The Land Development Agency Act 2021 (the Act) was signed into law by the President on 21 July 2021. This Act gives legislative underpinning to the Land Development Agency (LDA) which was established in 2018.

The LDA has been created to coordinate public-owned land for more optimal uses where appropriate, with a focus on the provision of housing. The Act formally establishes the LDA and provides for everything from its functions and powers to its corporate structure and funding.

In this post we look at some of the main features of the Act.

PART 2: LAND DEVELOPMENT AGENCY

Part 2 of the Act details the functions of the LDA. These predominantly relate to the management and development of “relevant public land” and preparation of that land for development to facilitate the provision of housing for the public good;

The LDA is also empowered to provide certain services to local authorities, as follows:

  • the preparation of masterplans and carrying out of appraisal of the development potential of sites;
  • the application for development consents, permissions and other approvals in relation to sites;
  • the provision of infrastructure to service sites for housing;
  • the provision of housing and carrying out of ancillary works as part of wider urban development; and
  • the management of cost rental housing.

Local authorities can request the LDA to provide such services in relation to the development of sites for housing and urban development that are either (i) large scale, multi-tenure or mixed-use development sites or (ii) located in a town with a population of at least 30,000.

PART 7: REGISTER AND ACQUISITION OF RELEVANT PUBLIC LAND BY AGENCY

Register of Relevant Public Land

The LDA is tasked with establishing and maintaining a register, to be known as the Register of Relevant Public Land (the Register), to record details of both land owned by the LDA and “relevant public land”.  Relevant public land is defined as all land within a town with a population of more than 10,000 which is owned by a local authority or other public bodies listed in Schedule 1 and 2 to the Act.

The Register will be available on the LDA’s website and will contain the following information:

  • a description, including area and location, of the land;
  • an ordnance survey map or other suitable map approved by the LDA showing the relevant public land;
  • information as to whether the land is:
    • the subject of a planning application to develop 5 or more dwellings; or
    • land which has been exempted from the provisions of Part 9, which sets out the requirements for development of dwellings on relevant public land.

Information which can be requested

The LDA can request information from a relevant public body, to include:

  • an analysis by the relevant public body of whether the retention of relevant public land owned by that body is necessary for the performance of its functions;
  • information regarding current and previous use of the land; and
  • information regarding the costs incurred by the relevant public body in using or maintaining the relevant public land and any profit or loss made by the body in that use or maintenance.

The LDA can also inspect the land, as required.

Report to Government

The LDA must report to the Government on relevant public land and on land owned by it within 12 months of the relevant provision of the Act coming into operation and every 2 years after that. The report must detail, in respect of each parcel of land:

  • the objectives of the development plan and local area plan in force for the area where the land is located;
  • any masterplan affecting the land;
  • the potential for development of the land in conjunction with contiguous sites that also constitute relevant public land or land owned by the LDA;
  • the cost of provision of infrastructure and development costs estimated by the LDA to be associated with the use to which the land may be put;
  • the priority, having regard to the nature of the land, proposed to be given to its development relative to other relevant public land or land owned by the LDA and the period within which that development is proposed to take place; and
  • any housing strategy for the area where the land is situated.

Right of first refusal on relevant public land

A relevant public body cannot dispose of relevant public land unless it has given notice of the proposed disposal and offered the land for sale to the LDA within the period of 12 months immediately prior to the disposal. The LDA is entitled to seek further information with regard to the proposed disposal. The LDA must decide whether to acquire or refuse to acquire the land within 8 weeks of the latter of (i) receipt of the notice of the proposed disposal or (ii) receipt of any further information requested from the public body.

Direction to acquire land

Alternatively, the Government can direct the LDA to acquire land owned by a public body, in which case it has 4 weeks to notify the relevant body that the land in question will be acquired.

Valuation

Land is to be acquired at market value. Market value is to be determined by a third party according to a process to be prescribed by the Minster for Housing. Minister O’Brien, in introducing the Bill to the Dáil, stated that “in effect this is an affordable land value which in reality will be a minimal price”.

