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July 15, 2010

Planning Bill marks new era for how Ireland plans for future

Ciarán CuffeThe enactment of new planning laws will see the beginning this summer of a transformation in how we plan our towns, cities and regions, the Minister of State with responsibility for Planning and Sustainable Development, Ciarán Cuffe said today, following the passing of the Planning and Development Bill through all stages of the Oireachtas.

“At the heart of these new planning laws is a simple idea – to put the interests of our citizens ahead of any one interest group, be they property developers or landowners,” Minister Cuffe said. Staff at the Department of the Environment will begin work this summer on implementing the new legislation, which aims to ensure that the right types of development are built in the right places at the right time.

A fundamental element of the legislation is the requirement for local authorities to review development plans, and ensure the correct levels of land are available for residential development.

“While there are around 40,000 hectares of land currently zoned for residential development across the country, the actual needs, even allowing for generous head room, over the next six years is for about 12,000 hectares,” Minister Cuffe said. “The provisions in the new legislation are designed to address this excess to deliver more compact, walkable, and integrated communities with the necessary infrastructure and services.”

The ‘core strategy’ requirement in the new legislation for all city and county plans will be a key tool in translating national and regional targets into these plans. The Department will work closely with regional and local authorities to introduce these “core strategies” and restructure the national housing land bank, retaining those priority areas where infrastructure is readily available and reprioritising, or changing or removing, inappropriate zonings over and above the required levels.

Minister Cuffe said: “Overzoning and bad planning played a fundamental role in creating the property bubble. This legislation aims to ensure that these practices become a thing of the past. Good planning laws will protect communities, and protect Government investment. Planning authorities and the communities they serve will significantly benefit from these new planning laws as they will enable more joined-up delivery of essential infrastructure and facilities such as public transport, schools, amenities in the areas prioritised for development.

This will be facilitated by ensuring that there is a consistent and coherent approach to the national, regional and city / county estimation and prioritisation of land requirements for future residential development in a way that enables Government to work more closely with local authorities in prioritising investment in the areas that are most likely and are most suited to be developed into the future.

Planning Bill – Highlights of the New Legislation

The Planning and Development (Amendment) Bill 2010 represents a [long overdue] major legislative reform of our planning system which will moves away from the major developer-led and bad planning mistakes of the past towards a more sustainable, evidence-based and plan-led approach, grounded in the principles of sustainable development and local democracy, to benefit citizens, communities and the wider environment. 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 evidence-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 significantly raises the bar for planning authorities by requiring them to demonstrate within their development plan how they are implementing key Government policy, and by requiring them to justify where they consider themselves unable to implement certain policies. These new provisions implement the hierarchical planning system as envisaged under the Planning & Development Act 2000.

Oversight:

The Planning and 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, because the Minister has no powers to intervene and direct a planning authority to take specific action to amend their plan in the interests of proper planning and sustainable development. 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, with the legal requirement that 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 section 31 powers of Ministerial direction allow for a full consultative process with local authorities and the public when the Minister is considering whether intervention in a development plan is required to bring a plan back into line with national and regional policy.

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 optimal State investment in the integrated and cost-effective delivery of 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 the rationale and justifications where it is 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 of 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 situation 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. This should help to the unsustainable trends in car-based suburban sprawl, which was allowed to develop over the last decade.

Climate Change and Energy:

The Act, and significantly for the first time in Irish law, introduces definitions 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 will be integrated into all county and city development plans.

Habitats and Biodiversity:

A major feature of the legislation is the full integration of the provisions of the EU Habitats & Birds Directives into the planning system . 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 statutory definition of an “˜allotment’ and provides that local authorities may include objectives for the reserving of land for use and cultivation as allotments.

Compliance with Section 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, Sustainable Rural Housing and Sustainable Urban Residential Development. All development 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 retrospective retention permission has been outlawed. It will no longer be possible to apply for retention planning permission where an application would have required an EIA, would have been required to be screened for EIA, or would have required an Appropriate Assessment pursuant to the Habitats Directive.

Enforcement:

The planning enforcement regime has been strengthened to require that, following the issuing of a Warning Letter, an Enforcement Notice must also be issued by the Planning Authority unless there is a compelling reason not to do so (i.e. if a developer is taking appropriate remedial action). 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 where there is a breach of planning conditions.

Substitute Consent and Quarries:

A new ‘Substitute Consent’ process has been introduced to enable development whereby developers, in some instances through no fault of their own (e.g. through a defect in the planning application), find themselves in a situation whereby they can no longer apply for retention planning permission due to the fact that it is ruled that the development would have required an EIA or Appropriate Assessment under the Habitats Directive before being granted permission. In such exceptional circumstances, developers can only apply directly to An Bord Pleanála for leave to lodge an application for “˜Substitute Consent’ application to regularise the development, and there is no presumption in law that they will be allowed leave to apply or that their application will be successful.

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 Pleanála and full public participation provisions have been included. Quarries which commenced after 1964, never had planning permission or did not register under section 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, as opposed to the majority of the occupiers of the 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.

Exempted Development and 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 lacuna in the legislation whereby sub-threshold 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 and Broadband:

New provisions have been introduced to allow local authorities to impose a financial levy new developments for the provision of school sites and the provision of high-capacity telecoms infrastructure such as broadband.

Children:

Planning authorities are now obliged to specifically indicate in their consultation processes that children or groups / associations representing children’s interests are entitled to make submissions to inform the 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, 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 certain conditions, even where no works have been commenced.

Members of An Board Pleanála:

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.

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