We posted in May that the general scheme of the Planning and Development (Land Value Sharing and Urban Development Zones) Bill 2022 (the General Scheme) had been published by Government.

The Joint Committee on Housing, Local Government and Heritage (the Committee) has just published its report (the Report) on its Pre-Legislative Scrutiny of the General Scheme. The Report identifies a number of issues with the General Scheme and makes certain recommendations. These recommendations will now need to considered by the Office of the Parliamentary Counsel as it seeks to finalise the text of the draft bill.

As was the case with our May post, the focus of this post is on the land value sharing (LVS) elements of the General Scheme. However, it is important to note that the Report does also identify issues and make recommendations in respect of the proposed introduction of Urban Development Zones.

Issues identified

The Report identifies issues regarding the LVS proposals under 4 key areas, as follows:

Valuations

The Report questions the clarity and consistency of the definitions and methods for calculating the existing-use value and the market value of the land, which are the basis for determining the LVS contribution. It suggests that the valuations should be updated regularly and at the date of the planning application, rather than at the date of zoning, to reflect the current market conditions and transactions. The Report also raises concerns about the availability and capacity of valuation experts and the role of the Valuation Tribunal in resolving disputes.

LVS rate

The Report challenges the rationale and evidence for setting the LVS contribution at 30% of the zoning value of the land, being the difference between the existing-use value and the market value. The Committee notes that this rate was informed by a third party economic appraisal on LVS (which appraisal has not been published) and that the rate does not take into account other existing charges and taxes on land and development, such as capital gains tax, development contributions, and Part V obligations. The Report also queries why the LVS rate is fixed and whether it would be preferable that it would be adjustable, where the Minister for Housing, Local Government and Heritage (the Minister) is of the view that this is necessary to support housing supply.

Viability

The Report expresses concern that the LVS contribution may affect the viability of development projects, especially in the context of rising interest rates, construction cost inflation, and market uncertainty. It warns that the LVS contribution may be passed on to the purchasers of housing units, or may discourage development altogether, if it cannot be absorbed by the landowners or developers. The Report also acknowledges criticism by certain stakeholders of the retrospective application of the LVS contribution, which may create tax instability and unfairness.

Exemptions

The Report examines the exemptions from the LVS contribution that are proposed in the General Scheme, such as for social and affordable housing, and for small-scale developments. It questions the justification and implications of these exemptions, and suggests that they may create a competitive advantage for certain types of development or tenure, or may encourage low-density development.

Recommendations

In light of the issues identified, the Committee make a number of recommendations, as follows:

Valuations

  • Considering the 10 year development plan cycles proposed under the Planning and Development Bill 2022, there should be regularity in reviewing existing-use value and market value on the valuation register.
  • Land should be valued at the date of the planning application, with the self-assessment being submitted with the planning application so that it is up-to-date and takes other transactions on other sites in the area into account.
  • Landowners should be contacted directly by the planning authority to complete the self-assessment, not just through newspaper or website notice.
  • The bill should provide that all applications are to be accompanied by a self-assessment of the existing-use value and market use value of the land.
  • LVS funds should be committed to the provision of infrastructure, with a ring-fencing model to be considered. Local authority elected members should also have an approval function over the use of the LVS contribution funds.
  • The delivery of infrastructure as a means of discharging the LVS contribution should be more explicitly provided for, outlining the timing of the delivery of such infrastructure and the preference for upfront delivery.

LVS rate

  • The third party report which informed the setting of the 30% rate should be published prior to publication of the bill, with the rationale underpinning the 30% figure to be set out.
  • The Minister should be empowered to reduce the LVS contribution amount to nil where the Minister is of the view that this is necessary to support housing supply.

Viability

  • The Department of Housing, Local Government and Heritage (the Department) should “take the appropriate time” to consider the impact LVS will have on the viability of projects and housing supply, through further engagement with industry and citizens prior to the publication of the bill.
  • Transitional arrangements should be reviewed to ensure the viability of projects is maintained post-implementation of LVS.
  • The Department should carefully consider and report on the cost impact of LVS on new home purchasers due to the retrospective nature of its application on lands purchased prior to 21 December 2021.

Exemptions

  • Exemptions for LVS and Part V processes should be aligned to create greater efficiencies for implementation.

Our Real Estate and Environmental and Planning Teams are tracking the legislation as it moves through the legislative process and will be providing further updates to this post.

