Section 28: Specific Planning Policy Requirements

FWPM and Wind Farm Zones Dongeal 2013

As described by A&L Goodbody: “Specific Planning Policy Requirements are sections of guidelines labelled as such and they are grafted into the Minster’s guideline-making power. Compared to ordinary guidelines, however, their effect is significantly different:

  • They constrain planning authorities’ normal discretion; they must be applied by a planning authority in deciding whether to grant planning permission;
  • Where Specific Planning Policy Requirements conflict with any provision of a development plan, they apply instead of the conflicting development plan provisions; and
  • Where planning permission for an apartment block (of a kind governed by the Multi-Unit Developments Act 2011) was granted before the introduction of applicable Specific Planning Policy Requirements, any application for an amending permission will be subject to a fast track procedure that can be appealed to the Board only in limited circumstances.”

Our plan for this blog post is to test the claim by A&L Goodbody (and others) that these new requirements “must be applied”.  In other words are they such a clear attack on local democratic decision making and county development plans.

This new species of planning guideline – Specific Planning Policy Requirements – was introduced by the Planning and Development (Amendment) Act 2015 (PDF) which was passed in a few short weeks before Christmas 2015.  The Bill was introduced by Waterford based Fine Gael Senator Maurice Cummins on behalf of Minister for Environment Community and Local Government (Alan Kelly), on 26 November 2015.  It was then very quickly ushered through the legislative process by Fine Gael Junior Minister Paudie Coffey concluding in the Oireachtas on 17 December 2015.  It was signed by the President on 29 December 2015.  The full legislative history is available here.

More recently the legislation has come in for some criticism in the main stream media: see Irish Independent, 20 February 2016, New planning rules a ‘sleight of hand’, says expert; and RTE News, 22 February 2016, Councillors criticise new planning powers for minister.  Both these pieces followed the informative blog post by Neil van Dokkum, 18 February 2016, The amendment of Section 28 of the PDA 2000 and a follow up on 21 February 2016, More on that Sect 28 Amendment.

Sadly only one of our legislators Independent Senator Gerard Craughwell seemed to understand the impact of the amendment and made the following insightful, but ignored, contribution in the Seanad on 17 December 2016:

Development plans are obliged to be drawn up with due regard to legislation, national policy, national planning advice and so forth.  A development plan is a complex document drawn up by those who have unparalleled knowledge of their county and their aims for it.  It is contributed to by the public through an extensive round of consultation.  It is a collaborative, informed, visionary document for the local area by local people. For the development plan to be subjugated to the whim of a Minister is totally unacceptable.  …, for the guidelines of a Minister to carry supremacy over local statements of intent regarding a development plan is an undermining of democracy of the worst kind.  I would be interested in the Minister of State’s comments in this regard.

The Minister (Paudie Coffey) failed to address this point in his response and the Bill was duly passed.

What is clear however is that the Act as passed, while introduced to provide legislative underpinning to certain measures of the recently approved Government housing package entitled “Stabilising Rents, Increasing Supply”, namely the new Sustainable Urban Housing: Design Standards for New Apartments – Guidelines for Planning Authorities, which set minimum apartment sizes, has the effect of creating a new and significant power for an Environment Minister which could be used to undermine the County Development Plan process.  The Act further weakens the powers of local authorities and their elected members in directing planning policy for their areas.

The introduction of the Apartment Size Guidelines provides a few pointers as to the application of the Act.  The information note issued with the revised Apartment Size Guidelines state that they are “the first set of Ministerial Guidelines issued under Section 28 of the Planning and Development Act 2000 as amended by the 2015 Act above which enables the Minister to set out specific planning policy requirements.”  This seems to confirm our initial thoughts that the legislation cannot be retrospectively applied to older guidelines, such as the Wind Energy Guidelines 2006.

From reading the revised Apartment Size Guidelines it seems that the Department of the Environment approach is that each specific planning policy requirement, contained in a Section 28 guideline must be clearly identified as such.  However as noted by others it seems that the Environment Minister’s in their rush to issue the new guidelines before Christmas published them on 21 December 2015, before the President signed the new legislation into law 29 December 2015, thus risking their so called mandatory status on a simple timing technicality.

