Government publishes contentious legislation to reform planning process

The Government has published its contentious legislation which seeks to overhaul the State’s legal and decision making system for planning.

The landmark Planning and Development Bill was drawn up over many months under the oversight of the previous attorney general Paul Gallagher.

It is seen by the Government and Minister for Housing Darragh O’Brien as a key way to enforce long-lasting reforms of a planning system that underpins housing delivery and will, in the long-term, help Ireland deliver housing targets and cater for the needs of a rapidly growing population.

However, publication of an abridged guide to the Bill – the legislation published runs to more than 700 pages – provoked a political backlash last year, with two Green Party Ministers raising concerns at Cabinet about whether it unnecessarily curtails access to justice through the courts.

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The Bill sets new rules under which residents’ associations and other interested parties can take judicial reviews, which led to concerns among Green Party TDs about whether it was compliant with Ireland’s obligations under the Aarhus Convention – a UN declaration on public participation and environmental information which is also EU law.

The Bill stipulates that applicants for judicial review will have to demonstrate a “sufficient interest”, with NGOs, residents’ groups or other similar bodies expected to be incorporated as a company, have protection of the environment as part of its corporate constitution, have at least 10 members and to have passed a resolution authorising the bringing of proceedings.

Residents groups can still take proceedings but if they do not comply with these rules, they will have to sue individually or collectively under their own names. A new costs protection mechanism will also be introduced, but the amounts covered have not yet been established in the Bill.

Obligations

Those involved in drafting the Bill are adamant that the steps taken to reform judicial reviews are in line with Ireland’s obligations, pointing to the overriding need to balance openness and third party rights to participation in the planning process with the need to accommodate a rapidly growing population and expanding economy.

They argue it brings clarity, consistency and removes duplication and improves the usability of decades-old legislation that worked for neither citizens or planning practitioners.

Mr O’Brien said in a statement on Thursday that delivery of key infrastructure, such as housing and renewable energy, was dependent on overhauling planning legislation. “In developing this legislation, the Government has been mindful of ensuring that public participation is safeguarded within our planning system and that members of the public can more clearly navigate planning legislation. This legislation will improve its accessibility and encourage the wider public to engage in the plan-making processes of their local towns and cities,” he said.

The Bill will allow An Bord Pleanála – which will be renamed as An Coimisiún Pleanála – to correct an error of fact or law it made in a planning decision while a judicial review is in place. This reform had been dropped from previous planning legislation following political bargaining between Fianna Fáil and Green backbenchers last year – but has reappeared.

Green Party sources indicated last year that it will seek to make changes to the bill during the pre-legislative scrutiny and other stages of its progress through the Oireachtas. The Government hopes to have the Bill enacted before the summer.

It will introduce a range of reforms – many on a phased basis – which seek to alter the structure and process of planning in Ireland. Mandatory timelines for planning decisions will be introduced, along with penalties for An Bord Pleanála when these are not met.

Strategic developments

While the Bill does not describe what they will be, it is understood that they may follow a similar structure to those mandated under the State’s strategic housing development (SHD) scheme, which sees the board pay fines to project developers.

However, sources said this may not be the final approach with the proceeds of fines directed elsewhere. The timelines are to be introduced on a phased basis, with strategic infrastructure developments like energy projects first to be addressed.

The Bill seeks to establish a new hierarchy of decision-making in planning, with alignment between lower order plans and ministerial planning statements mandatory. Local development plans will be reshaped and their lifespan extended to 10 years, with more information made available to residents about what sort of development might be expected in a given area during the planning phase in an effort to move the focus away from when a planning application is made.

The expectation is that less litigation and fewer judicial reviews, which have been blamed for slowing down development of housing and other infrastructure, will follow. Local area plans will be replaced with specific types of area based plans and expected to align to what officials call “higher order plan” such as the Local Development Plans.