Planning and Development, and Residential Tenancies, Act 2020
The purpose of the Planning and Development, and Residential Tenancies, Act 2020 is to make exceptional provision for emergency measures in light of the Covid-19 pandemic to ensure that the necessary protections are in place to safeguard the operation of the planning and building control systems.
The purpose of the amendments are twofold:
- to amend the substitute consent provisions at Part XA of the Planning and Development Act 2000 in order to comply with the findings of the Supreme Court judgment of 1 July 2020 in the “Ballysax/McQuaid” cases – three joined appeal cases related to two quarries (An Taisce v An Bord Pleanála, An Taisce v An Bord Pleanála, and Sweetman v An Bord Pleanála) – which found that certain provisions of the substitute consent system in the Planning and Development Act 2000 were inconsistent with the EIA Directive in terms of requiring exceptional circumstances and public participation.
- To provide for temporary modifications to the operation of the Residential Tenancies Act 2004 to provide, subject to certain conditions, for increased notice periods in relation to notices of termination served on tenants during the period from 11 January 2021 to 12 April 2021 for rent arrears and to prohibit rent increases for relevant tenancies during that period.
Development Plan Changes
The Planning and Development Act 2000 was amended to replace the mandatory requirement to hold public meetings in relation to a proposed development plan, with the obligation for planning authorities to consult with members of the public in such manner as it considers appropriate and to invite submissions in writing from members of the public, in relation to a proposed development plan. This may include the holding of a public meeting.
The urgent requirement for this proposal was to avoid barriers to progressing development plans during the pandemic, in the event of any current or future temporary prohibition on holding public meetings, by allowing the planning authority to take whatever steps it deems necessary (such as public/ newspaper notices, online communication) to ensure the public are consulted in compliance with the principles of the Aarhus Convention, which includes public participation in decision-making in environmental matters.
The amendment requires that there will always be some format of public meeting in relation to the initial issues stage of a proposed development plan, either by way of a public meeting attended by the public in person, or else an online public meeting. A planning authority may hold both if it wishes.
This permanent proposal also establishes greater flexibility in the planning system in the long term, in line with the modernisation agenda, which will improve accessibility and inclusiveness of this statutory process, including through online communication approaches.
The Act allows the Government to make ‘emergency period’ orders, during the period of the Covid-19 pandemic. These ‘emergency periods’, if made by the Government, would extend certain statutory periods applying under the Planning and Development Acts and Building Control Acts.
This proposal was urgently required so that the integrity of the planning regime, especially its public participation elements, and certain decision making and enforcement systems of the building control regime, were not compromised, in the event that further waves of Covid-19 infections may necessitate a further period of more restrictive travel constraints, or indeed may critically impact on the operation of individual planning or building control authorities.
This measure broadly mirrors the recently expended section 251A of the Planning and Development Act 2000, as inserted by section 9 of the Emergency Measures in the Public Interest (Covid-19) Act 2020 (Number 2 of 2020), which was in turn modelled on similar provisions in section 251 of the Planning and Development Act 2000 that covered the Christmas period. However, the provision includes new flexibilities not contained in Section 251A, namely:
- More than one ‘emergency period’ order may be made within the confined operative period for this Act, which is presently due to end on 9 June 2021, by virtue of it being linked to the operation of Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020;
- Emergency orders can be applied not only to the whole country, but to specific administrative areas as required; and
- The Government (at the request of the Minister) may choose which statutory periods, in which specific legislative provision, they require to extend rather than applying the extension to all periods under the Planning Acts and the specified provisions of the Building Control Acts.
Planning and Development, and Residential Tenancies, Act 2020 amends the substitute consent provisions to provide, firstly, that exceptional circumstances must be considered by the Board in the substantive or second stage application for substitute consent, and secondly, that public participation is facilitated, where required, with respect to the consideration of exceptional circumstances, as well as on the wider application.
In this context, amendments are required to ensure both that
- any new applications for substitute consent must demonstrate exceptional circumstances and, in turn, the Board must be satisfied that such circumstances exist, whilst also complying with the existing public participation requirements he Planning Act and as prescribed by regulations, and
- in the case of existing applications pending before the Board, the exceptionality test is similarly applied in respect of any grant or refusal, while also ensuring that a further round of public consultation is facilitated in respect of these applications on hand to ensure the public is given the opportunity to comment on the existence of exceptional circumstances or not, as may be the case.
An applicant for substitute consent to submit with their application any other documents that the applicant considers would be of assistance to the Board in making a decision in relation to his or her application. This is to allow the applicant the opportunity to furnish material in support of their case with regard to exceptional circumstances, which previously would only have been required at the leave stage of the process.
Any person other than the applicant for substitute consent or a planning authority may make submissions or observations in writing to the Board in relation to an application for substitute consent The this includes submissions or observations regarding the existence or absence of exceptional circumstances justifying a grant of substitute consent.
Substitute Consent Grant
The Board may, subject to new restrictions grant or refuse an application for substitute consent. The Board is precluded from granting substitute consent where it is not satisfied that exceptional circumstances justifying a grant exist, and that when making its decision the Board is not bound, or permitted to take account of or have regard to, any decision it made at a previous leave stage as to the existence of exceptional circumstances.
The restrictions apply to both new applications for substitute consent made to the Board and existing applications on hand in the Board pending decision. The Board is to invite the applicant to submit information to the Board within a specified period that he or she considers relevant for the purposes of the Board satisfying itself as to the existence of exceptional circumstances. The making of this invitation by the Board is mandatory but the applicant is not obliged to provide such information where he or she does not deem it necessary.
In contrast, the Board has discretion to make a request of further information from the applicant concerning the existence of exceptional circumstances, notwithstanding that further information may have been previously requested. Where the applicant fails to comply with such a request, the application shall be deemed to be withdrawn.
There is additional public consultation in respect of applications for substitute consent to the Board, which will now include consideration of exceptional circumstances. In this regard, notwithstanding that any or all of these things may have already been done in respect of the application for substitute consent previously, the Board must –
- require the applicant to publish an additional newspaper notice, including advertising any additional information submitted,
- make the application for substitute consent, including any additional information submitted, available for inspection at its offices and online on its website.
- give notice of the application, including any further information, to the prescribed bodies required to be notified of such applications,
- give a copy of any further information received to the relevant planning authority (the planning authority will have previously been given a copy of the application itself upon receipt by the Board), and
- request the planning authority to consider that information as part of its report to be submitted on the application, including the relevant environmental reports, which shall include amending that report where required. The planning authority is given an additional 5 weeks to do so.
- require the applicant to erect additional site notices of the application, copies of which must be submitted to the Board.
An applicant must comply with any requirement of the Board. There is an obligation on the relevant planning authority to comply with any request of the Board and to enter details of any further information it receives from the Board into the planning register.
The Board must consider submissions or observations made, including any made arising from the further round of public consultation in making its decision, which it only may do so after it is carried out the public consultation steps and where the applicant and planning authority concerned have complied with such requests.
The Board has discretion to extend the timeframe within which a planning authority is required to submit its report on the application.