The amendment of Section 28 of the PDA 2000

Death-of-Democracy-Quote

A reader alerted me to an interesting amendment to the Planning and Development Act of 2000 (PDA 2000). Section 28 relates to guidelines issued by the Minister (or in the case of wind farms, not issued by the Minister since 2006), and the reader was wondering whether the amendment would cause all guidelines to become mandatory.

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Section 28 reads as follows:

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28. Ministerial guidelines.
(1) The Minister may, at any time, issue guidelines to planning authorities regarding any of their functions under this Act and planning authorities shall have regard to those guidelines in the performance of their functions.
(1A) Without prejudice to the generality of subsection (1) and for the purposes of that subsection a planning authority in having regard to the guidelines issued by the Minister under that subsection, shall—
(a) consider the policies and objectives of the Minister contained in the guidelines when preparing and making the draft development plan and the development plan, and
(b) append a statement to the draft development plan and the development plan which shall include the information referred to in subsection (1B).
(1B) The statement which the planning authority shall append to the draft development plan and the development plan under subsection (1A) shall include information which demonstrates—
(a) how the planning authority has implemented the policies and objectives of the Minister contained in the guidelines when considering their application to the area or part of the area of the draft development plan and the development plan, or
(b) if applicable, that the planning authority has formed the opinion that it is not possible, because of the nature and characteristics of the area or part of the area of the development plan, to implement certain policies and objectives of the Minister contained in the guidelines when considering the application of those policies in the area or part of the area of the draft development plan or the development plan and shall give reasons for the forming of the opinion and why the policies and objectives of the Minister have not been so implemented.
“(1C) Guidelines to which subsection (1) relates may contain specific planning policy requirements that, notwithstanding subsection (1), are required to be applied by planning authorities and the Board in the performance of their functions.”.
(2) Where applicable, the Board shall have regard to any guidelines issued to planning authorities under subsection (1) in the performance of its functions.
(3) Any planning guidelines made by the Minister and any general policy directives issued under section 7 of the Act of 1982 prior to the commencement of this Part and still in force immediately before such commencement shall be deemed to be guidelines under this section.
(4) The Minister may revoke or amend guidelines issued under this section.
(5) The Minister shall cause a copy of any guidelines issued under this section and of any amendment or revocation of those guidelines to be laid before each House of the Oireachtas.
(6) A planning authority shall make available for inspection by members of the public any guidelines issued to it under this section.
(7) The Minister shall publish or cause to be published, in such manner as he or she considers appropriate, guidelines issued under this section.

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This section has been substantively amended twice. Subsections 1A and 1B were inserted by s.20 of the Planning and Development (Amendment) Act 2010 (No. 30 of 2010), with effect from October 5, 2010. Subsection 1C was inserted by s.2 of the Planning and Development (Amendment) Act 2015 (No.63 of 2015), seemingly with effect from December 29, 2015.

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The reader alerted me to the insertion of Subsection 1C.

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A brief commentary on Section 28
This section allows the Minister to issue guidelines to the councils and ABP with regard to the performing of their functions under the PDA 2000. Before the latest amendment, the Council or ABP were only obliged to “have regard” to such guidelines. This phrase has been interpreted by the High Court to mean that the Council or ABP do not have to rigidly or “slavishly” comply with the guidelines’ recommendations or even necessarily to fully adopt the strategy and policies outlined therein. They are only obliged to “inform themselves fully” of and give “reasonable consideration” to the guidelines. (McEvoy v Meath County Council [2003] 1 I.R. 208.

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Guidelines are to be distinguished from directives under s.29. Section 29 allows the Minister to issue policy directives and the Council or ABP have no choice but to follow the content of that directive. As a result of their binding nature, the process of issuing, amending or revoking a directive is more complicated than in the case of guidelines. Before any of these steps may be taken, a resolution of both Houses of the Oireachtas must be made. In addition to this, having passed a resolution, the newly issued, amended or revoked directive must subsequently be placed before both Houses. The Minister must publish the guidelines and the planning authority must make the guidelines available for inspection by the public.