Vesting orders

Where land is acquired in accordance with the above powers, the Minister for Housing can make a vesting order in relation to the land in question which will operate to vest the land in the LDA without any further conveyance, transfer of assignment.

Disposal of land by the Agency

The LDA can dispose of land owned by it with the consent of the Minister for Housing (having consulted with the Minister for Public Expenditure and Reform) where that land is no longer required for the purposes of the Act / the performance by the LDA of its functions. The consent of the Minster is not required where the LDA is providing housing for rent or purchase.

PART 8: COMPULSORY PURCHASE

Power to acquire land compulsorily

The LDA can compulsorily acquire land (i.e. land  owned by a party other than a “relevant public body”) if in its opinion the land is situate in an area in respect of which the applicable housing strategy identifies a need for housing and the land is necessary:

  • to provide access to relevant public land or land owned by the LDA, or
  • to facilitate the provision of roads, water or other services or utilities required by housing on relevant public land / land owned by the LDA.

As such, the LDA’s compulsory purchase powers are essentially site assembly powers where the development in question is anchored around a publically-owned site. Such compulsory acquisition is only possible where the LDA has first made a reasonable attempt to acquire the land by agreement.

PART 9: REQUIREMENT IN RELATION TO DEVELOPMENT OF DWELLINGS ON RELEVANT PUBLIC LAND AND FORMER RELEVANT PUBLIC LAND

Requirement to provide dwellings for cost rental / sale

Part 9 deals with the provision of affordable housing on relevant public land and former relevant public land. There will be a requirement for a proportion of housing provided on such land to be made available for affordable housing by the LDA or any other developer acquiring such land.

Where an application for planning permission is made to develop 5 or more dwellings on land which is relevant public land on the date when section 75 of the Act comes into operation, the relevant local authority (or An Bord Pleanála on appeal) can require that the applicant enter into an agreement providing for the percentage of the housing to be built and:

  • designated and leased as cost rental dwellings; or
  • transferred on completion to (i) the ownership of the planning authority or (ii) the ownership of eligible applicants nominated by the housing authority in accordance with a direct sales agreement within the meaning of the Affordable Housing Act 2021.

The specified percentage applicable to such agreements is:

  • 80% in relation to housing to be built on land located in the area of a town with a population of 150,000 or more; and
  • 50% in relation to housing to be built on any other land.

In both cases the units are to be constructed by the applicant. The agreement will also identify the units to be transferred / designated.

These provisions apply in addition to the requirements of Part V of the Planning and Development Act 2000 (as amended). The applicant must, when making its application, specify the manner in which it proposes to comply with the requirement were the planning authority to attach such a condition to the permission and, where the planning authority then goes on to grant such a permission, it must have regard to those proposals.

The specified percentage provided for in the Act is subject to change, upwards or downwards subject to a cap of 80%, by the Minister for Housing having regard to the likely future demand for cost rental dwellings and dwellings for sale in the State. The Minster has the ability to set different percentages for different geographical or administrative areas.

Exemptions

This requirement does not apply to planning applications for development consisting of the provision of houses by a body approved for the provision of housing to households assessed as being qualified for social housing support, where such houses are to be made available for letting or sale.

The Minister for Housing can also exempt public land from this requirement where the land:

  • is owned by a body which the Government is satisfied is required to act in a commercial manner and the sale of which has been consented to by (i) any Government Minister that holds shares in the body and (ii) the Minister for Public Expenditure and Reform, subject to the re-investment of the proceeds of such sale by the body for the purposes of the performance of its functions;
  • is referred to in Schedule 3 to the Grangegorman Development Agency Act 2005 and is owned by TUD (these are the properties previously owned by DIT); or
  • is owned by a local authority that wishes to dispose of the land in order to use the proceeds of sale for the purposes of the performance of its public functions.

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