An Bord Pleanála's strategic housing development decisions and the €8.2m cost of defending them

As scrutiny mounts, attention is turning to the enormous cost of  court appeals that are successful in a majority of cases
An Bord Pleanála's strategic housing development decisions and the €8.2m cost of defending them

The strategic-housing-development process has been in place since 2017. Picture:

Long before the furore engulfing the State's planning adjudicator over the rulings of its deputy chair, Paul Hyde, An Bord Pleanála (ABP) had another major issue, hiding in plain sight.

In administering the strategic housing-development (SHD) process since 2017, ABP had found itself subject to a worrying trend, particularly from 2020. Its rubber stamp of approval for these new, large-scale (100 units and greater) developments was being challenged in the courts. And, far more often than not, the board wasn't winning and that was at a huge cost to the taxpayer.

In May 2021, a number of disquieting SHD statistics came to light. The developments, which were introduced as part of Rebuilding Ireland (the now defunct, marquee housing project of then-housing minister, Simon Coveney), were conceived to fast-track much-needed large-scale residential construction by bypassing the local authorities and heading straight to ABP.

The idea was that new developments could be approved in as little as four months, versus an appeal against a local-authority decision, which could delay a project by a minimum of half a year.

The reality, like most things to do with housing in Ireland, has been more complex.

While there has been no shortage of developer enthusiasm — there have been 480 SHD applications since 2017, and the vast majority of them (just under 79%) get approved — two issues have called the scheme's viability into question and to such an extent that it is quietly to be done away with before the end of this year.

The first was accusations of permission-hoarding on the part of developers, after it emerged that just 30% of approved SHDs had broken ground in the first four years after the idea was introduced. There is not much point in fast-tracking permission for development if that permission is never used.

Perhaps more worrying are the numerous legal challenges that approved SHDs have faced in the High Court. In 2020, the board spent €8.2m defending legal proceedings, more than double the 2019 figure, and that in a year when little to no construction had occurred, because of the Covid-19 pandemic.

For context, that €8.2m equates to just under half the €18.6m the ABP received in exchequer funding in 2019. The number of cases taken against the board jumped by 51%, to 83, in 2020, the bulk of them related to SHDs (more recent figures are not as yet available, with ABP declining to answer multiple requests for up-to-date statistics).

There is a reason that figure has mushroomed: The people taking the cases (generally groups) have been winning them, with ABP picking up the bill. Of the 24 High Court cases taken against board decisions in 2019, ABP lost 70%.

To date, of 35 SHDs that have been subjected to judicial review in the High Court and which have since concluded, the State or the developer has prevailed in just three of them; an 86% loss rate.

Ninety judicial reviews have been taken against SHDs; decisions are pending in 47, while eight were withdrawn.

Meanwhile, the idea that the courts have been making frivolous decisions not grounded in planning law doesn't hold water. Judicial review tests the correctness in law of decisions made by organs of the State. It is necessarily dispassionate.

'The thing with SHDs is they're all the same'

Fred Logue, an environmental solicitor who has been responsible for multiple such cases taken against ABP, says "the thing with SHDs is they're all the same".

"There is a very small list of points of failure. If you succeed on one point, it often has an effect on multiple projects," Mr Logue says.

Typically, those failures may involve the project directly contravening the relevant county development plan, ignoring a key environmental impact of the development on the locality, or failing to fulfil a basic procedural prerequisite (in at least one case, the lack of an environmental-impact statement was the key factor in the court's decision).

More recently, it has been ruled that public-transport capacity (as opposed to proximity) needs to be shown to be adequate for a development to proceed.

Some, though not all, of the denied developments will re-apply, with their applications honed to tick the boxes they missed before their trip to court.

However, given that information, a more pertinent question would be how applications that make such glaring errors are being given the go-ahead by the board.

Here a familiar name crops up repeatedly: Paul Hyde, absent from duty pending a number of investigations into his decisions and declarations of interest, who has been head of ABP's SHD division since December 2017.

An investigation by the Irish Examiner shows that, of 30 SHDs quashed by the courts or conceded by the board in that time, Mr Hyde voted on every one (fellow board member Michelle Fagan voted on 27 of them; chairperson Dave Walsh voted on just five). One of either Mr Hyde or Ms Fagan was likewise lead board member on two-thirds of those decisions.

It is unclear how caseloads are distributed among the nine-strong board, though planning legislation defines Mr Walsh as having ultimate responsibility for that dispersal (in his absence, Mr Hyde, as deputy chair, would have held responsibility). Eight board members were involved across the 30 cases mentioned above.