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This legislative procedure can be contrasted with the far “looser” procedure required for S28 guidelines. In order to be revoked or amended the s28 guidelines must be placed before both Houses of the Oireachtas. It is not entirely clear from the wording of subs.5 whether, before guidelines are issued, they must be placed before both Houses of the Oireachtas. The wording is in the past tense, namely that a copy of any guidelines “issued” must be placed before both Houses. This seems to be saying that the process of issuing does not require them to be placed before each House prior to their issue, but rather for information purposes after their issue. The Minister can also publish “draft guidelines” under this section, which have an even looser nature than ‘ordinary’ guidelines. There is no obligation to make draft guidelines available until they are adopted. As to the status of draft guidelines, without precisely deciding their status, the High Court in Irish Hardware v South Dublin County Council (unreported, 19/07/ 2000) refused leave to review the granting of planning permission based on a challenge that the planning authority had not taken into account Draft Retail Planning Guidelines. Butler J. held that the planning authority had taken into account the “substance of government policy” underlining the provisions, and that was sufficient.

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Pre-existing guidelines issued under Section 7 of the 1982 PDA, which also allowed the Minister to issues policy directives, are to remain in force. One of these is obviously the “Wind Farm Development—Guidelines for Planning Authorities” first issued in 1996,  and updated ten years later.The 2006 Guidelines would have been issued in terms of Section 28 of the 2000 PDA.

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The Amendment
So what is the effect of the recently inserted 1C?
“(1C) Guidelines to which subsection (1) relates may contain specific planning policy requirements that, notwithstanding subsection (1), are required to be applied by planning authorities and the Board in the performance of their functions.”.

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What it seems to be saying is that the Minister can issue guidelines under Section 28 but can word some or all of that guideline in mandatory language which must be followed by Councils and the ABP.
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I would describe this as sharp practice and fundamentally undemocratic. The Minister is reaping the benefits of a Section 29 directive in that he is telling elected bodies and the ABP what to do, but he is doing so without having to go through the legislative requirement of placing that directive before the Dail and Seanad by dressing it up to resemble a Section 28 guideline.
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My reader was hoping that it meant that the previous wind guidelines were now mandatory but unfortunately I do not think that is the result. There is no indication that the amendment has retrospective effect (which would be highly unusual) nor is there any language in the 2006 Wind Farm Guidelines that could be considered as mandatory. It is all very “airy-fairy”, like most of the guidelines issued by the DCENR.
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The amendment has an altogether more sinister purpose of issuing binding directives on the Councils and ABP “under the radar” and for that reason it must be strongly condemned.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
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13 Responses to The amendment of Section 28 of the PDA 2000

  1. fclauson says:

    Neil
    some further comments – and please can all of the planning experts please comment

    take a read of the two documents linked from
    http://www.environ.ie/en/DevelopmentHousing/PlanningDevelopment/Planning/News/MainBody,14469,en.htm

    http://www.environ.ie/en/Publications/DevelopmentandHousing/Planning/FileDownLoad,14467,en.pdf
    and
    http://www.environ.ie/en/Publications/DevelopmentandHousing/Planning/FileDownLoad,14468,en.pdf

    Both issued under Section 28 of the PDA.
    My first question is the above amendment retrospective – i.e .do all past Section 28’s need to meet the new requirement of “required to be applied”. I think it is the case.

    My second is what happens when they have not been complied with

    For example the SEA is now mandatory as its a section 28 guideline
    http://www.environ.ie/en/Publications/DevelopmentandHousing/Planning/FileDownLoad,1616,en.pdf

    but as we know it was not carried out for wind farms – so has the minster just created a legal conundrum that his own guideline have not been followed and hence he is in breach of this new piece of legislation.

