I was very pleased to see that one of the last pieces of legislation the Oireachtas passed before the recess was the Planning Act. This legislation is a vital step in ensuring that the disastrous zoning policies which were followed by county and city councils across the country will never happen again.
One of the key drivers of the property boom was the ease with which big developers were getting huge amounts of unsuitable land rezoned for housing. Often these zonings were pushed through by councillors against the advice of professional planners. The new Planning Act will ensure that all planning decisions must be in accordance with national planning strategies, so irresponsible building can’t happen in the future.
The new law also offers relief for residents of new estates that have been left unfinished by unscrupulous or bankrupt developers. It amends the procedure for taking in charge of developments by local authorities so that the local authority must take in charge developments on foot of a request of the majority of the owners of a development. In addition, specific measures have been introduced to allow local authorities to take in charge unfinished developments where enforcement proceedings have failed. This has been introduced explicitly to address the legacy of ‘Ghost Estates’ and unfinished developments.
I’ve always argued that the abuse of the planning process and the property bubble that it created is one of the key factors behind the economic crisis that we are facing. The Green Party has always campaigned against bad planning, whether here in Dublin 15 or across the country. In passing the new Planning Act, the Minister for the Environment, John Gormley is putting an end to many of the terrible practices that have gone on over the last 15 years. This law is a vital step in ensuring that the economic crisis we are experiencing will never happen again.
I’ve included below a (long) summary of some of the key aspects of the new legislation.
Planning Act –Highlights of the New Legislation
The Planning & Development (Amendment) Act 2010 Bill represents a long overdue major legislative reform of our planning system which will prevent the major developer-led and bad planning mistakes of the past from happening in the future. The new legislation establishes a plan-led and evidenced based planning system grounded in the principles of sustainable development and local democracy. The following are some of the key highlights of the new reform legislation:
Core Strategy – The centrepiece of the new legislation is the introduction of a requirement that each and every development plan prepared by local authorities must include an ‘Core Strategy’. The new ‘Core Strategy’ provision will require development plans to include of a statement of compliance demonstrating how the policies and objectives of the development plan are consistent with national and regional planning policy. This will ensure that all future zoning decisions and local planning policies are evidenced based; work towards the wider interests of the common good of the region and the State; maximise Exchequer investment in infrastructure and services; and grounded in the principles of sustainable development.
Consistency – Before now planning authorities only had to ‘have regard’ to national and regional planning policy in preparing development plans and local area plans. As a consequence of this flexible wording, during the ‘Celtic Tiger’ era enormous lobbying allowed large tracts of land to be grossly overzoned at inappropriate locations resulting in significant long-term economic, social and environmental costs to the State. The new legislation removes this lacuna and will require that all development plans and local area plans ‘must be consistent with’ strategic national and regional planning policy. These new provisions implement the hierarchical planning system as envisaged under the Planning & Development Act 2000.
Oversight – The enactment of the Planning & Development Act 2002, which allowed new zoning to take place during the preparation of local area plans, introduced a loophole whereby local area plans were effectively outside of Ministerial oversight. As a consequence, local area plans in many cases supplanted city or county development plans as the primary planning policy document and became the preferred vehicle for introducing new zonings. This unsatisfactory situation has now been corrected. Local area plans must be consistent with the development plan and its ‘Core Strategy’ and the Minister now has full oversight over Regional Planning Guidelines, County/City Development Plans and Local Area Plans including the powers to intervene if considered necessary.
While the overall provisions of the legislation should limit future instances of Ministerial intervention in development plans, the revised s.31 allow for a full consultative process with local authorities and the public when the Minister is considering intervening in a development plan.
Regional Dimension: The new legislation introduces a much stronger strategic regional dimension to land-use planning and transportation policy implementation. The Regional Planning Guidelines are a critical link between national and local policy and to ensure efficient State investment in infrastructure and services. Under the new legislation, the relevant regional authority together with the National Transport Authority will have a formal role in the preparation of development plans and, in particular, the ‘Core Strategy’. While the decision to adopt, alter or vary a development plan or local area plan will always remain a reserved function of the local elected representatives, there will be a requirement to fully set out why it has been proposed to deviate from national and/or regional policy.
