Planning and Development Act 2010: Development management changes

1. Planning and Development Act 2010:Development management changes IPI autumn conference 14 October 2010 John Martin Principal Planning Adviser, DEHLG

2. Response to ECJ ruling, case C-215/06 • Previous retention system facilitated non-compliance with requirements of EIA Directive • Ruling allowed for “regularisation” only in exceptional circumstances; EIA prior to development consent must be the norm • Section 34(12) prohibits retention for developments for which EIA (or appropriate assessment) would have been mandatory or for which screening for EIA would have been likely • ECJ also critical of lack of rigour in our planning enforcement system

3. Part XA: Substitute consents • Developer may be required by a planning authority to apply to the Board where a Court has found that original EIA development consent was defective • Developer may seek leave to apply if grounds exist indicating such a defect, or if the Board can be persuaded that exceptional circumstances (as set out in Part XA) warrant new consent • In either case, there must have been no deliberate effort to evade EIA, and there is no presumption that substitute consent will be granted

4. Substitute consent process • Modelled on strategic infrastructure process – application is made to the Board, with substantial report from the planning authority • Remedial EIS must address any significant impacts which have occurred and any measures taken to address them • Board can direct temporary cessation of activities pending decision, if there is ongoing risk of adverse impacts • No compensation for refusal of consent or for conditions attached to a consent

5. “Sunset” provisions for quarries • For a limited time only, certain quarry developments which can no longer seek retention may apply for substitute consent without having to demonstrate “exceptional circumstances” • However, certain quarries will be ineligible to apply, and face closure. EU Commission will insist on strict enforcement • PAs will determine eligibility on the basis of detailed survey of quarries within their area, to be completed within 9 months after section 261A is commenced

6. Outline of section 261A process (1) • Notice in newspapers and on PA website; important to alert quarry owners, the public and NGOs • Compilation of database on all quarries • Determination by PA as to whether EIA (or screening for EIA) and / or AA would have been required had prior consent been sought for unauthorised quarry developments, having regard to the commencement of EIA and Habitats Directives (1990 and 1997) and also the date of the ECJ ruling (July 2008) • Decision as to planning status of the quarry development, including registration in 2004/05

7. Outline of section 261A process (2) • Survey must be comprehensive, documented, and based on wide range of information, including submissions from the public and NGOs • Evidence that quarry was established before 1964? • DEHLG guidance • Notices to be served on affected quarries, with copies to those who made relevant submissions. Notice will direct application for substitute consent, or will start enforcement process • Quarry owners, or those who made submissions, can seek review by the Board of PA decisions

8. Additional information • Where significance of additional information warrants publication of new notice, 4-week period for deciding the application runs from date of receipt of notice by the PA (not date of receipt of additional information) • PA has 8 weeks to decide the application where Natura impact statement has been submitted (i.e. same as EIS)

9. Default decisions • A default decision to grant permission will only be deemed to be given 12 weeks after the due date • PA will have to pay the applicant a fine equal to 3 times the application fee (subject to a maximum of €10,000) if it fails to decide the application within the initial statutory period • Default permission does not arise in cases involving EIA or appropriate assessment but higher fines apply

10. Material contraventions • Now applies to contraventions of LAPs also • Copies of material contravention notice must be sent to relevant prescribed bodies and to those who have already made a submission on the application • Manager’s report must address compliance with Govt. policies / section 28 guidelines / RPGs and report must be considered by the members before resolution is passed

11. Extending the validity of permissions • A permission may be extended for up to 5 years even where no works have been carried out where there were commercial, economic or technical considerations beyond the control of the applicant • However, there must have been no significant changes in RPG or development plan objectives, and the development must be consistent with section 28 guidelines • If development has not started, EIA and / or AA must have been carried out (if required) before the permission was granted • PA may add to or vary original bond conditions • Period of validity may be extended only once

12. Planning enforcement (1) • PA may refuse permission where the applicant’s track record suggests there is a substantial risk that proposed development would not be carried out in accordance with a permission if granted • Applicant must first be given the opportunity to show why permission could be granted • Where PA has established that significant unauthorised development is being carried out, and that developer has not tried to remedy the position, enforcement action must be taken unless there are compelling reasons not to do so

13. Planning enforcement (2) • Max. fine for a summary offence has been increased from €1500 to €5000, and the max. daily fine for a continued offence has been increased to €1500 • From now on, the 7-year limit will no longer apply to quarries or peat extraction • Enforcement provisions under S. 261 (control of quarries) have been strengthened, e.g. failure to comply with conditions imposed on a pre-1964 quarry constitutes unauthorised development • Power of entry onto land for inspections has been clarified (i.e. not just land with buildings)

14. An Bord Pleanála (1) • Where a proposed SI development is located within a SDZ, developer may choose either SI or SDZ process • Cost recovery applies to pre-application consultation / EIS scoping in SI cases which do not proceed • Some changes to appointment of Board members • Quorum for Board meetings may be reduced to 2 in certain circumstances at discretion of Chairperson • Board can set the agenda for oral hearings • Board’s power to set fees expanded

15. An Bord Pleanála (2) • Where an SI application is made for gas infrastructure, the Board will request obs from the Commission for Energy Regulation (CER), particularly in relation to technical safety advice • Where the Board makes a decision that materially differs from the CER recommendation, it must give reasons • Board’s power to make significant modifications to a draft SDZ planning scheme is curtailed

16. Development contributions • Definition of “public infrastructure and facilities” in S. 48 is widened to include provision of broadband, school sites and flood relief works • Timeframe for payment of contributions is amended to allow for possible extension of validity of permission • S. 49 is amended to allow supplementary contributions towards infrastructure or projects (such as new schools) being provided by other bodies under an agreement with a public authority (e.g. PA or DDDA) and which will benefit the proposed development

17. Judicial review • Requirement to notify all other parties at the outset removed, but Court can decide on what basis the leave hearing will proceed (ex parte or inter partes) • Leave hearing and judicial review hearing can be merged if the parties agree or if the judge so directs • In certain JR cases (e.g. cases involving transposition of EIA Directive), each party shall bear its own costs irrespective of the outcome, unless Court decides claim was frivolous • Court can award costs in a matter of exceptional public importance or where justice demands it