Perfection should not be the enemy of progress. Ultimately, we need to speed up residential delivery, not slow down.
Raymond Tutty, Head of Planning
What do we want? Housing! When do we want it? Now!
Where do we want them? Somewhere else, not near my house, not in this settled area, not along my route to work.
Ireland is experiencing a tsunami of judicial review challenges to housing developments. Combined with Covid-19, the increasing litigious nature of residential planning is having a significantly negative impact on residential delivery rates.
It is not just the developments in court that are affected, developments in the design stage are now being paused. The cost associated with taking a large residential development through the planning system has always been high. Now applicants must factor in prolonged court cases, legal costs, and revised planning application costs. Correspondence from the Irish Institutional Property group to the government estimates that as many as 53,000 new houses are currently being held up by judicial review cases. The cost of these delays will ultimately be passed on to end user, the homeowner.
You may legitimately ask the question, if many of these judicial reviews have been successful, were the original planning permissions not fundamentally flawed? It is not that simple. Some are sent back for new applications due to administrative or procedural errors.Some were slightly premature to upcoming changes in Development Plan zoning. Some require amended or additional ecological or environmental assessments.
A common outcome is that most proposals are ultimately approved. You could say that the judicial reviews resulted in better planning permissions, but perfection should not be the enemy of progress. Ultimately, we need to speed up residential delivery, not slow down.
Put any development in a court with highly trained legal professional and learned judiciary, there is always potential to identify areas of concern. Major residential developments are complicated and have a myriad of considerations that need to be balanced.
We badly need to refocus on our key objective of addressing the housing crisis.
The government recognise that housing is the number one crisis facing the people of Ireland, particularly young people. It previously committed to reducing vexatious judicial reviews relating to residential development. More action on this is now needed. More than one in four Strategic Housing Development approvals have been challenged in the courts, with approximately 75% of these challenges successful. This is delaying the delivery of thousands of homes.
Many of the affected residential developments are in existing urban areas, where national planning policy states that developers should be focusing their attention. The threshold by which these developments require the scrutiny of judicial review proceedings needs to be higher. We are not talking about talking about major polluting industrial proposals here.
Major residential developments are already the subject of detailed technical assessments by the applicant, and extensive consideration by a Planning Authority or An Bord Pleanála. They are not simply waved though and granted permission.
It is reported that the government will scrap the Strategic Housing Development process four months early, perhaps by the end of October. In future, residential planning applications will first be made to the local authority, with An Bord Pleanála determining any subsequent appeals. Major procedural changes of this nature typically delay application submissions as applicants adjust their planning strategies. It is likely that this change will have a similar short term negative impact on residential application submission rates.
Changes are also likely to try and curb the prevalence of judicial reviews. These changes cannot come soon enough as the current judicial review process has essentially added a second stage of determination to the SHD process. With the determination of planning applications reverting to local authorities, we must avoid appeals and judicial reviews becoming the de facto second and third determination stages for major residential applications.
The increasingly litigious nature of the planning system is grossly hampering our national sustainability and housing goals. By frustrating residential development in sustainable locations, we are encouraging longer commutes, residential price growth, and exacerbating the housing crisis.
Raymond Tutty is Head of Planning with Savills Ireland.
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