Irish Legislation

Number 47 of 2022

Planning and Development and Foreshore (Amendment) Act 2022

CONTENTS

PART 1

Preliminary and General

Section

1. Short title, collective citation and commencement

PART 2

Amendment of Planning and Development Act 2000

2. Definition (Part 2)

3. Amendment of section 4 of Act of 2000

4. Amendment of section 104 of Act of 2000

5. Amendment of section 105 of Act of 2000

6. Appointment of chairperson on interim basis

7. Amendment of section 106 of Act of 2000

8. Saver of power of Minister to appoint under section 106(1)(e) of Act of 2000

9. General power of deputy chairperson to perform functions of chairperson where office is vacant

10. Amendment of section 108 of Act of 2000

11. Amendment of section 110 of Act of 2000

12. Amendment of section 111 of Act of 2000

13. Amendment of section 179 of Act of 2000

14. Local authority own housing development

PART 3

Amendment of Foreshore Act 1933

15. Definition (Part 3)

16. Amendment of section 1 of Act of 1933

17. Subsoil below, and water column above, foreshore

18. Provisions relating to certain other leases, licences, etc.

20. Provisions relating to certain other aquaculture licences

21. Provisions with respect to certain other court proceedings

Acts Referred to

Civil Service Regulation Acts 1956 to 2005

Education and Training Boards Act 2013 (No. 11)

Fisheries (Amendment) Act 1997 (No. 23)

Fisheries and Foreshore (Amendment) Act 1998 (No. 54)

Foreshore Act 1933 (No. 12)

Foreshore Acts 1933 to 2021

Local Government Act 2001 (No. 37)

Planning and Development Act 2000 (No. 30)

Regional Technical Colleges Act 1992 (No. 16)

Technological Universities Act 2018 (No. 3)

Number 47 of 2022

PLANNING AND DEVELOPMENT AND FORESHORE (AMENDMENT) ACT 2022

An Act to amend the Planning and Development Act 2000 in relation to the appointment of, and the efficient discharge of business of, An Bord Pleanála and, in order to facilitate and accelerate the provision of housing on lands owned by local authorities and certain state authorities, to provide that certain housing development on such lands be exempted development, and to amend the Foreshore Act 1933 .

[20th December, 2022]

Be it enacted by the Oireachtas as follows:

PART 1

Preliminary and General

Short title, collective citation and commencement

1. (1) This Act may be cited as the Planning and Development and Foreshore (Amendment) Act 2022.

(2) The collective citation the Planning and Development Acts 2000 to 2022 includes Part 2 of this Act.

(3) Part 3 of this Act and the Foreshore Acts 1933 to 2021 may be cited together as the Foreshore Acts 1933 to 2022.

(4) This Act, other than Part 3 , shall come into operation on such day or days as the Minister for Housing, Local Government and Heritage may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes and different provisions.

PART 2

Amendment of Planning and Development Act 2000

Definition (Part 2)

2. In this Part, “Act of 2000” means the Planning and Development Act 2000 .

Amendment of section 4 of Act of 2000

3. Section 4(1) of the Act of 2000 is amended by the insertion of the following paragraph after paragraph (f):

“(fa) development to which section 179A applies;”.

Amendment of section 104 of Act of 2000

4. Section 104 of the Act of 2000 is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) Subject to subsection (2), the Board shall consist of a chairperson and such number of ordinary members, up to a maximum of 14, as the Minister may appoint having regard to the number and nature of applications, appeals, referrals or other matters with which the Board is concerned.”,

(b) by the substitution of the following subsection for subsection (2):

“(2) The Minister may by order increase the number of ordinary members above 14 where he or she is of the opinion that the number of applications, appeals, referrals or other matters with which the Board is concerned is at such a level so as to necessitate the appointment of one or more additional Board members to enable the Board fulfil its duty and objectives under section 37J, 126, 126A, 177C, 177E or 221, or section 47E of the Act of 2001.”,

(c) by the deletion of subsection (3),

(d) in subsection (4)—

(i) by the substitution of the following paragraph for paragraph (a):

