Development Plans 2024/25 PDF

Seminar 5 Development Plans LW6101 Introduction to Planning Law Main features of the planning system Making development plans The need for planning permission Exempted development Appeals against planning decisions Planning enforcement Planning and Development Bill 2023...

Seminar 5 Development Plans LW6101 Introduction to Planning Law Main features of the planning system Making development plans The need for planning permission Exempted development Appeals against planning decisions Planning enforcement Planning and Development Bill 2023 Approved by the Oireachtas 9 October 2024 President has to sign into law Commencement of vast bulk of Bill, awaiting secondary leg (i.e. Regs) -may not happen till after election - may be further amended by next Govt before enacted 2 Levels of development/planning control 1. Strategic – Development Plans 2. Project level control – permitting/planning permission Parallel – 2 levels of environmental assessment – SEA and EIA (covered in later seminar) Current National and Regional Development Policy National Planning Framework – Part II ss20(a)-(c) PDA Project Ireland 2040: National Planning Framework (NPF) – long term spatial framework and public investment strategy (2018-2027) National Development Plan (NDP) (2018-2027) Regional Spatial and Economic Strategy (s21 PDA) – 3 Reg Assemblies (North and Western, Eastern and Midlands, Southern - consultation with all PAs within region Legislative framework: DP Process Pt II, ss 9 – 19 PDA – sets down PA’s obligation to make DP, the process, and the implications of DP Dev Plan states the PA’s development objectives for the area Making of Dev Plan strictly regulated by ‘procedure’. ‘procedural rules’, ‘procedural law’ – transparency, public participation/consultation – accountability - democratic considerations – subject to judicial oversight (Judicial Review) Supreme Court described Dev Plan as “an environmental contract” between the PA and the public McGarry v. Sligo Co. Co. Obligation to make Dev Plan Every PA must make dev plan every 6 years s. 9(1) PDA) - Note proposed change to 10 years - Draft Planning and Development Act 2022 - link in notes and on Canvas Dev Plan should relate to ‘whole functional area’ of PA (s.9(2) PDA) PA may make Dev Plan with one or more adjoining PAs – agreement – direction of Minister (s. 9(3) PDA) PA may make ‘local area plans’ subservient/consistent re dev plan - s. 19(2) - Should be separate (not within DP) to avoid confusion - Heather Hill Management Company & anor. v An Bord Pleanala IEHC 450.  Development Plan Mechanism for PA to provide 'strong and effective control measures in order to further the principles of environmental protection, proper planning and sustainable development ‘ - O'Mahony Developments Ltd v An Bord Pleanála IEHC 757 Usually consist of policies and objectives PA entitled to include planning policies in DP so long as they conform with planning legislation and the means of implementation is in accordance with the law - Christian v Dublin City Council (No 1) IEHC DP - mix of general broad policy statements and specific implementation measures Implementation measures may be specific (eg max height buildings, plot sizes or general (eg ambition to provide certain level of green space) Coherence and Consistency Dev Plan ‘shall set out an overall strategy for the proper planning and sustainable development of the area’ (s. 10(1) PDA) Dev Plan shall consist of a ‘written statement and a plan or plans indicating the development objectives for the area.’ (s. 10(1) PDA). Written statement must include ‘core strategy’ – demonstrate consistency with NPF and Regional Spatial and Economic Strategy (s10(1)(A) and s10(2) (A) The written statement must also include a separate statement which demonstrates that the development objectives in the DP are consistent, as far as practicable, with the conservation and protection of the environment s10(1D). Development objectives All planning objectives must be included in dev plan – ‘env contract between PA and community’ – McGarry v. Sligo Co. Co. ; Keogh v. Galway Corporation ; Roughan v. Clare Co. Co. Planning objectives should be positive - Glencar v. Mayo Co. Co. but in later Glencar case questioned by Supreme Court – 1 IR 84. S. 15 PDA general duty to realise objectives (take such steps as are within its powers) - report after two years Key significance s15PDA duty - s178 PDA - significant legal restriction on LA dev which is general exempt dev Dev Plan and environmental Assessment Strategic Environmental Assessment Directive (Dir 2001/42/EC) – apply to adoption of Dev Plans – enhanced obligations e.g. re public participation/access to justice and monitoring significant