Key Policy Reforms - Planning and Development Act 2024

National Planning Framework (NPF)

The National Planning Framework (NPF) will continue to spearhead the planning agenda and the Act sets out a ‘plan-led’ system and structure whereby all tiers of planning from regional to local align with the strategic objectives set out in the NPF. Put simply, lower order plans will be required to align with higher order plans, with Development Plans aligned to the Regional Strategies and in turn to the NPF and National Planning Statements, and with the area-based plans aligned to Development Plans.

National Planning Statements (NPS)

Ministerial guidelines will be replaced by National Planning Statements. These are subject to consultation and approved by Government and provide greater clarity, whereby alignment with National Planning Policies and Measures will be mandatory, whereas the associated guidance that will outline how these policies should be implemented, will be discretionary in nature. This will allow the system to remain responsive to change and allow Government policy to inform project and programme delivery throughout the lifecycle of the NPF.

Alignment to NPF and NPS

To ensure consistency in a timely manner, there is a process to expedite review of development plans after any changes to the NPF or when new national planning statements are introduced, to make sure that development plans remain in alignment with national policy.

The aim of these arrangements is to improve scope for the various tiers of the planning system to more closely relate to one another, therefore providing greater clarity and consistency for all involved, from individual citizens and resident’s groups to landowners and developers, and ultimately where necessary, the Courts, who have become the final arbiter of many planning decisions on large-scale development proposals in recent years.

Extended, more strategic Development Plans

Development plans will have a 10-year lifespan rather than the current 6 year lifespan and will be more strategic in nature than under the current Act. An interim review of the development plan will occur at year 5, in order to take account of wider changes since the plan was prepared and to allow for update, if required.

This will provide more up-to-date and strategic plans; providing greater certainty that there is sufficient zoned land available at all times to align with the needs of the housing and economic development and again, providing greater certainty over a longer period for all stakeholders.

The 10-year cycle, with 5 year reviews, will mean that every elected member will be involved, at minimum, in either the making of the Development Plan, or the review and possible amendment via the interim review.

Local area plans will be replaced by specific types of area-based plan, to better enable local authority objectives to be prioritised, rather than simply being mandatory in nature and drawing resources where not always most needed.

There is a clearer distinction between different categories of consents and most importantly there are statutory time periods for decision making for all consent processes, including, for the first time, for An Coimisiún Pleanála. This will bring increased certainty to planning consent processes, for both the public and stakeholders involved in the delivery of key infrastructure such as housing and renewable energy.

The headline time periods for An Coimisiún Pleanála range from 18 weeks for appeals of decisions of planning authorities on smaller-scale development proposals, to 48 weeks for larger-scale Strategic Infrastructure Developments. The varying timelines reflect the differing complexities of applications dealt with by the Commission.

The Act provides for a significantly revised corporate structure for An Bord Pleanála, which will be renamed An Coimisiún Pleanála, with a separation of corporate, decision making and governance functions.

The Act outlines the separate roles of:-

• Planning Commissioners - who will be responsible for all decision making regarding appeals and applications made and they will be overseen by a newly created position of Chief Planning Commissioner.
• The Governing Board - which will be responsible for the governance and organisation.
• The Executive– will provide support to all of the organisations and functions will be overseen by a Chief Executive Officer.

One of the most important areas of reform in the Planning and Development Act 2024 (Act of 2024) is in Part 9, which updates the processes and procedures of planning judicial review (JR). It also facilitates the introduction of a scale of fees relating to JR legal fees and the introduction of an Environmental Legal Costs Financial Assistance Mechanism, to help ensure that the costs associated with a JR are not prohibitively expensive and maintaining compliance with Ireland’s commitments under the Aarhus Convention.

These reforms have been underpinned by a detailed review and advice of the Office of the Attorney General as well as extensive engagement with stakeholders and other relevant Government Departments, in particular the Department of Climate, Energy and the Environment, who are leading on the establishment of the scale of fees and Environmental Legal Costs Financial Assistance Mechanism.

Below is a summary of the key policy changes and the associated rationale:

Applications

The Planning and Development Act 2000 (Act of 2000) requires an application for leave to apply for JR proceedings. The original intention of this provision was to act as a form of screening for valid cases but in practice over time, due in part to the widening in scope of the environmental parameters related to planning JRs, almost all cases now proceed past the leave stage. Therefore, removing the leave stage reduces time and removes unnecessary additional legal costs to all parties. All applicants must in any case provide evidence of grounds and a sufficient interest in those grounds (see below) in order to proceed with a JR.

