ALG is launching an ESG & Sustainability newsletter. If you would like to receive these legal updates by email, please register your interest and let us know if there is a specific topic you are interested in.

Register your interest here.

In an earlier post we highlighted the introduction, in November 2022, of a temporary moratorium on the termination of residential tenancies during what was referred to as the “winter emergency period”. The legislation was intended to help reduce homelessness numbers over the course of the winter and was due to expire on 31 March 2023.

Over the past number of weeks there has been much discussion at both political and policy levels as to whether the moratorium, or a version of it, should be extended beyond 31 March given the continued supply issues in the Irish housing market.

However, the Minister for Housing has today confirmed the Government’s decision not to extend the moratorium beyond the original intended expiry date.

In announcing the decision, the Minister said that “the measure has not had the impact of reducing homelessness numbers” and that the Government was concerned that an extension of the moratorium would have the long-term impact of “potentially storing up larger problems”. These problems are understood to be the concern at Government level that any extension might damage supply in the longer term by prompting landlords to leave the rental market.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.

The Planning and Development Bill (the Bill) makes a number of changes to the environmental assessment regime under Irish planning law. Developers should be aware of their obligations under the Bill before it is enacted.

The Bill defines “project” for the first time and ties the need for environmental assessment back to plans or projects which require consent. The Bill also reflects Irish and European court decisions in the field of environmental law – for example, now clarifying and enshrining in legislation that “up-to-date reliable data” must be used when carrying out an appropriate assessment.

Perhaps most noticeably, the language and formatting has been made more user-friendly and simplified, from what had become an overly complex and intricate regime under the Planning and Development Act 2000. This will be welcome across all industries.

Our Environmental & Planning Team is paying close attention to the Bill as it passes through the Oireachtas and will post all relevant updates here.

For further information on this topic, please contact Alison Fanagan, Consultant, or any member of A&L Goodbody’s Environmental & Planning team.

Enforcement of planning law and the powers of An Bord Pleanála (or An Coimisiún Pleanála, in time) and local authorities in this respect will be of particular interest to developers. In relation to enforcement, there are very few changes to the current regime envisaged by the new Planning and Development Bill (the Bill). Enforcement, which is currently governed by Part VIII sections 151-164A of the Planning and Development Act 2000, is dealt with in Part 11 sections 289-300 of the Bill.

The time limits, procedures and options for enforcement are all essentially the same and, of particular note, the 7 year time limit for enforcement remains. As before, no planning permission is needed to comply with the terms of enforcement notices or court orders.

Once the Bill is enacted, a section 160 planning injunction will be referred to as a section 294 injunction – one to add to your planning law lexicons!

Under the Bill as drafted there is little that large scale residential and housing developers will not be familiar with when it comes to enforcement of planning law, however this may change as the Bill moves through the legislative process. Our Environmental & Planning Team is paying close attention to the Bill as it passes through the Oireachtas and will post all relevant updates here.

For further information on this topic, please contact Alison Fanagan, Consultant, or any member of A&L Goodbody’s Environmental & Planning team.

The Irish Government has announced plans to draft legislation to support the remediation of apartments and duplexes with fire safety, structural safety and water ingress defects. Any other types of defect i.e. drainage defects or defects with heating systems would appear to be excluded. The plans are to include apartments and duplexes which were constructed between 1991 and 2013. We therefore assume that apartments and duplexes constructed outside this time frame are not covered by the scheme and any issues will have to be dealt with in the normal way.

The scheme is set to go to Cabinet but nothing has been published as of yet and ultimately the devil will be in the detail. However the Government has published a “frequently asked questions” document to provide an idea of how such a remediation scheme may operate.
The intention seems to be to create something similar to the scheme that was previously introduced in respect of properties impacted by pyrite.

What apartments and duplexes will be included?

From the information provided, the Government is intending to take a ‘whole building approach’ in order to improve the safety of all occupants in the building. Therefore, all parts of the building (e.g. the common areas, the individual apartments etc.) will be considered together when addressing defects.

