Government releases new legislation for large scale residential developments - Strategic housing development process to lapse from 25 February 2022

The Planning and Development (Amendment) (Large-scale Residential Development) Act 2021 (the LRD Act) has been enacted and is due to commence.

The LRD Act sets out proposed new arrangements for "large scale residential developments" (LRD), which will supersede the existing Strategic Housing Development (SHD) process, due to lapse on 25 February 2022. The SHD process was introduced in 2016, with the intention of speeding up the planning permission process for "well designed large-scale housing developments" on land already zoned for residential developments. The SHD provisions were always subject to a "sunset clause", which was originally 31 December 2019. That expiry period was pushed out to December 2021 following a review of the SHD system in 2019, and again to 25 February 2022 as a result of the Government's COVID-19 related extensions to planning timeframes. 

The LRD Act does the following:

1. Inserts a new definition of "large scale residential development"/"LRD" into the Planning and Development Act 2000 (the PDA), which is very similar to that applicable to SHD. Specifically, the LRD Act defines a LRD as:

• A development comprising 100 or more houses
• Development of student accommodation units that includes 200 or more bed spaces
• A development of a combination of student accommodation and houses, where such development includes at least 100 or more houses or 200 or more bed spaces

A key change from the definition of SHD is that the LRD provisions will allow for up to 30% of the gross floor space of the proposed development to be for commercial use - up from 15%          under the SHD framework.

2. Provides for applications for LRDs to be made to local planning authorities in the first instance, as opposed to An Bord Pleanála (the Board) (in contrast to SHD applications, which go directly to the Board). Following the planning authority's decision on a LRD application, an "LRD appeal" to the Board will be available. Consequently, LRDs will be subject to a potential "two-step" consenting process once the Bill is enacted, with judicial review also available following the Board's decision.

3. Establishes a mandatory, time-bound consultation process with the planning authority before the developer submits its planning application. Following that consultation, the planning authority must issue an "LRD opinion", which states whether the relevant documents submitted constitute a "reasonable basis on which to make an application for permission for the proposed LRD". The Regulatory Impact Analysis submitted with the General Scheme of the Bill in July 2021 noted that the intention of this process is for developers to submit higher quality applications, and in turn to reduce the number of appeals to the Board.

4. Provides for an exception to the above framework where the application is located within a Strategic Development Zone (SDZ), the zoning of which facilitates the proposed use. In such instances, the developer may submit the relevant application directly to the planning authority without first needing to obtain a LRD opinion. The new pre-application consultation processes are not mandatory in these circumstances, and the new definition of "LRD appeal" does not apply to such applications. This position is currently the case for applications for planning permission within a SDZ.

5. Sets out a transitional framework for existing SHD applications. Once the LRD Act commences, the existing SHD process will remain relevant where:

• There is an application for SHD already pending
• The developer has already completed pre-application consultation with the Board, and the Board has already given its opinion. A SHD application can then be made within 16 weeks of commencement of the LRD Act, i.e. a deadline of 16 April 2022, (allowing for the additional nine day period under section 251 of the PDA). Developers must notify the Board of their intention to take this route
• Requests for consultation have been made on or before Friday, 17 December 2021.  Applications can be made within 16 weeks of the Board's opinion. Again, developers must notify the Board of their intention to take this route.

The LRD Act also removes the current mechanism for amending an existing SHD permission under section 146B of the PDA. Accordingly, holders of SHD permissions will not be able to alter them using this route.

For further information in relation to this topic, please contact Alison Fanagan, Partner, Jason Milne, Partner, Brendan Abley, Lawyer or any other member of ALG's Environmental and Planning team.

Date published: 21 December 2021