Section 28 Mandatory
MANDATORY MINISTERIAL GUIDELINES
Under Section 28 of the Planning and Development Act, 2000, the Minister of Housing, Planning and Local Government has the power to issue guidelines on planning and development that must be regarded by local authorities. These guidelines are intended to be incorporated in local authority Development Plans. Where the local authority chooses not to incorporate these, a statement must be provided with the reasons why.
Under the Planning and Development Act, 2000, local authorities were still regarded as the primary planning authority. However, in 2015 the then Minister for Environment, Alan Kelly TD amended the Act to give the Minister the power to issue mandatory planning and development guidelines to local authorities. At the time this was done to force local authorities to adopt smaller standard apartment sizes than their own Development Plans permitted.
With these new powers, guidelines issued by the presiding Minister can override those set out in local authority Development Plans. Importantly, the amendment also forced the executive branch of planning authorities (local authorities and An Bord Pleanála) to regard these mandatory ministerial guidelines over the Development Plan when making a decision on a planning application.
THE DEMOCRATIC DEFICIT OF MANDATORY MINISTERIAL GUIDELINES
Over a succession of Ministers, the Section 28 Mandatory Ministerial Directives have down-graded space standards to facilitate “Build-to-Rent” and Co-Living (Shared Accommodation) schemes, and have allowed heights far in excess of anything permitted by local development plans. The Mahon Report in 2012 made a wide-ranging series of recommendations for reform of planning law, regulation and transparency. Judge Mahon criticised the over-centralisation of power in the hands of the Minister for the Environment and the Minister’s ability to give directions to Regional & Local Planning Authorities.