In 2016, the Oireachtas established a fast-track planning procedure on larger ‘strategic housing developments’. The new procedure allowed developers to sidestep traditional planning rules when building ‘strategic housing developments’. The relevant provisions are contained in the Planning and Development (Housing) and Residential Tenancies Act 2016.
The Act defines these ‘strategic housing developments’ as developments of over 100 houses or apartments. An SHD can also include a student accommodation development containing 200 or more bed spaces.
The legislation allows SHD applications to circumvent traditional planning rules. When developers apply to build SHDs they can avoid applying for planning permission to local authorities. Instead, SHD planning applications are decided solely by An Bord Pleanála.
This legislation allows An Bord Pleanála to decide on an SHD planning application within a very short time period. In fact, they can make a determination within just 25 weeks. To put this in context, before 2016, planning applications on this scale could potentially take 18-24 months to receive approval.
The public’s only appeal mechanism to an SHD planning approval by An Bord Pleanála is by judicial review. Any such judicial review action is then listed on the High Court’s Strategic Infrastructure Development List. Go to our Judicial Review Solicitors page for more information.
The Heather Hill Management Company & Anor v An Bord Pleanála [2019] IEHC 450 case is notable for several reasons. In Heather Hill, an action in judicial review was brought by the managers of an adjoining residential development. They were challenging An Bord Pleanála’s approval of a large SHD scheme in Galway.
The An Bord Pleanála approval was overturned because it breached the Galway County Development Plan in two ways. Firstly, the approval necessitated a breach to the Development Plan’s population allocation for Bearna village just outside Galway city. Secondly, it didn’t consider the need for a “justification test” for a development identified as being in a flood risk area..
An Bord Pleanála are able to grant planning permissions to developments that contravene County Development Plans (CDPs).That is, if these approvals meet the criteria set out in Section 37(2) of the Planning and Development Act 2000. Any such approvals, however, must be supplemented with the “main reasons and considerations” for contravening a CDP. The court also condemned the fact that an Appropriate Assessment screening, pursuant to the EU’s Habitats Directive, wasn’t carried out. In addition, the court noted the failure to consider:
The Heather Hill case is also important because of the ruling on the applicants cost. The legal cost provisions set out in Section 50B of the Planning and Development Act 2000 applied. The court held that the applicants attracted the provisions favouring litigants who bring legitimate challenges to developments on environmental grounds. This meant that the applicants’ legal costs were paid.
Challenges exist to this fast-track planning procedure and many concerned local residents have used the Judicial Review process. The latest data shows that a high number of planning approvals have been stalled or overturned by successful judicial review proceedings.
The SHD legislation is due to expire in February 2022. However, elements of this legislation may continue to influence the planning rules for large scale developments in Ireland.
Orpen Franks Solicitors LLP have a successful track record in achieving favourable outcomes for our clients in judicial review actions. If you have an inquiry about Judicial Reviews, please call us on +353 1 637 6200 or email daragh.odonovan@orpenfranks.ie