The Government is proposing the scheme will be administered by the Housing Agency on a nationwide basis and that Owners’ Management Companies (OMCs) will be funded to carry out the necessary remediation works on a “whole building” basis and therefore will be responsible for procuring and facilitating the remediation works that affect the common areas of apartments and duplexes as well as the individual apartments.

It appears that commercial owners will be exempt from such a scheme.

What works will be covered by the scheme?

As stated above, the scheme will only cover works to remediate fire safety, structural safety or water ingress defects in purpose-built apartments and duplexes constructed between 1991 and 2013. The defects which are covered by the scheme must relate to defective design, defective or faulty workmanship or defective materials. The defects must have resulted from a contravention of the Building Regulations applicable at the time the building was constructed. All other defects are excluded from the scheme.

Irrespective of this scheme and in accordance with the Fire Services Act, responsibility for fire safety continues to rest with those who control a premises.

When will the legislation be in place?

Subject to the implementation of the legislation, it is intended that the scheme would be in place by 2024.

The Government has also approved the principle of allowing remediation costs already incurred or levied to be covered, within the scope and defined parameters of the scheme.

Notably, and in order to ensure that no life-safety works are paused until the scheme is put in place, remediation works related to fire safety defects which are entered into or commenced from 18 January 2023, will come within the scope of the scheme. It is intended that such works will need to be agreed with the relevant local fire authority. The details of this process will be worked out as a priority and provided in due course.

How much funding will be made available?

The amount of funding will depend on the nature and extent of defects to be remediated. It is estimated that the scheme is worth between €1.5 billion and €2.5 billion.

For further information on this topic, please contact Conor Owens, Partner, Kathy Gilmore, Solicitor, or any member of A&L Goodbody’s Construction and Engineering team.

The European Commission has approved, under EU State Aid rules, the Irish Government’s proposed €450 million scheme to support the construction of apartments to be sold to owner-occupiers. The scheme, know as the Croí Cónaithe (Cities) Scheme, aims to bridge the current “viability gap” where the cost of building apartments is higher than its market sale price.

The scheme aims to support the delivery of up to 5,000 apartments via blocks of at least four storeys in the urban areas of Dublin, Cork, Galway, Limerick and Waterford.

How will the scheme operate?

The aid will take the form of a direct grant covering the difference between the actual price and the development cost of the apartment, up to a certain maximum amount depending on the city. The scheme will be open to developers of apartment blocks that hold an unactivated planning permission and demonstrate the existence of a viability gap.

To be eligible, apartment blocks must be

  • located in Dublin, Cork, Galway, Limerick or Waterford cities;
  • four storeys or higher and have a net density of at least 35 dwellings per hectare;
  • close to public transport;
  • for sale to owner-occupier households only; and
  • be able to demonstrate a viability gap, where the cost of building the apartments is higher than the market sale price.

How much funding will be available?

The maximum funding anticipated for each apartment is €120,000. This may be exceeded by up to 20% in certain cases in regional cities where lower market prices mean that the viability gap is wider.

Who will manage the scheme?

The Croí Cónaithe (Cities) Scheme will be managed and administered by The Housing Agency on behalf of the Department of Housing, Local Government and Heritage. The Housing Agency will receive proposals for developments via e-tenders. It will assess eligibility and carry out detailed due diligence and an open book assessment on eligible proposals.

Beneficiaries will be ranked based on density, date of delivery, the quality of the development, the delivery cost per apartment and proximity to core services and amenities.

Open book accounting will be required for all developments to make sure that the funding support provided only targets the viability gap in question, resulting in a reduction of cost for home-buyers and increased supply into the market. Both delivery costs and market values will be assessed by independent quantity surveyors and valuers appointed by the Housing Agency.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer, or any member of A&L Goodbody’s Real Estate team.

Following the publication of the outline of the proposed Planning and Development Bill in December 2022, the Department of Housing, Local Government and Heritage published the draft Planning and Development Bill 2022 (the Bill) on 26 January 2023. The Department has confirmed that the Bill will be subject to pre-legislative scrutiny before it is finalised, and has promised that this new legislation will “bring greater clarity, consistency and certainty to how planning decisions are made.”