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

In the five or so years prior to 2022, the market was abuzz with news of the latest forward-purchase or forward-fund transaction. With demand for high-quality commercial and residential real estate exceeding supply, certain cohorts of real-estate investors were willing to take greater risks in order to obtain higher yields – by entering into forward-fund or forward-purchase agreements for real-estate assets that had not yet been completed.

The key differences between the two approaches will be discussed below, but both require the purchaser to speculate upon the prevailing investment conditions when the asset will be completed. Given recent press releases from various stakeholders, it is clear that forward purchase arrangements are going to re-emerge in the residential sector as a prevalent means of acquiring residential units in order to address the current housing shortage. In that context, we explore the key issues and risks associated with this approach.

Forward-purchase and forward-fund transactions – what’s the difference?

It can sometimes appear that the terms ‘forward-purchase’ and ‘forward-fund’ refer to the same types of transaction, as the terms are sometimes used interchangeably. But they are not the same thing.

While forward-fund and forward-purchase transactions can both offer attractive means of acquiring real-estate assets, the key differences of which an investor needs to be aware are set out below.

The focus of this article is forward-purchase transactions, which we look at in more detail below.

Why enter into a forward-purchase agreement?

Developer perspective

There are many advantages for a developer in entering into a forward-purchase agreement, including:

  1. Speculative building: Entering a forward-purchase agreement can eliminate the speculation risk for the developer as the future purchase price for the development has been determined in advance.
  2. Exit: The agreement provides a clear exit strategy for the developer.
  3. Finance: Having certainty of exit will give the developer a greater chance of securing construction finance, and of securing more favourable terms for that finance. Financing can be repaid on receipt of the funds from the purchaser.
  4. Hold period: With the land and the development transferring to the purchaser on completion, the developer avoids incurring the cost and time associated with the usual post-completion marketing and bidding processes, and can avoid accruing interest liabilities on its financing during that period.
  5. Rate of return: The developer will likely see an increased RoR given the short hold period following completion. We are typically seeing a closing period of 15 working days following practical completion.
  6. Future projects: With prior knowledge of the return expected for the development, the developer can look for future projects sooner and can minimise any period of stagnation between developments.

Forward-purchaser perspective

There are also advantages for purchasers, including:

  1. Expertise: While a forward-purchaser may desire to undertake the development itself, it simply may not have the capacity or the expertise to do so. By entering into a forward-purchase agreement, the purchaser will be able to rely on the expertise of the developer’s team.
  2. Shovel-ready: Typically, but not always, a forward-purchased project will have planning in place, and will have the developer’s design team and contractor appointed and ready to start on site. This permits the purchaser to avoid a lengthy design-stage delay prior to works commencing on the site. Perhaps more importantly in the current market, it permits the purchaser to avoid the risk of planning-stage delays.
  3. Specification of the development: As the purchaser is involved in the development from an early stage it will have a far better understanding of the development and the capacity to select the primary materials used, the particular systems installed, etc..
  4. Purchase price: The development will be purchased for a locked-in purchase price. While the purchaser will have paid a deposit (which is refundable in certain instances) the remainder of the purchase price will not have to be paid until the development has been completed. The price is subject to the forward-purchase agreement, but it is generally only adjusted in limited scenarios, e.g. where the purchaser utilises a right to vary the development specification during construction.
  5. Finance: The developer retains responsibility for funding the project during the construction stage, and therefore generally bears construction-related risk. A purchaser will be in a better position to obtain financing where it is only drawing down funds for a completed development – after construction risks have largely been eliminated.
  6. Competitive purchase: By entering into the forward-purchase agreement the purchaser avoids having to participate in a typical bidding process with other prospective purchasers of a completed development.

The importance of good drafting

This is where the lawyers get the chance to add their value to the transaction. Having a team of lawyers experienced in a transaction that involves a yet-to-be-completed asset is imperative for both parties – to ensure the proper allocation of risk, the smooth running of the construction phase, and the successful completion of the sale of the completed development.