environmental effects of implementation of plan – remedial action Ireland transposed by tacking obligations on to existing system –P&D (Strategic Impact Assessment) Regs 2004 Dev Plan and planning permission Framework for all future dev - critical role in the determination of any application for pp s. 178 PDA prohibition on PA development in material contravention of dev plan – Browne v. Cashel UDC (HC 1993) S. 34(2)(a)PDA – PA and ABP required to ‘have regard to’ the terms of a Dev Plan and specific procedures must be followed before it may grant permission in ‘material contravention’ of the plan - ‘materiality’ a question of law Integration – coherence - consistency Coherence re NPF, Govt policy – s10(1A) and (2A) PDA ‘core strategy’ Integration re environmental protection considerations - separate written statement to demonstrate dev objectives in DP are consistent, as far as practical, with conservation and protection of the environment (s10(1D)) Oversight role of Office of Planning Regulator (OPR) – statutory observations during drafting of plan to ensure consistency with relevant regional and national policies – informs Minister of any plan that it considers is not consistent (s31P(1)(a)-(b)) Ministerial directions (s31 PDA) – may direct a PA to take specified measures in relation to Dev Plan which does not comply with statutory requirements ‘Mandatory Objectives’ of Development Plan Zoning for exclusive / primary uses for particular purpose – s. 10(2)(a) Provision / facilitation of infrastructure (objs of Waste Mgt Plan) – s. 10(2)(b) Conservation & protection of environment (arch & nat heritage) –s. 10(2)(c) Encouragement of management of landscape for ecological coherence of Natura 2000 network (Habitats Dir) Promotion of compliance with environmental standards for surface and ground water bodies Integration of planning & social, community, cultural reqs – s. 10(2)(d) Mandatory Objectives’ of Development Plan cont. Development & renewal of regeneration areas – s. 10(2)(h) Provision of accommodation for travellers – 10(2)(i) Preservation, improvement, extension of recreational / amenities – s. 10(2)(j)P Give effect to Major Accidents Directive, in order to control: Siting / modification of establishments; dev in vicinity of establishments Provision of community services (schools, crèches, etc.) Protection of linguistic & cultural heritage of Gaeltacht areas. Preservation of public rights of way In accordance with govt policy, providing framework for identification, assessment, protection, management and  UCC Other Mandatory Objectives: Under a Waste Management Plan: a planning scheme in a strategic development zone created under part IX PDA 2000 [s.169(9)]: or under a local authority housing strategy [s.94(1)] - supersede any contrary provisions in the development plan  Discretionary Objectives (Schedule 1, PDA 2000): Location & pattern of development; Control of areas & structures; Community facilities; Environment & amenities; Infrastructure & transport. Not entirely discretionary – proper exercise of PA discretion may require that they include a particular discretionary objective if they intend to do something towards achieving that objective - Roughan v. Clare Co. Co. HC - Also, SEA dir public participation obligations Procedure for Making Development Plan Rationale – early public & interest group participation, transparency, democracy: Blessington Heritage Trust v. Wicklow Co. Co. (per McGuinness J.); Byrne v. Fingal Co. Co. (per Kearns J.) Adopted by elected members – Grange Developments v. Dublin Co. Co. : DP could not delegate to Manager power to grant permissions contravening DP, as power to make / vary DP vested in elected members by statute Procedure (s. 11 PDA): S. 11(2) – after 4 years, newspaper notice of intention to review/prepare new DP, incl. details re submissions/observations, public meetings, etc. Procedure for Making Development Plan Procedure (cont.): Within 22 weeks of notice of draft DP, Manager prepares report on received submissions, may summarise – Sandyford Env Planning & Road Safety Group v. Dun Laoghaire Rathdown Co. Co. ; Ní h-Eili v. EPA (SC 1999); engagement obligations enhanced re PA dev? – Stirk v. Bridgnorth DC (Scannell) Within 12 weeks elected members consider and accept or amend If (materially) amended, shortened process of notification & consultation, materiality a question of law – Keogh v. Galway Corporation (No. 2) S. 12(14) – if no plan after 2 years, manager adopts DP Procedure for Making Development Plan Variation (s. 13): For stated (‘proper, intelligible, adequate’) reasons – Sandyford Environmental Planning & Road Safety Group v. Dun Laoghaire Rathdown Co. Co. Publish notice (with reasons) Shortened notice