Draft Planning and Development Bill 2022 Published

Following the publication of the outline of the proposed Planning and Development Bill in December 2022, the Department of Housing, Local Government and Heritage published the long-awaited draft Planning and Development Bill 2022 (the Bill) on 26 January 2023.  The Department has confirmed that the Bill will be subject to pre-legislative scrutiny before it is finalised and has promised that this new legislation will "bring greater clarity, consistency and certainty to how planning decisions are made."

The Bill seeks to restructure An Bord Pleanála, to be called An Coimisiún Pleanála or the Commission, and to consolidate and refine Irish planning law. It is hoped that, once enacted, the Bill will improve the development consenting processes, leading to speedier decisions and a more streamlined judicial review process. 

Our Environmental and Planning Team are busy reviewing the Bill.  We will be updating this article and our website in the coming days with further thoughts on key issues for your business, and with further more comprehensive analysis pieces in the coming weeks.

Environmental Assessments

The Bill makes a number of changes in respect of environmental assessments. Most noticeably, the language and formatting has been made more user friendly and simplified from what had become an overly complex and intricate regime in the PDA 2000. The Bill defines "project" for the first time and ties the need for environmental assessment back to plans or projects which require consent. The Bill also reflects Irish and European court decisions in the field of environmental law, for example, now clarifying and enshrining in legislation that "up-to-date reliable data" must be used when carrying out an appropriate assessment.  

There are some important new additions in the space of imperative reasons of overriding public interest (referred to as IROPI). Where a plan or project is determined to have an adverse effect on the integrity of a European site, one of the steps that a competent authority must take is to determine whether there are imperative reasons of overriding public interest for carrying out the plan/project. The Bill now provides that the following plans or projects will be presumed to meet that test:

(a) the construction or operation of plants producing energy from renewable sources

(b) the storage of energy produced by such plants or

(c) the connection of such plants to electricity, gas or heat grids

Enforcement

There are very few changes in the Enforcement section of the Bill.  Under PDA 2000, this is dealt with in Part VIII sections 151-165A and in Part 11 sections 289-300 of the Bill.

A section 160 planning injunction will now be a section 294 injunction.

The time limits, procedures, options for enforcement are all essentially the same and the 7 year time limit for enforcement (with the same carve outs as before e.g. for quarrying and peat extraction activities) is still there

Again, as before, no planning permission is needed to comply with the terms of enforcement notices or court orders.

The only new features are the inclusion of the Maritime Area Regulatory Authority, MARA, as an enforcement body and the entitlement of the Minister to designate a Regional Enforcement Body to enforce a class of development extending across more than one PA area. This could be used for enforcement of planning law relating to classes of development such as cross border pipelines, cabling and water projects for example.  

Strategic Infrastructure Development

The projects that can seek Strategic Infrastructure Development (SID) consent, that were listed in Schedule 7 of the PDA 2000, are now in Schedule 1 of the Bill.  The only change is that the following energy infrastructure developments have been removed from the SID Schedule of the Bill:

• An industrial installation for carrying gas, steam or hot water with a potential heat output of 300 megawatts or more, or transmission of electrical energy by overhead cables, where the voltage would be 220 kilovolts or more, but excluding any proposed development referred to in section  182A(1)
• An installation for surface storage of natural gas, where the storage capacity would exceed 200 tonnes
• An installation for underground storage of combustible gases, where the storage capacity would exceed 200 tonnes.

Instead, they are included in a new definition of “strategic gas infrastructure development” which can seek permission under a process set out in Chapter 4, Part 3 commencing at section 110, of the Bill that includes SID and which requires that the planning application is made direct to the Board, due to be renamed the Planning Commission.  Of note in particular is that "a determination" is no longer required before application, i.e. SID and other development listed "shall" go the Commission direct, and section 110(3) confirms that where the Chapter applies to only part of a development, an application for permission for the entire development shall be made to the Commission.

Further detail on this process of applications being made direct to the Commission will follow.

For more information, please contact Alan Roberts, Partner, Jason Milne, Partner, Alison Fanagan, consultant, or any member of ALG's Environmental & Planning team.

Published: 3 February 2022