28 July 2022 has been appointed as the commencement date for section 6(2)(c) of the Affordable Housing Act 2021.
This is the provision of the Act which allows a housing authority to enter into arrangements with the Land Development Agency for the purposes of making homes available for sale to eligible applicants under affordable dwelling purchase arrangements.
For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.
In a recent High Court judgment[1], the Court struck out a property developer’s claim that local objectors, who issued judicial review proceedings in response to planning permission granted to the developer for a strategic housing development, had committed the torts of maintenance and champerty.
‘Maintenance’ is the giving of assistance to a party in litigation by a third party who has no interest in that litigation, e.g. financial assistance.
‘Champerty’ is the giving of such assistance where the third party will receive a share of the litigation proceeds.
These proceedings were commenced after the developer became aware of a flyer circulated in the local community. This flyer sought contribution from third parties to the legal costs of the challenge to the developer’s planning permission.
The Court was satisfied that the developer’s claim was “bound to fail” – in other words, the Court determined that it was prepared to exercise its jurisdiction to strike out proceedings and refuse to hear a case where it considers that the arguments raised by an applicant clearly would not succeed. In this instance the Court therefore struck out the claim on the basis that the law of maintenance and champerty should be viewed in accordance with modern ideas of propriety and, even more importantly, in recognition of the fact that access to justice is a constitutional fundamental right. In her judgment Ms Justice Egan noted that the local community, to whom the flyer was directed, had a legitimate interest in the judicial review proceedings.
Ultimately, the Court found that as these proceedings were to be struck out as bound to fail, it was not necessary to consider the other grounds advanced by the defendants – namely that the proceedings were brought for an “improper purpose” and that the present proceedings, in addition to two other sets of related proceedings, were to be regarded as SLAPP (strategic litigation against public participation).
[1] Atlas GP Ltd v Kelly & Ors[2022] IEHC 443
For further information on this topic, please contact Alison Fanagan, Consultant, Síofra Heffernan, Lawyer, or any other member of A&L Goodbody’s Environmental and Planning team.
The Regulation of Providers of Building Works and Miscellaneous Provisions Act 2022 introduces, with effect from 6 July 2022, important changes to the law regarding the termination of residential tenancies. These amendments involve:
| Duration of Tenancy | Previous Notice Period | New Notice Period |
| Less than 6 months | 28 days | 90 days |
| Not less than 6 months but less than 1 year | 90 days | 152 days |
| Not less than 1 year but less than 3 years | 120 days | 180 days |
| Not less than 3 years but less than 7 years | 180 days | 180 days |
| Not less than 7 years but less than 8 years | 196 days | 196 days |
| Not less than 8 years | 224 days | 224 days |
For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.
Waltham Abbey v An Bord Pleanála & Ors; Pembroke Road Association v An Bord Pleanála & Ors [2022] IESC 30 concerned appeals against two separate decisions of the High Court. Both decisions raised an identical question of law: whether the word ‘statement’ in Article 299B of the Planning Regulations required a separate identifiable document to be included in a planning application for a strategic housing development (SHD) or whether the obligation under this article can be fulfilled if, to the satisfaction of An Bord Pleanála (the Board), the relevant information has been included generally in the planning application and can be ascertained from a reading of that document.
The joint judgment in both the Waltham Abbey and Pembroke cases was handed down as contradicting interpretations of Article 299B had been delivered by High Court judges in the cases. In Waltham Abbey Humphreys J concluded that a separate identifiable document was required, whereas in Pembroke Owens J concluded that no such separate identifiable document was required.
The Article 299 obligation requires the Board to satisfy itself that the applicant has provided a statement showing how the results of relevant assessments of the effects on the environment carried out pursuant to EU legislation, other than the EIA directive, have been taken into account.
The Court found that the fact that the Board did not have a separate identifiable document did not preclude it from discharging its statutory functions and the “Board was perfectly capable of interpreting the data and the analysis furnished by the developers and it is well used to navigating complex environmental and planning documents”.
The Court allowed the Waltham Abbey appeal but dismissed the Pembroke appeal in so far as it concerned the Article 299B issue.
In relation to Pembroke, two further issues were also addressed:
With regards to these other issues, the Court agreed with Owen J’s analysis in the High Court of section 146A and found that he was correct in the circumstances of this case to adjourn the judicial review proceedings in order to allow the Board to amend the permission. The Court also held that the Board had paid appropriate attention to the general objectives of the Urban Development Building Height Guidelines and the need to comply with the combined requirements of s. 9(6) of the Planning and Development (Housing) and Residential Tenancies Act 2016 (which provides the Board with the power to grant a SHD permission which would materially contravene an aspect of the development plan) and s. 37(2)(b) of the 2000 Act (which allows for the Board to depart from the development plan where, having regard to the relevant guidelines, it considers the departure is warranted).
