Planning and Development (Housing) Act and Residential Tenancies Act 2016

On the 23rd December a new piece of planning legalisation was enacted. This new act, the Planning and Development (Housing) Act and Residential Tenancies Act 2016, introduces new temporary provisions for residential schemes as part of measures to address the housing crisis. From now until the 31st December 2019, or 31st December 2021 if the Minister so chooses, planning applications for housing schemes of over 100 residential units or 200 student bed spaces shall be made directly to An Bord Pleanala. In effect large residential schemes will be allowed to by-pass the local authority and third party rights of appeal shall be removed. Mixed use schemes, will also be allowed use this system, where they include over 100 residential units or 200 student bed spaces, the residential element represents a minimum of 85% of the development, and subject to a limitation on the ratio of other land uses of 15 sq.m per residential unit or 7.5 sq.m per student bed space up to a maximum of 4,500 sq.m.

The process for this new system is set out in the new act, and will be supplemented by new regulations which are expected in February 2017. The process will be as follows:

Prior to Lodgement

  1. Prior to lodgement of an application or engagement with the Board, the applicant must first have consulted the relevant local planning authority on the proposed scheme. This meeting must be held within 4 weeks of making the request to the local planning authority.
  2. A request for consultation with the Board may then be submitted. The request should include;
    • details of the application,
    • a site location and layout plan,
    • details of the consultation with the local planning authority,
    • a statement by the application on how the proposal complies with the development plan, local area plan (if applicable) and relevant departmental guidelines,
    • potential environmental impacts,
    • other information as may yet be prescribed in the forthcoming regulations,
    • the appropriate fee.
  3. The Board will have 2 weeks in which to determine if it will consider the application. The Board may refuse to consider the application if the applicant has failed to provide the necessary information or failed to comply with the requirements of the legislation.
  4. If the Board accepts the request, the local authority must submit all records of their consultation and their opinion in writing on the proposal, within 2 weeks of being notified by the Board.
  5. The Board must convene a consultation meeting within 4 weeks of receipt of the request. The meeting should be attended by the applicant, and/or their representatives, the Board, and a representative from the planning authority.
  6. Within 3 weeks of the meeting (of the last of any further meetings) the Board will issue an opinion advising the applicant on whether the proposal represents a reasonable basis for an application under this legislation, and the issues that need to be addressed in the application.
  7. The applicant may then proceed to an application or request a further meeting with the Board.
  8. Separate to these consultation meetings, the applicant may also request the Board’s opinion on whether an EIS and/or AA is required. The Board will furnish the applicant with an opinion on the requirement for an EIS and/or AA within 8 weeks. They will furnish the application with an opinion on the content of an EIS and/or AA within 16 weeks.

The Application Process

  1. The application shall consist of the relevant plans and particulars, a newspaper notice published in a newspaper circulating in the area, a site notice, and application fee. Exact details of the requirements in this regard are expected in the new planning regulations.
  2. Members of the public will be invited to make submissions for 5 weeks.
  3. The application should be discussed by local councillors at the relevant area committee or municipal district meeting.
  4. The local planning authority must furnish the Board with a report, within 8 weeks from lodgement of the application, on the following matters:
    • Summary of any submissions or observations received by the Board.
    • The Chief Executives views on the proposed development, its compatibility with the proper planning and sustainable development of the area including compliance with the relevant development plan or local area plan, and a recommendation on whether permission should be granted or refused.
    • Summary of the views of the elected representatives.

Determination of the Application

  1. The Board must determine the application within 14 weeks, except where an oral hearing is required. Failure to meet this deadline will result in a fine of 3 times the fee paid by the applicant or €10,000 whichever is the lesser amount.
  2. Where the Board fails to make a decision within 14 weeks, it shall still determine the application. There shall be no automatic presumption of receiving permission due to failure of the Board to determine the application within the prescribed timeframe.
  3. Oral hearings are only to be held in exceptional circumstances. They are not to be the norm in the case of such applications.
  4. The Board may make 1 of 4 decisions
    • Grant permission for the proposed development.
    • Grant permission for the proposed development subject to modifications of the proposed development stipulated in the decision.
    • Grant permission, in part only, with or without modifications.
    • Refuse permission for the proposed development.
  5. It is not within the Boards powers to request further information in respect of such applications.
  6. The Board cannot grant permission where the proposal contravenes the zoning in the development plan/local area plan. However they may grant permission where the development materially contravenes other provisions of the development plan/local area plan if the development is:
    • The development is of strategic or national importance, or
    • There are conflicting objectives in the development plan, or
    • Permission should be granted with regard to the regional planning guidelines, ministerial guidelines, or directives issued to local authorities by the minister, or
    • There is a precedence for similar development in the area established since the development plan was made.
  7. The Board shall notify the applicant of its decision, and publish notice of its decision in a newspaper circulating in the area.
  8. The decisions of the Board cannot be appealed to any higher power. A party may take a judicial challenge against the decision of the Board but only on grounds of process not on the planning merits of the case.

Extensions of Duration

In addition to the new provision for large scale residential schemes, the new act also introduces new grounds for obtaining an extension of duration. Under the new act residential schemes of 20 or more units may apply for a second extension of duration for a period of up to 5 years or until the 31st December 2021, whichever is earlier. In order to obtain an extension of duration the existing permission either have lapsed since the 19th July 2016 and the application for extension of duration is made within 6 months, or must not have lapsed, and an EIA and/or AA were not required before permission was granted. The planning authority must be satisfied that the extension of duration is required in order to facilitate the completion of the development.

DUBLIN: 3 Molesworth Place,

Dublin 2, D02 EP97

T: 00353 01 6610419

E: info@csrlandplan.ie

CORK: Copley Hall,

Cotters Street,

Cork, T12 T938

T: 00353 021 4969224

E: corkinfo@csrlandplan.ie

GALWAY: Ardacong, Ballytrasna,

Tuam, Co. Galway

T: 00353 01 6610419

E: kmitchell@csrlandplan.ie