The Law Society warned of the legality of the ‘locals only’ planning rule back in 2005. The discovery of an EU ruling by a Sligo councillor indicates that it is unlawful, writes Special Correspondent Michael Clifford.
Michael Clark stumbled across the ruling. The Sligo councillor was doing a bit of work with his local community council, trying to find ways to arrest the decline in their bailiwick of West Sligo.
He was googling “free movement of people” when up popped the ruling from the European Court of Justice about restrictions in housing.
Immediately, he could see that it contained major implicaitons for the “locals only” rule in up to twenty dozen local authorities, restricting one-off housing.
The ruling was in relation to the Flemish region of Belgium, and concerned a restriction that had more to do with language and culture, than planning. But in the EU, the ruling has as much application in the west of Ireland as it does in the Flemish region. And now, Clark surmised, he had found something that negated attempts to minimise the right of people to live where they wanted.
“I brought it to the attention of a senior planner in the council back in February and he asked me not to say anything until he checked it out,” Clark says.
“Then he came back to me and said they were changing the restrictions to comply with the European law. We were the first local authority to begin that.”
Sligo won’t be the last. For over a decade, local authorities have included in planning restrictions a stipulation about applicants being from the area or long term residents. Now that looks like it’s out the window.
For some, this is an opening through which they see the possibility of looser planning restrictions in rural Ireland, a victory against the environmental lobby which abhors the sprawl of rural housing.
Others have been whispering that the discovery of this court ruling — dating from 2013 — could prompt legal actions from applicants who were refused planning based on the “locals only” rule. And yet more sniff the prospect of a bonus for landowners flogging sites. But is it that simple?
The “locals only” rule has been an instrument in planning for over a decade. It was first introduced after the issuing of the national planning guidelines in 2005. Effectively, it restricts the rights of people wishing to build a one-off rural home, confining applicants on a “local only” basis. (See panel).
The guidelines were controversial from the start. In 2005, the Law Society warned that county councils were discriminating against people who were not local and therefore breaking both constitutional and EU law.
The EU agreed with that assessment following a study two years later. The EU commission embarked on a study of the planning laws in Ireland over the course of three months and came to the conclusion that the “locals only” stipulation breached articles of the EU treaty which guaranteed both the free moment of capital and of people.
Two of the councils examined at the time were also found to be exercising even more discrimination by stipulating that in certain regions the applicant would be required to have a grasp of the Irish language.
The EU wrote to the Department of the Environment at the time demanding to be shown how exactly the EU treaty was not being breached by the guidelines.
In a letter sent to local authorities in 2008, the department warned “do not discriminate against planning applicants wishing to establish a full-time home- based business in an area in favour of those who are deemed to qualify as “locals” through the particular local need assessment criteria, which are adopted by members of each council”.
This and other warnings went unheeded. Councils all over the country included some form of “locals only” criteria in setting out planning restrictions. And there the matter lay, with no more interference from either central government or Brussels.
Then in 2013, the European Court of Justice issued a ruling in relation to restrictions based on place of origin and language for acquiring a house in the Flemish region of Belgium.
“The Flemish decree on land and real estate policy is contrary to EU law,” the ruling read. “The condition that there exists a ‘sufficient connection’ between the prospective buyer of immovable property and the target commune (locality) constitutes an unjustified restriction on fundamental freedoms.”
So it went in Europe. Back in Ireland, nobody appears to have paid the ruling a blind bit of notice. Then earlier this year, along comes Councillor Michael Clark and suddenly the country is awoken to this new dawn of sorts.
For some this is a victory against planners who have framed planning laws to restrict one-off housing. Councillor Jim Cuddy in Galway sees the new dispensation as removing an impediment.
“I had two people in the Oranmore area this year alone who came to me about it. When I went to query it I was told that it wasn’t possible. These people were reared in the area and would like to be able to build their own house in the country. Instead, they are now stuck in rented accommodation.”
“I am fearful that there’s going to be obstacles put in way of ruling and have discussed it with senior planner and they’re waiting for instructions from the department.”
In Kerry, planning laws are particularly strict due to the impact that excessive development might have on tourism. Councillor Donal Grady says that the council were stunned when he brought it to their attention after being informed by his independent colleague Michael Clark in Sligo.
“I did know people who were put off even applying for planning because they knew they wouldn’t get it over this restriction but now they (the council) can no longer say we can’t give it to you because of this rule.
“This has been very annoying for people who it kept out and it has cost some of them a lot of money. It might cost the council a lot of money now.”
The spectre of failed applicants now taking legal action against local authorities is one that will be studied up and down the country. In the first instance, any refusal since 2013, based on the “locals-only” rule would now appear to be illegal. Theoretically, there may also be the basis for action pre-2013.
The reality, however, is different. In the first instance, most of those who might have seen their way blocked by the “locals only” rule would have opted out at the pre-planning stage, limiting the prospect of any comeback now.
The other issue is that many who might have ultimately been turned down could have had their application refused on a number of grounds, not just the “locals-only” rule.
Solicitor Joe Noonan, who specialises in planning matters, says each case could have its own unique features.
“People should just consider taking advice from their own solicitors if they have been turned down on the locals-only rule,” he says.
The other question is how much will the elimination of the rule change the planning laws in terms of the restrictions that exist on one-off housing.
Ciarán Cuffe, a Green Party councillor and planner, says he believes it could well lead to more development.
“We’re likely to see changes now in the new planning framework, but there are ways to ensure that this doesn’t leave a gap. The toolbox in planning is the county development plan and there are a number of tools that can be brought to bear. The ‘locals only’ is only one of many so we could see some other changes.”
Minister Simon Coveney also recently addressed the matter in a parliamentary question concerning the European court ruling.
“My department is consulting planning authorities about modifying the guidelines to ensure that rural housing policies and objectives contained in development plans comply with Article 43 (Freedom of Movement of People) of the Treaty on the Functioning of the European Union.
“On conclusion of these consultations, my department will engage with the European Commission on proposed changes to the guidelines, with a view to issuing updated guidelines to planning authorities on the matter in due course.”
For instance, the guidelines include a provision for landowners, including their offspring “who wish to build a first home for their permanent occupation” on the landholding, which must crucially also be “their principle family residence where they have lived for a minimum of seven years.”
This effectively rules out, for instance, the farmer giving a site to his absent son or daughter who might use it to build a second home, or a house to be sold on for a major profit. At least in theory, it might rule it out.
The guidelines also allow for a person to build if they have been employed in “a rural based activity” and “who can demonstrate that they have been engaged in this employment for over five years.”
In this instance, it effectively means that if somebody moves into an area and is engaged in a rural-based activity they must wait at least five years before they can apply to have their own home built.
The locals only rule is particularly discriminatory in relation to a stipulation that says rules in favour o those “who have no family lands but who wish to build their first home for their permanent occupation in the area, on a site within a 5km radius of their original family home, with the rural community in which they have spent a substantial and continuous part of their lives.”
‘Locals only rule killing rural communities’
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