to ensure Ireland complies with its EU obligations relative to Strategic Environmental Assessment. A lot of work will require to be done to ensure Development and Local Area Plans comply.

2. Retention Planning Permission

In 2008, in a case arising from the Derrybrien landslide (case C-215/06, Commission -v- Ireland), the European Court of Justice decided that Ireland was in breach of EU law in permitting retention permission to be granted for projects that require an Environmental Impact Assessment (EIA).

Following this decision, the Minister for the Environment issued a Circular to local authorities and An Bord Pleanála directing them to not grant retention permission for developments requiring EIA. The Act now seeks to regularise the position in respect of EIA development by providing for a "substitute consent" procedure.

It will apply to:

projects that needed an EIA;

those that would have had to be screened to check whether EIA was required; and

projects that would have required appropriate assessment under the Habitats Directive.

It therefore has a wide scope.

An applicant generally has to first seek permission from An Bord Pleanála to be able to apply for that substitute consent. This does not apply where you seek substitute consent because your original planning permission is declared void (e.g. due to the lack of or inadequacy of an EIS or Natura impact statement following a judicial review challenge) or where a local authority serves a notice requiring an application for substitute consent. An authority can do this if it believes that a permission is void because of a decision of an Irish Court or the European Court of Justice (for example if a retention permission was granted for a development requiring EIA after the ECJ decision referred to above). An Bord Pleanála will grant leave if "exceptional circumstances" exist such that the Board considers it appropriate to permit the opportunity to regularise the situation. Such circumstances include if the applicant could reasonably have had a belief that the development was not unauthorised, the environmental effects of the development, and the previous compliance history of the applicant. Conditions (including restoration) can be attached to any consent that issues. If the Board declines to issue substitute consent, it may then issue a direction that remedial measures be taken.

It should also be noted that regardless of any other provisions of the Planning Acts and Regulations, development requiring EIA cannot be exempt development.

Quarries are treated differently, and very detailed provisions apply which may well lead to a significant number being permanently unauthorised. The previous arrangements under S.261 of the 2000 Act have been strengthened and amended. Any operators of quarries will need prompt and specific legal advice on the implications of this legislation.

3. Default Planning Permission

The provisions in relation to default planning permissions, especially time limits, have been extended. Local authorities now have a further 12 weeks to remedy any failure to make a decision. This is in addition to the standard period, which is usually 8 weeks, to make such a decision. Default planning permission will not be possible in respect of projects that require an EIA.

4. Extensions of Planning Permission

The original provisions in the 2000 Act have been changed. There is now one opportunity only to apply for an extension of up to 5 years on your planning permission. You still have to apply before the expiry of the original planning permission. However, the basis on which you can get an extension has been extended. Where, as before, substantial works have been carried out in relation to the planning permission, and the development can be completed within a reasonable time, an extension of up to 5 years can still be granted. In addition, however, an extension can also be granted where the development has not gone ahead because of "commercial, economic or technical" issues beyond the control of the applicant. There are other conditions that apply to this as well. This will be of interest, particularly to so called "mothballed" developments. There is no provision made for updating any environmental impact assessment that accompanied the original planning application, and this may prove controversial.

5. Enforcement

The usual immunity for unauthorised development from enforcement action after 7 years will no longer apply in relation to quarrying and peat extraction, which means in effect that such unauthorised activities can be enforced against no matter how long they have been in existence.

In addition, the fines are increasing for non-compliance with Enforcement Notices, and there is a greater onus on local authorities to pursue non-compliant developments by way of the planning injunction procedure to seek to compel compliance, which could include demolition.

6. Judicial Review

Certain changes have been made to the procedure for judicial review of planning decisions, with the aim of streamlining the procedure.

There have also been some changes made in relation to the awarding of costs in cases which concern the EIA Directive and the Habitats Directive. This follows on from concerns expressed by commentators, and indeed the European Court of Justice, in relation to Ireland's compliance with the Aarhus Convention on public participation in environmental decision-making. The 2010 Act amends the Superior Court Rules and provides that the general rule will be that each party shall bear its own costs, save where otherwise directed by the Court. This issue has been the subject of many recent High Court decisions. It will be interesting to see how this affects public interest challenges in particular. Already, there have been calls by An Taisce, Friends of the Irish Environment and others requesting the President to convene the Council of State to consider the constitutionality of the legislation. They have focused in particular on the huge difficulties these costs provisions are likely to present for public interest objectors being able to get lawyers to bring environmental cases.

7. Refusal of Planning Permission due to Prior Breach

In addition to the situation under the 2000 Act (where a local authority or the Board could refuse permission in circumstances where the applicant has previously failed to comply with planning permission or a condition attaching to a permission) under the 2010 Act, permission can now be refused if a person has either carried out a substantial unauthorised development or has been convicted of an offence under the 2000 Act. An intention to refuse permission on this basis must be notified to the applicant, who must be given an opportunity to make submissions. An applicant may apply to the High Court (within eight weeks of notification) for an Order annulling the planning authority's decision.

8. Social and Affordable Housing

An additional means of compliance is now available, such that local authorities can enter into a leasing agreement for houses instead of buying them outright. A mechanism for calculating rent is provided.

It has been noted that this synposis doesn't mention the inclusion of hospitals as a new class of Strategic Infrastructure Development - a significant change.

A & L Goodbody Solicitors

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