and consultation procedure – s. 13(2)(b) Variation may be subject to SEA – Planning and Development (Strategic Impact Assessment) Regs 2004 Significance of Development Plan re Planning Decisions PA must ‘have regard’ to DP: ‘take account’ – Keane & Naughton v. ABP (HC 1995); ‘informing oneself fully’ – McEvoy v. Meath Co. Co. ; required to understand, reasons for deferring – EC Gransden & Co. v. First SoS ; Bedfordia PLC v. Huntindonshire DC PA must act in good faith to facilitate & secure objs. (Scannell): s. 15(2) PDA Manager’s Report re progress in securing DP objs. S. 178 prohibits contravening PA dev: Browne v. Cashel UDC ; McGarry v Sligo Co Co ; Roughan v Clare Co Co; Keogh v Galway Corp Specific procedures for grant of PP in contravention of DP Exempted dev not exempted when in contravention of dev plan Significance of Development Plan re Planning Decisions Not a guarantee of development: O’Mahony v. ABP , HC dismissed challenge to CPO where it deprived applicant of opportunity to dev land as housing (as zoned) Must be intelligible to ordinary people / no planning expertise: Finn v. Bray UDC – courts will not defer to experts re interpretation; Ferris v. Dublin Co. Co. – courts will not have regard to documents outside of the DP Planning and Development Bill 2023 (the Bill 2023 as approved by both Houses of the Oireachtas on 9 Oct 2024 and signed by President 17 Oct 2024) Part 3 Plans and Policies - 6 Chapters Ch 1 - prelim matters re Pt 3 - e.g. definitions Ch 2 - Prep and Rev NPF Ch 3 - National Planning Statements (NPS) - setting policy and providing guidance replace s28 and s29 PDA 2000 guidelines and Min Dir Ch 4 - Prep Reg spatial and economic strategies Ch 5 - Making of Development Plans Ch 6 - Urban Area Plans, Priority Area Plans and Coordinated Area Plans - replaces LAPs Proposed New Integrated Planning Hierarchy National Planning Statements (NPS) National Planning Framework (NPF) Regional Spatial and Economic Strategies (RSES) Development Plans (DPs) Urban Area Plans/Priority Area Plans/Joint Area Plans National Planning Statements – ss 25-27 Alignment with NPS is mandatory - all other Plans must be materially consistent with NPS Procedures to ensure amendments made to existing procedures to align NPS - awaited Policy objective - to provide greater clarity and consistency between local and national planning policy - concentrates significant powers re planning policy with central Govt 2 separate parts - different status re obligations (i) a high-level statement of national planning policies and measures that must be integrated into regional and local plan making (NPS) (ii) practical guidance as to implementation of national planning policies and measures - (Nat Planning Policy Guidance) Development Plans - Chap 5 P&D Bill Overview (i) establishes the obligation to make a development plan (ii) sets out the information that must be included in a development plan (iii) sets out the procedures for preparing, making and varying the development plan and (iv) sets out the procedures for ensuring the alignment of the development plan with national and regional policy Introduces expedited procedure for amendment of DP to make consistent with new NPS Empowers Min to issue urgent Dir requiring amndt to DP in certain circumstances Greater emphasis on initial stages of planning - more strategic long-term approach Development Plans - Overview Greater emphasis on initial stages of planning - more strategic long-term approach Life-span DP - from 6 to 10 years At 5 years, Chief Exec must prepare “interim implementation report” - may propose variations Content of DP - more strategic - specified strategies - integrated overall strategy and 6 thematic strategies that consolidate mandatory and discretionary objectives under PDA 2000 Objectives specific to settlements of pop 1,500 or more All zoning to be included in DP Oversight of Office of Planning Regulator (OPR) enhanced - simplification and streamlining of the direction procedure re DPs Obligation to make and Review Development Plan – s. 42 P&D Bill 2023 PA must make DP every 10 years for whole of its functional area Min has power to extend the DP for up to 2 years in exceptional circumstances - SEA and AA must take account Not later than 8 years after making DP, PA must commence Review of DP in accordance with ss 53 and 54 with view to make new DP in accordance with s. 55 PA must have regard to DPs of adjourning areas DP or a variation to a DP must be ‘materially consistent’ with specified national policy and strategy docs e.g. NPF, NMPF, RSES, and relevant National Policies and Measures (ie NPS) Development Plans (s.42). - PA must Ensure Proper planning and SD DP or a variation to a DP is ‘materially consistent’ with specified national policy and strategy docs e.g. NPF, NMPF, RSES, and relevant National Policies and Measures (ie NPS) Take due account of  any relevant National Planning Guidance (NPS)  matters relevant to the preparation and making of a DP  any likely significant effects the implementation of the plan may have on the functional area of an adjourning PA  Relevant transport strategy of the NTA  The protection of water resources  Have regard to marine planning policy, where PA is coastal Development Plans If DP departs from National Planning Policy Guidance - written statement must include statement of reasons Content of Development Plan - s.43 Replaces s.10 PDA 2000 DP must include an integrated overall strategy for the proper planning and sustainable development of the functional area of DP Integrated Overall Strategy must be set out in a written statement, with maps or or other diagrammatic or visual representations - Written Statement must for clearly identifiable part of DP IOS must contain settlement strategy for city where DP relates solely to city or includes a city and a settlement hierarchy in all plans that do not consist solely of a city Content of Development Plan - cont. Specified Strategies and statements - ss 44-51 (6 thematic strategies - consolidate mandatory and discretionary obj under PDA 2000 and obj to implement strategies) 1. sustainable development and regeneration; 2. economic development; 3. housing development; 4. creation, improvement and preservation of sustainable places and communities; 5. environment and climate change; 6. conservation, etc., of natural and built heritage Objs for promotion, management and protection of areas, uses and structures relevant to 6 strategies settlement-specific objectives Record of protected structures Objectives for zoning of land and map illustrating objs - change from s10 PDA 2000 which gave PA discretion to zone only areas which, in its opinion, required uses to be indicated Early consultation with OPR - s.53 PA must consult OPR at least 3 months before preparing draft DP re matters relating to preparation of Integrated Overall Strategy for proper planning and sustainable dev - (change from PDA 2000 where initial consultation was at draft DP stage) PA must provide OPR with a Development Plan Review Report - details of relevant changes to NPF, NMPF, RSES, and relevant National Policies and Measures (ie NPS) - id key strategic issues OPR then provides the PA an Opinion on DP identifying matters related to prep of Integrated Overall Strategy PA must take ‘due account’ of the Opinion and then prepare Strategic Issues and Options Paper - i. Integrated Overall Strategy and ii. 6 thematic strategies and statements to be included in DP Intended to minimise need for OPR involvement at later stages in DP review process Notice of Intention to Review and Preparation of Draft DP - s.54 replaces section 11 of PDA 2000 sets out the procedures - publication of a notice of intention to review and make a new DP - website and newspaper matters to be included in notice and persons to who notice is to be given state where and when documentation can be inspected State submissions can be made Public meetings/online public meetings PA must consult with service providers DP subject to SEA Regs Publication of submissions - Report - Resolution - s54 cont.. Written sub and brief summary oral sub must be published on PA website with 5 weeks of receipt Not later than 16 weeks after date Notice CE prepares Report re subm and matters arising from consultation - published PA website and submitted to members of PA or committee of members Members may by resolution issue direction to CE re strategic approach in integrated overall strategy and the six thematic strategies - 10 weeks Not later 18 weeks after issue dir (10 weeks no dir), CE to prepare draft DP and submit to members - deemed to be draft DP unless members PA amend, by resolution, within 8 weeks Making Development Plan - S. 55 broadly follows the procedures under s12 PDA 2000 Notice and copy of draft DP to specified bodies Notice published in specified format and manner - invite submissions on draft DP and any accompanying SEA report and Natura Impact Report Where draft DP includes addition or deletion of record of protect structures - notice to owner or occupier Sets out procedures for: prep of CE Report of subm, obs, recs; content CE rep; consideration of CE rep by elected members; resolution re: amendt/making draft DP; proposed material alterations to draft DP Min or OPR can provide rec re; any material alteration S.55 sets out requirements: notice re making DP; pub DP; furnishing DP to specified persons/bodies; PA to make DP available to public Interim report on