Radical overhaul of planning laws presented before summer recess

A major overhaul of the planning system, which goes far beyond the promised reform of planning appeals and grants more discretionary power to planning boards, is being proposed by the government just before the summer recess. 

The changes limit the court ability to revoke permits, enhance the discretionary powers of planning boards to deviate from policies and limit appeals to the grounds stated in objections presented before a project was approved.

Discretionary power of boards

The proposed law significantly enhances the discretionary power of the Planning Board to make decisions that appear to deviate from existing policies. Specifically, it states that where plans, policies, and regulations impose fixed or prescriptive conditions, the Planning Board may justify a departure based on spatial, architectural, or contextual considerations.

Crucially, such justification shall not constitute an error of law merely because the policy does not explicitly provide for such discretion, provided the decision clearly references site-specific evidence and articulates planning reasoning.

Hierarchy of policies

Under the current law, in cases where multiple plans and policies applied to the same

matter or area and there was a material conflict, a specific hierarchy dictated precedence.

For example, the Strategic Plan for the Environment and Development takes precedence over Local Plans, which in turn take precedence over action plans and development briefs.

The new law stipulates that, notwithstanding this hierarchy, any earlier document shall now be interpreted and applied in alignment with the provisions of the most recently published document in the hierarchy, irrespective of their respective positions. Effectively, this means that any policy approved after 2006 will take precedence over the local plans.

Moreover, a new development brief or action plan will prevail over the local plan.

Change in definition of illegal works and minor developments

The definition of "illegal works" has been revised in the proposed law. Previously, "illegal works" referred to any works carried out after 1967 without development permission. The "new law " updates this cut-off date to 1978. The justification for this change is that the PA only has full aerial photos dating to 1978.

Furthermore, the definition of "minor modifications" for planning control applications has been expanded. Currently, these include changes in road and building alignment, but explicitly exclude changes in height limitation or zoning in certain areas. The proposed law now explicitly includes "changes to height limitations and land use classifications" under "minor modifications".

This is a significant change, allowing for a broader scope of alterations to be considered "minor" and thus potentially subject to less rigorous planning control procedures. It also excludes certain activities like the placement of easily dismantled objects not visible from roads, or the deposit of inert materials to return land to its original contours, from the need for a full development permit.

Power to revive expired permits

A notable new provision in the new law is that it grants the minister the power to revive expired development permits.

While the current law allowed for the renewal of permits only while they were still operative, the new proposal introduces a provision which permits the minister responsible of planning to establish regulations that allow for the reinstatement of a permit's validity after it has expired, or to extend its validity.

This offers a new mechanism for applicants to potentially reactivate previously lapsed development permissions, potentially reducing the need to re-apply from scratch for projects that have faced delays.

Overhaul of appeals tribunal’s powers and timeframes

The new bill also implements notable changes to appellants' rights, introduces strict timeframes for appeals, and significantly redefines the role and powers of the Courts of Appeal.

The planning tribunal must deliver its final decision within five months in cases presented by third parties during which works are suspended, and within one year in appeals filed by the applicant.  In case of a further appeal to the law courts the case has to be decided in five months which means that works can be suspended for a maximum of 10 months.

But the reform also comes with restrictions on third-party appeals, like those presented by NGOs concerning PA decisions. In these cases the grounds of appeal are now strictly limited to concerns specifically raised within the statutory time limits of the Development Planning Act, unless it can be proven that the issue could not have been reasonably foreseen at that stage.

To soften the impact, the new law foresees a period of 10 days after the publication of the case officer report during which NGOs and other interested parties can submit objections. This effectively means that NGOs will have to seek legal advice before a permit is issued to ensure that they will have grounds in any future appeal. The tribunal can even impose a fine of up to €5,000 on an appellant if it declares an appeal to be frivolous or vexatious. This decision is final and without any further remedy before the Court of Appeal.

An appeal must now be filed within 20 days from the date the decision is published, instead of the current thirty days, giving NGOs less time to prepare their appeals.

The changes also limit the court’s ability to revoke a permit. The EPRT’s factual determinations are deemed final and are not subject to review by any court, except for questions regarding the legal correctness of decisions based on those facts. This means courts cannot re-evaluate the facts of a case, only how the law was applied to those facts.

Moreover, the Court of Appeal cannot directly revoke a permit as it had done with the original permit for the DB project. Instead, the court only has the power to confirm or annul the EPRT's decision. If the Court of Appeal (Inferior Jurisdiction) annuls the tribunal's decision, it is required to refer the acts of the proceedings back to the tribunal for a fresh decision. This fresh decision must be made by the tribunal in accordance with the legal parameters established by the court.

For appeals from tribunal decisions to the Court of Appeal the appeal application must be filed within 20 days from the tribunal’s public decision.

For appeals filed by an interested third party or an external consultant against a PA decision before the Court of Appeal, the development permit is initially suspended. However, if the court fails to deliver a final decision within five months from the appeal's filing, the permit will no longer be deemed suspended.

Crucially, any work executed under such permission after this five-month period, and before the court's final decision, will not be affected or invalidated by the appeal's outcome.

The new law enhances the security of tenure for members of the EPRT, whose members will be appointed by the President upon the advice of the Prime Minister and hold office for a term of 10 years, with the possibility of reappointment for an additional five years.

20-fold Increase in daily fines

The new laws introduce or modify several types of fines and administrative penalties, primarily increasing their severity and scope: daily fines for non-compliance with Enforcement Notices, which have not been appealed or complied with, have been increased from a maximum of fifty euro (€50) for each day the illegality continued to not more than two thousand euro (€2,000) for every day the illegality persists. This represents a significant twenty-fold increase at the maximum daily rate.