Key Drafting Points to Consider

  1. The asset: The agreement must accurately capture the expectations of both parties as to what the completed development will look like. Appending a pre-agreed specification to the agreement will provide certainty in this regard.
  2. Variations: Whilst a specification may have been agreed, an agreement should still allow for some flexibility, including:
    • a change in the market or a change in purchaser strategy may lead the purchaser to want to seek certain changes to the development (although this may add to the agreed purchase price). It is in the interests of both parties that the forward-purchase agreement should include clear drafting around this issue;
    • permitting a change to an agreed material where the specified material is no longer readily available – something that has become far more common in recent years; and
    • changes in legislation may also require the developer to make certain changes to the agreed development and specification.
  3. Monitoring: The ability to attend and access the site at regular intervals will be essential for the majority of forward-purchasers. For the benefit of the project and the developer, however, such access should be subject to reasonable limits.
  4. Delays: No matter what steps are taken to avoid a delay on a construction project, it is very rare that a project will entirely avoid delay. The forward-purchase agreement should therefore seek to prioritise the effective management of delays. It is essential that the agreement clearly allocates to each party the risk of different classes of delay, and specifies the steps to be followed by the parties where a delay event occurs.
  5. Long-stop: Whilst delay of some nature may be unavoidable, the impact of delay on the project should be controlled by the agreement. Where the development has been unduly delayed for an extended period, there comes a point where one or both parties may need, or want, to walk away from the forward-purchase agreement. It may therefore be necessary to specify a pre-agreed long-stop date, by which point one or both parties can terminate the agreement if the development has not been completed.
  6. Practical completion: The works will need to be practically completed before the sale of the development can be completed pursuant to the forward-purchase agreement. The agreement should clearly specify how the parties should determine whether or not the development has been practically completed. This is especially important in a changeable market. A good agreement should also specify how the parties will resolve a dispute regarding whether or not practical completion has occurred.
  7. Completion: A clear understanding of the completion deliverables will benefit both parties by eliminating uncertainty at completion – the developer should know what it has to provide and the purchaser should know what it is entitled to receive.
  8. Future strategy: The purchaser will need to be mindful of its future strategy for the development when negotiating the forward-purchase agreement. Will the development be rented to one entity or numerous entities? Will the asset be sold shortly after completion? The agreement should be tailored to reflect the forward-purchaser’s plans, and the risk that those plans will change.
  9. Residual defects risk: The agreement should specify which of the parties bears the risk of latent defects in the development and, where the parties agree it is necessary, make provision for latent defects insurance.

This is merely a selection of some of the key elements that should be captured in a well-drafted forward-purchase agreement.

Summary

Forward-purchase transactions remain popular in the residential market, and have many benefits for both developers and purchasers.  In order to protect both parties, however, forward-purchase agreements need to foresee and cater for the risks that arise at the various stages of the forward-purchased development: transaction, construction, practical completion, and lease or onward-sale.

A&L Goodbody has market-leading lawyers in our construction and real estate departments who are highly experienced in collaborating upon forward-purchase and forward-fund transactions, on both developer and purchaser-side mandates.

For further information in relation to such transactions or any related matter, please contact Conor Owens (Partner, Construction & Engineering), Jamie Rattigan (Partner, Construction & Engineering), Ger O’Toole (Partner, Real Estate), Jack Kennedy (Senior Associate, Construction and Engineering) or any member of A&L Goodbody’s Construction & Engineering or Real Estate teams.

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With the continuing impact of factors such as Brexit, the war in Ukraine and the COVID-19 pandemic, construction costs have and indeed continue to rise significantly. This has led to all stakeholders in the construction industry becoming far more acutely aware of the impact of inflation on project delivery than has traditionally been the case in the past.

Up until recently, inflationary risk was considered to be within the remit of the contractor and therefore would not be considered in great detail. However with the onset of inflationary pressures, it has become a hotly negotiated point within contract agreements as contractors are no longer willing to (or simply can’t afford to) solely take the burden of the potentially significant rise in cost.

The sorts of approaches to inflation that we have seen include:

  • Negotiation on inflation risk on a product by product basis; with detailed due diligence on the supply chain and greater use of open book price recording;
  • Incorporation of various indices into the contract and a risk share mechanism;
  • Employer’s expressly buying out the inflation risk for an agreed sum;
  • Inflation risk being assumed by the contractor up to a specific value or up to a specific point in time, after which point the inflation risk is shared between the parties;
  • Different approaches to inflation being taken on materials as compared to labour;
  • Employer’s simply having to take the inflation risk in its entirety.

One thing for certain is that the old approach of simply deleting Clause 36 of the RIAI (which was the clause that allowed contractors to recover inflation costs) is no longer acceptable on the vast majority of projects.

