The Planning and Development (Amendment) Act 2010 (the 2010 Act), which was approximately 2 years in development, was signed into law on 19 July 2010. A number of provisions in the 2010 Act were commenced on the 19 August by S.I. 405/2010. On 28 September 2010, sections 32 and 33 came into force with the remaining sections following at a later date.
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 and have outlined which provisions are in force. However, most of the main provisions are not yet operative.
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. This is dealt with in section 7 of the 2010 Act but is not yet in force.
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. Part XA of section 57 of the 2010 Act inserting this "substitute consent" procedure is due to become operative at a later date which is, at present, unknown.
It will apply to:
- projects that needed an EIA;
- those that would have had to be screened to check whether EIA was required;
- 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. It is not known at this time when this section will enter into force.
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. This section has not yet entered into force.
4. Exempted Development
Section 4 of the 2000 Act dealing with exempted development has been amended. The current forestry exemption for thinning, felling, re-planting, maintenance, etc. and for the construction of forest roads is maintained, but it is amended by specifying that any road or development providing access to a public road is not exempted development and must be subject to the planning process. This will be of significance to forestry growing farmers and wind farm developers alike who will now have to factor planning permission timelines into any projects which involve the construction of forest roads. This section of the 2010 Act commenced on 19 August 2010.
5. 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.
The National Asset Management Agency (NAMA) Act 2009 gave NAMA special powers to extend the duration of a planning permission by inserting a new section 42A into the Planning and Development Act 2000. This gives NAMA the power to make an application to extend the duration of permission at any stage during the period of 2 years after the expiration of the original permission. The permission must have run out between 1 January 2009 and 31 December 2011. Under section 29 of the 2010 Act, NAMA must demonstrate compliance with the same criteria as ordinary applicants under section 28. Section 28 and 29 came into force on 19 August 2010.
6. Strategic Infrastructure Threshold
The projects that need to follow the Strategic Infrastructure Development route for obtaining planning permission have been extended and amended. Health infrastructure has now been included. Also, the windfarms thresholds of 50 turbines and/or 100mw have been reduced to 25 turbines and 50mw respectively. So, projects above the new threshold will have to apply to An Bord Pleanála for assessment as to whether or not they have to go the SID route. The SID route is expensive and, despite the fact that it by-passes the local authority stage, is often longer than the traditional route. This amendment was made by section 78 of the 2010 Act and is yet to be formally commenced.
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. This section came into force on 19 August 2010.
8. Judicial Review
Certain changes have been made to the procedure for judicial review of planning decisions, with the aim of streamlining the procedure. These changes are contained in section 32 and came into force on 28 September 2010.
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 section came into force on 28 September 2010. 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.
9. 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. This section is not yet in force.
10. 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. This was introduced by section 38 of the 2010 Act which will come into force at a later date which is, at present, unknown.