The Planning and Development (Housing) and Residential Tenancies Act 2016 (the 2016 Act) introduced new streamlined arrangements to enable planning applications for strategic housing developments (SHDs) of 100 housing units or more, or student accommodation or shared accommodation developments of 200 bed spaces or more, to be made directly to An Bord Pleanála (the Board) for determination.
Under the 2016 Act, planning applications for SHDs may only be made to the Board where the proposed development is on land zoned for such use. The zoning of lands for particular uses is a reserved function of the elected members of a planning authority, in accordance with the statutory development plan procedures under the parent Planning and Development Act 2000, as amended (the 2000 Act).
Section 9(6) of the 2016 Act empowers the Board, where it deems it appropriate, to grant planning permission for a SHD that materially contravenes the development plan or local area plan relating to the area concerned and, in this regard, requires the Board to set out the main reasons and considerations for doing this in its decision. However, the Board shall not grant permission where the proposed development would materially contravene the zoning objective of the relevant plan. I have no proposals to amend the existing SHD provisions in this regard.
The SHD provisions in the 2016 Act are in line with the pre-existing provisions in the 2000 Act, relating to the determination of planning applications generally, which provide that, where a proposed development would materially contravene the development plan, a planning authority may decide to grant permission, provided that the requirements set out in section 34(6) of the 2000 Act are complied with. In cases on appeal, where a planning authority has refused to grant permission for a proposed development because it would materially contravene the local development plan, and in certain cases where planning applications are made directly to the Board, the Board may grant planning permission for a proposed development that materially contravenes the development plan in specified circumstances only.
In this regard, it should be noted that, in making determinations on planning appeals or applications, the Board is required to have regard to not only the local development plan, but also to planning guidelines issued by the Minister for Housing, Planning and Local Government under section 28 of the 2000 Act, as well as to other relevant Government policies and objectives. Development plans are generally drafted and adopted in accordance with national policies and objectives, as well as statutory planning guidelines which are current at the time of their adoption.
However, there can be instances where new Government policies and objectives are adopted after the adoption of a development plan - for example, by way of "specific planning policy requirements" included in new or updated planning guidelines issued by the Minister - thereby superseding specific local policies in the development plan, and which consequently the Board is required to have regard to in the determination of planning appeals or applications before it. This can result in the Board attaching greater significance to new and updated Government policy than to a development plan objective that may have been adopted a number of years ago, thereby resulting in the contravening of specific aspects of the development plan by the Board in making its determination on a planning appeal or application.