Planning and Development and Foreshore (Amendment) Bill 2022 | Dooley Cummins (DCA+E)
Here’s a quick rundown of what this could mean for property developers.
What is the new Planning and Development and Foreshore Bill?
The Government hopes to rationalise 20-year-old planning legislation through a new Bill, the Planning and Development and Foreshore Bill. Ostensibly, the Bill is intended to speed up the delivery of housing, renewable energy developments and sort out the recent difficulties at An Bord Pleanála. This could significantly change the planning process for all property development in Ireland for the foreseeable future.
It is believed that the draft Bill contains over 600 pages. The full draft of the Bill will be published in early 2023.
It still has to go through pre-legislative scrutiny and the full passage through the Oireachtas, meaning substantial changes are still possible.
The Government is also aiming to enact it in “early 2023″.
What is in it?
It is intended that the Minister for Housing will be given extra powers when producing planning guidelines. Any planning documents produced subsequently at a local level will have to be aligned with the Minister’s on a mandatory basis. It is claimed that planning inertia will be reduced by concentrating power in the Minister’s office. There is bound to be much criticism from local authorities and the Oireachtas about any reduction in their role in the planning arena.
DCA+E says, “It remains to be seen whether this is an attempted power grab or a practical method of speeding things up. Hopefully, it is the latter as with our experience of apartment guidelines being standardised across Planning Authorities.”
It is suggested that these will be published every ten years, instead of the current six. The aim of this is to try and focus objections at the development plan-making stage rather than objections being made on specific planning applications.
The ten-year cycle has many advantages. It usually takes two years for a new Development Plan to get bedded down and then a new one is being drafted two years later.
DCA+E says, “Achieving policy objectives in the current 6-year plan model is often unrealistic leading to a lack of faith in the potential of existing plans. It would also be great if Development Plans were of a similar standard and followed a specific template instead of the 31 widely differing formats produced by each of the local authorities in Ireland.”
An Bord Pleanála will cease to exist in either its current name or structure. The scandal-hit body will be given a new name, An Coimisiún Pleanála (The Planning Commission). Its decision-making and governance structures will be separated. Planning commissioners, consisting of a chief planning commissioner and up to 14 other ordinary commissioners, will replace the current chairperson and board member roles. A new governing executive will led by a CEO who will be responsible for governance and organisation.
DCA+E says, “On the simplest level all that was needed in the short-term was legislation to appoint Oonagh Buckley as interim head of An Bord Pleanála. Rushing through a lot more on her coattails may prove to be as problematic as the Strategic Housing Development legislation.”
Speeding up the planning process is apparently one of the key objectives of the Bill. Mandatory timelines are to be set for planning-consent processes at An Bord Pleanála level, with fines for failing to meet them. This is planned to be introduced on a phased basis with major strategic projects being the first in line. However, there is no detail about what they may be or what additional resources will be made available at An Bord Pleanála to address the shortcomings experienced at An Bord Pleanála to date.
DCA+E says, “There are many who feel that good planning decisions need to be the ‘right’ ones not the ‘right now’ ones. There may be many unintended consequences of a mandatory fine system within a planning board. Proper resourcing of the new planning Board, An Coimisiún Pleanála, is required in parallel with any change in legislation.”
Timelines are being introduced for various stages of the judicial review process, although we don’t know what these will be. The Bill will also seek to narrow the scope for who can take judicial reviews, with the example of a residents’ association offered by the Government: individuals will now have to take them, rather than the group itself. It also outlines that a “person affected” by the application can take a review or an environmental NGO who meets certain criteria. There is to be a new regime to help with the costs of taking a challenge.
Planning authorities will be able to correct an error or fact of law in a planning decision and apply for a stay on judicial review proceedings.
DCA+E says, “Individuals are much less likely to take on the risk of a Judicial Review. Is this a good thing?Judicial Reviews only consider the application of planning law in how An Bord Pleanala reached its decision. If the Judicial Review finds errors in law, the Bord is directed to revisit the correct legal process and not necessarily its decision. The ability to correct errors in the process is welcome in this regard.”
There will be more powers for local authorities to use compulsory purchase orders.
DCA+E says, “These potential powers are likely to be contentious and may lead to constitutional challenges to the proposed legislation as they affect the private rights and property of citizens of the state.“
The Bill will amend the definition of the foreshore to ensure that the body of water above the seabed is included and therefore, provides the Minister with the appropriate powers to require marine users to apply for a lease or licence in circumstances where they wish to occupy or use the foreshore.
We will update this blog in the New Year as more information becomes available on the legislation.
The Bill as initiated on 1st December 2022 may be viewed here: Planning and Development and Foreshore (Amendment) Bill 2022