Planning and Development (Housing) and Residential Tenancies Act 2016

9.

Decisions by Board on applications under section 4

9. (1) The Board shall, before making a decision to which subsection (4) relates in respect of the proposed strategic housing development, consider—

(a) (i) the report of the planning authority or, where the proposed development is in the area of more than one planning authority, the report of each such authority submitted in accordance with section 8(5) ,

(ii) any submissions or observations duly received by the Board consequent on—

(I) the publication of a notice pursuant to paragraph (a)(vii) of section 8(1) , or

(II) the sending of a notice pursuant to subparagraph (ii) of paragraph (b), or to paragraph (c), of section 8(1) ,

and

(iii) any other relevant information,

in so far as they relate to—

(A) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the development,

(B) the likely effects on the environment or the likely effects on a European site, as the case may be, of the proposed development, if carried out,

(b) where required, an F14 [ environmental impact assessment report or Natura impact statement or both that report and that statement ], as the case may be, submitted to the Board pursuant to section 8(2), and

(c) any report or recommendation prepared in relation to the application in accordance with section 146 of the Act of 2000, including the report of the person conducting any oral hearing of the proposed development.

(2) In considering the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the strategic housing development, the Board shall have regard to—

(a) the provisions of the development plan, including any local area plan if relevant, for the area,

(b) any guidelines issued by the Minister under section 28 of the Act of 2000,

(c) the provisions of any special amenity area order relating to the area,

(d) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c) of the Act of 2000, that fact,

(e) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c) of the Act of 2000, that fact,

(f) the matters referred to in section 143 of the Act of 2000, and

(g) the provisions of the Planning and Development Acts 2000 to 2016 and regulations made under those Acts where relevant.

(3) (a) When making its decision in relation to an application under this section, the Board shall apply, where relevant, specific planning policy requirements of guidelines issued by the Minister under section 28 of the Act of 2000.

(b) Where specific planning policy requirements of guidelines referred to in paragraph (a) differ from the provisions of the development plan of a planning authority, then those requirements shall, to the extent that they so differ, apply instead of the provisions of the development plan.

(c) In this subsection “specific planning policy requirements” means such policy requirements identified in guidelines issued by the Minister to support the consistent application of Government or national policy and principles by planning authorities, including the Board, in securing overall proper planning and sustainable development.

(4) The Board may, in respect of an application under section 4 for permission for the proposed strategic housing development, decide to—

(a) grant permission for the proposed development,

(b) grant permission for the proposed development subject to such modifications to the proposed development as it specifies in its decision,

(c) grant permission, in part only, for the proposed development, with or without any other modifications it may specify in its decision, or

(d) refuse to grant permission for the proposed development,

and may attach to a permission under paragraph (a), (b) or (c) such conditions as it considers appropriate.

(5) Where the Board did not exercise its functions under section 8(3) to refuse to deal with an application, then nothing in that subsection shall be read so as to prevent the Board from refusing to grant permission for a proposed strategic housing development in respect of an application under section 4 where the Board considers that development of the kind proposed would be premature by reference to the inadequacy or incompleteness of the F14 [ environmental impact assessment report ] or Natura impact statement submitted with the application for permission, if such is required F15 [ , or where an environmental impact assessment report is required, the application was not accompanied by such report ].

(6) (a) Subject to paragraph (b), the Board may decide to grant a permission for a proposed strategic housing development in respect of an application under section 4 even where the proposed development, or a part of it, contravenes materially the development plan or local area plan relating to the area concerned.

(b) The Board shall not grant permission under paragraph (a) where the proposed development, or a part of it, contravenes materially the development plan or local area plan relating to the area concerned, in relation to the zoning of the land.

(c) Where the proposed strategic housing development would materially contravene the development plan or local area plan, as the case may be, other than in relation to the zoning of the land, then the Board may only grant permission in accordance with paragraph (a) where it considers that, if section 37(2)(b) of the Act of 2000 were to apply, it would grant permission for the proposed development.

(7) Without prejudice to the generality of the Board’s powers to attach conditions under subsection (4), the Board may attach either or both of the following to a permission for the development concerned:

(a) a condition with regard to any of the matters specified in section 34(4) of the Act of 2000;

(b) a condition requiring the payment of a contribution or contributions of the same kind as the planning authority or authorities in whose area or areas the proposed strategic housing development would be situated could, but for this Part, require to be paid under section 48 or 49 (or both) of the Act of 2000 were that authority to grant the permission (and the scheme or schemes referred to in the said section 48 or 49, as appropriate, made by that authority shall apply to the determination of such contribution or contributions).

(8) The conditions attached under this section to a permission may provide that points of detail relating to the grant of the permission may be agreed between the planning authority or authorities in whose functional area or areas the development will be situated and the person carrying out the development. If that authority or those authorities and that person cannot agree on the matter the matter may be referred to the Board for determination.

(9) The Board shall make its decision under this section on an application under section 4

(a) where no oral hearing is held, within 16 weeks beginning on the day the planning application was lodged with the Board or within such other period as may be prescribed under subsection (10),

(b) where an oral hearing is held, within such period as may be prescribed.

(10) The Minister may by regulations extend the period referred to in subsection (9)(a), where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so and, for so long as the regulations are in force, this section shall be construed and have effect in accordance therewith.

(11) The Board may, at any time after the expiration of the period specified in section 8(5)(a) , make its decision under this section on the application.

(12) The Board shall include in each report made under section 118 of the Act of 2000 a statement of—

(a) the number of matters which the Board has determined within each of the periods referred to in paragraphs (a) and (b) of subsection (9), and

(b) the number and the aggregate amount of all sums paid (if any) by the Board under subsection (13) ,

together with such other information as to the time taken to determine such matters as the Minister may direct.

(13) (a) Where the Board has failed to make a decision under this section in relation to an application within the period specified in subsection (9)(a) or as may be prescribed under subsection (9)(b) or (10) as appropriate and becomes aware, whether through notification by the applicant or otherwise, that it has so failed, the Board shall proceed to make the decision notwithstanding that the period has expired.

(b) Where the Board fails to make a decision within the period referred to in paragraph (a), it shall pay the appropriate sum to the applicant.

(c) Any payment due to be paid under this subsection shall be paid as soon as may be and in any event not later than 4 weeks after it becomes due.

(d) In this subsection “appropriate sum” means a sum which is equal to the lesser amount of 3 times the fee paid by the applicant to the Board in respect of his or her application for permission or €10,000.

(14) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005, a reference, however expressed, in this section, sections 4 to 8 or in regulations made under section 12 to the area in which the proposed strategic housing development would be situated includes, if the context admits, a reference to the 2 or more areas in which that development would be situated and cognate references shall be construed accordingly.

(15) A person shall not question the validity of a decision of the Board under this section by reason only that the procedures as set out in subsection (9) were not completed within the time provided for by that subsection.

(16) The failure by the planning authority concerned to comply with the requirement to prepare and submit to the Board a report, under subsection (5) of section 8 , within the time limits provided for by that subsection shall not prevent the Board from proceeding to make its decision under this section.

Annotations:

Amendments:

F14

Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), s. 43 and sch. 2 ref. nos. 10, 11, in effect as per reg. 2(1).

F15

Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 40, in effect as per reg. 2(1).

Editorial Notes:

E13

Power pursuant to section exercised (3.07.2017) by Planning and Development (Strategic Housing Development) Regulations 2017 (S.I. No. 271 of 2017), in effect as per reg. 2.