Blame developers and An Bord Pleanála, but the Government is responsible for the SHD mess

The legislation behind strategic housing developments was fatally flawed, and ultimately is a failure of government

An Bord Pleanála is beholden to the minister for housing. The buck stops with that department. The current crisis, however, shows that rather than fixing the problem, the State has elected to double down and dig deeper into the hole it has found itself in.

Developers have long had a rough reputation in Ireland. From historical zoning scandals through the debacle of the Celtic Tiger and its ghost estates, the building industry here has, rightly or wrongly, gained a reputation for sharp practice.

But it seems unfair to blame the failure of the much-maligned strategic housing development (SHD) system solely on the developers.

That’s something for which Government has to carry the can. And despite the best efforts of the current coalition to distance themselves from the project’s failure by quietly doing away with it in the Programme for Government, they’ve managed to make a hames of even that.

Because, as the Irish Examiner reported this week, SHD applications are still flying in. An Bord Pleanála will still be deciding upon them well into 2023. Conceivably, they may still be being built in five years’ time.

It is all far removed from how things were initially envisaged when the system was introduced as part of Rebuilding Ireland, then housing minister Simon Coveney’s attempt to bring some sanity to the Irish housing market, in 2016.

The idea for SHDs — developments of a size of more than 100 homes — was simple enough. Certain marquee planning projects in Ireland — Apple’s 2015 plan for a data centre at Athenry in Co Galway, being possibly the most egregious example — had long become embroiled in the various appeals processes available to the public, from the local authority through ABP and into the courts.

Frivolous appeals

Such allegedly frivolous appeals, often taken by people with no direct residential connection to the project in question, were slowing progress — or so the argument went. 

SHDs would see one whole segment of the planning swamp — the local authority application, which when objections were taken into account could slow a permission by up to a year — taken out of the equation, with decisions instead being taken directly by An Bord Pleanála.

What could possibly go wrong? Quite a bit as it happens.

The real problem has been successive Irish governments' inability to learn a simple lesson — if you’re going to do something ambitious in a world where legal recourse is easily sought, you'd best do it right from the beginning.

Of the applications approved to date (which haven’t been quashed by the courts) only 36% have broken ground in the five years the system has been live, leading to suggestions of permission-hoarding and land speculation on the part of the developers Picture: Gareth Fuller/PA Wire

As we now know. the legislation underpinning SHDs was fatally flawed. Roughly a third of the 300-or-so applications approved to date have been judicially reviewed. At least 35 have been decided in the High Court, and An Bord Pleanála has lost 86% of them.

Of the applications approved to date (which haven’t been quashed by the courts) only 36% have broken ground in the five years the system has been live, leading to suggestions of permission-hoarding and land speculation on the part of the developers.

But really, what are they supposed to do? Whether you think the developers are in the business of building homes or in looking out for number one, the fact is they can only deal with the system that the State gives them to interact with.

Likewise with An Bord Pleanála — a body that has no shortage of problems of its own. True, it provided the flawed decisions which have foundered repeatedly in the courts. But it didn’t design the system. 

Buck stops with housing minister

An Bord Pleanála is beholden to the minister for housing. The buck stops with that department. The current crisis, however, shows that rather than fixing the problem, the State has elected to double down and dig deeper into the hole it has found itself in.

Firstly, the phasing-out of SHDs has been utterly inadequate. The Programme for Government announced in June of 2020 that the process would end at its legislative cutoff point in December of last year. 

Yet applications will still be received up until at least the end of October, and they have been coming in their droves — all told, An Bord Pleanála has received a staggering 125 SHD applications since the beginning of last December, more than a quarter of the total bids lodged since the system began in 2017. It is hardly a sign of a system in its dying throes.

“It should not have been possible to lodge a new application for an SHD in 2022. Unfortunately the minister [Housing Minister Darragh O’Brien] chose to allow it, and the board is under-resourced, which means we’ll be seeing these applications for some time to come,” Eoin Ó Broin, Sinn Féin spokesperson on housing, said.

Second, the State last month — having threatened to do so for months — was as good as its word, ramming through amendments to planning legislation in the Dail, with only token debate, which will make it far more difficult for people to object to planning decisions in the courts. 

That is a decision on which there is consensus among planning and legal experts — the rushed amended legislation itself will end up being challenged in the courts. And so the cycle continues.

Thirdly, and finally, the State’s review of certain of former An Bord Pleanála SHD chief Paul Hyde’s decisions — delivered to Mr O’Brien on July 29 — was laughably narrow-focused given the barrage of negative revelations about the planning authority since that report’s commissioning in April. And that’s before we even know what the review’s conclusions are.

So we can lambast developers and An Bord Pleanála all we want, but ultimately, SHDs are a failure of Government. And one the current administration shows little sign of learning from.