Alterations to Draft Plans: It will no longer be possible for last minute amendments to development plans or local area plans involving major policy changes, including additional zoning or delisting or protected structures, to be made without these changes having been subject to full public scrutiny. Furthermore, all amendments to regional planning guidelines, development plans and local area plans must be the subject of Strategic Environmental Assessment and Appropriate Assessment under the Habitats Directive at each stage of the process. This measure enhances local democracy and removes the unsatisfactory loophole whereby major last-minute changes could be made to a development plan or local area plan without prior public scrutiny. A similar provision for public scrutiny of all alterations to regional planning guidelines has also been included.
Preventing Sprawl: The legislation enshrines in law the principles of sustainable settlement patterns and planning for the best use of land having regard to location, scale and density of new development to benefit from investment of public funds in transport infrastructure and public transport services i.e. preventing car-based suburban sprawl.
Climate Change & Energy: The Act, and significantly for the first time in Irish law, introduces a definition of ‘Anthropogenic Greenhouse Gas’ and ‘Adaptation to Climate Change’. All development plans must now include mandatory objectives to promote sustainable land-use and transportation strategies to reduce energy demand, reduce greenhouse gas emissions and address the necessity for adaptation to climate change.
Landscape Protection: The new legislation introduces a definition of ‘landscape’ in accordance with the European Landscape Convention (Florence Convention) and establishes a mechanism whereby the forthcoming National Landscape Strategy is to be integrated into all county and city development plans.
Habitats & Biodiversity: A major feature of the legislation is the full transposition and integration of the Planning System with the provisions of the EU Habitats & Birds Directives. As a result, all land-use planning policies and development management decisions must fully implement the very stringent protection afforded to designated European sites (Natura 2000), including potential indirect and cumulative impacts, through the preparation of a Natura Impact Statement. Furthermore, all development plans must also include measures for the protection and management of features of the landscape, such as traditional field boundaries, important for the ecological coherence of the Natura 2000 network and essential for the migration, dispersal and genetic exchange of wild species.
Water Quality: The legislation transposes the provisions of the Water Framework Directive (WFD) directly into planning law. All development plans must include mandatory objective to promote the compliance of land-use planning policies and objectives with the provisions of the relevant River Basin Management Plans. This is essential to achieve ‘Good’ status in all water bodies by 2015 in accordance with our obligations under the WFD.
Overarching Environmental Objectives: It is now a mandatory requirement that all Development Plan include a statement of overarching environmental objectives which demonstrates how the development objectives in the development plan are consistent, as far as practicable, with the conservation and protection of the environment.
Rights of Way: The legislation introduces new strengthened provisions for public rights of way including a mandatory objective requiring that all development plans mark them on at least one of the maps forming part of the development plan and by indicating their location on a list appended to the development plan,
Flooding: The legislation provides for the full integration of the Flood Risk Management Guidelines issued by the Minister in November 2009 into the planning system. As a result, all future zoning decisions, including the review of existing zonings, will be required to be the subject of a full Flood Risk Assessment and, where necessary, lands de-zoned or down-zoned as appropriate.
Allotments: The legislation introduces a definition of an ‘allotment’ and provides that local authorities may included objectives for thereserving land for use and cultivation as allotments.
Compliance with S.28 Guidelines: The Minister for the Environment, Heritage and Local Government has issued a suite of best-practice guidance documents under S.28 of the Planning Acts including guidance on Flood Risk Management and Sustainable Urban Housing. All development plans and local area plans must include a statement setting out precisely how the policies and objectives of the relevant plan implements these guidelines.
Retention Planning Permission: The practice whereby an applicant could circumvent the requirements of the Environmental Impact Assessment Directive by applying for retention has been outlawed. It will no longer be possible to apply for retention planning permission where an application would have required an EIS, would have been required to be screened for EIS, or required an Appropriate Assessment pursuant to the Habitats Directive.
