The Planning and Development (Amendment) Act 2010 (2010 Act) has passed through the Dáil and Seanad and was signed into Irish law by the President on 26th July 2010. The main body of the 2010 Act came into force under a Commencement Order on the 28th of September. A number of other sections and related consequential amendments will commence at a later date.
The 2010 Act has the following implications on owners of network infrastructure.
1. Impact on Local Planning Procedures
In future local development plans and local area plans must be consistent with national and regional development objectives as set out in the National Spatial Strategy (NSS) and regional planning guidelines. In the past, local authorities were obliged to “have regard” to the NSS and regional planning guidelines, but not to necessarily comply with them. The 2010 Act requires local authorities to develop a “core strategy” to ensure adherence to the NSS and regional development plans, and to vary development plans where this is not demonstrated. The revision of development plans has already commenced. Telecoms operators may utilise these provisions to press for change where the telecoms policy of existing local development plans conflicts with national and regional policy. Obvious targets in this regard include Kerry County Council’s Development Plan where telecoms infrastructure is not permitted within 1km of places of human occupancy and Sligo County Council, where infrastructure is not permitted within 400m of a dwelling.
2. Default Planning Permission
Under the Planning and Development Act 2000 (2000 Act) local authorities had 8 weeks within which to decide, refuse or request further information in relation to a new planning application. Where none of these options were exercised permission issued by default. Under the 2010 Act local authorities now have a further 12 weeks in addition to the core 8 week period to remedy a failure to make a decision. The effect of this provision is to safeguard local authorities from inadvertently granting planning permissions owing to a punishing default position contained in the 2000 Act.
3. Extensions of Planning Permission
Tower developers may apply for extensions on the duration of a planning permission where the development is not completed. The 2000 Act allowed for extensions of permission only where the development was substantially completed, the 2010 Act allows for an extension where the development did not proceed due to “commercial, economic or technical” issues beyond the control of the applicant. Where operators hold unbuilt ‘live’ planning permissions with future development prospects the opportunity now exists to apply for the extension of permission. It shall not be possible to apply for an extension to the original permission earlier than 12 months from the date of expiry of that permission. An applicant may extend a particular permission on one occasion only.
4. Refusal of Planning Permission due to Prior Breach
Under the 2000 Act a local authority or An Bord Pleanála may refuse permission where an applicant has previously failed to comply with a planning permission or a condition attaching to a permission. Under the 2010 Act permission can now be refused if a person has either carried out a substantial unauthorised development or has been convicted of an offence under the 2000 Act. The applicant must receive prior notification of the intention to refuse permission affording him/her the opportunity to make submissions. The remedy is for the applicant to apply to the High Court (within eight weeks of notification) for an Order annulling the planning authority’s decision. Operators should continue to comply with planning permissions and with all conditions attaching and not to leave themselves open to the above provisions.