For further information on this topic, please contact Kristen Read, Senior Associate, Niamh Collins, Lawyer or any member of A&L Goodbody’s Environmental and Planning team.
The judgment in Monkstown Road Residents’ Association & Ors v An Bord Pleanála & Ors [2022] IEHC 318 was delivered in respect of a claim to quash the decision of An Bord Pleanála (the Board) to grant planning permission for a strategic housing development in Monkstown. The Court ruled in favour of the Residents’ Association as it found that the Board erroneously relied on SPPR1 of the Height Guidelines and failed to give reasons for its EIA Screening decision as to the insignificance of the effect of the proposed development on Cultural Heritage.
For further information on this topic, please contact Jason Milne, Partner or any member of A&L Goodbody’s Environmental and Planning team.
In Friends of the Irish Environment v An Bord Pleanála [2019] IEHC 80, Simons J held that developers are precluded from using the process provided for in section 146B of the Planning and Development Act 2000 (the PDA) to extend the duration of a planning permission.
The Court concluded that a developer could not invoke the general power under section 146B for An Bord Pleanála to alter a strategic infrastructure development upon request to seek an extension but, rather, an extension of the duration of a planning permission could only be granted under section 42 of the PDA. In doing so, he emphasised that section 42 of the PDA (as amended) is precise and deals with “one specific contingency, namely the extension of the duration of a planning permission”. Simons J confirmed that the conclusion was informed by the presence of safeguards in section 42 which were absent from section 146B.
For further information on this topic please contact, Alan Roberts, Partner, Niamh Collins, Lawyer or any member of A&L Goodbody’s Environmental and Planning team.
Further provisions of the Land Development Agency Act 2021 have been commenced with effect from 31 March 2022, as follows:
The only provisions of the Act remaining to be commenced at this point are:
For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.
Key Points
The Regulation of Providers of Building Works Bill (the Bill) continues its progress through the Irish legislature and has now reached the Committee stage (the third stage, before the Dáil). This third stage will see the Bill debated before the Select Committee on Housing, Local Government and Heritage for Committee State, at a date to be confirmed.
The purpose of the Bill is to raise standards in construction through the establishment of a register to be known as the Construction Industry Register Ireland (CIRI). The aim of the CIRI is to regulate providers of building works by requiring all entities who provide building services to register with CIRI. This registration body will determine the standards and competence required from providers of building works. It will also investigate and adjudicate complaints against them.
CIRI’s main function will be to assess the competence and eligibility of any entity or person who requires registration, using criteria laid out in the draft legislation. These criteria will consider relevant experience or qualifications in the construction industry or a combination of both.
CIRI will establish an Admissions and Registration Board which in turn will establish committees to assist and advise it in relation to its functions. The members of the Admissions and Registration Board will be appointed by the Minister for Housing, Local Government and Heritage, Mr Darragh O’Brien TD (the Minister).
Registrants will be required to have public liability insurance and employers’ liability insurance if it applies. There will be a statutory Admissions and Registration Board and Appeals Board.
The Bill also allows for complaints against registered builders to be made on a number of grounds, in particular for providing building services in a category in which a provider is not registered. It also provides for a range of proportionate sanctions to be imposed after investigation.
Entry onto CIRI will be open to all builders, whether sole traders, partnerships or registered companies, who can demonstrate that they are competent to carry out works in the category for which they are seeking to register. Companies will be able to register by contacting the CIRI office or visiting its website and completing the online application form.
Background
Previously known as the Building Control (Construction Industry Register Ireland) (CIRI) Bill 2017, the General Scheme was first published and underwent pre-legislative scrutiny in 2017. This legislation has been long since supported within the construction industry.
The Construction Industry Federation (CIF) established a voluntary register in 2014 and CIRI will continue to be operated by the CIF, following the enactment of the legislation. Approximately 800 entities are currently registered on a voluntary basis.
The Bill is largely motivated by the Government’s wish to avoid the reoccurrence of housing defects that were the legacies of poor construction design, workmanship and materials. Something which has, to quote the Minister,
“impacted so significantly on the lives of so many of our people. By driving regulation in the construction sector, the State will ensure the mistakes of the past are not repeated and we have a more sustainable housing system and construction sector in the future.”
The Bill forms part of the Government’s national plan for housing, ‘Housing for All’, which sets out an ambitious target of delivering 300,000 new homes by the end of the decade to address our national housing crisis. As part of that plan, addressing the legacy of poor workmanship and regulatory failure while preventing repeated mistakes in the future, has been a priority for the Government.
Provided the Bill is passed, it is envisaged that the register will be set up over the next two years, with registration being mandatory from 2024.
Purpose of the Bill
The main objective of the Bill is to develop and promote a culture of competence, good practice and compliance with the building regulations in the construction sector.
The Bill provides for a mandatory register of builders, contractors and specialist sub-contractors, subject to a limited number of exceptions. Builders will only be permitted to carry out building works for which they are registered to provide.
The Bill aims to expose the ‘black market’ economic activity taking place in the construction sector and ensure fairer competition for compliant building operators.
Given the urgent need for housing in Ireland, the Bill aims to provide confidence that homes are built to the highest standards and that any professional services used are also of a high standard.
The Bill will also complement a number of key measures the Government has in place to strengthen the arrangements for the control of building activity following the building failures that have emerged in recent years. These measures include the revised Building Control (Amendment) Regulations 2014, the activation of registration arrangements for construction professionals provided for in the Building Control Act 2007, the development of the nationwide online building control management system and the move to risk-based, standardised inspections by local building control authorities.
Key Provisions
Concerns and possible Pitfalls
Protectionism
There are concerns that the Bill may limit who can participate in the market and also how the criteria for registration will be applied. It will be important that CIRI does not discriminate against builders established in other jurisdictions, and it is hoped that online registration will alleviate this concern somewhat.
Independence and objectivity of Registration Board and Appeals Committee
Cost
The administrative and cost burden of CIRI must be mitigated, particularly for small builders;
For further information in relation to this topic, please contact Conor Owens, Partner, Tom Sexton, Lawyer or any member of ALG’s Construction & Engineering team.
The decision in John Paul Construction Limited v Tipperary Co-Operative Creamery Limited [2022] IEHC 3 relates to an application for leave to enforce an adjudicator’s decision pursuant to the Construction Contracts Act 2013 (the Act). It further endorses the key principles of adjudication, including “pay now, argue later”, which have been considered in detail in Principal Construction Ltd v. Beneavin Contractors Ltd [2021] IEHC 578 and Aakon Construction Services Ltd v. Pure Fitout Associated Ltd (No. 1) [2021] IEHC 562.
A&L Goodbody LLP on record for John Paul Construction Limited (JPC).
JPC was engaged by Tipperary Co-Operative Creamery Limited (TCC) under a construction contract (as defined under the Act) to carry out development works at TCC’s milk drying and evaporation facility in Tipperary town. Pursuant to Section 6(2) of the Act, a notice of intention to refer was issued in relation to a payment dispute relating to delay events and prolongation costs.
The adjudicator issued a decision in favour of JPC, which ordered TCC to pay JPC the sums awarded within four weeks. In circumstances where TCC failed to pay the sums awarded, JPC sought leave to enforce by order of the High Court in accordance with section 6(11) of the Act. Section 6(11) of the Act provides that an adjudicator’s decision can, with the leave of the court, be enforced in the same manner as a judgment or order of the High Court.
TCC sought to defend the application based on two grounds:
In finding that the adjudicator’s decision was enforceable, Mr Justice Simons held that:
The legal effect of an adjudicator’s decision is merely to impose an obligation to make a payment in the interim…Certainly, there is no call for the court, on such an application, to carry out a detailed review of the underlying merits of the adjudicator’s decision…This does not affect the right of either party to pursue arbitration or litigation thereafter.
The role of the Court in enforcement of adjudications is therefore narrow.
Under subsections 6(10) and (11) of the Act an adjudicator’s decision is binding in the interim, unless and until it is superseded by a subsequent decision reached in arbitration or court proceedings. Even though it is not final and conclusive, the adjudicator’s decision gives rise to an immediate obligation to pay. This is described as “pay now, argue later”.
The Court noted a “twofold rationale” for its limited role in an application to enforce. First, the adjudicator’s decision is not “final and conclusive” in that the “unsuccessful party is entitled to a full rehearing of the underlying payment dispute – in subsequent arbitral or court proceedings – and has a right to recoup any monies paid…”. Second, statutory adjudication is designed to be far more expeditious than arbitration or litigation. It would therefore “undermine the legislative policy of “pay now, argue later” were the court to refuse to enforce an adjudicator’s decision precisely because the adjudicative process failed to replicate that of conventional arbitration or litigation”.