Enforcement: The enforcement regime has been strengthened to require that following a Warning Letter an Enforcement Notice must be issued by the Planning Authority where there is no compelling reason to do otherwise. The relevant fines for carrying out unauthorised development have also been significantly increased. Furthermore, in respect of ongoing activities such as peat extraction and quarries, the seven year rule for taking enforcement action has been removed. In addition, it shall be a mandatory requirement that enforcement action is taken against quarries where there is no planning permission or there is a breach of conditions.
Substitute Consent & Quarries: A new ‘Substitute Consent’ process has been introduced to strictly manage development whereby, in some instances through no fault of their own, developers find themselves in a situation whereby they can no longer apply for retention planning permission due to the fact that the proposed development has been found to require an Environmental Impact Assessment or Appropriate Assessment under the Habitats Directive. In such instances developers can only apply directly to An Bord Pleanala for leave to lodge an application for ‘Substitute Consent’ application to regularise the development.
By far the largest category of development, which is likely to require regularisation, are quarries. Many quarries expanded without the necessary consents and environmental assessments during the ‘Celtic Tiger’ era. A strictly time limited ‘sunset’ provision has been included in the legislation to allow quarries with a generally compliant planning record to regularise their activities. Again, applications for ‘Substitute Consent’ must be made directly to the An Bord Pleanala and full public participation provisions have been included. Quarries which commenced after 1964, never had planning permission or did not register under S.261 of the Planning Act 2000 will not be able to avail of this process. Once the ‘sunset’ provision has expired all quarries which do not comply in full with planning and environmental law will be unauthorised and strict new mandatory obligations of enforcement by local authorities have been provided to ensure such quarries immediately cease operations.
Taking in Charge: The legislation amends the procedure for taking in charge of developments by local authorities on foot of the recommendations of the Law Reform Commission. From now on, the local authority must take in charge developments on foot of a request of the majority of the owners of a development. This measure will greatly assist those who are seeking to have common areas of developments taken in charge and who are frustrated by doing so by occupiers who are not owner-occupiers.
In addition, specific measures have been introduced to allow local authorities to take in charge unfinished developments where enforcement proceedings have failed. This is an explicit measure to address the legacy of ‘Ghost Estates’ and unfinished developments.
Protection of Wetlands: New measures have been introduced to remove the exemption from the requirement to obtain planning permission land drainage works carried out under the Arterial Drainage Act where wetlands, marshes and callows are affected.
Exempted Development & Environmental Assessment: The new legislation makes it explicit that all development where it would require an Environmental Impact Assessment must apply for planning permission. This removes a loophole in the legislation whereby developments, which may have significant impacts on the environment, would in some circumstances not require planning permission.
Default Permission: The legislation removes the possibility of a default grant of planning permission being granted after the eight week planning application process as a consequence of an administrative error.
Schools & Broadband: New provisions have been introduced to allow local authorities to impose a financial levy new developments for the provision of schools and broadband infrastructure.
Children: Planning authorities are now obliged to seek observations from children or people representing children’s groups when advertising a review of a development plan or local area plan.
Material Contraventions: It shall be a requirement that where a planning authority intends to contravene its own development plan that adequate notice is given to all prescribed bodies and third parties. It will also be a requirement that the Manager of the local authority prepare a report as to how the contravention is consistent with national and regional planning policy and furnish it to the elected members.
Extension of Planning Permissions: Owing to the prevailing economic circumstances and, in particular, to ensure that planning permissions for renewable energy projects do not expire due to grid connection issues, applicants may apply for an extension of the life of a planning permission for a period of up to 5 years, subject to certainconditions, even where no works have been commenced.
Members of An Board Pleanala: The qualifying criteria for membership of An Bord Pleanala has been extended to allow the Minister to appoint one member who has satisfactory experience, competence or qualifications as respects issues relating to the environment and sustainability