In that vein, it is worth noting that on those projects where inflation risk has not been properly considered and allocated, it is often the case that the parties have to deal with inflation at a subsequent point in time as it is simply not practical for contractors to bear all of the risk. This does increase the likelihood of disputes arising.

It had been hoped that issues with inflation would have eased by now. However, that has not happened. In fact, the problems with inflation have become so pronounced that the public works forms of contract are being further amended to allow contractors greater relief for inflation. The amendments to the public works forms of contract are due to be published shortly and these will, no doubt, be influential when negotiating private sector contracts.

For further information in relation to this topic or any related matter, please contact Conor Owens, Partner or Siomha Connolly, Solicitor or your usual contact on the Construction & Engineering Team.

Speed Read

In North Great George’s Street Preservation Society v An Bord Pleanála Mr Justice Humphreys refused to quash planning permission for shared accommodation developments at Hill Street and North Great George’s Street.

The Court was critical of the Applicants, where they contended that an archway located at the front of 36a North Great George’s Street should be afforded the protection of a “protected structure” but had not raised this point at any stage before taking the judicial review. The Court also analysed the Board’s application of the Department of Housing’s Sustainable Urban Housing: Design Standards for New Apartments Guidelines for Planning Authorities (the Guidelines), and considered the manner in which these can be challenged.

Gaslighting the decision maker

As part of the planning application, the Applicants had made a submission to Dublin City Council in which they stated that the development would “have a seriously detrimental effect on the adjoining protected structures” on North Great George’s Street. Judge Humphreys found that the Board could not have known that the Applicants were contending that there was a protected structure within the proposed development site itself. He viewed this as a “case of gaslighting the decision maker”, where the Applicants had failed to make a point and then subsequently sought to challenge the Board’s decision based on their failure to consider this same point. The Court found that requiring the Board to inquire into a multitude of hypothetical factual assertions would be “unworkable”.

Incorrect decision permissible in circumstances

The Applicants attempted to argue that if the archway formed part of a protected structure, it would follow that the permission granted was void from the beginning as the Board did not have jurisdiction to deal with it under the Planning and Development Regulations 2001. The Court disagreed and clarified that in some situations, the Board can “permissibly make an incorrect decision”. If an issue has not been raised before the Board, and it would not have been apparent to the Board from the materials put before it, the Courts will examine whether the Board acted lawfully rather than reasonably in order to determine whether the decision should be quashed.

While the Board is legally required to take a view on whether they are dealing with a protected structure in an application, any laxity in the implementation of this requirement will not automatically be fatal to its decision if this did not or would not have had any impact on their decision.

Challenging the Guidelines

The permission in this case was granted subject to a condition that the shared accommodation units be for single occupancy only and operate in accordance with the definition of Build-to-Rent developments, as set out in the Guidelines. The Applicants argued that this condition should be void for vagueness and uncertainty. The Court viewed this as an “attack” on the Guidelines. Judge Humphreys found that the Applicants should have challenged the Guidelines themselves rather than the Board’s application of these Guidelines.

The Court dismissed the Applicants’ case and refused to quash the permissions. The key messages arising from this decision are that objectors:

  1. Cannot raise new issues for the first time in judicial review proceedings in circumstances where those issues have not already been put before the Board; and
  2. Are precluded from challenging planning conditions that stem from policy documents or guidelines, as this is viewed as a collateral attack on the relevant policy documents or guidelines. Instead, objectors should have challenged those documents/guidelines themselves.

For more information please contact Alison Fanagan, Consultant, Jason Milne, Partner, or any member of our Environmental and Planning team.

The Department of Housing has this month launched a consultation process on the role of the Private Rental Sector (PRS) in Government’s housing policy and the wider economy. The Department’s press release and the consultation paper can be found here. Some of the key points noted in the consultation paper are as follows:

  1. The importance of the PRS sector within the wider housing system in providing flexible tenure accommodation, in particular for international workers, students, young adults and social housing supply.
  2. The important role institutional investment plays in the PRS sector, including the provision of capital for purpose-built, high-quality units in urban areas, the supply impact, a steady source of construction activity and the professionalisation of landlord functions.
  3. The increase of institutional investment in PRS stock is in line with many of Ireland’s peer economies where institutional investors such as pension funds and insurance companies own considerable proportions of the private rented stock.

The consultation paper also poses a number of questions, such as:

  • whether there are any strategies or policy measures which could be deployed by Government to attract more domestic capital toward sustainable, long-term investments in the residential rental market;
  • which rental policies and policy measures used in other countries ought to be considered for Ireland;
  • whether measures can be taken to specifically incentivise further supply of high-quality units by institutional investors with a long-term commitment to urban rental markets, and if so what form such measures should take.
  • if there are measures which should be taken to have a more structured and well-funded approach to the provision of rental accommodation for students
  • if there are any policy mechanisms available which can protect the long-term interests of tenants and investors alike, such as subsidies or tax measures which apply solely to long-term leases.

The Department is welcoming participation in the consultation process by interested parties. Any views/opinions on the questions posed in the paper should be submitted by way of submission form (available via the above link) emailed to rentalstrategy@housing.gov.ie by 26 July 2023.

For further information on this topic, please contact David Fitzgerald, Partner, or any member of A&L Goodbody’s Real Estate team.

The Irish Government recently published the general scheme, or initial outline, of the Planning and Development (Land Value Sharing and Urban Development Zones) Bill 2023 (the Bill).

The Bill is a key component of the Government’s “Housing for All” plan and proposes to introduce mechanisms for both land value sharing (LVS) and the designation of under-utilised areas with significant potential for development as “Urban Development Zones” (UDZs). This post focusses on the LVS elements of the Bill.

It should be noted from the outset that the Bill is at the very initial stages of the legislative process and is currently undergoing pre-legislative scrutiny, with it being probable that the draft legislation will change significantly over the coming months. The intention of this post is to give a flavour of the thinking behind the legislation and the Government’s initial proposals in this regard.

What is the purpose of the Bill?

The aim of the LVS element of the legislation is to introduce a mechanism to ensure that a proportion of the value uplift associated with a decision to zone land for development purposes is shared with the State, in the interest of the common good.

The net effect of this mechanism is to:

  1. Establish a Land Value Sharing Register (the Register) containing all lands falling within the scope of the LVS obligation; and
  2. Impose a statutory charge (or LVS contribution), payable to the planning authority by owners of those lands. The exact rate of the LVS contribution has not been finalised as yet, however the general scheme suggests an initial rate of 30% of the value uplift based on valuations of the existing use value (EUV) and market value (MV) of the land.

What lands will be in scope?

LVS will initially apply to all lands that are zoned for the purposes of residential use or mixed use (to include residential). It is proposed that LVS will be extended to commercial and industrial development zonings over time, on the basis that the owners of such lands also benefit from uplift in values as result of the zoning decision. Planning authorities will be required to publish a map showing the lands initially in scope for LVS in March 2024.

Land used solely for the provision of public infrastructure, public amenity facilities or open space may be excluded from liability. Exemptions are also proposed for social and affordable housing; cost rental housing; and development consisting of the conversion of an existing building to create one or more dwellings, provided that 50% of the existing external fabric is retained.

When will liability arise?

Liability for the LVS contribution will commence on 1 December 2024 in respect of planning applications lodged for permission on land that is:

  1. Acquired on or after 21 December 2021; and
  2. Zoned residential, zoned mixed use (to include residential), within an urban development zone or within a strategic development zone (the initial zoning requirements).

Lands within the initial zoning categories acquired before 21 December 2021 will come within scope on 1 December 2025.

All other lands which meet the zoning requirements prescribed in the legislation, to include commercial and industrial development zoning, will come within scope on 1 December 2026.

How will the liability be charged?

A condition requiring payment of the LVS contribution will be inserted into all planning permissions for:

  1. Residential developments of more than 4 housing units; or
  2. In due course, commercial developments of at least 500m2.

This is in addition to existing development levies and any other levies, charges or contributions which may be applied to the permission. There is generally no ground to appeal the inclusion of the LVS contribution in the planning permission.

How will the liability be calculated?

The zoning value of the land will be calculated by deducting the EUV of the land from its MV.

The charge is to be 30% of the zoning value, with provision for the Minister to adjust that percentage downwards, although the current draft of the Bill would suggest to no lower than 20% of the zoning value.

The liability arises on zoning and remains a charge on the land indefinitely until such time as it is paid in full and payment is recorded on the Register.

How will the Register operate?

Population of the Register will take place on the basis of owners’ self-assessment, with landowners required to submit EUV and MV valuations to the planning authority. However, the planning authority is empowered to undertake a review of those valuations at any time and to amend the valuations accordingly. A landowner can appeal a valuation of the planning authority to the Valuation Tribunal, whose determination will be binding on both parties.