    Also refer to the above planning guidelines Section 10 covering enforcement

    “The making of a decision, as expeditiously as possible, as to whether to issue an enforcement notice, such a decision to be made within 12 weeks of the issue of a warning letter if at all
    possible”

    Has the minister by signing this new piece of legislation actually compelled local authorities to carry out their duties properly – that guidelines must be followed – something which I will certainly put to the test where wind farms have operated outside of their planning conditions for many years (but not 7 where the cutoff is for LA involvement)

    • Francis, as I said in the piece, there is a general presumption against retrospective legislation and if the lawmaker wants a retrospective effect, this must be expressly stated or unavoidably inferred. I do not think this is the case. I think it is opening the door for the Minister to slip some mandatory requirements into future S28 guidelines, thus fudging the distinction between guidelines and S29 directives. That is only my opinion, and I look forward to other viewpoints.

  2. Pat Swords says:

    I noticed this myself as I thought this really brings in a dictatorial approach. In fact the relevance of these guidelines is one of the issues, which has come up in the Communication at UNECE in respect of the implementation of the Irish renewable energy programme. See the response of the Party (Ireland) on 30.11.2015:

    http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/acccc2014112-ireland.html

    In particular they were a bit ‘hurt’ in relation to the legal status of guidelines (Article 8 of the Convention), such as stating:

    “10.12 The Communicants are not correct in their assertion that the sole basis for the decision was the Wind Energy Development Guidelines. While these were considered in the context of the noise limits to be imposed, they were only one factor to be considered. As is the case with all planning applications and appeals, a range of factors are considered by planning authorities in order to arrive at a decision based on the specific merits or otherwise of individual planning applications.”

    This related to the Communication pointing out how these guidelines were applied in practice:

    “In the planning appeal to An Bord Pleanala to the Corkermore a wind farm extension in County Donegal, see PL05E.242074, previously, the Planning Inspector’s report summarised in relation to the noise impacts as presented by the two appellants:

    • There is a negative impact on human beings from the low frequency audible noise that would be emitted by proposed wind turbines. This can lead to fatigue, headache, impaired concentration, sleep disturbance and physiological stress. The submissions to the planning authority form the Glenties Windfarm Information Group and the Heatley Mulhall family pointed out the problems associated with noise nuisance. It was not considered in the Environmental Impact Statement (EIS) or by the planning authority. It should have been addressed in an Strategic Environmental Assessment (SEA) carried out before the National Renewable Energy Action Plan (NREAP) was made. Certain aspects of German noise regulations are described. The profile of noise emitted by wind turbines means that it should be measured with a ‘C weighting’, rather than the A rating used for traffic and industrial noise. The former does not discount low frequency noise to the same extent as the latter. A measure of noise emissions from a 2.5MW wind turbine at 305m yielded a result of 54dB under the C weighting, compared to 38.4dB under the A weighting. The sound power outputs provided by manufacturers of turbine can be inaccurate. The Irish guidelines refer only to A weighted measurements and are inadequate in that they abjectly fail to measure low frequency noise. Given the scattered nature of the Irish rural population, it is simply not possible to adequately maintain separation between the existing population and such strong outputs of low frequency noise as wind turbines. This should have been worked out before the NREAP was adopted. Under the German regulations a nightime noise level of 40dB(A) should be maintained in an area such as that containing the site. This would require a separation distance of 740m according to a sample calculation carried out of a windfarm of 7 turbines by the state of North Rhine – Westphalia. There are nine houses within that distance of the proposed windfarm. An analysis by the state of Saxony indicated that a separation distance of 950m would not be unreasonable. The proposed development would not be legal in Germany due to the impact of noise on residents.

    • The observer lives within 520m of the existing windfarm. That development has caused problems with shadow flicker and noise at the observer’s house. He is aghast that the planning authority decided to approve an extension to it.

