The Planning and Development (Amendment) Act 2010 (“the Act”) was enacted on 26th July 2010. The Act introduces provisions regarding development plans, changes to the planning code and has made significant amendments to the Planning and Development Act 2000 (“the 2000 Act”). Some of the Act’s provisions are already in force but others have not yet been commenced. The main changes which are of more immediate impact are:-
Planning Permission by default
Where a Planning Authority fails to decide on a planning application within the usual eight week period, the Local Authority now has a further twelve weeks to remedy any failure to make a decision. These provisions will not apply in respect of developments which require an environmental impact assessment. This provision has not as yet been commenced.
Refusal of Planning Permission
With effect from 5th October 2010 planning permission can be refused if a person, to whom Section 35 of the 2000 Act applies, is not in compliance with a previous permission, or with a condition to which the previous permission is subject, or has carried out substantial unauthorised development, or has been convicted of a planning offence under the 2000 Act. Such a person includes not just the applicant himself but also various other associated persons or entities. The Planning Authority may form the opinion that there is a real and substantial risk that the development in respect of which permission is sought would not be completed in accordance with such permission and that, accordingly, planning permission should not be granted to the applicant.
Extension of Planning Permissions
With effect from the 19th August 2010, the circumstances in which one can extend the lifetime of a planning permission have been expanded. Under the 2000 Act it was possible to seek an extension where substantial works had been carried out and the development completed within a reasonable time. A planning permission can now be extended on one occasion only for up to a further five year period. The application to extend must be applied for before the expiry of the original planning permission and only applies where a development has not gone ahead due to “commercial economic or technical” considerations beyond the control of the applicant, which “substantially militated against the commencement of the development or carrying out of substantial works”. The Planning Authority must also be satisfied that the development would not be inconsistent with the proper planning and sustainable development of the area having regard to any guidelines issued by the Minister, including guidelines issued after the grant of the permission.
The Act provides that each party to certain types of judicial review of planning decisions shall now bear its own costs save where otherwise directed by the courts.
Social and Affordable Housing
The Act provides that a Planning Authority can comply with its obligations under Part V of the 2000 Act by entering into leasing arrangements for housing rather than purchase. This provision has not yet been commenced.
The 2000 Act is amended to provide that where a Planning Authority establishes that unauthorised development is being carried out and that the person who has carried out or is carrying out the development has not proceeded to remedy the position, then the Planning Authority shall issue an enforcement notice or make an application pursuant to Section 160 of the 2000 Act (injunctions in relation to unauthorised development) unless there are compelling reasons for not doing so. The fines for non-compliance with enforcement notices have increased to a maximum fine of €5,000 up from €1,905. Generally, the seven year rule in respect of immunity from prosecution for unauthorised developments, continues to apply. However, the immunity will not apply to quarries or peat extraction unless, it seems, such operation of a quarry or extraction of peat, was carried out more than seven years prior to the commencement of the relevant section on the 19th August 2010.
Retention Planning Permission
In future it will no longer be possible to obtain retention permission for an unauthorised development which would have required an environmental impact assessment. The Act introduces a new procedure called “a substitute consent procedure” which will allow regularisation of an otherwise defective planning permission.
Taking in charge of estates
The 2000 Act has a procedure whereby an application can be made to a Local Authority, in certain circumstances, to have the estate taken in charge. On the application of “the majority of qualified electors who are owners or occupiers of the houses involved”. This is now to be amended to read “the majority of the owners of the houses involved”.
The Act introduces many changes to the planning code. Many of the provisions will have serious cost implications for both applicants and the Planning Authorities. Where such considerations apply, particularly to Planning Authorities, it is doubtful whether some of the sections will be brought into force. In the meantime, those sections which have been brought into force should be noted and observed as the implications of not complying are now more serious than ever.
New laws bring in changes in relation to:-
• Planning Permission by default
• Refusal of Planning Permission
• Extension of Planning Permissions
• Judicial Review
• Social and Affordable Housing
• Retention Planning Permission
• Taking in charge of estates.