As to the specifics on the legislaiton Neil van Dokkum’s blog deals with the insertion of sub-section 1C into section 28 of the Planning and Development Act 2000 (as amended).  Changes were also made to other sections.  We have set out below the revised section 34(2) [new provisions in red] which deals with matters that are to be considered when making a decision on a planning application:

(a) When making its decision in relation to an application under this section, the planning authority shall be restricted to considering the proper planning and sustainable development of the area, regard being had to—

(i) the provisions of the development plan,

(ia) any guidelines issued by the Minister under section 28 

(ii) the provisions of any special amenity area order relating to the area,

(iii) any European site or other area prescribed for the purposes of section 10(2)(c),

(iv) where relevant, the policy of the Government, the Minister or any other Minister of the Government,

(v) the matters referred to in subsection (4), and

(vi) any other relevant provision or requirement of this Act, and any regulations
made thereunder.

(aa) When making its decision in relation to an application under this section, the planning authority shall apply, where relevant, specific planning policy requirements of guidelines issued by the Minister under section 28.

(b) In considering its decision in accordance with paragraph (a), a planning authority shall consult with any other planning authority where it considers that a particular decision by it may have a significant effect on the area of that authority, and the authority shall have regard to the views of that other authority and, without prejudice to the foregoing, it shall have regard to the effect a particular decision by it may have on any area outside its area (including areas outside the State).

(ba) Where specific planning policy requirements of guidelines referred to in  subsection (2)(aa) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.

(c) and section 54 (as amended by section 257 of this Act) of the Waste Management Act, 1996, where an application under this section relates to development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, a planning authority shall take into consideration that the control of emissions arising from the activity is a function of the Environmental Protection Agency.

(d) In this subsection ‘specific planning policy requirements’ means such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.

The clear question is what does all this mean?  As we had written as a comment on a Neil van Dokkum’s blog: The old requirement was that planning authorities must merely ‘have regard to’ the section 28 guidelines generally, as they are primarily advisory in nature.  Following these changes when considering a planning application, planning authorities must now apply the ‘specific planning policy requirements’ of ministerial guidelines.  Thus there is now a distinction between matters in ministerial guidelines that are advisory in nature and that planning authorities shall ‘have regard to’ and matters which appear mandatory in nature.

The important point to note is that the amendment Act also defines: ‘specific planning policy requirements’ to mean such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including An Bord Pleanála, in securing overall proper planning and sustainable development.

What is clear from this definition is that it is not merely enough to identify a matter as a specific planning policy requirement, it must also be issued to support consistent application of policy in securing overall proper planning and sustainable development.  Who can decide whether a specific planning policy requirement actually secures overall proper planning and sustainable development?  Shall this be left to the planning authority or ultimately the courts, or some other body?  The Act is silent.

This new standard of overall proper planning and sustainable development is also problematic when making a planning decision.  It immediately creates a conflict between the legislative requirement for a planning authority or An Bord Pleanála to restrict themselves to considering to proper planning and sustainable development of the area; as opposed to the newer overall proper planning and sustainable development, which specific planning policy requirements seek to secure.  The significance of this conflict between what is overall proper planning and sustainable development or that for the area becomes problematic where environmental impacts fall to be considered.

Take for example in Donegal where elected members sought to protect the Fresh Water Pearl Mussel SACs and sub-basin districts by identifying them as areas not favourable for wind energy development (see map above).  This would fall to be seen as a reasonable planning matter which the Donegal councillors would justify as a strategy to promote proper planning and sustainable development of the area.  If, for example, a Minister in future was then to use section 28 guidelines and a specific planning policy requirement to open these Fresh Water Pearl Mussel SACs and sub-basin districts up to wind farm development, would Donegal Council or An Bord Pleanála be required to follow the Ministers mandatory guidelines even if it would lead to significant negative impacts on the Fresh Water Pearl Mussel SACs and sub-basin districts?

Obviously the other requirements of the Act namely 34(2)(a)(vi) any other relevant provision or requirement of this Act, and any regulations made thereunder, must also be had regard to when making a planning decision.  Therefore issues arising as part of an EIA must also be taken into consideration; the seemingly mandatory nature of these specific planning policy requirements could be tempered somewhat.  It seems clear to us that despite the terminology implying that the specific planning policy requirements are mandatory and they shall apply, they cannot trump environmental considerations in relation to proper planning and sustainable development of the area and the need for screening and environmental impact assessments, when necessary, under EU and Irish law.