    When the environmental impact on Human Beings is assessed by the Planning Appeals Board, it follows as:

    • The noise emitted by the proposed wind turbines could have a negative impact on human beings occupying houses in the vicinity of the site. This impact must be considered in cumulation with that from the 5 existing turbines in the wind farm. The EIS contains predictions of the noise that would arise from the proposed development that take into account the existing turbines as well as the background noise in this rural area. The predictions indicate that the development would not cause exceedance of the noise emission limits recommended in the wind energy guidelines at the nearby houses, the closest of which is 516m from turbine no. 9. The predictions are based on survey data taken around the site, the known characteristics of the proposed turbines and a widely accepted forecasting model for noise emissions. The predictions are therefore considered acceptable. The appeal denies the appropriateness of the noise limits recommended in the guidelines, and gives extensive reasons for this denial. These reasons may or may not be persuasive. However whether the recommended limits are appropriate is a matter for the policy maker who gave us the guidelines, i.e. the minister. It would be arbitrary and unreasonable for the board to decide in this particular case not to apply the relevant statutory guidelines. The board is therefore advised that the proposed development is not likely to have a significant negative effects on human beings by virtue of the noise that it would emit”.

    There are two important issues here. Firstly, the only consideration used in the planning decision was the output from Irish guidelines, i.e. they are the sole decision making criterion. This then confirms that the Guidelines are in terms of the Convention “generally applicable legally binding rules that may have a significant effect on the environment”, i.e. Article 8 applies. It also demonstrates once again in relation to Article 6 that options are no longer open and public participation is pro forma. In particular, as there never was a Strategic Environmental Assessment complete for the renewable energy programme, these guidelines have essentially determined all wind farm planning applications in Ireland”.

    So in essence the key issue there is that as far as An Bord Pleanala are concerned, “whether the recommended limits are appropriate is a matter for the policy maker who gave us the guidelines, i.e. the minister. It would be arbitrary and unreasonable for the board to decide in this particular case not to apply the relevant statutory guidelines”. So the only difference now in the amendment above of December 2015, is that this is fully clarified. Yet on the 30th November 2015, the Irish State is telling UNECE that this is very much not the case, i.e. guidelines are only advisory.

    The plot thickens!

    • fclauson says:

      Pat – Wait a sec

      ABP must abide by the guidelines – but we have to remember that WDGE06 contain NO MEDICAL PROFESSIONAL INPUT from the DoH (I have AIE response to show same)

      So the guidelines are baseless in terms of health impact

      In the consultation to replace WEDG06 -the new guidelines read

      “As this is a targeted review focusing on specific issues, all the other sections of the Wind Energy Development Guidelines 2006 (including existing appendices) will remain in place. Concerns of possible health impacts in respect of wind energy infrastructure are not matters which fall within the remit of these guidelines as they are more appropriately dealt with by health professionals. ”

      So they will seek some health input – yes – but they ignored it and positioned some data which came out of Australia was more relevant – and they abbreviated that response to ignore that their might be issues below 1500M.

      Read http://www.unece.org/fileadmin/DAM/env/pp/compliance/Communications/Ireland_European_Platform/frObserverC112_Clauson_letter_03.02.2016_Redacted.pdf

      ABP have now been mandated by legislation to not comply with Aarhus/EIA Directive as they must follow the guidelines.

      The directive calls for
      “The characteristics of projects must be considered having regard, in particular, to:
      (e) pollution and nuisances;”

      Additionally it calls for
      “The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 12, the direct and indirect effects of a project on the following factors:
      (a) human beings,”

      So the EIS and EIA can cover what it likes – if it comes up with anything not in the guidelines then its has to (now by statute) be ignored

      • Francis, I think your approach is far too broad. The Minister can now use future guidelines to achieve some peremptory results with regard to specific governmental policies. There is nothing to suggest he can use it to avoid EU Directives or their implementing legislation.