The Bill seeks to restructure An Bord Pleanála, to be called An Coimisiún Pleanála or the Commission, and to consolidate and refine Irish planning law. The provisions that will be of particular interest to developers and stakeholders include:

  • The introduction statutory mandatory timelines for consent processes, including Commission decisions on Strategic Infrastructure Development. The specific timeframes have yet to be set out;
  • Changes to the Judicial Review process including the introduction of statutory timelines and prohibition of companies registered for less than one year taking JR proceedings; and
  • Reform of Development Plan content and lifespan. Development Plans will include more detail and amongst other measures, a specific housing delivery strategy.

The Bill was published on the same day that RTÉ News highlighted that 28,786 strategic housing development applications await a decision from the Board, according to Mitchell McDermott’s Annual Construction Sector Report.

It is hoped that, once enacted, the Bill will improve the development consenting processes, leading to speedier decision-making and more streamlined judicial review.  

Our Environmental and Planning Team will continue to post updates on the provisions of the Bill. In the meantime, should you require more information on this topic contact Alan Roberts, Partner, Niamh Collins, Solicitor, or any member of A&L Goodbody’s Environmental and Planning team.

We are delighted to invite you to our Construction, Planning and Procurement Breakfast Seminar on Thursday 9 February as we discuss the theme of “Uncertainty”.

Banking Hall at The Westin Hotel, College Green
Thursday 9 February 2023
7.15am – 10am

Please join us for a light breakfast, followed by a series of short presentations all focusing on uncertainty in the areas of construction, planning and procurement. Senior members of our Construction, Planning and Procurement teams will update you on the issues and topics which will be on the agenda for key industry players:

  1. Conor Owens and Enda O’Keeffe on adjudication and the current issues arising.
  2. Siobhan Kearney and John Dallas on utilities risk / energy issues. This will cover issues such as gas and ESB supply and connection agreements.
  3. Jamie Rattigan and Kim O’Neill on inflation / deflation. This will also consider how inflation and deflation impact on funding.
  4. Alan Roberts and Kristen Reed on “Will the new Planning Act shut the door on Judicial Reviews?”
  5. Conor Owens and Richard Hourihan on “Contract modifications arising from inflationary and market pressures”.

The seminar promises to be informative, practical and lively with insights being shared by leaders in their respective fields. The seminar also qualifies for Legal/General CPD with the Law Society of Ireland.

Breakfast and registration will be from 7.15am and the seminar will begin at 7.45am. As always there will be a Q&A session with our speakers at the end of the agenda items with a view to finishing up at 9.15am, or a little later if you would like to stay on and connect with some people who you may not have met for some time.

We look forward to welcoming you on the day.

Please RSVP by Friday 3 February here or contact any of the following, or your regular A&L Goodbody contact, for more information:

After considerable ambiguity in respect of environmental costs protection, the Supreme Court’s decision in Heather Hill Management Company CLG & McGoldrick v An Bord Pleanála, Burkeway Homes Limited and the Attorney General [2022] IESC 43 has brought some much-needed clarity to the rules around costs implications of challenges to large scale developments on environmental grounds.

On 10 November 2022, Mr. Justice Murray handed down a judgment on behalf of the Supreme Court on the interpretation of section 50B of the Planning and Development Act 2000, overturning an earlier decision of the Court of Appeal and agreeing with the decision of the High Court judge.

The Supreme Court held that the protective costs order available under section 50B applies to any challenge to a decision made pursuant to a statutory provision which gives effect to specified EU Directives listed in the provision. The Supreme Court held that there is no basis for the splitting of costs by reference to the issues and grounds in proceedings where some grounds/issues raised engage those EU Directives and others do not. This means that applicants who take judicial review proceedings will in the normal course be entitled to their full costs where the challenge involves environmental grounds.

While the judgment has brought certainty on the question of costs, it remains to be seen whether the judgment will result in an increase in the number of judicial review applications. The impact of this judgment will certainly be felt across a number of industries including property development and construction and stakeholders will eagerly track the effect on the volume of challenges to development over the coming months and years.

For further information on this topic, please contact Niamh Collins, Solicitor, Alan Roberts, Partner,  or any member of A&L Goodbody’s Environmental and Planning team.