“(a) Notwithstanding subsection (2), where the Minister is of the opinion that one, or more than one, additional ordinary member should be appointed as a matter of urgency due to the number of applications, appeals, referrals or other matters with which the Board is concerned, the Minister may, subject to paragraphs (b) and (c), appoint, from persons who are, or were formerly, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005, established public servants in state agencies or employees of the Board, one, or more than one person, who is, in the opinion of the Minister, a suitably qualified person on a temporary basis,”,

and

(ii) in paragraph (c), by the deletion of “, and the number of ordinary members appointed under this subsection shall not exceed one third of the total number of ordinary members at any one time”.

Amendment of section 105 of Act of 2000

5. Section 105 of the Act of 2000 is amended—

(a) in subsection (8), by the insertion of “an appointment under section 105A or” after “in the case of”, and

(b) in subsection (12), by the insertion of “(other than a chairperson appointed on an interim basis under section 105A)” after “the chairperson”.

Appointment of chairperson on interim basis

6. The Act of 2000 is amended by the insertion of the following section after section 105:

“105A. (1) Where no chairperson stands appointed under section 105 the Government may, subject to subsections (2) and (3), appoint, from persons who are, or were formerly, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005, established public servants in state agencies or employees of the Board, a person who is, in the opinion of the Government, a suitably qualified person, to be the chairperson for a period of not more than 12 months.

(2) Notwithstanding subsections (1) and (3), a person appointed to be the chairperson under this section shall cease to hold office on the appointment of a chairperson by the Government under section 105.

(3) Subsections (11), (13), (14) and (15) of section 105 shall apply to a chairperson appointed under subsection (1).

(4) A person appointed to be the chairperson under this section who ceases to hold office in accordance with subsection (1) or (2) may be re-appointed by the Government for a second term under subsection (1) or appointed by the Government in accordance with section 105.”.

Amendment of section 106 of Act of 2000

7. Section 106 of the Act of 2000 is amended—

(a) by the substitution of the following subsection for subsection (1):

“(1) The Minister shall ensure, in so far as is practicable, that—

(a) the ordinary members of the Board are persons who, in the opinion of the Minister, have satisfactory experience of, or a satisfactory mix of experience and knowledge of, infrastructure delivery, housing, physical planning, sustainable development, architecture, heritage, community affairs, social affairs, planning, the environment, the marine, climate change, law and corporate governance, and

(b) there is an equitable balance among the ordinary members between men and women.”,

(b) by the substitution of the following subsection for subsection (2):

“(2) The Minister shall establish a suitable, independent, objective, and transparent procedure (which may include the establishment of a committee), in accordance with which recommendations may be made to the Minister in relation to the appointment of ordinary members of the Board.”,

(c) by the substitution of the following subsection for subsection (3):

“(3) The Minister may make regulations providing for such matters as the Minister considers necessary for the purpose of establishing the procedure referred to in subsection (2) including, where a committee is established under that section, regulations pertaining to the membership of the committee.”,

(d) by the substitution of the following subsection for subsection (4):

“(4) The procedure provided for under subsection (2) shall require that—

(a) applications be invited from suitably qualified persons for appointment as an ordinary member of the Board,

(b) a panel of candidates suitable for appointment as an ordinary member be prepared having regard to the knowledge, experience, qualifications and personal qualities appropriate to enable a person to perform the functions of an ordinary member effectively,

(c) the Minister be informed of the names of the candidates on the panel and the reasons why such candidates are suitable for the appointment, and

(d) a recommendation be made to the Minister regarding which candidate on the panel the Minister should appoint as an ordinary member.”,

(e) by the substitution of the following subsection for subsection (5):

“(5) Except in the case of a re-appointment under subsection (12) and subject to section 104(4) and section 108(4), the Minister shall not appoint a person to be an ordinary member other than a person recommended in accordance with the procedure established under subsection (2).”,

(f) by the deletion of subsections (6) to (8), and

(g) by the substitution of the following subsection for subsection (9):

“(9) The Minister may make regulations as regards any matter which the Minister considers expedient for the purposes of this section.”.

