knowledge | 18 June 2020 |
COVID-19: Planning Code Time-Limits Were Frozen
The Emergency Measures in the Public Interest (Covid-19) Act 2020 gave the Minister for Housing, Planning and Local Government the power to freeze all time-limits in the planning code
Specifically, under the new section 251A of the Planning and Development Act, 2000 (as amended), the period of the emergency could be disregarded when "calculating any appropriate period, specified period or other time limit".
How long did this last?
A 56 day freeze began on 29 March 2020 and concluded on Saturday 23 May 2020. The 29 March was the start date selected by the Minister for Housing, Planning and Local Government in SI 100 of 2020, the commencement order which brought section 251A into force. The Taoiseach initially signed an order selecting 20 April as the end date for the freeze. This was subsequently extended.
The freeze brought welcome relief for planning officials under pressure to make decisions about development plans, planning applications or enforcement. Similarly, for the public concerned, no consultation window or deadline for legal challenge under the planning code could close on them during the emergency period.
What was affected?
The freeze did not prevent developers from making fresh applications for permission. However, no decision could be made as the public consultation window could not close.
For pending applications, planning authorities were free to make decisions during the freeze, but only where the public consultation window had closed before the start of the emergency period. Of course, the prospect of an appeal remained open until the freeze ended. For applications made on or after 21 February, the public consultation window did not close until after 23 May 2020.
For appeals which were pending to An Bord Pleanála at the time the freeze began the same logic applied and the prospect of legal challenge remained open until the freeze ended. Planning authorities and An Bord Pleanála remained free to make any decision that did not require public consultation.
For anyone exposed to enforcement, the freeze meant it would take longer to achieve the seven-year and sixty-three day limitation period.
Anyone with permissions expiring, had more time to commence and complete development or apply for an extension of duration. However, this depended on whether the expiry date of the permission was a date certain. Section 251A uses similar language to that already in section 251, which the High Court has explained does not affect a date certain: Drumquin Construction (Barefield) Ltd v Clare County Council  IEHC 818.
There is a difference from section 251. The phrase "specified period" has been added. This appears to have been intended to extend the period during which the prospect of securing permission for strategic housing development is available. In December 2019, the Minister extended that specified period to 31 December 2021. However, as that too is a date certain, it is far from clear that this method for extension is effective.
The freeze also applied to time calculations under legislation on derelict sites, vacant sites and building control.
When did this become law?
Also contributed by Sinéad Martyn and Mark Aherne
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.