Resolving the Housing Crisis: Why Are So Many Strategic Housing Development Permissions Being Quashed?

The Strategic Housing Development (SHD) system was introduced by the Planning and Development (Housing) and Residential Tenancies Act 2016 (the 2016 Act) in a bid to fast-track the planning application process for large-scale residential developments of 100 or more houses and student housing that contain 200 or more bed spaces.

SHD applications are made directly to An Bord Pleanála by-passing the traditional planning route where the application is made to the local planning authority. The process requires applications to be decided within a mandatory 16-week time period.

An analysis of the Board’s records carried out in November 2020 by the Deputy Chairperson of the Board, Paul Hyde stated that since the SHD legislation had been introduced, a total of 183 decisions to grant SHD planning permission had resulted in permission for 40,000 residential units (29,000 apartments and 11,000 houses, with approximately 4,000 social houses incorporated) and a further 10,100 student bed spaces.

Judicial review

Figures show that since the SHD legislation has been introduced, the majority of SHD judicial reviews that have been taken have resulted in planning permissions being quashed. The uptick of successful judicial review challenges has called into question the effectiveness of the SHD planning review procedures.

The SHD process was introduced to facilitate momentum in providing much needed housing. However, it now appears that this fast tracked approach has led to deficiencies in the decision making process. It has also attracted criticism that public participation has not been adequately facilitated.

Fast-tracking the review

A review of some of the recent decisions involving SHDs indicate that the rationale for quashing SHD permissions have been wide-ranging. Examples include:

• Inadequacy of bird surveys to satisfy the requirements of the Habitats Directive[1]

• Permission being granted in land not zoned for residential purposes at the time of grant of planning permission[2]

• The proposed development failing outside the definition of “strategic housing development” by the allowable gross floor space for a car park being exceeded[3], and

• Insufficient evidence presented to the Board to ensure that the SHD development would not cause overshadowing of existing homes[4]

Developers should be aware of these potential pit falls for developments. SHD projects are often controversial due to their scale and associated impacts on nearby residential areas. The speed at which the SHD legislation demands a decision has resulted in a perceived deficit in terms of public participation and a failure to properly scrutinise complex planning and environmental considerations. To mitigate risks, developers should consider a thorough review of their SHD applications prior to submission to mitigate the risk of a subsequent finding of deficiency by way of judicial review in the courts.

Material contravention of the development plan

The issue of building height in urban areas has lately been the subject of considerable controversy, particularly relating to development in Dublin. Many consider that the historical low-rise, low-density pattern of development unsustainable to facilitate the growing population. Others however are concerned with the impact of “high-rise” development on historic urban centres.

In 2018, the Government made a significant intervention and published the Urban Development and Building Heights, Guidelines for Planning Authorities. The 2018 Guidelines are structured around the principle that refusal of planning permission should not be based on building height if the application is otherwise in accordance with proper planning.

Under Section 8(1)(a)(iv) of the 2016 Act, SHDs are permitted to contravene the development plan for the area, except for zoning, provided that it can satisfy certain conditions. This provision together with the 2018 Guidelines have been utilised by developers in their SHD planning applications to exceed default height limits. This has caused particular friction and has been the subject of extensive litigation in the courts.

The courts appear to have taken a restrictive view of these SHD planning decisions and appear inclined to uphold the objectives in the developments plans where the Board has failed to provide sufficient reasons to justify the material contravention[5] or has failed to properly invoke the statutory power to grant planning permission in material contravention of the development plan[6].

Development plans v development schemes

The courts have also distinguished between a development plan and a planning scheme. The courts have taken the view that Section 8(1)(a)(iv) of the 2016 Act, which permits SHDs to contravene development plans in certain circumstances, shall not be construed to equally apply to planning schemes. Planning schemes are designed for areas considered to be of strategic national importance known as Strategic Development Zones (SDZ). Planning for development of these areas is done through a fast tracked application process. For example, Poolbeg West and Grand Canal Dock are designated SDZs in Dublin.

The courts have stated the positon that “overall statutory policy is clear that the planning scheme forms a very detailed framework for the area concerned with primacy over the development plan”[7]. An Bord Pleanála is therefore required to work within these schemes which cannot be diluted by being mentioned or incorporated into a development plan[8].

The debate has been transferred to the courts and it is apparent, given the rate at which planning permissions are being quashed, that the SHD legislation does not provide a clear and workable framework, particularly where high-rise buildings are the issue of contention.