On 14 December 2021, the Planning and Development (Amendment) (Large-Scale Residential Development) Act 2021 (the “2021 Act”) which amends the Planning and Development Act 2000 – 2021 (the “PADA”), was signed into law and its provisions commenced on 17 December 2021.
We discuss the legislative background and outline the main provisions of the 2021 Act below.
Legislative Background: Strategic Housing Development (“SHD”)
By way of background, the Planning and Development (Housing) and Residential Tenancies Act 2016 (the “2016 Act”) was enacted to facilitate the implementation of the Irish Government’s response to the housing and homeless crisis. The 2016 Act provided for a “fast-track” planning application process for SHD (the development of 100 or more houses or student or shared accommodation units with 200 bed spaces), whereby applications for permission for SHD were made directly to An Bord Pleanála (the “Board”). This differed from the traditional planning application procedure where applications are submitted to the planning authority in the first instance with an opportunity to appeal to the Board. The 2016 Act obliged the Board to issue its determination within a relatively short period of 16 weeks from the date of the application (or such other time as was required where an oral hearing was held).
Under the 2016 Act, the Government was required to review the operation and effectiveness of the SHD provisions by no later than 31 December 2021 and, on 13 July 2021, it was announced that the Minister for Housing, Local Government and Heritage had received Government approval for the termination of the SHD process which would be replaced by a new arrangement to restore “the primary decision-making function to local authorities, while also introducing mandatory timelines to ensure an efficient process for large scale residential developments”. This announcement was unsurprising in circumstances where the effectiveness of the SHD process had been called into question as many of the Board’s determinations were quashed on judicial review in the High Court for a variety of reasons to include, for example, illegalities and errors in the application and decision making process and there was public concern about the process. In September 2021, the Government published its new “Housing Plan for Ireland” which reaffirmed the intention to overhaul the SHD process and, as mentioned above, the 2021 Act was enacted shortly thereafter.
The New Arrangement: Large-Scale Residential Development (“LRD”)
The 2021 Act repeals Chapter 1 of Part 2 of the 2016 Act relating to the SHD process and replaces it with a new planning arrangement for LRDs which is outlined below.
Definition of LRD
LRD is defined as development that includes:
- the development of 100 or more houses;
- the development of student accommodation that includes 200 or more bed spaces,
- both the development of 100 or more houses and of student accommodation, or
- both the development of student accommodation that includes 200 or more bed spaces and of houses.
The LRD floor space (the internal measurement of the floor space of each floor disregarding car parks and ancillary residential services, including gyms and child-care facilities) of the houses and/or the student accommodation must not be less than 70% (or such other percentage as may be prescribed) of the LRD floor space of the buildings comprising the development.
The definition of LRD is not dissimilar to the definition of SHD under the 2016 Act. Of note, however, is that under the new LRD process, up to 30% of the floor space can be designated for other uses in comparison to the cap of 15% which applied under the 2016 Act.
The LRD process
The main features of the new LRD process are as follows:
- Pre-Application Consultation: A prospective applicant is required to consult with the planning authority in accordance with section 247 of the PADA. Within 4 weeks (subject to extension) of the request for consultation, the planning authority will either:
(a) arrange the consultation, during which the planning authority will advise the applicant of, inter alia, the procedures involved in considering a planning application; or (b) issue written confirmation that consultation in accordance with section 247 of the PADA is not required (“Written Confirmation”). Written Confirmation may be provided to a prospective applicant where they seek to amend permission previously granted for SHD or LRD and the planning authority is satisfied that (i) the proposed development is substantially the same as the permitted development; and (ii) that the nature of any alterations are such that they do not require the consultation process to be repeated.
Once the above step has been completed, the prospective LRD applicant may then submit a request for an LRD meeting with the planning authority together with a fee and the prescribed documents. The planning authority will convene the LRD meeting within 4 weeks from the date of the applicant’s request. 4 weeks after the LRD meeting, the planning authority must provide an opinion on whether the documents submitted for the purposes of the LRD meeting constitute a reasonable basis to make an application for permission (the “LRD opinion”). Where the planning authority opines that the documents submitted do not constitute a reasonable basis to make an application for permission, it must specify in the LRD opinion: (a) the issues with the documentation submitted; and (b) any issues that, if addressed, could result in the documents constituting a reasonable basis on which to make the application.
- Application for permission to the planning authority: Once a prospective applicant has obtained Written Confirmation or an LRD opinion, they have six months to make an application for permission to the planning authority in accordance with section 34 of the PADA, otherwise, the applicant will have to recommence the pre-application consultation process. Planning authorities will generally be required to determine such applications within 8 weeks of receipt of the application, except where further information is required. Accordingly, the role of the planning authority in the LRD application process, which was largely rendered defunct by the 2016 Act, has been reinstated.
- Appeal to the Board: A planning authority’s decision on an LRD application may be appealed to the Board (“LRD appeal”). The Board is required to determine an LRD appeal within 16 weeks of receipt of the LRD appeal where there is no oral hearing or, where there is an oral hearing, within 24 weeks of receipt of the LRD appeal. The time period for the Board’s decision may be extended where further information is required.
Requests for Further Information
The stated intention of the LRD pre-application consultation process is to minimise the need for further information requests at the subsequent planning application stage. In this regard, S.I. No. 716/2021 provides that the planning authority and the Board, on appeal, may only make one request for further information in relation to matters of technical or environmental detail that were unforeseen at the time of the LRD opinion and the time of lodging the LRD planning application, or where new matters were raised through the public participation process.
The Cost of Delay
If the planning authority fails to determine the LRD application within the time periods specified in the PADA, it will be required to pay the applicant 3 times the prescribed planning application fee or €10,000 (whichever is lesser). Similarly, the Board will be liable to pay an applicant €10,000 for a delay in issuing its determination in respect of an LRD appeal. The potential cost of delay for the planning authority and/or the Board will hopefully serve to incentivise fast decision making.
The 2021 Act provides for a transition period to allow those already engaged with the SHD process, to complete that process. For example, a prospective applicant who has engaged in the pre-application consultation process with the Board and who has received the Board’s notice pursuant to section 6(7)b of the 2016 Act may proceed to apply for permission, provided that the SHD application is made within 16 weeks of the commencement of section 17(1) of the 2021 Act (being 16 April 2022, taking into account the Christmas break in accordance with section 251 of the PADA).
Further, a prospective applicant who has, on the commencement of section 17(1) of the 2021 Act (17 December 2021), requested to enter into pre-application consultations with the Board but has not received the Boards notice pursuant to section 6(7)b of the 2016 Act may proceed to apply for permission provided that: i. the prospective applicant notifies the Board of their intention to proceed with the application as soon as practicable after 17 December 2021; and ii. the application is made within 16 weeks from when a notice under section 6(7)(b) of the 2016 Act is issued.
We look forward to seeing how the LRD process will operate and it is hoped that it will improve previous deficiencies in the decision making process, increase transparency and public participation, reduce the number of judicial review applications regarding decisions to grant permission for LRDs and, importantly, expedite the delivery of the much needed housing supply in Ireland.