Nevertheless this legislative change is an attack on local democracy and could damage local authorities in protecting receiving environments from inappropriate development, if used inappropriately by An Bord Pleanála.  In the amendment to section 34 it clearly sets out that where specific planning policy requirements of guidelines differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the county development plan.  What remains unclear however is whether in determining appeals where Section 28 guidelines containing specific planning policy requirements that differ materially from a County Development Plan: whether An Bord Pleanála would be required under section 37(2)(c) to indicate in its decision the main reasons and considerations for applying the specific planning policy requirement(s) when contravening materially the development plan.  Without such reasoning it is difficult to challenge in court any such decisions.

The reason we are unsure, in relation to reasons for decisions, is that a County Council may find itself in a position where despite a development materially contravening its Development Plan it doesn’t refuse permission as it as it can rely on a specific planning policy requirement to grant permission (section 34(2)(a)-(aa)), and therefore the section 37(2)(c) requirement on An Bord Pleanála to indicate the main reasons and considerations for contravening materially the development plan would not apply.  The further we have developed scenarios in relation to applying specific planning policy requirement(s) the more problematic they appear.

Our main point however is that while described by many as mandatory, specific planning policy requirements have limits:

  • They must be issued to support consistent application of policy in securing overall proper planning and sustainable development; and it must be noted that overall proper planning and sustainable development is a novel term in Irish planning which to date appears not to have a legal definition.
  • They are just one of many matters which a planning authority or An Bord Pleanála must have regard to and apply, where relevant when making its decision in relation to an application.
  • The planning authority and An Bord Pleanála still appear to retain wide discretion when weighing up the constituent elements which regard is being had to or which the apply, where relevant, as set out in the planning and development legislation when arriving at their decision under section 34.

In concluding therefore it is the broad discretion which local authorities and An Bord Pleanála retain, in making its decisions that leaves the new ministerial specific planning policy requirement(s) and their application as a dangerous weapon, which could be used to undermine the local democratically taken decisions to ensure proper planning and sustainable development of the area.

Advertisements

About cawtdonegal

Concerned About Wind Turbines (CAWT) - Donegal View all posts by cawtdonegal

3 responses to “Section 28: Specific Planning Policy Requirements

  • Neil van Dokkum

    Well done guys. A concise and well explained piece on a bizarre mix up of legislation. Good job.

  • Neil van Dokkum

    Reblogged this on The Law is my Oyster and commented:
    As promised, an excellent and comprehensive analysis of the amendments to the Planning and Development Act 2000, including that accursed S28 amendment. Interesting to see that it was shepherded through the Dail by Paudie Coffey.

  • Pat Swords

    You raised an interesting point at the end; no definition of “proper planning and sustainable development” exists. A while back I went looking for this definition, as it is so crucial in legal terms to the merit of a planning decision. After all the Environmental Impact Assessment procedure is just that; a procedure which supposedly influences but not dictates the subsequent planning decision. So in fact what dictates the decision is “proper planning and sustainable development”, which is referred to both in the title of the planning acts and 57 times altogether in the September 2015 Consolidated version of what is the total mess in terms of planning legislation we have here:

    http://www.lawreform.ie/_fileupload/RevisedActs/WithAnnotations/EN_ACT_2000_0030.PDF

    Given that in legal circles if something is not defined, it is understood within its ‘common meaning’, then the Oxford Dictionary defines ‘sustainable development’ as: “Economic development that is conducted without depletion of natural resources”. So what is ‘proper planning’? Who knows, but we have given a limited amount of individuals enormous power to interpret this as they see fit. However, to me it must include adherence to the relevant laws and rights, which are applicable, and in this regard the whole renewable programme is fundamentally flawed, as it never went through the necessary steps of environmental assessment and public participation. Plus I’m not the only one pointing out these legal failures:

    http://www.tandfonline.com/doi/abs/10.1080/02646811.2015.1008847

    So how can one have ‘proper planning’ when the key legally required step has been bypassed?

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: