New Exemption for Local Authorities to the "Part 8" Planning Process

The Planning and Development and Foreshore (Amendment) Act 2022 introduced a new Section 179A into the Planning and Development Act 2000 as part of the Government's plan to streamline and accelerate the delivery of social, affordable and cost-rental housing under its Housing for All plan. Section 179A attempts to speed up the process by which so-called "Part 8" developments are commenced and delivered, by disapplying the procedures previously set out as to how Part 8 planning approval processes ran. The Part 8 process has previously been criticised as it can take an inordinate amount of time for a development to actually commence, and this new Section 179A seeks to significantly reduce that timeframe and the provisions within the Part 8 process which led to such delays.

Section 179A was commenced on 08 March 2023 and allows an exemption to the Part 8 planning process for local authorities once certain conditions are met as follows:

• The housing development must fall within the definition as set out in the legislation;
• The housing development must be carried out by, on behalf or, or jointly or in partnership with a local authority;
• The housing development must not materially contravene the development plan or local area plan for that development;
• The housing development is in accordance with the strategy included in the development plan for the area;
• No assessment is required under the Environmental Impact Assessment Directive or the Habitats Directive;
• The land must be owned by the local authority or a state authority, zoned for residential use and has access or can be connected to necessary facilities and infrastructure; and
• the work must commence on or before 31 December 2024.

In order for the local authority to avail of the exemption, the chief executive of the local authority shall, prior to the commencement of development, inform the members of the local authority in relation to the development and shall provide documents, particulars or plans relevant to the development to the members.

The Minister for Housing, Local Government and Heritage has also introduced regulations under SI 101/2023 to underpin the new Section 179A which provide for a number of matters including the following:

• each local authority reporting to the Minster on a quarterly basis on the number of proposed housing developments, commenced housing developments and completed housing developments;
• each local authority must provide on request information to the Minister on the number of sites available within its functional area for the provision of houses under this Section 179A, the location of sites available and the number of houses that can be accommodated at each site;
• the timing within which notice must be provided of the proposed housing development (at least 8 weeks prior to the commencement of the development);
• what must be included in such notices and where they must be placed;
• the circumstances where a screening for environmental impact assessment may be required;
• setting out certain parties to which a notice of a housing development under this Section 179A shall be sent;
• specifying what documents must be available for inspection relating to the proposed housing development;
• allowing for Part 8 developments for which notices have already been published to continue under that process.

These regulations also came into effect from 08 March 2023.

The reporting provisions set out in the regulations will likely put some pressure on local authorities to utilise this exemption, however given the restrictions set out in the legislation particularly with regard to the Section 179A process not being permitted where an environmental assessment is required, it seems that this exemption may only be used for smaller developments which, albeit very welcome in the current housing climate, will not go a long way to addressing the significant housing shortage.

With many judicial review proceedings against planning permission relating to environmental matters, this exemption does not stop such an event from occurring and a person of suitable standing will still be able to take proceedings against a local authority challenging a decision that no environmental or other assessment is required, or the outcome of any such assessment. Any such challenge will lead to significant delays in these housing developments being built, and if challenged, the housing development may not be able to avail of the exemption in that it may not have commenced by 31 December 2024.

The Department of Housing, Local Government and Heritage has also helpfully issued a Circular Letter "Housing 09/2023" and Planning "PL 01/2023" together with a guidance note for local authorities on the use of Section 179A.

Criticism of this new procedure has mainly rested on the fact that the public and elected members of local authorities no longer have input into proposed developments, and opposition TDs argued that the delays in delivering housing by local authorities related to the funding approval process, not the planning process. Given the major overhaul to the planning system proposed by the current Government, this new Section 179A procedure is just one small step in its ambitious target of housing delivery.

The Section has already been utilised by local authorities, and as at the date of writing this article Mayo County Council has published initial notices for the development of 20 new properties at Pollranny, Achill Sound, Westport, County Mayo, and Offaly County Council has published notices for 4 bungalows in Birr, County Offaly.  Hopefully other local authorities will follow suit and commence the process in their areas on suitable lands, however it may be difficult for local authorities to engage suitably qualified professionals at a reasonable price to deliver the much-needed housing units in a timely and cost-efficient manner. If this new process is seen as successful, it may be that the end-date of 31 December 2024 for commencement could be extended or this Section 179A process could form part of a new overhauled planning system.