Ability to strike out

Under the Act of 2000, the High Court cannot grant leave to apply for JR unless it is satisfied that an applicant has exhausted any available appeal procedures or any other administrative remedy available in respect of the decision or act which is the subject of the application.

Under the Act of 2024, as leave of the High Court is no longer required to make an application for JR, any party to the JR may apply to the High Court at any time for an order striking out the proceedings for any of the following reasons:

• the applicant’s lack of standing i.e. not having a “sufficient interest”,
• the proceedings being brought out-of-time,
• a failure by the applicant to exhaust available appeals and administrative procedures, or
• a failure to disclose an arguable case

The High Court may strike out the proceedings where it is satisfied that at least one of the above reasons apply.

Grounds

Presently, an applicant for JR may bring amended grounds beyond those filed in their original application. This can cause significant delays as the High Court and respondent must then consider the merits of each new amended ground.

The Act of 2024 reforms this area by requiring that that an application for JR may only be made on the grounds of challenge raised by the applicant in the statement of grounds filed with their application and sets out limited criteria by which the Court may allow subsequent amendments to that statement of grounds.

Sufficient Interest

An applicant for JR will not be permitted to plead a ground in proceedings unless they have a sufficient interest in the matter to which the ground relates. In this context, the Act of 2024 provides that:

• An applicant will be regarded as having a sufficient interest where they are directly or indirectly materially affected by the matter (this is not limited to an interest in land or a financial interest).
• An applicant for JR who is not directly or indirectly materially affected but who has made a valid submission to the relevant body whose decision, act or failure to act is at issue in the JR (e.g. the applicant made a submission as part of the planning application process) will also be regarded as having a sufficient interest. This does not apply to unincorporated bodies (see below).

Residents Associations and other unincorporated bodies

Unincorporated bodies, such as residents’ associations, maintain the right to take JR proceedings, subject to having a sufficient interest (i.e. being directly or indirectly materially affected by the matter) and satisfying certain governance criteria. These governance criteria include taking a vote of members and providing information to the Court to state who is taking the case. This is intended to verify the mandate and bona fides of the unincorporated body in order to facilitate their inclusion in the JR process.

Special Status of environmental non-governmental organisations

Subject to certain governance criteria (see below), the special protected status of environmental non-governmental organisations (eNGOs) to take JR proceedings is maintained. Such organisations are not required to have made a submission to the relevant decision-making body or to be materially affected by the matter where the JR proceedings relate to a development likely to have significant effects on the environment or a European site, or relate to an act or omission in contravention of a provision of the Act of 2024 relating to the environment.The governance criteria that such organisations must satisfy are as follows -

• the organisation has existed for at least one year prior to taking the JR proceedings and is either a company or limited liability body which has a constitution;
• environmental protection relevant to the proceedings is a stated objective of the organisation’s constitution, which it has pursued for at least one year;
• there are a minimum of 10 members; and
• the Board of Directors (or equivalent) of the organisation has taken a formal decision to bring the JR proceedings.

Amendments of decisions or documents subject to Part 9 judicial review

A new provision in the Act of 2024 allows the High Court, by order, to direct a relevant body to amend a decision or a document where the Court considers that such a direction is a satisfactory remedy in respect of the ground of challenge giving rise to it. Where the Court is satisfied that the body has addressed the ground to which the order related, or rendered it moot in whole or in part, the Court may make an order striking out the ground

Remittal back to the planning authority

A new provision in the Act of 2024 allows the High Court to quash an aspect of a decision made by a planning authority without declaring invalid or quashing the remainder of the decision. Alternatively, rather than quashing all or part of a decision, the High Court may remit the matter back to the relevant body and direct that body to take additional steps as appropriate. These provisions mean that entire planning decisions do not need to be quashed where alternative appropriate remedies are available to address the matters raised.

Appeals

The Act of 2024 removes any right of appeal of a decision of the High Court to the Court of Appeal (which was available under the Act of 2000 but only with leave of the High Court) but continues to recognise and maintain the constitutional right to seek leave to appeal to the Supreme Court

Cost provisions for Judicial Review cases

The Act of 2024 provides that the cost rules currently applicable under the Planning and Development Act 2000 will be replaced with new rules on entitlement to, and exposure to, costs orders for parties to these types of proceedings. A scale of fees for legal costs arising from these proceedings is to be introduced as well as an Environmental Legal Cost Financial Assistance Mechanism to provide financial assistance to persons and organisations bringing proceedings.

The introduction of a scale of fees and a financial assistance mechanism will help ensure that the costs to applicants taking a Judicial Review will not be prohibitively expensive. This aims to improve access to justice and regularise judicial review costs for the State.

Both cost provisions will be regulated through secondary legislation by the Minister for Climate, Energy and the Environment.