COVID-19: Exemptions from Planning Control

The State response to COVID-19 requires unprecedented action. That includes swift delivery of infrastructure and services to support testing and care for persons affected. Given the urgency, there is no time to submit to the ordinary planning process. Planning law is being changed to protect these steps from enforcement.

On 25 March, Minister Eoghan Murphy announced that he would take measures to allow temporary facilities, such as hospitals, isolation units, and step down facilities, to be developed without planning permission.

In response to the earlier announcement on 24 March that all restaurants should limit supply to takeaway food or delivery, the Minister announced that he would allow this “change of use” without the need for planning permission. There was also some relief for those delivering food and essential supplies that are subject to a planning condition that limits operating hours: the Minister secured assurance from local authorities that there should not be enforcement action.

Doesn’t the existing law protect emergency action from planning control?

It does, for some.

Local authorities do not need Part 8 approval where action is necessary for “dealing urgently with any situation which the Chief Executive considers is an emergency situation calling for immediate action”: section 179(6)(b) of the Planning Acts.

We have seen this exception relied upon to deliver emergency homeless accommodation, where the Courts have agreed that there is an emergency situation. These current circumstances surely meet that test.

State authority development of Garda stations, courthouses, prisons, barracks and Government offices are protected from the requirement for permission and instead subjected to a special form of limited public consultation and self-approval: section 181 of the Planning Acts. For development “required by reason of an accident or emergency”, an order can be made under subsection (2)(a) to dis-apply this self-approval process.

We have seen this exception relied upon to deliver customs and other infrastructure required to deal with Brexit: SI Nos. 57, 100, 284, 285 and 521 of 2019.

Unfortunately, this exception has little relevance to healthcare infrastructure, as this kind of emergency order can only relieve the listed classes of development, Garda stations etc., from the self-approval process. Ordinarily, healthcare infrastructure delivered by a State authority or the HSE would require planning permission and section 181(2)(a) emergency order could not change that.

Finally, it is well established that a Court can rely on the public interest or worthy conduct, like in response to an emergency, to dismiss any enforcement action.

What is being done now in response to Covid-19?

On 26 March, two draft regulations were published. These will soon be signed by the Minister.

The draft Planning and Development Act 2000 (Section 181) Regulations 2020 will protect State authority development from the requirement for permission. Unlike for Garda stations etc., there will not be any self-approval process. For the period of this emergency, the Planning Acts will not apply to the following categories of development:

  • acute and other health and social care accommodation,
  • self-isolation or other Covid-19 related short stay accommodation,
  • Covid-19 and other step down accommodation,
  • medical testing centre or laboratory,
  • emergency management coordination facilities,
  • mortuary facilities,
  • ancillary and other accommodation including storage facilities, and
  • ancillary infrastructure and other works to support the above development.

So long as the development is carried out by or on behalf of a Minister of Government or the Office of Public Works, planning control is irrelevant for these kinds of development.

The draft Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2020 deal with restaurants.

For the period of this emergency, the following shall be exempted development:

“development consisting of a change of use from use for the sale of food for consumption on the premises to use for the sale of food for consumption off the premises”.

This class is inserted to Class 14 of Part 1 of the Second Schedule to the Planning Regulations. The exemption will be lost where any of the circumstances listed in article 9 apply. This means the exemption will not help any restaurant that has a planning condition that expressly prohibits takeaway service or any unauthorised restaurant use.

Upon expiration of the emergency period, the use of the premises for takeaway will no longer be exempted development. The premises may lawfully return to use for eating in.

For both regulations, the emergency period will end as soon as Part 3 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 ceases to have effect, i.e., when the State no longer needs the power to isolate and detain infected persons. As of today, the period will continue until 9 November 2020.

The two regulations do not attempt to provide relief for supermarkets, takeaways and restaurants operating under planning permissions with strict conditions limiting opening times or subject to an express prohibition on takeaway. Those businesses must rely on the discretion of enforcement authorities and the Courts. The assurance secured by the Minister is very helpful, particularly when business had received mixed messages. Also, in practice, it will be difficult to progress enforcement action during this period of time where the Courts are focused on urgent matters. Some real and pressing harm would have to be shown.

Click here to view the draft Planning and Development Act 2000 (Section 181) Regulations 2020 and here to view the draft Planning and Development Act 2000 (Exempted Development) (No. 2) Regulations 2020.

Should you have any queries on the forthcoming planning regulations or the power to freeze time-limits in the planning code under the Emergency Measures in the Public Interest (Covid-19) Bill 2020 (link to briefing here), please contact Brendan Slattery, Eva Barrett, Sinead Martyn, Mark Aherne or your usual contact in McCann FitzGerald.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.