Over the past number weeks, all areas of Government, business and daily life have experienced unprecedented disruption in response to the COVID-19 public health emergency. At both national and local level, the planning system is facing significant challenges and is coming under great pressure to identify solutions in order to keep democratic processes going and to ensure key planning services continue to be delivered to business, local communities and applicants.
Planning and building control systems open for business
On 26 March 2020, the Minister for Housing, Planning and Local Government confirmed that the planning and building control systems remain open for business. He also said that the measures (discussed below) contained in the Emergency Measures in the Public Interest (Covid-19) Act 2020 (the 2020 Act) do not halt the planning system.
Suspension of time limits
On 27 March 2020, the President signed the 2020 Act into law. This gives the Minister the power to suspend all time limits for the purposes of planning legislation, including in relation to Strategic Housing Development, Vacant Site and Derelict Site levies and certain aspects of the Building Regulations.
Specifically, Part 3 of the 2020 Act has inserted a new section 251A into the Planning and Development Act, 2000 (as amended) (the Planning Acts). Under this section, such periods as may be prescribed by the Minister during the health emergency shall be disregarded when "calculating any appropriate period, specified period or other time limit".
On 29 March 2020, the Minister made an Order suspending those periods and time limits until to 20 April 2020.
What does the suspension mean?
If an application was lodged before 21 February 2020, the public participation phase is completed, and so a planning authority can make a decision within the extended deadline
If an application was lodged after that date, but before 29 March 2020, the decision cannot be made until after 20 April 2020 to ensure that the public participation element has been completed
If an application is lodged after 29 March 2020, it cannot be decided by the Planning Authority until the five-week period for public consultation on the application commences, which will now be after 20 April 2020
If an application is determined by a planning authority but a final grant has not issued, the time limit for the making of an appeal will remain open until the suspension ends
The same applies for appeals to An Bord Pleanála (or applications made directly to the Board, i.e. strategic infrastructure or strategic housing) and the prospect of judicial review challenges to the Board's decisions will remain open until the suspension ends
In relation to planning enforcement action, time limits for the purposes of calculating the '7-year rule' are also suspended. The period of suspension will remain relevant to the calculation of enforcement periods for many years after it ends
In relation to the expiry of planning permissions, developers will have more time to commence and complete works or apply for extensions of duration
The planning authorities will not have to make decisions in relation to development plans or enforcement action
The suspension also applies to time limits for the purposes of derelict sites and vacant sites legislation, together with the Building Control code
Specific planning exemptions relating to the COVID-19 crisis
The Minister has also published two sets of draft Regulations that make provision for certain planning exemptions, once enacted.
The first (the Planning and Development Act 2000 (Section 181) Regulations 2020), when enacted, will disapply the Planning Acts in its entirety to certain COVID-19 related medical developments done by or on behalf of the State during the emergency period. The date has yet to be specified, but for the moment is subject to a longstop date of 9 November 2020.
This would mean, for example, that, if the Heath Service Executive or Department of Health were to repurpose a hotel for a COVID-19 related medical developments, the hotel operator would not have to concern itself with any planning requirements whatsoever, provided the use came to an end before the end of the emergency period.
The second (the Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2020) provides an exemption for restaurants to provide takeaway for the period of the emergency.
Planning conditions which impact on operational hours in the food and retail sectors
On 25 March 2020, the Department of Housing, Planning and Local Government published a communication on 'Government Action on Planning during Covid 19 Crisis', which addressed the above exemptions. It also provided some welcome news to front line operators, relative to planning conditions which impact on operational hours in the food and retail sectors. The Minister stated:
"Finally, concerns have been raised regarding planning conditions which impact on operational hours in the food and retail sectors. These conditions were designed with normal “business as usual” circumstances in mind and, in the context of the current emergency, cannot be allowed to act as a barrier to the effective operation of supply chains. Following consultation with local authorities, the Minister has received reassurance that they cannot envisage enforcement action where technical non-compliances with planning permission occur, given the compelling reasons in the public interest to support the delivery of food and essential supplies at this time."