Large scale residential developments – Changes afoot!

The Planning and Development (Amendment) (Large-scale Residential Development) Act 2021 was enacted on 17 December 2021 (“the LRD Act”). The LRD Act supersedes the existing Strategic Housing Development (“SHD”) procedure and is due to come into effect on 25 February 2022.

BACKGROUND

The SHD procedure is governed by the Planning and Development (Housing) and Residential Tenancies Act 2016 which was introduced to help address the shortage of housing and issues in the rental sector.  It provided for “fast track” planning applications for developments comprising 100 or more houses or for student accommodation of 200 or more bed spaces, and allowed an applicant to bye-pass a Local Authority and instead lodge an application directly with An Bord Pleanála.  An Bord Pleanála would have a period of 16 weeks to decide on an application, which period can be extended where an oral hearing was held.

The Government decided in July 2021 to discontinue the SHD procedure and replace it with a new procedure which would see a return to the old arrangement where an application would in first instance be lodged with a Local Authority with a right to appeal to the Board.  This comes at a time when there has been a general level of criticism of the SHD procedure and which has seen an increase in the number of decisions facing judicial review before the High Court.

The return to the old two-stage planning process will include mandatory timelines for both a Local Authority and An Bord Pleanála to process applications.

LRD Act means a development that includes:-

(a) the development of 100 or more houses,
(b) the development of student accommodation that includes 200 or more bed spaces,
(c) both the development of 100 or more houses and of student accommodation, or
(d) both the development of student accommodation that includes 200 or more bed spaces and of houses.

SUMMARY OF NEW ARRANGEMENTS

1. Commercial Use

The LRD allows for up to 30% of the gross floor space to be for commercial use, which replaces the 15% cap under the old system.

2. LRD Opinion

A party seeking to lodge a planning application for a large-scale residential development with a Local Authority must first obtain an LRD Opinion, or “written confirmation” from a Local Authority under section 247 of the Planning and Development Act 2000-2021. An exception is where an application for permission is for lands located within a strategic development zone.

3. Request for LRD Meeting

Once an applicant has consulted with a Local Authority in accordance with section 247, an applicant can request an LRD meeting with the Local Authority. The LRD Act sets out the documents to accompany such a request.

A Local Authority can also issue written confirmation that a consultation pursuant to section 247 is not required. This can arise where a permission has already been granted and a planning authority is satisfied, having compared the proposed development to the permitted development, that:-

3.1. the proposed development is substantially the same as the permitted development, and

3.2. the nature, scale and effect of any alterations to the permitted development are not such that require the consultation process to be repeated.

4. LRD Meeting

A planning authority shall convene an LRD meeting to take place within the period of 4 weeks beginning on the date on which the request is received by the planning authority.

5. LRD Opinion

The planning authority shall provide an opinion within the period of 4 weeks beginning on the date on which the LRD meeting takes place, as to whether or not the documents submitted for the purposes of the meeting constitute a reasonable basis on which to make an application for permission. Where a planning authority forms the view that the documents submitted do not form a reasonable basis for an application then the authority shall set out the reasons why.

6. Application for permission to the Local Authority

Once an LRD Opinion issues, or an applicant holds written confirmation under section 247, an applicant can proceed to lodge a planning application with a Local Authority. A planning authority can request applicants to submit further information with respect to their application. A Local Authority typically makes a decision on an application within a period of 8 weeks, which period may be longer if further information is sought.

7. Time limits for LRD appeals

A decision may be appealed to the Board.  Where no oral hearing is held, the Board shall determine an LRD appeal within 16 weeks of receipt by the Board of the appeal. However, the Board may, within 16 weeks of the receipt of the appeal, require the applicant to give to the Board further information or to produce evidence in respect of the appeal.

The Board shall make its decision on the appeal within 4 weeks of the further information notice being complied with, or if the Board considers the further information or evidence contains significant additional data which should be notified to the parties to the appeal within 4 weeks beginning on the day on which that notice is given by the Board to the parties to the appeal.

Where an appeal is accompanied by an environmental impact assessment report or a Natura impact statement, and the Board serves a Further Information notice, then the Board shall make its decision within 8 weeks of the further information request being complied with, or if within this 8 week period the Board considers the further information or evidence contains significant additional data which should be notified to the parties to the appeal, then within 8 weeks beginning on the day on which that notice is given by the Board to the parties to the appeal.

TRANSITION PERIOD

Once the LRD Act comes into effect on the 25 February 2022 the old SHD system continues to remain in place in the following scenarios:-

• Where an application is already with the Board.

• Where an applicant held an opinion from the Board before the 17 December 2021 an applicant has until the 16 April 2022 to lodge an application. An applicant should also notify the Board as soon as practicable of its intention to proceed with the application.

• Where a prospective applicant did not hold an opinion, such an applicant had until the 17 December 2021 to seek a pre-application consultation with the Board. A planning application should then be made to the Board within 16 weeks from when the Board’s opinion issues. Again, an applicant should notify the Board as soon as practicable of its intention to proceed with the application.

CONCLUSION

The return to the old two-stage planning procedure should assist in allowing for greater public participation in the planning process, and it is hoped reduce the number of judicial reviews.  The mandatory timelines around decision making are welcome and should allow for planning applications to be dealt with in a timely manner, which in turn should help in the delivery of new housing.

For further information on this topic, please contact Brendan Sharkey on bsharkey@reddycharlton.ie