Saver of power of Minister to appoint under section 106(1)(e) of Act of 2000

8. Notwithstanding the repeal of paragraph (e) of section 106(1) of the Act of 2000 by section 7 (a) the Minister may continue to make appointments under that paragraph until such time as the Minister makes an appointment in accordance with section 106(1) of that Act inserted by section 7 (a).

General power of deputy chairperson to perform functions of chairperson where office is vacant

9. The Act of 2000 is amended by the insertion of the following section after section 107:

“107A. Where the office of chairperson is vacant the deputy chairperson may perform any function of the chairperson.”.

Amendment of section 108 of Act of 2000

10. Section 108 of the Act of 2000 is amended—

(a) in subsection (1), by the substitution of “A quorum” for “Subject to subsection (1A) (inserted by section 41) a quorum”,

(b) by the deletion of subsections (1A) to (1D), and

(c) in subsection (4), by the substitution of the following paragraph for paragraph (a):

“(a) Where, owing to the illness of the chairperson or of an ordinary member, or for any other reason, a sufficient number of members of the Board is not available to enable the Board effectively to perform its functions, the Minister may, as an interim measure, appoint, from persons who are, or were formerly, established civil servants for the purposes of the Civil Service Regulation Acts 1956 to 2005, established public servants in state agencies or employees of the Board, one or more than one person who is, in the opinion of the Minister, a suitably qualified person, to be an ordinary member.”.

Amendment of section 110 of Act of 2000

11. Section 110 of the Act of 2000 is amended—

(a) by the substitution of the following subsection for subsection (2):

“(2) Where the chairperson considers, on foot of a complaint or otherwise, that an ordinary member may have failed to comply with a code of conduct adopted by the Board under section 150 or that the conduct of an ordinary member may have been such as to bring the Board into disrepute or may have been prejudicial to the effective performance by the Board of all or any one or more of its functions, he or she may in his or her absolute discretion—

(a) require the member of the Board to attend for interview and there interview the member privately, or

(b) where he or she considers it appropriate to do so, otherwise investigate the matter,

and, if he or she considers it appropriate to do so, report to the Minister the result of the interview or investigation.”,

and

(b) by the insertion of the following subsection after subsection (2):

“(3) Where the Minister considers that the conduct of an ordinary member may have been such as to bring the Board into disrepute or may have been prejudicial to the effective performance by the Board of all or any one or more of its functions, he or she may request the chairperson to—

(a) conduct an interview with the board member privately, or

(b) otherwise investigate the matter,

and report to the Minister the result of the interview or investigation.”.

Amendment of section 111 of Act of 2000

12. Section 111 of the Act of 2000 is amended by the insertion of the following subsections after subsection (7):

“(8) Notwithstanding any provision of this Act, a meeting of An Bord Pleanála, including a division of the board, may take place using remote video or telephone conferencing facilities or by any means of communication by which all of the board members and other persons participating in different locations can hear and be heard at the same time.

(9) In subsection (8), ‘meeting’ includes any meeting for the purpose of making any decision in relation to any appeal, referral or application.”.

Amendment of section 179 of Act of 2000

13. Section 179 of the Act of 2000 is amended in subsection (1)(a), by the insertion of “, other than development to which section 179A applies,” after “a development or a class of development”.

Local authority own housing development

14. The Act of 2000 is amended by the insertion of the following section after section 179:

“179A. (1) This section applies to housing development—

(a) that is carried out by, on behalf of, or jointly or in partnership with, a local authority pursuant to a contract entered into by the local authority concerned, whether in its capacity as a planning authority or in any other capacity,

(b) that does not materially contravene the development plan or local area plan for the area,

(c) that is in accordance with the strategy included in the development plan for the area in accordance with section 94(1),

(d) that is not subject to a requirement, in accordance with the Environmental Impact Assessment Directive, for an assessment with regard to its effects on the environment,

(e) that is not subject to a requirement, in accordance with the Habitats Directive, for an appropriate assessment,

(f) that is on land—

(i) that is owned by a local authority or a State Authority,

(ii) that is zoned for residential use, and

(iii) that has access, or can be connected, to public infrastructure and facilities, including roads and footpaths, public lighting, foul sewer drainage, surface water drainage and water supply, necessary for dwellings to be developed and with sufficient service capacity available for such development,

and

(g) that is commenced on or before 31 December 2024.

