To get more housing built faster, the government brought in a fast-track planning process – but the council has only used it twice

In March 2023, the Department of Housing rolled out a new fast-track planning process for much-needed social and affordable homes.

It lets the council skip the step of applying to itself for planning permission through the so-called Part 8 process, when building social or affordable housing on public land.

So far, Dublin City Council has used it for two housing projects, a spokesperson said last week.

It used it for Matt Talbot Court in the north inner-city, a regeneration project with 92 apartments. And, for 146 homes at the Cromcastle Underpass, which it is developing with the Land Development Agency.

But it’s gone back to the usual planning process, known as Part 8, for social housing projects in recent months, for projects such as Croke Villas and Stanley Street in the north inner-city.

“Housing developments progressed in accordance with section 179A of the Act must be commenced prior to 31 December 2024,” said a spokesperson for Dublin City Council.

In other words, if the council doesn’t expect to be building by the end of this year, they are opting for the old way.

A spokesperson for the Department of Housing says it is bringing forward legislation to change that cut-off date, and extend it to the end of 2025. The amendment is currently at committee stage, they said.

The idea behind the new fast-track process, the government has said, is to get homes built faster.

But when the new law came in, several opposition TDs questioned whether the existing planning process was really slowing delivery of social homes and criticised the move to cut out community consultation.

And Eoin Brady, a solicitor at FP Logue Solicitors, says he sees legal issues with the planning exemption – ones around environmental law and property rights – that have yet to be aired in court. “179A is highly problematic from a legal point of view,” he says.

Not only that, but the Housing Commission’s recent report doesn’t mention the Part 8 process as an obstacle slowing up the delivery of more social housing, honing in on other barriers.

What does the amendment do?

Councils usually use an internal planning permission process, known as “Part 8” to apply to themselves for permission to build their own projects.

That process includes a community consultation, and officials bring the plans before councillors to vote on whether they should go ahead.

But in December 2022, the government passed the Planning and Development and Foreshore (Amendment) Act 2022.

In it was Section 179a, allowing councils to develop social and affordable housing schemes on public land without planning permission – up until the end of 2024.

Council officials could bypass formal input from the public and from councillors, if the officials judged that the housing schemes they were planning were in line with the council’s development plan.

The exemption also cannot be used in cases where an environmental impact assessment is needed or if the development affects a protected structure, says the spokesperson for the Department of Housing.

Fingal County Council is developing 657 new homes across six sites using the fast-track planning process, a spokesperson said.

“Dún Laoghaire-Rathdown County Council has one development in Carrickmines which has gone through the Section 179a planning process,” said a spokesperson for that council.

South Dublin County Council didn’t respond before publication to a query about how many of its developments it has done through the fast-track process.

The right approach?

Whether the Part 8 process and public consultation was ever the major factor delaying the delivery of homes is contested.

The Part 8 planning process works well, said Labour TD Gerald Nash during a Dáil debate about the legislation. “This provision seems to be a solution in search of a problem.”

Cutting out all public consultation is a really bad idea, says Brady of FP Logue Solicitors. “Local knowledge is invaluable,” he says. “Local people often know things that will never show up on a map.”

For example, a local farmer could tell you which fields flood in winter, he says.

Also, there are legal issues under environmental law, says Brady.

The Aarhus Convention means people have the right to participate in decisions that affect the environment, he says. “179A is directly contrary to the Aarhus Convention in our view,” he says.

The only way to appeal a decision is via judicial review on a point of law in the High Court, he says, which is daunting and expensive and limited. “Under the Aarhus Convention, there should be a right to challenge the substantive legality of decisions,” says Brady.

There is also potential conflict of interest under the Environmental Impact Assessment (EIA) Directive,  he says.

If a state body is behind a development needing an environmental assessment, there needs to be a functional separation between those promoting the development, and those responsible for environmental protection, he says.

In some projects using 179A the council’s chief executive or director of housing was the person promoting the development, and also signed off on the EIA screenings, says Brady.

Owners of neighbouring land could also maybe challenge a development under constitutional law, says Brady.

Decades of case law says that landowners have the right to comment on how development impacts their property rights. “179A development will impact on adjoining landowners and they have the right to make submissions to the state authority that is developing the site.”

There are risks in abandoning the planning permission process, said Social Democrats housing spokesperson Cian O’Callaghan TD, in January 2023.

“If social housing is planned well, it works well,” he said. “Rushed jobs that aren’t planned well don’t work.”

Sinn Féin and housing spokesperson Eoin Ó Broin TD said that South Dublin County Council has developed a few schemes using the fast-track planning process.

But all of these developments would have also proceeded under the Part 8 planning process if the exemption wasn’t in place. “It hasn’t sped anything up really,” he says.