Out with the old, in with the new Out with the old, in with the new Out with the old, in with the new

The beginning of 2022 has commenced much like we experienced throughout 2021 as far as planning activity for housing has continued – very active. Stephen M. Purcell of our Future Analytics team inspects the Strategic Housing Process below.

The Department of Housing, Local Government and Heritage reports that 2021 saw Commencement Notices for 30,724 new homes received, representing a 42% increase on 2020 (21,686 homes). Interestingly, they remark how this 2021 total is almost the same as the combined totals for 2016 and 2017 (30,816).

Apart from 2020, materially impacted by the COVID-19 pandemic, the number of residential homes for which Commencement Notices were received has increased every year since 2015.

The level of ongoing planning application activity is also partially explained by the current period of “dual process” while we transition from the “Strategic Housing Development” (SHD) provisions towards the newly enacted “Large-scale Residential Development” (LRD) provisions.

Indeed, the President signed into law, on 14 December 2021, the Planning and Development (Amendment) (Large-scale Residential Development) Act, 2021 (No. 40 of 2021) 2021 which commenced a revised process for seeking consent for large-scale housing projects in Ireland.

Intended to facilitate the delivery of high-quality residential developments in a timely manner, the new LRD provisions have sought to draw on some of the more positive experiences of the SHD process, while addressing some of the widely debated issues and challenges faced in navigating the steps of the SHD process.

For those not involved in day-to-day planning activities, the SHD process was introduced in 2016 in an effort to expedite the planning application process for well-designed, large scale housing schemes on appropriately zoned sites. The Programme for Government: Our Shared Future confirmed the position of not extending the SHD process beyond committed dates (it was extended temporarily following a review in 2019, until 31 December 2021, and again on account of Covid-19 impacts, to 25 February 2022).

Many in the industry have seen the benefits of the SHD process over the period of its life, not least in the calibre of design and level of detail informing the final scheme the subject of an SHD application, which has undoubtedly raised the bar permanently on both how a project is conceived, considered and designed, and the rigour with which it is deliberated by the Planning Authority and An Bord Pleanála.

Of course, the SHD process was significantly undermined as a result of many consented developments being challenged through Judicial Review proceedings, and ultimately the planning permission being quashed. This brought considerable uncertainty to the consenting process, culminating in what was heretofore a step typically reserved for major development or even strategic infrastructure projects - the forensic critique of a planning application pack before it lodges, by planning and environmental law specialists - becoming a routine step in the application preparation process in an effort to de-risk the proposals from the prospect of legal challenge, post-consent.

The wind-down of the SHD process is underway, with the transition arrangements as follows:

• SHD applicants already in receipt of an SHD opinion will have 16 weeks to submit an SHD application to the Board from 17 December 2021.
• SHD applicants who have commenced consultation with ABP and are awaiting an SHD opinion will have 16 weeks to submit an SHD application to the Board from the date of receipt of the SHD opinion.

KPMG Future Analytics has tracked every SHD application over the years and plugged the results into our Power BI environment as an efficient resource to reference notable decisions, trends in how specific matters or design criteria are adjudicated, local precedent and related insights for ongoing development projects.

A “large-scale residential development” / LRD application - much like we are used to from the SHD model - will comprise:

• 100 or more houses;
• 200 or more student accommodation bed spaces;
• development of 100 or more houses and student accommodation;
• both student accommodation of 200 or more bed spaces and houses;

where the LRD floor space of the buildings comprising the houses and/or student accommodation is not less than 70% of the LRD floor space of the buildings comprising the development. This is a notable distinction from the SHD process, where only 15% of non-residential development could be included.

The LRD application process involves a two-stage process, much like the established planning application process pre-SHD, i.e “a pre-planning and lodgement” stage directly to the Planning Authority, and “an appeal” stage to An Bord Pleanála (of course, judicial review is also available following this ultimate planning decision).

• Pre-planning or “pre-application” consultation will, generally, comprise a first s247 consultation, with a second consultation, a “LRD meeting” also required thereafter. The outcome of the LRD meeting will be an “Opinion” by the Planning Authority to the prospective applicant as to whether the proposals constitute a reasonable basis for submitting an LRD planning application.
• A planning application must be submitted within 6 months of the prospective applicant receiving this “Opinion”, and the applicant is obliged to make the application materials available on a dedicated website.
• While there is some scope for “further information” to be requested by the Planning Authority (and indeed by An Bord Pleanála), the intention is that the comprehensive pre-application consultation process will minimise the need for the extent of further information being sought. Such requests can only be made once and are limited to matters of technical or environmental detail unforeseen at the time of LRD Opinion / lodging of the LRD application, or raised during the public participation process (a process matching the traditional planning application procedure).
• The Planning Authority must make its decision within 8 weeks, save for instances where “further information” is required.
• If a decision is appealed to An Bord Pleanála, the Board must make a decision within 16 weeks of receipt of same (there is limited scope for “further information” requests).
• Within an SDZ, the LRD pre-application process is not mandatory, and the appeal stage is not applicable.
• A financial penalty is incurred, payable to the applicant, by the Planning Authority or An Bord Pleanála where they fail to make a decision within the permitted timeframe.

As with any new legislative provisions introduced to the planning process, the “devil is in the details”, and based on our review, there are some interesting factors to consider. For example, the manner in the “LRD floor space” is defined and its exclusion of ancillary residential facilities including gyms and child-care facilities is an interesting piece, while the controversial “material contravention” provisions (sometimes justified) of the SHD process no longer being available will require careful and comprehensive planning argumentation to support schemes which may push the envelope in testing Development Plan and Local Area Plan policy, etc. and their relationship / alignment with statutory national planning guidelines.

A lot remains to be seen, and the success or otherwise of the LRD process can only ultimately be gauged as the sector navigates these new provisions.

To receive your complimentary copy of our LRD procedural overview deck, please contact Stephen M. Purcell, Director and Co-Head, KPMG Future Analytics.