If there has been self-reflection at board level regarding the proportion of important decisions being overturned by the courts, it hasn't been evident. Asked about the phenomenon at the Public Accounts Committee, in May of last year, Mr Walsh replied that it is reflective of "the openness of the system we have". Speaking in the Dáil the same month, Taoiseach Micheál Martin was less philosophical: The trend of courtroom losses was something the board "needs to reflect upon", he said.

 In the Dáil last month, Taoiseach Micheál Martin said the courtroom losses were something for An Board Pleanála to relfect upon. Picture: Gareth Chaney/Collins Photos
In the Dáil last month, Taoiseach Micheál Martin said the courtroom losses were something for An Board Pleanála to relfect upon. Picture: Gareth Chaney/Collins Photos

That may be the Taoiseach's view. His Government has had a different idea as to how to deal with the rash of legal challenges, one which would see judicial-review applications vetted more stringently to prevent 'spurious' cases. As part of a consolidation of Ireland’s planning laws, meanwhile, plans for those taking such applications to be forced to cover their own costs, should they lose, are also being considered.

Whether such a law can actually make it through the Dáil, given An Bord Pleanala's travails, remains to be seen.

Five SHDs overturned by the courts, and why:

Connolly Quarter:

Singapore-registered Oxley Holdings' application to demolish four structures and to construct 741 build-to-rent apartments to the rear of Connolly Train Station, in north inner-city Dublin, was lodged in October 2019, and approved for development by five board members (including both the chair and vice chair) the following February. A judicial review, via the Dublin Cycling Campaign, was duly granted.

Nine months later, the board's decision was quashed by Justice Denis McDonald, who held that, in applying to construct a car park, Oxley's application could not technically be deemed a strategic housing development, and that the board had exceeded its authority in granting the application.

Permission was subsequently granted the following January for a commercial development on the site.

Rathmullan, Drogheda:

In October 2019, Trailford Limited applied to the board for permission to construct 661 residential units close to the scene of the historic Battle of the Boyne, near Drogheda, in Co Louth.

Approval was granted by An Bord Pleanála three months later in January 2020.

A judicial review duly followed, taken by local residents' group, the Highland Residents' Association, and an environmental group, Protect East Meath, represented by Fred Logue. The groups claimed the decision to grant permission was flawed on several grounds, including the fact that the board had failed to adequately consider the potential ecological effects of the development on local animal populations within (and next to) the Boyne Special Protection Area (SPA). In fact, the board in this case had dismissed likely environmental impacts, as outlined by the developer, as being irrelevant.

The case also found that the developer had incorrectly interpreted the phased nature of how the site was zoned, a precedent that has since seen multiple other developments refused planning permission.

In December 2020, at the High Court, Justice Denis McDonald quashed the board's decision, stating it had been "wrong in law".

St Paul's College, Raheny:

The proposed development of lands near St Anne's Park, in Raheny, in north Dublin, is one of the most controversial applications of its sort in recent Irish history, with steadfast local opposition to the plans scuppering them at every turn.

At the time, in May 2021, when High Court Justice Richard Humphreys quashed An Bord Pleanala's third permission for Crekav Trading to construct 657 residential units on the site, the development had racked up four ABP decisions and 10 sets of legal proceedings. The judge ruled in that case that the developer had failed to show how the development would comply with the land's prior zoning for institutional and community use.

The board attempted to appeal the ruling, but that effort was struck down in February.

Taylor's Lane, Ballyboden:

Shannon Homes received permission from An Bord Pleanála to construct 496 apartments and a creche at the south Dublin site in September 2020. Two months later, local community organisation the Ballyboden Tidy Towns Group, a serial objector to SHDs, brought judicial-review proceedings against the decision.

The group claimed that the board had erred in its assessment, regarding the potential impact of the proposed development on environmental sites within Dublin Bay and that any construction would materially contravene the south Dublin county development plan, both in terms of the height of the proposed plans and the lack of public-transport capacity (as opposed to proximity) to serve the development.

In January of this year, Justice David Holland agreed and quashed the board's permission.

Old Fort Road, Ballincollig:

The construction of 123 apartments in Ballincollig, by O’Flynn Construction, was first approved by the board in September 2020, three months after the firm had lodged its application. That approval was immediately met with a judicial-review application from the Waltham Abbey Residents' Association.

In quashing the approval at the High Court in May 2021, Justice Richard Humphreys said that it is a "clear and unambiguous" requirement under EU law that an environmental-impact statement describing the potential effects of the proposed development on the local area must be included in any planning application, something the An Bord Pleanála inspector had dismissed, as "there is no real likelihood of significant effects on the environment arising from the proposed development".

Since no such statement had been included, the judge ruled that the board should have declined to deal with the application entirely.

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