COVID-19: Adapting the Planning and Building Control Systems
The Government's second Covid-19-related Bill, published on 24 March 2020, is the Emergency Measures in the Public Interest (COVID-19) Bill 2020 (Bill). In it, the Planning and Development system is listed as one of several 'vital public service functions' deemed to have real potential to be seriously compromised by the impacts of COVID-19.

 

The Government's second Covid-19-related Bill, published on 24 March 2020, is the Emergency Measures in the Public Interest (COVID-19) Bill 2020 (the Bill).  In it, the Planning and Development system is listed as one of several 'vital public service functions' deemed to have real potential to be seriously compromised by the impacts of COVID-19. 

COVID-19 – A Major Adaptation introduced for the Planning System

The Bill's provisions that relate to planning recognise that the planning system is heavily dependent on the functioning of the planning departments and building control departments of local authorities.  The planning system is also subject to numerous time limits that apply to each of the various steps taken in the planning process, most notably by developers but also by third party observers, statutory consultees, the local authority executive and planning staff as well as by elected members of local authorities.   

The Bill recognises that existing Covid 19 response measures on meetings, attendance at work and on social distancing will make it difficult, and in many cases impracticable, for key planning procedural steps to be undertaken effectively.  These steps include pre-planning meetings, the finalisation and lodgement of planning applications, consideration and decision-making relating to planning applications, the submission of observations and appeals, and, of course the implementation of planning permissions (as a result of disruption to construction and site work). Implicit also in the Bill's provisions is the potential for local authority offices and planning departments to have to close temporarily. 

Suspension of Time Period Calculation

In summary, the Bill provides for the introduction (at a time to be determined by the Minister for Housing, Planning and Local Government) of a pause period in the calculation and running of an extremely wide range of time periods and times limits referred in the planning and development legislation.  Indeed, the measure, when introduced, will apply, not just to the core Planning and Development Acts 2000-2019, but to time limits in a series of related regimes such as: 

  • the Building Control Act 1990,
  • the Derelict Sites Act 1990
  • the Urban Regeneration and Housing Act 2015 (concerned with the 'Vacant Site Levy' system); and
  • The Planning and Development (Housing) and Residential Tenancies Act 2016 (the part of that Act concerned with the new fast track planning system for 'strategic housing development').

The central Covid-19 related accommodation for the planning system is that a particular pause or freeze period, when activated by the Minister will apply to any "appropriate period, specified period or other time limit" referred to in the legislation mentioned above (or in any Regulations made under that legislation) so that, in calculating the running of any such time limit (and whether it has elapsed or expired etc), that pause period 'shall be disregarded'.  In effect, the length of the pause period can be added to the length of whatever is the relevant statutory time frame or time limit. 

When does the time pause start and how long will it last for? 

The overall Bill (which covers a range of fields and sectors in addition to the planning system) is an emergency measure and is therefore likely to become law in a matter of days. However the pause period for planning is not expected to come into force straight away.  It is envisaged that at some point after the Bill passes into law, the Minister for Housing, Planning and Local Government will make an order to bring into effect the parts of the Bill dealing specifically with the planning system. 

That commencement order relating to planning will itself operate as the start of the pause period. Immediately after the commencement order, the Government must announce when the pause period is to terminate. The Bill makes it clear the length of the pause period will be determined by the Government's view of how the Covid-19 situation is evolving. The Bill makes provision for the initial pause period to be extended. However, as an indication of the Government's desire to balance planning flexibility in the current crisis with minimising long-term disruption to the planning system, the Bill includes a longstop date under which the initial pause period, plus any extension, cannot run later than 9 November 2020 (at least without a later legislative amendment down the line). For the present though, the planning system time limits are running as they normally do (on 26 March the Minister emphasised that he did not envisage introducing the commencement order and triggering the pause period straight after the Bill became law). However, that provision is being made for its introduction in the Emergency Bill indicates the Government's view that it may well become a necessary measure.

Some planning procedures and time limits affected

The proposed new time limit pause mechanism will be extremely broad in its application.  Looking at some of the Planning Acts and related systems in more detail: 

  • For the core Planning and Development Acts, the entire Act will be captured by the time limit change.  This starts with all the time limits that apply to the various steps involved in the making and variation of  development plans and local area plans; the time periods that apply to all the steps involved in the processing of standard planning applications and appeals; to the bringing of judicial review challenges to the decisions of planning authorities; as well as to the time limits specified for the different types of planning enforcement process (warning letters, enforcement notices, injunctions, prosecutions etc).

    Importantly (in the context, again, of impact on construction activity) the statutory duration or 'life' of a planning permission will also be covered. But, because the Planning and Development Acts cover much more than just standard planning applications, a range of time limits related to other processes will be covered. For example, the Planning Acts are the vehicle through which many environmental assessments such as 'environmental impact assessments' and Habitats Directive 'appropriate assessments' take place.  Therefore, the time limit for those assessments and the related public participation steps will be within the scope of the new time limit changes.

    The changes will also be relevant to many current transport, energy and environmental infrastructure projects and development applications since all 'strategic infrastructure development' ultimately takes place under Planning and Development legislation.
  • Under the Building Control Act 1990, existing time limits that will be affected and extended include those relating to; the furnishing of certificates of compliance; to applications for dispensation and to the initiation of proceedings by building control authorities.
  • The vacant site levy regime has numerous stages and steps and related time frames. Of relevance in the current phase of that regime are the time limits for the setting the market value of sites placed on the vacant site register by the planning authorities and the time limits for landowners' appeals against those valuations.   
  • In relation to the new 'strategic housing development' system, (the specialised planning process for housing developments of 100 units or more), among the time limits affected will be the 16-week period for the decision-making by An Bord Pleanála.

A Practical Response? 

The approach being taken – a universal pause on all planning-related time limits – has the merit and appearance of practicality, equity and efficiency. But the proposed umbrella time limit change to the planning system is being introduced as part of a wider, fast-moving legislative response from the Government to the Covid-19 pandemic. Inevitably, it will generate its own uncertainties and controversies, many of which will emerge once the pause period is over and its application to and effect on specific projects, developments and applications is assessed and examined. 

Already, certain aspects of the proposal are unclear from the Bill:  for example, whether the steps and time limits in planning permission conditions (which frequently entail post-grant engagement with planning authorities) will be covered Also, whether the time limits stipulated in enforcement notices will be caught?  In addition, it is unclear if certain planning-related regimes not expressly referenced in the Bill (but that are referenced in the Planning Acts) will be covered, such as the time limits for compulsory acquisition processes where they accompany or facilitate development projects.

The time limit pause will not follow immediately the Emergency Bill becomes law, However, that provision is being made for its introduction in the Bill indicates the Government's view that it may well become a necessary measure very quickly. We will  keep you posted on developments. 

For further information on the Bill or to discuss the impact of its provisions on your business, please contact Conor Linehan or your usual William Fry contact.

 

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