(2) Prior to the commencement of development to which this section applies, the chief executive of the local authority shall inform the members of the local authority in relation to the development and shall provide documents, particulars or plans relevant to the development to the members.

(3) The Minister may make regulations providing for any or all of the following matters in respect of development to which this section applies:

(a) the giving of public notice by the local authority in respect of the development;

(b) the publication by a local authority of any specified notice in respect of the development;

(c) the making available for inspection, including by members of the public, of documents, particulars, plans or other information in relation to the development;

(d) notification by the local authority in respect of such development to such bodies as the Minister may prescribe;

(e) the entry of particulars of the development in the register;

(f) procedures for determining, through a case-by-case basis examination or by reference to prescribed thresholds or criteria, whether the development is one which should be made subject in accordance with the Environmental Impact Assessment Directive to a requirement for an assessment with regard to its effects on the environment, the information to be provided for the purposes of such a determination, the basis on which such a determination is to be made, the time for such a determination, the contents of such a determination, and the making available to the public of such a determination;

(g) procedures for determining whether the development is one which should be made subject, in accordance with the Habitats Directive, to an appropriate assessment;

(h) a requirement that local authorities provide the Minister with information regarding developments that have been notified, commenced, and completed, the type of information to be provided and the frequency with which such information is to be provided.

(4) Sections 138 , 139 and 140 of the Local Government Act 2001 shall not apply in respect of development to which this section applies.

(5) In this section—

‘housing development’ includes—

(a) the construction or erection of a house or houses,

(b) the construction of a new road or the widening or realignment of an existing road, to serve houses referred to in paragraph (a),

(c) the construction or erection of pumping stations, treatment works, holding tanks or outfall facilities for waste water or storm water, to serve houses referred to in paragraph (a),

(d) the laying underground of sewers, mains, pipes or other apparatus,

(e) the provision of open spaces, recreational and community facilities and amenities and landscaping works to serve houses referred to in paragraph (a), and

(f) the provision of car parks, car parking places, surface water sewers and flood relief work, and ancillary infrastructure to serve houses referred to in paragraph (a);

‘State Authority’ means any of the following:

(a) a Minister of the Government;

(b) an Education and Training Board established under the Education and Training Boards Act 2013 ;

(c) Courts Service;

(d) Digital Hub Development Agency;

(e) Dublin Institute for Advanced Studies;

(f) Enterprise Ireland;

(g) Environmental Protection Agency;

(h) the Garda Síochána;

(i) Health Service Executive;

(j) Housing and Sustainable Communities Agency;

(k) Industrial Development Agency (Ireland);

(l) an Institute of Technology being a college within the meaning of section 2 of the Regional Technical Colleges Act 1992 ;

(m) Institute of Public Administration;

(n) Prison Service of the Department of Justice which is charged with the management of prisons;

(o) Legal Aid Board;

(p) Marine Institute;

(q) National Archives;

(r) Oberstown Children Detention Campus;

(s) Commissioners of Public Works in Ireland;

(t) Ordnance Survey Ireland;

(u) Sport Ireland;

(v) State Laboratory;

(w) Teagasc - the Agriculture and Food Development Authority;

(x) a technological university established by virtue of an order under section 36 of the Technological Universities Act 2018 ;

(y) An tSeirbhís Oideachais Leanúnaigh agus Scileanna.”.

PART 3

Amendment of Foreshore Act 1933

Definition (Part 3)

15. In this Part, “Act of 1933” means the Foreshore Act 1933 .

Amendment of section 1 of Act of 1933

16. Section 1 of the Act of 1933 is amended by the insertion of the following definition after the definition of “Act of 2005”:

“‘Act of 2022’ means the Planning and Development and Foreshore (Amendment) Act 2022;”.

