What do we want? Housing! When do we want it? Now! Where do we want it? Somewhere else, not near my house, not in this settled area, and not on my route to work.
Ireland is experiencing a glut of judicial review challenges to new housing developments. Combined with Covid-19, the increasingly litigious nature of residential planning is having a significantly negative impact on residential delivery rates.
It is not just the developments that become the subject of court challenges that are affected; developments in the design stage are now being paused. The cost associated with taking a large residential development through the planning system has always been high. Now applicants must factor in the potential for prolonged court cases, legal costs and revised planning application costs. We know that applicants are now pausing investment decisions while the Irish and European courts grapple with various issues. Ultimately this cost is passed on to the end user – that is, the prospective homebuyer or tenant.
You may legitimately ask the question: if so many of these judicial reviews have been successful, were the original planning permissions not fundamentally flawed? It is not that simple. Some are sent back for new applications due to administrative or procedural errors. Some were slightly premature in as much as they might have been formulated in advance of upcoming changes to development plan zoning. Some require amended or additional ecological or environmental assessments.
Need for speed
A common outcome is that most proposals are ultimately approved. You could say that the judicial reviews resulted in better planning permissions, but perfection should not be the enemy of progress. Ultimately, we need to speed up residential delivery, not slow it down.
Put any development under scrutiny in a courtroom setting with highly trained legal professionals and a learned judiciary, and there is always the potential for areas of concern to be identified. But major residential developments are complicated by their very nature and present myriad considerations that need to be balanced. We badly need to refocus on our key objective of addressing the housing crisis.
The Government rightly recognises that the current housing situation is a serious crisis for the people of Ireland, particularly young people. It previously committed to reducing vexatious judicial reviews relating to residential development. Further action on this is now needed. More than one in four strategic housing development (SHD) or so-called “fast-track” planning approvals have been challenged in the courts, with about 75 per cent of these challenges proving to be successful. This is delaying the delivery of thousands of new homes.
Many of the affected residential developments are in urban areas, in the very locations where national planning policy states that developers should be focusing their attention. The threshold by which these developments require the scrutiny of judicial review proceedings needs to be higher.
Detailed assessments
Major residential developments are already the subject of detailed technical assessments by the applicant, and extensive consideration by a planning authority or An Bord Pleanála. They are not simply waved through and granted permission.
It is now reported that the Government will scrap the SHD process four months early, perhaps by the end of October. In future, residential planning applications will first be made to the local authority, with An Bord Pleanála determining any subsequent appeals. Major procedural changes of this nature typically delay application submissions as applicants adjust their planning strategies. It is likely that this change will have a similar short-term negative impact on residential application submission rates.
It is also not clear what will be done to stem the tide of judicial reviews. These judicial reviews have essentially added a second stage of determination to the SHD process. With the determination of planning applications reverting to local authorities, we must avoid appeals and judicial reviews becoming the de facto second and third determination stages for major residential applications.
The increasingly litigious nature of the planning system is doing our national sustainability objectives no favours. By frustrating residential development in sustainable locations, we are merely encouraging longer commutes, needlessly exaggerated residential price growth and exacerbating the housing crisis.
Raymond Tutty is head of planning at Savills Ireland
