Michael Clifford: More houses and hard hats, less legal gowns please 

Why has a scheme designed to get houses built during a housing crisis resulted in far more people poring over legal documents than plans? Michael Clifford reports
Michael Clifford: More houses and hard hats, less legal gowns please 

In 2019, 508 homes were affected by judicial reviews taken against an SHD. Last year this figure jumped to 5,802.

Instead of building houses, everybody is off down to the courts to stop the building of houses. So goes one interpretation of headlines this week about the level of court action to prevent construction under the Strategic Housing Development (SHD) scheme.

A report by construction consultant Mitchell McDermott pointed out that there has been a 1,000% jump in the number of judicial reviews taken to stop SHDs. Judicial reviews are, for the most part, taken by residents objecting to planning permission for new developments. In 2019, 508 homes were affected by judicial reviews taken against an SHD. Last year this figure jumped to 5,802. In theory, the propensity to swap hard hats for court gowns has seen over 5,000 people who could have been housed last year going without a home.

So says the theory. The lived experience may beg to differ. SHDs were designed to build more, faster, but have been controversial since being introduced in 2018 as one response to the housing crisis. The scheme’s purpose is to expedite the planning process in order to ramp up the building of homes. It involves greater pre-planning consultation and a direct application to An Bord Pleanala, bypassing local authorities. The scheme must include at least 100 housing units or 200 student accommodation units.

A cursory glance might elicit the conclusion that it makes perfect sense. Except critics have pointed out that it bypasses a democratic function of planning, has led to reduction in design standards, and, crucially, has not delivered the homes promised. There are complaints that once permission is granted, developers are slow to move onto actually building the houses. Last November, an Oireachtas committee was told that just 30% of SHD schemes with planning permission had commenced building.

Constitutional challenge

Later this year, the High Court will hear a constitutional challenge against the SHD legislation taken by three wealthy individuals, including Dermot Desmond’s wife, Pat. They and other residents in Dublin 4 objected to an SHD on the RTÉ campus in Donnybrook to build over 500 luxury apartments. Planning permission was granted last October. Then, a judicial review taken by residents in the area resulted in the permission being quashed last month over a procedural issue. The challenge to the law itself is still scheduled to go ahead.

So why has a scheme designed to get houses built during a housing crisis resulted in far more people poring over legal documents than plans?

The website for Fred Logue’s solicitor firm provides a “tracker” for SHDs. Click onto the link and you get the most recent up-to-date applications for these large housing or apartment developments. If you fear that one is coming to a site near you, this is the place to check in.

Dublin-based Logue has taken a number of cases against SHDs for clients who felt they had been bypassed in the planning process. “People are given very little opportunity to comment (on proposed developments) and the planning board is granting permissions that contravene development plans,” he says.

 “There is often a much higher build and much higher density and more in places where people are not expecting it.” He says the tracker is a marketing tool, identifying him as specialising in the area. “Some of the biggest users of the tracker are other lawyers and consultants,” he says. “There is no transparency around what is going on.” The crucial aspect to the volume of judicial reviews against SHDs, he says, is that the vast majority are successful. That shows they were completely valid and based on real concerns.

“You don’t win a JR on a minor detail,” he says. “It always has to be on a significant matter. The board (An Bord Pleanala) should have to explain why people are motivated to take so many JRs and why the board loses so many.” By his estimate up to 90% of judicial reviews against SHD schemes are successful.

David O’Connor, the chair of Property Industry Ireland (PII), has a different take. PII, which represents developers and others involved in building, was central to formulating the SHD legislation. They needed things to hurry up.

Now, having managed to remove one layer of the planning process through SHDs, they are seeing that another layer has been added through the use of the courts. He believes that the bar to be allowed to take a JR is very low.

“You don’t carry any risk as a litigant,” he says. “So people are freed of any obligations when they put in objections.” (Under EU planning law a litigant does not get saddled with the other side’s costs in the event of losing a case).

“We think it (SHDs) has been mischaracterised as a system. It is not there long enough to know whether it is successful or not.” “But there was and is a definite need for something like this. We were dealing with a system where planning applications were taking 100 weeks to get through.” 

Yet, there is no getting away from one of the central criticisms. After a mad rush to make it through the planning process, the urgency to actually build appears to be absent for a large percentage of those who get the go-ahead.

Increasing land values

This leads to a suspicion that the scheme is being used by some merely as a way of increasing land values by securing fast-track permission for big developments and then sitting on the land, watching its worth head north.

David O’Connor accepts that once developers have got planning a certain number don’t get cracking with building immediately, although he says that the commencement level is increasing. Some of the delay is down, he says, to time required to fulfil the various conditions that are routinely attached to planning permission.

The SHDs are scheduled to run until early next year. PII and other industry bodies are likely to push for extensions. As of now, the main objective on which the scheme was sold has not been fulfilled.

What remains to be seen is whether it can be reshaped in such a way that it will involve more house building than legal arguing.

“There would have to be radical reform which would increase public participation and limit the scope for bypassing development plans,” solicitor Fred Logue says.

In the meantime, it will have to withstand the constitutional challenge being taken by Mrs Desmond and her neighbours. Also, as long as judicial reviews continue to be, for the greater part, successful, people unhappy with proposed developments will go to court.

In the political arena, further controversy could see it quietly shelved next year. Right now, the Minister for Housing Darragh O’Brien is under flak over his controversial ‘help to buy’ scheme. Unless the Strategic Housing Developments begins to bear real fruit he may be reluctant to spend further political capital on it.

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