Subsoil below, and water column above, foreshore

17. The Act of 1933 is amended by the insertion of the following section after section 1A:

“1AA. The word ‘foreshore’ defined in section 1 is deemed to include, and always to have included, the subsoil below, and the water column above the bed and shore referred to in that definition.”.

Provisions relating to certain other leases, licences, etc.

18. The Act of 1933 is amended by the insertion of the following section after section 3A:

“3AA. (1) Where a lease, licence or consent was granted by the appropriate Minister before the passing of Part 3 of the Act of 2022 that relates to or includes an area that, but for section 1AA would not be foreshore, the lease, licence or consent (including any terms and conditions) shall have effect by reference to the definition of foreshore (as amended by section 17 of the Act of 2022) in section 1 of this Act.

(2) Where—

(a) any measures were taken by the appropriate Minister before the passing of Part 3 of the Act of 2022, and

(b) those measures relate in whole or in part to an area that, but for section 1AA of this Act, would not form part of the foreshore,

then those measures shall have effect, and be deemed always to have had effect, by reference to the definition of ‘foreshore’ (as amended by section 17 of the Act of 2022) in section 1 of this Act.

(3) If, because of any provision of subsection (1) or (2) of this section, that provision would conflict with the constitutional rights of any person, then that provision shall be subject to such limitations as are necessary to secure that it does not so conflict but shall otherwise be of full force and effect.”.

Provisions relating to certain other applications for lease, licence or consent

19. The Act of 1933 is amended by the insertion of the following section after section 3B:

“3BA. (1) Where before the passing of Part 3 of the Act of 2022—

(a) an application was made to the appropriate Minister for a lease, licence or consent,

(b) the application relates to or includes an area that but for section 1AA would not be foreshore, and

(c) the application has not been finally determined before such passing,

then in determining the application account may be taken of the definition of foreshore (as amended by section 17 of the Act of 2022) in section 1 of this Act.

(2) If, because of any provision of subsection (1) of this section, that provision would conflict with the constitutional rights of any person, then that provision shall be subject to such limitations as are necessary to secure that it does not so conflict but shall otherwise be of full force and effect.”.

Provisions relating to certain other aquaculture licences

20. The Act of 1933 is amended by the insertion of the following section after section 3C:

“3CA. (1) Where a foreshore licence was deemed by—

(a) section 75 of the Fisheries (Amendment) Act 1997 , or

(b) section 3 of the Fisheries and Foreshore (Amendment) Act 1998 ,

to be an aquaculture licence and that foreshore licence relates to or includes an area that, but for section 1AA of this Act, would not be foreshore, then the aquaculture licence shall have effect, and be deemed always to have had effect, by reference to the definition of ‘foreshore’ (as amended by section 17 of the Act of 2022) in section 1 of this Act.

(2) Where before the passing of Part 3 of the Act of 2022—

(a) a foreshore licence was granted that relates in whole or in part to aquacultural purposes, and

(b) an aquaculture licence was granted in respect of those aquacultural purposes and those purposes relate to or include an area which, in whole or in part, would not be foreshore but for section 1AA of this Act,

then the aquaculture licence shall have effect, and be deemed always to have had effect, by reference to the definition of ‘foreshore’ (as amended by section 17 of the Act of 2022) in section 1 of this Act.

(3) If, because of any provision of subsection (1) or (2) of this subsection, that provision would conflict with the constitutional rights of any person, then that provision shall be subject to such limitations as are necessary to secure that it does not so conflict but shall otherwise be of full force and effect.”.

Provisions with respect to certain other court proceedings

21. The Act of 1933 is amended by the insertion of the following section after section 16A:

“16B. (1) Where, before the passing of Part 3 of the Act of 2022, a court made a finding as to whether an area is or is not foreshore, then that finding shall not be affected by reference to section 1AA of this Act.

(2) Where the validity of any lease, licence or consent to which section 3AA(1) of this Act relates has been challenged in court proceedings instituted before 9 November 2022 by reference to the area in respect of which it was granted, then the said section 3AA(1) shall not apply to that lease, licence or consent.”.