knowledge | 25 March 2020

COVID-19: Planning Code Time-Limits will be Frozen

The proposed Emergency Measures in the Public Interest (Covid-19) Bill 2020 will give to the Minister for Housing, Planning and Local Government the power to freeze all time-limits in the planning code.

Specifically, under new section 251A of the Planning and Development Act, 2000 (as amended), the period of the emergency shall be disregarded when "calculating any appropriate period, specified period or other time limit".

How long will this last?

The freeze will begin on the date the section comes into operation. That date will be selected by the Minister for Housing, Planning and Local Government in the commencement order that brings section 251A into force. That can be expected to be triggered by any public health decision to close public offices.

The end date will be selected by the Government. That end date may be extended several times, subject to a longstop of 9 November 2020. For an indication of current Government thinking about the possible length of the emergency period, there is elsewhere in the Bill a period of three months given for tenant protection and an end date of 31 May given for employee protection. As with the planning code, there is a method for extension of those.

The freeze will provide 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 will close on them during the emergency period.

What is affected?

The freeze does not prevent developers from making fresh applications for permission. However, no decision can be made, as the public consultation window cannot close.

For pending applications, planning authorities will be free to make decisions during the freeze, but only where the public consultation window has closed before the start of the emergency period. Of course, the prospect of an appeal will remain open until the freeze ends.

For pending appeals to An Bord Pleanála, the same logic applies and the prospect of legal challenge will remain open until the freeze ends. Planning authorities and An Bord Pleanála will remain free to make any decision that does not require public consultation.

For anyone exposed to enforcement, it will take longer to achieve the seven-year and sixty-three day limitation period.

For anyone with permissions expiring, they might have more time to commence and complete development or apply for an extension of duration. It seems that will depend on whether the expiry date of the permission is a date certain. That is because 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 [2017] IEHC 818.

There is a difference from section 251. The phrase "specified period" is added. That appears intended to extend the period during which the prospect of securing permission for strategic housing development is available. Last December, 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 will also apply to time calculations under legislation on derelict sites, vacant sites and building control.

When will this become law?

The Dáil will consider the Bill on Thursday 26 March. As the current Seanad is to dissolve on Sunday 29 March, the Bill will likely be passed before then. If you take the emergency law to introduce lockdown powers as an example, the President will likely sign off on the same day. That law was initiated 16 March, passed by the Dáil 19 March, by the Seanad 20 March and signed into law the same day.

The Minister is likely to explain when the freeze will come into force during the Dáil debate on Thursday.

Download the bill below.

Also contributed by Sinéad Martyn and Mark Aherne

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This briefing is 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.

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