In resisting the enforcement proceedings, TCC sought to rely on two main grounds:
Importantly, on the grounds of fair procedures, the Court acknowledged that it would not enforce an adjudicator’s decision where there has “been a blatant or obvious breach such that it would be unjust to enforce the immediate payment obligation”. This clearly indicates that the Court retains a discretion to refuse to enforce. However, this is a high bar to meet.
Alleged failure to consider defence
As its main ground of resistance, TCC inferred that a particular section of its defence had not been considered, as opposed to “expressly excluded” by the adjudicator. The Court noted that these were two distinct scenarios. The Court adopted a pragmatic approach and, in rejecting TCC’s attempt to “embark upon a reconsideration of the underlying merits of the adjudicator’s decision”, it noted that it would have regard to:
the adjudicator’s decision in the round: the decision is not to be parsed line-by-line. Where a respondent has sought to raise a number of distinct defences…or has raised a counterclaim, then the decision should record the adjudicator’s findings on each of these distinct defences. The position in respect of a single line of defence which comprises a number of interrelated issues is otherwise: the adjudicator will not necessarily be required to set out separate findings on each and every subtopic. It is sufficient that the substance of the defence have been addressed in the decision.
The Court stated that this position is “broadly similar, but not identical” to that adopted in England and Wales.
Allowing “new” claim to be made
TCC also alleged that the adjudicator had permitted a “new” claim to be made during the course of the adjudication in breach of fair procedures. In rejecting this ground outright, Mr Justice Simons stated:
this complaint is premised on a misunderstanding on the part of the employer. The supposed new claim is, in fact, simply a better particularised version of the original claim.
It is important to note that the revised claim was provided as a result of a request for further and better particulars by TCC and that the adjudicator allowed TCC nine extra days to respond. The Court stated that this period was “reasonable in the context of a statutory adjudication, having regard to the need for expedition” and it noted the detailed supporting discussion in Aakon [No.1].
TCC claimed that the adjudicator exceeded his jurisdiction in purporting to determine issues which were already the subject of an earlier binding adjudication decision (delivered by the same adjudicator). The Court rejected this argument on the basis that the first adjudication related to variations and “did not involve a claim for an extension of time nor were prolongation costs sought”. The Court was satisfied that the adjudicator’s decision “did not trespass upon issues which had been the subject of a binding determination in the first adjudication”.
JPC had submitted that, in resisting enforcement on alleged breach of fair procedures, TCC had attempted to judicially review (JR) the decision via the back door and that this was time barred due to the three month time-limit for JR under Order 84 of the RSC having expired. Ultimately, the question of whether adjudication under the Act is amenable to JR under Order 84 was not addressed in circumstances where TCC had failed to demonstrate that the adjudicator breached fair procedures and / or exceeded his jurisdiction. The Court noted “the opposition failed on the merits, rather than as the result of any supposed failure to comply with the three month time-limit”. Although the Order 84 issue was not decided upon in this matter, it is important and it is likely to arise before the Court in due course. It is clearly necessary for the Court to provide direction on this issue.
This judgment clearly sets out and reaffirms the principles of the Act, in that:
Importantly, the Court elaborates further on the principles set out in Aakon [No.1] and Principal Construction to the extent that it is now clear that the role of the Court in the enforcement of adjudications is particularly narrow and, although the Court retains jurisdiction under the Act to refuse leave to enforce, that the Court will not carry out a detailed review of the underlying merits of the adjudicator’s decision in this regard.
For further information in relation to this topic please contact Conor Owens, Partner, Michael Kennedy, Senior Associate or any member of A&L Goodbody’s Construction and Engineering team.
As detailed in our earlier post, the Land Development Agency Act 2021 was signed into law on 21 July 2021 but further Ministerial order was required for its provisions to be commenced.
The first such order has been made and appoints 15 December 2021 as the commencement date for the following provisions of the Act:
(a) Part 1 (Preliminary and General), other than section 11 (Revocation);
(b) Part 2 (Land Development Agency), other than sections 14 (Functions of Agency), 15 (Services to Local Authorities), 17 (Chief Executive of Agency) and 21 (Staff of Agency);
(c) section 25 (Share capital of Agency);
(d) section 26 (Shares in Agency);
(e) section 27 (Payment of dividends);
(f) section 30 (Amendment of National Treasury Management Agency (Amendment) Act 2014);
(g) Part 5 (Dissolution of body established by Order of 2018);
(h) Part 6 (Financial statements and public accountability); and
(i) section 79 (Application of Freedom of Information Act 2014 to Agency).
For further information on this topic, please contact Aoife Smyth, Knowledge Lawyer or any member of A&L Goodbody’s Real Estate team.