Enhanced powers of Minister of the Environment to prescribe planning policy
The Department of the Environment's recent Design Standards for New Apartments prescribe mandatory minimum standards for all apartments in the State. Considerable public interest has accompanied their introduction, and the extent to which they properly balance the cost and quality of new builds has been the subject of much debate. Less attention has been given to the significant changes to the Planning Acts that facilitated their introduction, which enhance the powers of the Minister for the Environment (the Minister) to prescribe detailed planning policy.
The Minister has always had the power to give binding direction to planning authorities and An Bord Pleanála (the Board). Policy directives under the Planning and Development Acts are binding directions to which planning authorities and the Board are obliged to adhere, although few, if any, appear to have been made (none appear on the publications section of the Department of Environment's website). Another power, to direct changes to a planning authorities' development plan, arises where the Minister is satisfied that the development plan is deficient in some prescribed respects (e.g. failing to set out a strategy for the overall planning and sustainable development of the area). Ministers past and present have exercised that power, but the procedure to be followed is long and complex and provides fertile ground for legal challenge. In 2010, a direction of this kind from John Gormley TD to Dun-Laoghaire Rathdown County Council, in his capacity as Minister, was overturned on the application of Tristor Limited, a company with interests in development land at Carrickmines whose designation as a retail centre was to be reversed by the Ministerial direction.
A simpler procedure is available to the Minister to make guidelines for planning authorities and the Board. That procedure is availed of frequently to issue guidance on a wide range of matters under the Planning and Development Acts, including enforcement practice, development contributions and retail, infrastructure and residential development. Planning authorities and the Board are obliged to "have regard to" guidelines in exercising any of their functions, but, prior to the introduction of the Planning and Development (Amendment) Act 2015, could depart from any of them if they thought fit. Such departures sometimes required that the planning authority or Board clear additional procedural hurdles (e.g. where the making or amendment of a development plan involved a departure from guidelines) but in general they could adhere or depart from guidelines at their discretion.
Under the Planning and Development (Amendment) Act 2015 a new species of mandatory direction is available to the Minister – the "Specific Planning Policy Requirement". Specific Planning Policy Requirements are sections of guidelines labelled as such and, as they are grafted into the Minster's guideline-making power, the procedure for their introduction is straightforward. Compared to ordinary guidelines, however, their effect is significantly different:-
- They constrain planning authorities' normal discretion; they must be applied by a planning authority in deciding whether to grant planning permission;
- Where Specific Planning Policy Requirements conflict with any provision of a development plan, they apply instead of the conflicting development plan provisions; and
- Where planning permission for an apartment block (of a kind governed by the Multi-Unit Developments Act 2011) was granted before the introduction of applicable Specific Planning Policy Requirements, any application for an amending permission will be subject to a fast track procedure that can be appealed to the Board only in limited circumstances.
That last point reflects the policy concern that drove the introduction of these changes: the cost of construction where planning authorities had set high standards for apartment developments in their functional area. That cost, in the view of the Department of the Environment and others, was prohibitive, and part of the solution was understood to be the establishment of mandatory national standards that allowed developers to build less expensive apartments. Those standards are now contained in the 2015 Design Standards for New Apartments, the contents of which have been widely discussed in national media and are not repeated here. What is significant for the purposes of this note is that the aspects of the guidelines that deal with minimum apartment sizes (and other matters the subject of public debate) are all Specific Planning Policy Requirements and constrain the normal discretion of planning authorities and the Board where they apply.
Of course, any planning function, other than the consideration of an individual application or enforcement case, can be the subject of guidelines and, consequently, the subject of a Specific Planning Policy Requirement. The field of planning policy is wide, and it remains to be seen where else the Specific Planning Policy Requirement might apply.
Date published: 23 February 2016