The Planning Bill and 'Mandatory' Time Limits

A Question of Statutory Provision or Leadership, Management and Resources?

Michael Furminger BL is presently providing Briefings on the Planning Bill at any location where there is sufficient demand, or online.

Definitions of “mandatory” include a sense of something that is required, compulsory or obligatory. That something is mandatory does does not give any sense of choice or leeway. The consensus among definitions is that if something is mandatory, it will be done.

Mandatory Timelines

The Explanatory Memorandum, the official guide to the Bill, states that one of the “systematic changes” proposed is the introduction of “statutory mandatory timelines for all consent processes” (p2). More specifically, in its description of Part 4 Development Consents, the Memorandum states that the four new 'headline' consent procedures impose “time periods throughout the consenting process, including mandatory time periods for decisions by An Coimisiún Pleanála.” (p35)

Standard Development

By far the majority of all applications and permissions will be for “standard development” which procedure is governed by Part 4 Chapter 3 of the Bill.

Section 98 provides that a Planning Authority must determine an application for Permission for Standard Development within eight weeks of the application being made. Where AA or EIA is required, that period increases to twelve weeks from the date by which submissions are required to have been sent to the Planning Authority.

Where an application is not determined within the required period (and where no consent is given by the applicant for an extension of time) the application is deemed refused with a right of appeal for the applicant to the Commission (s98(5)(b)).

Appeals

The Commission must determine all appeals from Local Authority decisions in respect of applications for permission for standard development within 18 weeks of the expiration of the period within which the appellant was required to bring the appeal (26 weeks where there is AA or EIA) (s110(1) and (6)).

Where the Commission does not make a decision within that period the Commission shall notify the appellant and applicant for permission (where not the appellant) of the reasons for the delay (and publish a notice on its website of same) and determine the appeal within a further four weeks (s110(3)(a)).

If in default of the extended timetable, the Commission shall again notify the appellant/applicant of the reasons for the further delay and determine the appeal within a further six weeks and pay to the applicant for permission (who will not necessarily be the appellant) a proportion (to be specified by Regulation) of the fees paid to the Commission. The Commission shall publish a notice of the reasons for the further delay and the amount paid on its website. (s110(3)(b))

If in further default, the Commission shall notify the appellant/applicant of the reasons for the further delay (and publish same on its website) and determine the appeal within a further week. In addition the Commission shall notify the Minister and the OPR of its default whereupon the Minister may request the OPR to undertake a review of the performance by the Commission of its functions. (s110(3)(c) and (d))

Applications Direct to Commission

Part 4 Chapter 4 establishes a single application process direct to the Commission for “qualifying developments” which include SID (defined in Schedule 1).

Save where the applicant agrees to a longer period, the Commission shall determine such direct applications within periods ranging from 18 to 48 weeks depending upon the type of development.

Where the Commission fails to determine the application within the required/agreed period it shall notify the applicant of the reasons for the delay and of the period within which it will determine the application (which shall not exceed a further 6 weeks) and publish a note of same on its website (s124(5)(a)).

If the Commission defaults on this extended timeline, it shall again inform the applicant of the reasons, of the period within which it will make a decision (not exceeding a further 6 weeks), pay to the applicant a proportion of its fees (to be specified by Regulation) and publish a note of same on its website (s124(5)(b)).

If the Commission defaults on this further extended timeline, it shall again inform the applicant of the reasons, determine the application within a further one week and publish a note of same on its website. In addition, the Commission shall notify the Minister and the OPR of its default whereupon the Minister may request the OPR to undertake a review of the performance by the Commission of its functions. (s124(5)(c) and (d))