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Government’s fast-track housing plan comes unstuck in the courts

Now-defunct strategic housing development system resulted in 48 judicial review cases

The strategic housing development laws took force in 2017 in a bid to speed up the delivery of new homes with direct applications to the planning appeals board. Photograph: Peter Byrne/PA Wire

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Eoin Burke-Kennedy
Sun Mar 17 2024 - 13:28

The sun has set on the Government’s ill-fated strategic housing development (SHD) system.

Former minister for housing Simon Coveney’s well-intentioned but perhaps ill-conceived plan to fast-track housing delivery by allowing bigger projects leapfrog the local authority segment of the planning process and apply directly to An Bord Pleanála came unstuck for several reasons but primarily because of the number of legal cases it generated.

Between the plan’s inception in 2017 and when it was formally axed last year, SHD projects resulted in 48 judicial review (JR) cases. Most arose on the back of environmental objections.

One in five housing units applied for under the plan, equivalent to almost 32,000 (a year’s supply of housing at today’s rates), were either quashed or ended up being stalled by legal action.

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According to industry figures, a further 19,192 units remain in the pipeline, a victim of the decision-making logjam at An Bord Pleanála. The average period they have been pending is 95 weeks.

The SHD chapter reveals a planning system starved of resources and mired in legal action. It wasn’t just the onerous length of time taken to process applications, at presumably considerable costs to the developers, something the Government’s incoming Planning and Development Act intends to remedy, but also the level of public opposition to housing projects. Planning consultants say the level of litigious nimbyism here is higher than in other countries.

A recent RTÉ Investigates programme centering on claims that two individuals were lodging environmental appeals against planning developments and then withdrawing them for financial gain highlighted how the system can be gamed for nefarious reasons.

The SHD episode also shone a light on the growing number of vexatious claims that goes with planning here, what the industry calls “ransom development”.

A recent RTÉ Investigates programme centring on claims that two individuals were lodging environmental appeals against planning developments and then withdrawing them for financial gain highlighted how the system can be gamed for nefarious reasons.

A senior figure in one of the State’s largest legal firms, Matheson, was forced to resign last year after it emerged the individual had sought a €225,000 payment not to object to a planning permission.

Glenveagh Homes, one of the State’s largest home builders, is also involved in a legal action against two individuals the company claims abused the statutory planning process to interfere with its business with the “predominant purpose of leveraging an improved bargain”.

Three-quarters of JR cases taken against SHD schemes were taken on environmental grounds. The suspicion in the industry, however, is that many of the environmental objections, which allowed litigants challenge decisions without a potential cost exposure, were a pretext for objecting on design grounds.

Design objections tend to concern one of three things: height, density and/or whether a scheme is in keeping with the surrounding environment.

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Former minister of State at the Department of Housing Peter Burke claimed “an industry” had been created around planning-related JRs, which he said was clogging up the courts and delaying much-needed infrastructure for years.

The spike in cases under the SHD system also reflected the fact that valid concerns about projects had been excluded from the initial phase of planning. The Government hadn’t provisioned for the legitimate grievance felt at local level from being shut out.

Another problem related to the locus of these JR cases. Is it right to expect High Court judges to be experts in the complex, at times Byzantine, planning code? The incoming planning Bill is spread over 700 pages and contains some 1,300 amendments.

According to a report by the Office of the Planning Regulator, planning permission for housing developments was overturned by the High Court for relatively minor infringements such as the drawings submitted being incomplete, factors that should not result in the original planning decision being overturned and perhaps reflective of the court’s narrower remit. Industry figures say the rulings were too binary.

The SHD strategy has since been replaced by large residential development (LRD) system which restores the local authority as the primary planning decision maker. And while the JR route to block development still exists, there are reasons to believe they won’t be as pervasive under the LRD system.

The incoming planning legislation will also introduce mandatory timelines for planning decisions, enforced by penalties; longer-term development plans; and stricter rules around the taking of judicial reviews.

“People are more confident in the LRD system because they feel that they have a right to object mid-process,” said one insider. “Similarly the applications are more in keeping with what the local councillors and executives within the local authority have put together within the county development plan,” he added. LRD permissions to date have already generated significantly less legal objections.

The incoming planning legislation will also introduce mandatory timelines for planning decisions, enforced by penalties; longer-term development plans; and stricter rules around the taking of judicial reviews.

Under the rules, residents’ associations and other interested parties can seek JRs but only when they can demonstrate a “sufficient interest”, meaning they cannot take a case on public-interest grounds.

It also specifies that cases involving the natural environment can be taken only by a company that has been in existence for at least one year and has “no fewer than 10 members”.

While higher interest rates and accelerating construction costs are frequently cited as blocks on development, the lack of certainty in our planning system – the potential for projects to be held up for years by objections, appeals and judicial reviews – has posed until now an equivalent risk.

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