Commercial Real Estate

Standing to the fore of upcoming and ongoing legislative changes to Irish property and planning law lies the draft Planning and Development Bill 2022.  This Bill represents the most comprehensive review of Irish planning law undertaken in over twenty years.

Planning and Development Bill 2022

The much anticipated draft Planning and Development Bill (the "Bill") was published on 26 January 2023.  The draft Bill promises to provide a significant overhaul and update to planning law in Ireland in light of the evolutions within the planning system and societal impacts on planning policy which have occurred since the enactment of the Planning and Development Act 2000 (the "2000 Act").  Pre-legislative scrutiny of the Bill by the Joint Oireachtas Committee on Housing, Local Government and Heritage is ongoing.  The finalised Bill will be published on completion of the pre-legislative scrutiny and the Bill will then be laid before both Houses of the Oireachtas. Government commentary has indicated that the Bill will be enacted in early 2023.

The stated aims of the Bill are to introduce 'greater clarity, certainty and consistency to how planning decisions are made'. The Bill seeks to make planning law more user friendly for the public and practitioners alike.  The Bill also seeks to create a framework which will help to ensure compliance with European and environmental obligations.

Although the Bill will be subject to amendment as it progresses through the legislative process, some of the most notable provisions of the Bill are worth consideration. 

Consent Processes

In an effort to add greater certainty to the planning process, mandatory timelines will be introduced for all planning consent processes including An Bord Pleanála processes.  The Bill proposes the imposition of fines in circumstances where planning authorities fail to comply with the mandatory timelines. In practice, it is unclear how this will operate and concerns have already been raised by An Bord Pleanála and the Office of the Public Regulator in relation to this.  Placeholders are included in the draft Bill in relation to the timelines and sums payable and it is expected that these will be subject to much debate.

Judicial Review

Against the backdrop of an ever-increasing number of judicial review applications relating to planning and environmental law matters, the Bill proposes significant changes to the judicial review of planning decisions.  Some of these changes include the introduction of timelines for each stage of the judicial review process. To increase efficiency, An Bord Pleanála and local authorities will be able to apply for a stay on proceedings to correct any errors of law or fact regarding their decisions.  New rules concerning legal standing will be introduced which will mean that certain criteria must be met should residents' associations or NGOs and others seek to challenge planning decisions.  The Irish Environmental Network has flagged that the proposed measures risk making it more difficult to make public authorities accountable which could consequentially give rise to legal action challenging what it describes as 'restrictions' in the legislation.

An Bord Pleanála

Under the Bill, An Bord Pleanála will be renamed An Coimisiún Pleanála (the "Coimisiún").  The decision-making limb of the Coimisiún, the Planning Commissioners, will consist of a Chief and a Deputy Chief Commissioner and 13 ordinary Planning Commissioners.  A new Governing Executive will also be established.

Some other notable features of the Bill include:

• The time periods for Development Plans will be extended from six to ten years with a review after year five.  Development Plans are to be more focussed and strategic in nature; 
• Local area plans will be replaced by urban area plans, priority area plans, joint area plans and planning schemes related to strategic development zones.  This seeks to ensure that the relevant plans are more tailored to the specific needs of an area;
• The Bill seeks to provide greater clarity in relation to environmental assessments and ensure compliance with a number of relevant EU Environmental Directives (namely the Strategic Environmental Assessment Directive (Directive 2001/42/EC); the Environmental Impact Assessment Directive (Directive 2011/92/EU) and the Habitats Directive (Directive 92/43/EEC)); and
• Ministerial policy directives as provided for under section 29 of the 2000 Act will now comprise National Policy Statements which may be issued by the Minister for Housing, Local Government and Heritage.  These will consist of (i) National Planning Policies and Measures which will be approved by Government and with which compliance will be mandatory and (ii) National Planning Policy Guidance which will provide details on implementing the policies and measures.

Much remains to be seen as the Bill is still at an early legislative stage.  Practitioners and the public alike will have to wait for the finalised Bill to fully assess the technicalities and nuances of the proposed measures.  However, this timely Bill undoubtedly offers the potential to significantly modernise, streamline and reinvigorate Irish planning law.  It offers a vital opportunity to create the framework to enable our planning legislation to adequately respond to the needs of Irish society and it ought to be closely scrutinised.

"This legislation modernises Ireland’s planning landscape and strikes the right balance between efficient delivery of key infrastructure like housing and renewable energy systems, with consideration of environmental and social impacts, informed by local public participation."

Minister of State with responsibility for Local Government and Planning, Kieran O’Donnell 26 January 2023