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Coronavirus - Pausing planning elements - Ireland

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27-03-2020

Emergency measures in the public interest  (COVID-19) Bill 2020

The Emergency Measures in the Public Interest (Covid-19) Bill (the “Bill”) has been passed by the Dáil and is being considered by the Seanad on Friday 27 March. It is expected to be enacted shortly.

When enacted, the Bill in its current form will provide powers to the government, at the request of the Minister for Housing, Planning and Local Government (the “Minister”), to set a period during which various statutory periods applying under various Planning and Building Control Acts will be paused. This note looks at the key changes under the Bill.

New rules on calculation of time limits relating to Planning and Development

Part 3 of the Bill deals with the calculation of time limits relating to planning and development and will come into operation once the Bill passes into law and the Minister makes a commencement order. It contains a number of measures that will give the government power to disregard certain time periods during the Covid-19 crisis to avoid breaching statutory deadlines in a number of acts relating to planning and building development.

Section 9 of the Bill amends the Planning and Development Act 2000 (the “PDA”) by the insertion of the following section after section 251 of the PDA:

“251A.(1)Where calculating any appropriate period, specified period or other time limit referred to in the following Acts or provisions, or in any regulations made under those Acts or provisions, the period referred to in subsection (2) shall be disregarded:

(a) sections 4(4), 6 and 17(6) of the Building Control Act 1990;

(b) the Derelict Sites Act 1990;

(c) this Act;

(d) Part 2 of the Urban Regeneration and Housing Act 2015;

(e) Chapter 1 of Part 2 of the Planning and Development (Housing) and Residential Tenancies Act 2016.’

The section is broad and effectively suspends all prescribed dates and time limits under the PDA and the other specified acts. The temporary suspension will apply until the government orders otherwise. However, the current text of the Bill envisages that this period cannot continue beyond 9 November 2020.

What does this mean in practice?

Judicial review: Sections 50 and 50A of the PDA set out the procedures that apply to applications for judicial review of decisions made by planning authorities or An Bord Pleanála (“ABP”). The time limit for instituting a judicial review in respect of a decision is eight weeks from the date of the decision or the doing of an act by the planning authority or ABP. Section 9 of the Bill will stop this eight week period from running. The potential impact of this is significant, notably for project managers of developments creating uncertainty as to when a development’s planning is immune from challenge.

Appeals to ABP: Section 9 will also have the effect of stopping the running of prescribed time periods within which to deliver appeals of decisions of planning authorities to ABP.

Duration of Planning: Section 40 of the PDA provides the standard duration of the life of a planning permission is 5 years and the Bill will therefore have the effect of stopping the clock on the duration of existing grants of planning permission.

Building Control Act 1990 (“BCA”):

- Compliance: Section 4 of the BCA allows a building control authority to dispense with or relax any requirement of building regulations in individual cases where compliance could be unreasonable having regard to the use to which the building might be put. Under subsection (4), the building control authority has a period of two months within which to notify the applicant of the decision on an application for dispensation or relaxation, unless the applicant agrees to a longer period. This notification period will be suspended under the Bill.

- Fire Certificates and Certificates of Compliance: The Building Control Regulations 1997 were introduced under section 6 of the BCA and prescribe the procedural, administrative and control arrangements necessary to secure compliance with the building regulations. The said section 6 also provides for the application and grant of fire certificates and certificates of compliance by the building control authority (the “authority”). Decisions of the authority must be notified to the applicant within two months of the application, or an agreed extended period. Appeals against the authority’s decision must be made to ABP within one month of the date of the decision. These time periods will also be suspended.

Offences: The BCA, at section 17, deals with offences for failure to comply with the act of building regulations.  Offences can be tried summarily or on indictment. Under subsection (6), summary proceedings may be instituted within twelve months of the discovery of the offence but not later than five years after the date of completion of the building or works in respect of which the offence is alleged to have been committed. This statutory period will also be stopped under the Bill.

Conclusion

The introduction of these measures aim to ensure that the planning system can work effectively throughout the duration of the Covid-19 emergency. According to comments from the Minister when introducing the Bill “the measures we are proposing…preserve the integrity of decision making and public participation in the planning process”.

For support on legal issues facing your business in light of the outbreak of Covid-19, please visit our Coronavirus hub to get our latest information and guidance.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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