  3. David Malone says:

    Article 4(3) Treaty European Union (TEU) requires Member States to abstain from any measures at national level, which would make it more difficult or impossible for the EU to move towards a high level of environmental protection. Article 174(2) of the European Treaty, states that Community policy on the environment must aim at a high level of Protection and Article 249 of the Treaty states that “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. In compliance with Articles and 17 TEU, Member States must not only incorporate the provisions of the directive into their national law, they must also ensure that these provisions are actually complied with by the emanations of the state. Where an EU environmental legal rule conflicts with a national legal rule, EU law prevails, according to the established case law of the Court of Justice

    European Court of Justice (ECJ) in the case of Van Gend en Loos held that institutions of the Community are endowed with sovereign rights, the exercise of which effects not only Member States but also their citizens, and that Community law was capable of conferring rights on individuals which becomes part of their legal heritage. This Judgement gave individuals the right to rely on provisions of the European Treaty in their national courts

    Accordingly, the Minister can only bring in legislation that gives effect to European and International law. For example, an EIS and EIA must achieve the objectives of the EIA Directive.

    • Quite correct David. Again, we must be careful not to blow the possible implications of 1C out of proportion. Personally I think the Minister put it in there so he can quietly manipulate County Development Plans when Councils don’t toe the government line.

  4. cawtdonegal says:

    Our reading of it, is similar to yours Neil, in that planning authorities must ‘have regard to’ the section 28 guidelines generally, as they are primarily advisory in nature. Following the 2015 amendments, when considering a planning application, planning authorities must apply the ‘specific planning policy requirements’ of ministerial guidelines. Thus there is now a distinction between matters in ministerial guidelines that are advisory in nature and that planning authorities shall ‘have regard to’ and matters that are mandatory in nature and that must be applied.

    The important point to note is that the amendment Act also defines: ‘specific planning policy requirements’ to mean 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 An Bord Pleanála, in securing overall proper planning and sustainable development. Upon first reading we do not see that this could be retrospectively applied, for example to the 2006 wind energy guidelines.

    The kicker from a local democracy perspective is in the amendment to section 34 of the primary Act it clearly sets out that where ‘specific planning policy requirements’ of guidelines 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 county development plan. County Development Plans soon won’t carry any weight in planning applications nor will the broad spirit of planning law which was to permit Government set national policy which could be filtered to reflect local aspects and the receiving environment by County Councils be upheld into the future by such amendments.

    We hope to write something detailed on this in coming weeks.

  5. Darren O'Donovan says:

    Tricky statutory interpretation ahead. I was pretty outraged reading it and thought I’d have a shot at attacking it…

    I’d point to the fact that the action attached to “specific policy requirement” is that it “shall be applied”. This is a different action to that expected upon the issuing of a section 29 directive, with which councils are “to comply”.

    As noted by cawtdonegal above, the definition of “specific policy requirements” are rules to support the consistent application of Government or national policy and principles by planning authorities, including An Bord Pleanála, in securing overall proper planning and sustainable development.

    I’d point to that last clause: It could be argued that “applying” such a policy therefore does not extinguish the overarching role of local authorities to secure overall proper planning and sustainable development in their area. To me the court could read the provisions of 1C as involving a placing of a weighty burden of justification upon local councils- requiring reasons under 1B to identify some locally specific factors which are demonstrably related to proper planning and sustainable development. Government policy has been applied in such circumstances, it’s just that to implement it would be inflexible/involve a failure to take into account sustainable and proper development/be unreasonable.

    I think that in future court actions counsel could make hay out the distinctions that appear between application, implementation and compliance in section 28 and 29.

    As further support, consider also the location of 29 IC alongside 1A and B, which address the circumstances where application of a policy may not lead to implementation. Look at how 1B refers to “implementation” and “application” of “certain policies” side by side as though they are separate and distinct actions by the local councils:

    “…to implement certain policies and objectives of the Minister contained in the guidelines when considering the application of those policies in the area or part of the area of the draft development plan or the development plan and shall give reasons for the forming of the opinion and why the policies and objectives of the Minister have not been so implemented.”

    The legislation is in an outrageously piecemeal state – simply parachuting in extra meddling rights would scare a drafter, as this new section has to sit in provisions drawn under a different philosophy. My effort might be rubbish(!), but drawing in the surrounding context seems like the only shot at hollowing 291C out.

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