The Strategic Housing Development (SHD) process was created in 2016 as part of Rebuilding Ireland. The aim of the SHD process is to fast-track planning for the delivery of larger housing and student accommodation projects. SHD applications bypass local authorities and go directly to An Bord Pleanála for decision. These decisions cannot be appealed but can be challenged by judicial review.

In our article from March 2021, we discussed why so many of the SHDs were being quashed in the Courts. Following on from that, statistics as of January 2022 indicate that 89 judicial review cases had been taken against SHDs; as of January 2022, decisions were pending in 46, while 8 had been withdrawn. Of the 35 SHD judicial review proceedings that had concluded, the State or the developer had been successful for just 3 developments.[1]

Successful grounds in some recent cases have included:

• A failure to adequately identify the extent of a material contravention associated with density requirements, namely the amount of development per acre permitted under the applicable zoning. Also, the corresponding implications for public-transport capacity, including insufficient reasons for deciding between conflicting transport assessments[2], and
• Failure to meet building standards not being “clearly identified” in the Board’s decision.[3]

Large-Scale Residential Developments

The Planning and Development (Amendment) (Large-Scale Residential Development) Act 2021 (the Act) was introduced at the end of 2021. The Act, subject to a number of transitional arrangements, replaced the SHD arrangements with a framework for Large-Scale Residential Development (LRD). The framework seeks to remedy some of the perceived flaws of the previous legislation on SHDs by replacing SHDs with a new planning process for LRDs and restoring planning decision making to local authorities.

The definition of LRD is largely, although not completely, similar to SHD, ie, developments of 100 housing units or more, or student accommodation developments comprising 200 bed spaces or more, or a combination of same. An LRD is:

• A housing development of 100 or more units, or
• Student accommodation comprising 200 beds or more, or
• A combination of the two where the threshold is met for either element, and subject to the LRD floorspace of the buildings being at least 70% of the total.

Of benefit for developers, this is lower than the 85% cumulative gross floorspace restriction in the SHD regime, which had other restrictions on floorspace for “other uses”.

The new LRD arrangements will involve three stages:

• Pre-application stage: As with the SHD regime there will be a pre-application consultation process. However, this time the process will be with the local planning authority and not the Board. Firstly, subject to certain exclusions, the applicant will be required to seek standard pre-application consultation with the local planning authority. The second step entails a mandatory 8-week consultation phase with the local authority resulting in the holding of an “LRD meeting” and the issuing of an “LRD opinion” as to whether the proposals constitute a reasonable basis for submitting a planning application.
• Application stage: This stage involves a standard application to the planning authority with set timeframes depending on whether an Environmental Impact Assessment Report or Natura Impact Statement is required or a further information request is submitted. The SHD regime did not allow for further information requests. It is hoped this crucial power will mean any gaps are addressed during the application process rather than challenged after the determination.
• Appeal stage: The decision of the planning authority may be appealed to An Bord Pleanála, in which case the Board has a mandatory 16-week decision timeframe, subject to certain exceptions such as if there is an oral hearing. The deadline will also be extended if the Board submits a further information request.

Changes to Housing Strategies: Owner-occupier restrictions

The legislation also requires local authorities to ensure home ownership as a tenure type is provided for and estimated in their Housing Strategies. It gives legislative effect to the provisions of Section 28 Guidelines for Planning Authorities ‘Regulation of Commercial Institutional Investment in Housing’, issued in May 2021. The guidelines are aimed at ensuring new houses and duplex units in housing developments are not bulk-purchased by commercial institutional investors. For further background please see this article.

Conclusion

The proposed legislation on LRDs aims to iron out the perceived shortcomings of the SHD process, providing greater transparency and clarity to the planning aspects of large-scale housing and student developments going forward. The new legislation has generally been welcomed across the board.

The new legislation aims to expedite the delivery of housing supply while providing certainty and stability to the construction sector by retaining some of the positive elements of the SHD arrangements such as mandatory pre-application consultation and set decision timelines.

The mandatory timelines for the three stages of the LRD planning process will streamline the overall decision-making process. As a result, it will provide greater clarity to developers regarding timelines and the public regarding future housing opportunities. In addition the allowance for a further information process should assist in addressing any gaps during pre-determination and allow further time to make the determination. However, if appealed, the total timeline for LRDs determinations is likely to be longer than the current SHD regime. That said, many SHDs have been quashed in the Courts which has led to their own delays. The new regime aims to reduce the risk of a legal challenge, including a successful one, through increased public and local authority engagement and the FI process. Therefore, the overall total timeline to receipt of a planning permission that is safe from challenge, may be less than that for an SHD permission.

It remains to be seen how these new permanent streamlined arrangements for developments of this scale will work in practice. In particular, whether they provide the necessary stability and assist in getting new developments off the ground to provide housing in Ireland.

For more information, please contact a member of our Planning & Environment team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] Dáil Éireann Debate, Wednesday - 19 January 2022, Questions 599, 600.

[2] Ballyboden Tidy Towns Group v An Bord Pleanala & Ors [2022] IEHC 7.

[3] Walsh v An Bord Pleanala & Anor, High Court, Humphreys J, 1 April 2022, [2022] IEHC 172.