The 2024 Act: towards plan-led development
The Planning and Development Act 2024 is in its third iteration in over 60 years. It is a welcome codification of the much-amended 2000 Act and bears little resemblance to the now rather quaint 1963 Act, write Jonathan Moore, Partner, Planning and Environmental and Rory Ferguson, Director, Planning and Environmental at Fieldfisher Ireland LLP.
Planning law has seen a rapid evolution over the last 25 years. The enactment follows a period of intense litigation, driven by requirements to comply with EU environmental law; more complex planning decisions; and the implementation of the Aarhus Convention giving immunity from adverse legal costs to any person – individual, eNGO, or developer – that wants to challenge a planning decision. This evolution corresponds with increased pace and scale of housing, infrastructure, and energy development in Ireland.
Towards plan-led development
Whilst the 1963 Act did not require any significant coordination between planning authorities, the 2000 Act brought in the concept of an integrated planning hierarchy. The 2024 Act strengthens the primacy of the national, regional, and county or city development plans (CDPs) and frameworks.
It also introduces the concept of a national planning statement (NPS), replacing ministerial guidelines and comprising two parts: mandatory principles called national planning policies and measures (NPPMs) and guidance called national planning policy guidance (NPPG).
CDPs now must be “materially consistent with” the Government’s National Planning Framework (NPF), regional spatial and economic strategies (RSESs), and NPPMs. In turn, any planning applications have to be decided having regard to the relevant CDP and it can only be materially contravened where particular procedures are undertaken.
On the other hand, when making or varying development plans local authorities only have to ‘take due account’ of any relevant NPPG provided reasons for divergence relate to proper planning and sustainable development.
This tiered approach to plan-making should ensure consistency whether development is public or private, a one-off house or an industrial installation, whether located in Donegal or Dublin.
Each CDP should be integrated with neighbouring and other functional areas across the State. Whilst leaving adequate scope for local considerations, a plan-led approach coordinates development in line with the National Development Plan (NDP) which allocates public monies to the infrastructure needed to deliver the NPF.
The planning process should coordinate public and private investment and set the context for individual planning decisions in a manner that secures long-term proper planning and sustainable development. More importantly, plan-led development can deliver the infrastructure required to address existential issues such as the housing crisis and climate change.
“The 2024 Act aims to overcome a lot of the problems encountered in the litigation of the last 25 years and reduce the number of challenges to planning decisions in the long term.”
What will a 2024 Act CDP look like?
Part 3 of the 2024 Act requires that CDPs set out an “integrated overall strategy”, the framework for proper planning and sustainable development of a functional area. A layperson should easily be able to understand the local authority’s long-term vision for its area from this part of the plan.
Six detailed strategies should then establish the requirements to achieve the integrated overall strategy. Every CDP nationwide should address the same issues in each city or county. There will also be a development management statement containing objectives for the control of areas, and uses of land/structures.
What does ‘materially consistent’ mean?
The term “materially consistent” is used throughout the 2024 Act but not defined. However, materiality is a common concept in planning law. Materially consistent suggests there is a limited degree of flexibility in terms of a CDP’s consistency with national or regional policy, so as not to give rise to significant public interest or adverse impacts on stakeholders. Material consistency in the plan-making context also appears to mean consistency with the entire NPF and RSES rather than merely the objectives.
What does ‘take due account’ of mean?
Again, “take due account” is a widely used term in the 2024 Act but not defined. It seems to replace the “have regard to” standard under the 2000 Act, which the courts found to be synonymous with “consider” and “take account of”. In other words, where a planning authority had regard to guidelines, they had to show some consideration of them but not normally provide reasons for departing from them.
The additional intensifier ‘due account’ is likely to be interpreted as requiring more weight, and we envisage a court to say it requires adequate reasons for diverging from NPPGs.
What difference does any of this make to planning decisions?
The 2024 Act better codifies what the legislature expects of each CDP. It should be easier to understand what a planning authority is required to implement in its plan and easier to hold the process to account during the plan-making stage. Ultimately, it should be easier for stakeholders to understand whether a planning permission accords with the requirements of the relevant CDP.
Most planning challenges concern arguments as to misinterpretation of the provisions of a CDP on issues such as density, height, public open space, traffic, and environment.
By bringing clarity as to mandatory elements of the CDP and how these apply to development proposals, the 2024 Act aims to remove inconsistency, uncertainty, and ambiguity in CDPs.
If CDPs are clearer to stakeholders, and planning applications are more aligned to what is required under the integrated overall strategy of the CDP, then planning departments will find it easier to assess whether or not to grant permission.
In this way the 2024 Act aims to overcome a lot of the problems encountered in the litigation of the last 25 years and reduce the number of challenges to planning decisions in the long term.