We are tracking the Bill as it moves through the legislative process and will be providing further updates to this post.

For further information on this topic, please contact Jason Milne, Partner, Aoife Smyth, Knowledge Consultant, or any member of A&L Goodbody’s Environmental and Planning or Real Estate teams.

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On 31 March 2023, the Office of Government Procurement (the OGP) introduced monetary caps on liability in the Standard Conditions of Engagement for Consultancy Services (Technical) and the Standard Conditions of Engagement for Archaeological Services (the Conditions). Monetary caps on liability have become a typical feature in consultant appointments in the private sector.

In addition, and of interest to those operating in the PRS sector, the OGP has also noted that it intends to introduce caps on liability into the standard forms of construction contract. This is something which they have indicated is to happen imminently. Caps on liability in construction contracts in Ireland, in either the public or private sector, are nowhere near as common as they are in consultant appointments. Such caps on liability in construction contracts are much more common in other EU jurisdictions.

If the OGP does introduce caps on liability for the public works contracts, it is to be expected that contractors will push much harder for similar caps when negotiating private sector contracts. Of course, if a contractor does negotiate a cap within the construction contract it would also expect such caps to apply to any claims that might be brought under collateral warranties; and the forms of collateral warranty currently in circulation would typically allow a contractor to rely on equivalent rights of defence when defending any claims brought under the warranty.

As such, if the market does move in the way that is anticipated, there will be a lot of focus on:

  1. the level of any caps on liability; and
  2. what types of loss ought to sit outside the cap.

Purchasers and funders of PRS units will have to consider the impact that such caps might have on their overall security package.

For further information in relation to this topic or any related matter, please contact Siobhan Kearney, Senior Associate, or Síomha Connolly, Solicitor, or your usual contact on A&L Goodbody’s Construction & Engineering Team.

The Joint Committee on Housing Local Government and Heritage (the Committee) has just published its report (the Report) on the Pre-Legislative Scrutiny of the draft Planning and Development Bill 2022 (the Bill). It is a well put together report and the recommendations are clearly set-out and justified. The Committee considers that there is a lot to do before this Bill can be finalised and that a target date of Q3 2023 is unrealistic.

The Report comprises 87 pages and considers key elements of the Bill, with Part 5 being a summary of all 153 of the Committee’s recommendations. In addition, appendixed to the Report there are details of the Committee members, the Committee processes, useful hyperlinks to all of the transcripts from each day’s hearings, and all of the opening statements/submissions made. In each subsection of Part 4, the Report summarises key points made by those attending before the Committee and also includes the Committee’s own views on 6 key areas being:

  • Access to Justice;
  • Forward Planning;
  • Timelines & Resourcing;
  • Exempted Development;
  • National Planning Policy Statements; and
  • Omissions.

The Report references the difficulties that have arisen due to the lack of an explanatory memorandum which would have set out what changes were made to the 2000 Act and why. The Committee notes that it is very difficult to understand the justification for many of the changes in the Bill. Many of the Committee’s rejections of the changes in the Bill are made on the basis that they are not explained. The Committee emphasises the need for all bodies to be adequately resourced and calls out An Bord Pleanála, the Office of the Planning Regulator and the Planning Authorities in particular.

A few key points:

  1. The Committee is not in favour of almost all of the proposed changes to Judicial Review (JR), including the tighter proposed requirements on those taking challenges (to include residents’ associations), the changes to protective costs provisions, the removal of the ability to appeal to the Court of Appeal and the proposed entitlement for An Bord Pleanála to be able to amend its decisions after a JR challenge has been taken without incurring legal costs.
  2. The Committee considers that An Bord Pleanála should have to provide main reasons “in detail” where it decides to disagree with its Inspector, which would be very onerous and is a change to the 2000 Act which requires only that the “main reasons and considerations” be stated.
  3. Regarding the proposal for development plans to be on a 10 year cycle, the Committee emphasises that there should be a robust midterm review to ensure in particular that the role of elected Councillors is retained.
  4. The Committee expresses concern relative to the proposed National Planning Statements and considers they should be clearly defined, and require Oireachtas oversight as well as consultation.
  5. The Committee recommends that mandatory pre-planning public engagement should be required for all development applications but especially for large infrastructural projects.
  6. The Committee has several recommendations on ensuring that all relevant documentation is available easily online, and for example recommend that the 5 week period to make submissions on a planning application only commence when all application documents are available to access.
  7. The Committee considers that the proposed Regulations dealing with exempted development should be published before the Bill is debated in the Oireachtas and say that the exemptions provided for under section 4 of the 2000 Act should be replicated.
  8. The Committee is not in favour of the proposal to remove the public from the entitlement to seek a Section 5 declaration as to whether a particular development is exempt, and want that reinstated.
  9. The Committee recommend consideration of the removal of the seven-year rule for exempting enforcement action against unauthorised development, where that development is likely to have significant effects on the environment or to require Appropriate Assessment.
  10. It is noted in a heading entitled “Omissions” that sections 48 and 49 (on development contributions) of the 2000 Act have not been included and from engagement with the Department, it understands that this is an oversight and those provisions will be reinstated.
  11. The Committee notes that provisions regarding biodiversity protection have not been included in the Bill and consider that both biodiversity and climate issues should be considered in a revised version of the Bill.

