Housing sector legislative update

Having now entered summer 2023, there are recent and proposed legislative changes that are likely to impact the housing sector.

In March 2023, Section 13 of the Planning and Development and Foreshore (Amendment) Act 2022 was commenced together with supporting regulations. These had the effect that the Part 8 approval process utilised by local authorities would not apply to them when constructing housing developments on local authority and designated State-owned lands, zoned to include residential use. This exemption is subject to the developments meeting certain requirements (set out in a new Section 179A of the Act). Those requirements include that the proposed development is not required to undergo an environmental impact assessment and so it is likely that the changes will be of more relevance to smaller developments. The measures are stated to be temporary, and time limited with a clear intent of speeding up local authority housing developments.

The Planning and Development Bill 2022 has a more far-reaching effect and has appeared on the Government Legislation Programme for Summer 2023. This will involve very significant changes including the restructuring of An Bord Pleanála which will be renamed An Coimisiún Pleanála. The decision-making and Government structures within the agency will then be separated. One key area of focus in the new Bill is how judicial reviews of planning decisions in the Courts will be dealt with. The current practice of ex-parte applications (where an applicant can go into court without notice to the other parties) will be replaced by the requirement that judicial reviews should be brought by way of a motion with notice. Applicants must be able to demonstrate sufficient interest to bring a claim and in order to establish this they must demonstrate that they are or may be “directly or indirectly materially affected by the matters to which the application relates”.

The Bill proposes strict time limits for the processing of cases through the courts and changes the rules in relation to costs for such litigation. By way of example Section 250(1) provides that the court will make no order as to costs in any proceedings relating to non-compliance with National Law, or the law of the European Union, relating to the environment “unless the Court considers, for stated reasons, that the proceedings are frivolous or vexatious or constitute an abuse of process”. In effect, this means that a party could be successful in an application before the court and would not be awarded its costs, even if it has established a breach of national law or EU law relating to the environment.

Ultimately these changes should, along with the proposed allocation of additional court resources for planning matters speed up matters though it is likely that the legislation will be tested in the courts.

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