implementation of DP - s. 56 PA shall take such steps as may be necessary for securing the objectives of the development plan and to monitor the implementation of those objectives. CE required to give interim report on progress achieved toward securing DP - not earlier than 4 years and not later than 4 years and 9 months after the making of a DP S.56 sets out matters to be addressed in interim report includg recs to elected members re whether to make variation to DP to address specified matters Not later than 5 years, elected members must consider interim rep and make resolution to make or not to make variation to DP If contrary to CE rec to make variation to make DP materially consistent with specified national policy and strategy docs (e.g. NPF, NMPF, RSES, and relevant National Policies and Measures) PA to inform Min and OPR asap by written notice including statement of reasons for dec not to make the recommended variation Variation of DP – s58 PA may make a variation of a DP at any time for stated reasons - but restrictions amending settlement-specific objectives, a coordinated area plan which is in force or which is designated in a RSES unless the other PA and director of Regional Assembly consent. Min or OPR may make recommendation Screening decision - SEA and AA Copy of Variation of DP must be sent to stated persons includg Min and OPR within 1 week Consequences - new or amended National Planning Statements (NPS) - s61 PA must submit report within 2 months setting out whether DP in materially consistent with NPS - if yes, PA must set out steps to rectify If OPR considers DP inconsistent, and accepts PA proposed steps, it informs PA and CE initiates expediated variation procedure set down in s62. If OPR does not consider PA steps sufficient, it make rec to Min to issue draft dir and sets out proposed terms for draft dir to specify necessary steps to remove material inconsistency and provides statement of reasons Where PA fails to submit report, OPR considers whether there is material inconsistency and if so makes rec for draft dir to Min If Min agrees with OPR he/she identifies stated reasons for draft dir and directs OPR to issue with or without modifications Assessment of DP and Variation by OPR and recommendation to Minister – s63 OPR to assess whether a new, varied or amended development plan is consistent with specified matters (the National Planning Framework, the National Marine Planning Framework, the relevant RSES, and National Planning Policy and Measures Min can request OPR to assess a DP anytime - re inconsistency Min, Reg Auth and PA can request OPR to assess - re inconsistency OPR can at any time, for stated reasons, on own initiative, carry out assessment of a DP If OPR forms initial view that part of DP inconsistent with specified matters it can issue Notice to suspend effect of DP, or part, until completion of assessment - remains in effect until OPR makes rec to Minister to issue draft direction or not At completion of assessment, OPR makes rec and statement of reasons to Min to issue draft dir or not Min makes decision - and if agrees then he/she directs OPR to issue draft dir Issuance of draft direction by OPR - s64 On receipt of a direction from the Min under s 65, the OPR shall issue a draft direction requiring (a) a DP to be amended in the manner specified in the direction, and (b) a PA to implement the amendment and publish the development plan as so amended. Draft dir may identify any provision of DP to be suspended that is subject of the draft direction, pending - rec by OPR and consideration of the Min - suspension takes effect from issuance of draft dir PA and Commission cannot make decision on applic for pp that would be materially affected by suspended provisions of DP OPR must carry out screening for SEA and AA re draft dir and prepare relevant report if required Power of Minister to issue direction – s65 Replaces s31 PDA 2000 S65(1) provides that the Minister may issue a direction requiring (a) a development plan to be amended in the manner specified in the direction, and (b) a planning authority to implement the amendment and publish the development plan as so amended Min can only exercise this power where the OPR has issued a draft direction – s65(2). Significance of DP - re permission to develop 1. PA own development - - s. 56 P&D duty to takes steps as may be necessary to secure obj of DP and monitor implementation - S 152 - PA dev in own area exempted dev but PA cannot carry out dev that materially contravenes DP Together fetter on PA own dev 2. DP and planning permission - S. 96 governs procedure for grant of pp in material contravention of DP - Narrows ability of PA to grant pp in material contravention of DP - procedure