Our Environmental and Planning Team are tracking the Bill as it moves through the legislative process and will be providing further updates to this post.

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

On 25 April the Irish Government announced a housing plan, termed by some as a “mini housing budget”, aimed at cutting the cost of building and refurbishing homes and further speeding up the delivery of housing.

The plan is comprised of the following measures:

  1. The temporary waiver for development contributions on new homes. These contributions, by which developers contribute to the cost of providing public infrastructure, will be waived temporarily and such waiver will be contingent upon the home being completed within a defined period of time, with a view to speeding up supply. It is understood that the resulting shortfall in local authority income will be reimbursed by central Government in order to fund the continued provision of infrastructure.
  2. An increase in grants to fund the cost of refurbishing vacant homes. The Vacant Property Refurbishment Grant is to be increased from €30,000 to €50,000 for vacant properties and from €50,000 to €70,000 for derelict properties. It will also be extended to cover houses built up to 2007 (under current rules, the grant only applies to homes built before 1993) and will be available for rental properties, as well as owner-occupied properties.
  3. A Government contribution of up to €750m towards to financing of construction of affordable housing for cost rental. This contribution will provide funding of up to €150,000 per building. It is understood that both the Land Development Agency and developers more generally will be in a position to avail of the funding.

We will share further details of each measure when available. In the meantime, for further information please contact Aoife Smyth, Knowledge Consultant,  or any member of A&L Goodbody’s Real Estate team.

The Supreme Court has agreed to consider two appeals concerning the nature of local development plans and how these can be legally challenged. The issues will be considered in appeals brought by developers whose legal challenges to zoning elements of the Meath County Development Plan for 2021 to 2027 were dismissed by the High Court in July 2022.

In its March determinations in the cases of Killegland Estates Limited and McGarrell Reilly Homes Limited, a three-judge Supreme Court panel said the applications raised points of general public importance. The court will examine:

  • the grounds upon which a challenge can be brought to part of a plan,
  • the nature and extent of any obligation to provide reasons for rezoning decisions, and
  • the nature and extent of the obligation to address submissions made on a draft plan.

    A hearing later this year is expected, with the two appeals being heard together.

    Killegland Estates Limited bought land at Ashbourne, Co Meath for €1 million before Meath County Council, as part of its review of the Meath County Development Plan, decided to remove the housing zoning for those lands, and instead designate them for community infrastructure, to be used as an access site to a park. Mr Justice Richard Humphreys ruled in the High Court that there was no basis for Killegland to argue that the Council’s rezoning decision exceeded the bounds of rationality, and so it was upheld as lawful. Mr Justice Humphreys said, among other things, there was no failure on the part of the Council to comply with its obligations under the Strategic Environmental Assessment Directive. Even if, counterfactually, the council’s decision was flawed, there would be a particular problem related to granting an order to quash the zoning changes because the applicants had only sought to quash the decision in relation to their own lands and not the core strategy that ensures compliance with national and regional policy. The same judge also dismissed a separate but similar case taken by McGarrell Reilly Homes Limited and Alcove Ireland Eight Limited’s case relative to land in Kilcock and Stamullen.

    The Supreme Court is no doubt cognisant that this issue is of general public importance currently, where many of the revised Development Plans are under legal challenge including those of Dublin City Council, Dun Laoghaire Rathdown, Wicklow as well as other challenges to Meath’s Plan.

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