Residential Zoned Land Tax (RZLT) is a new tax introduced as part of the Government’s “Housing for All” plan, which will become payable from 1 February 2024. However, owners of land zoned for residential use should be aware that 1 January 2023 is the deadline for filing an appeal against inclusion of lands on the local authority RZLT maps which are detailed in this post.

What is RZLT?

It is an annual tax calculated at 3% of the market value of land within scope, which will apply from 2024 onwards and will be administered by Revenue. It replaces the Vacant Site Levy which was not deemed a success.

The Government states that the tax is aimed

at increasing housing supply by activating zoned, serviced residential development lands (including mixed-use lands) for housing [and] to incentivise landowners to use existing planning permissions for housing.

What land is impacted?

RZLT will apply to land that is, on or after 1 January 2022, both zoned for residential use and serviced (even where the current use of the land is not residential). Land is considered to be serviced where it has sufficient access to the necessary public infrastructure and facilities required for residential development.

Certain exclusions apply, for example:

• Residential property subject to LPT which includes garden/yards under 1 acre. (Residential property with gardens/yards over 1 acre falls in scope and the owner must register for RZLT, although no RZLT is payable by such owners).
• Land zoned for residential use but used by a business to provide services to residents of adjacent residential areas e.g. a corner shop.
• Mixed zoned land that includes residential use where it is reasonable to consider the land is integral to the operation of a business carried out on or beside it.
• Land that is required or occupied for certain social, community or governmental infrastructure purposes.
• Land subject to the Derelict Sites Levy that is payable in accordance with the Derelict Sites Act 1990.
• Land that is affected by considerations which might prevent development e.g. contamination or where historic or archaeological artefacts are present.

How will I know if my land is affected?

Each local authority is required to prepare and publish a map identifying land within the scope of RZLT, which maps will be updated annually to reflect changes in zoning and servicing status. The first draft maps, which were published on 1 November 2022, are currently subject to review as follows:

  • Parties whose properties are designated as subject to RZLT by virtue of this mapping exercise may make a submission to the local authority have their lands excluded if they do not believe that such land meets the criteria for inclusion. This submission must be made no later than 1 January 2023.
  • In the case of such a submission, the local authority will notify the owner of its determination, not later than 1 April 2023;
  • The local authority, before making its determination, may request additional information from the owner, or other third party, within 21 days of receipt of the submission;
  • The owner, or other third party, has 21 days, from the request being made, to provide the information requested to the local authority;
  • A landowner who wishes to appeal the local authority determination to An Bord Pleanála (ABP) may do so not later than 1 May 2023; and
  • ABP will notify the owner of its determination not later than 16 weeks from the date of the notice of appeal.

The final map, which will reflect the outcome of the submission and appeals process, will be published on 1 December 2023. Land included on the local authority’s final map which is no residential property is known as a “relevant site” and is subject to RZLT.

Who is liable?

The legislation requires payment by “owners”. This term is broadly defined as the registered owner, the person entitled to receive any rack rent payable in respect of the land (or who would be so entitled if that land was let) and “any other person whose interest in the land entitles them to develop the land”. This arguably includes developers with contractual rights to develop the land.

When and how is it paid?

RZLT will first be charged on 1 February 2024 with a requirement to file a return and pay any RZLT due for 2024 by 23 May 2024. This is in respect of land which was zoned as suitable for residential development and serviced prior to 1 January 2022 and on which development has not commenced prior to 1 February 2024. Land zoned for residential use and serviced after 1 January 2022 will become liable for RZLT 3 years after the year in which it comes within the scope of the tax.

RZLT operates on a self-assessment basis and owners of lands liable for the tax must register from late 2023. An annual return must be submitted to Revenue with a liability date of 23 May in each year, beginning in 2024.

What do I need to do now?

If you own services land that is zoned residential (whether or not the current use of the land is residential), you should check whether it has been included in the relevant local authority RZLT maps. If you wish to contest that designation, you will need to prepare and submit an appeal against the designation on or prior to 1 January 2023.

Revenue’s very helpful guidance document on RZLT can be found here.

For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer, Alan Roberts, Partner,  or any member of A&L Goodbody’s Real Estate or Environmental and Planning team.