What is the future for fast-track planning rules?

Victory for objectors as Cairn’s plans for former RTÉ lands thrown out by High Court

Cairn Homes’ plan to build hundreds of dwellings on former RTÉ lands in Dublin 4 has been thrown into uncertainty after the High Court quashed its fast-track planning permission.

There is no doubt that Cairn will seek fresh approval from An Bord Pleanála to build on the Montrose property it acquired from the State broadcaster four years ago for €107.5 million. But has the case called into question special planning rules to accelerate building and thus bolster the fight against the housing crisis?

The simple answer is that it does not, as no planning precedent is set when An Bord Pleanála concedes in judicial review proceedings as it did in the Cairn case. Yet there is still the possibility of a constitutional challenge to the 2016 law that underpins fast-track planning by the board.

Going directly to the board bypasses local authority planning procedures, reducing the scope for objection and challenge. Some building industry figures believe it can cut more than half the time from the conventional planning process.

This is seen as a critical part of the artillery in the battle to boost the construction of new homes. Still, opponents criticise limits on the right to appeal planning decisions. What is more, the actual building work has been delayed in many cases.

Cairn had faced a double challenge to its Montrose development from three residents of Ailesbury Road who live near the site: Chris Comerford, John Gleeson and Pat Desmond, wife of businessman Dermot Desmond.

Not only did they take action against the board’s decision last September to grant Cairn permission for 611 apartments, town houses, a public park and cafes, they also took a challenge against the constitutionality of the Planning and Development (Housing) and Residential Tenancies Act of 2016, which introduced streamlined planning to accelerate strategic housing developments.

The High Court order on Thursday to quash the permission was granted with the board’s consent after it acknowledged an administrative error when processing Cairn’s original application. The constitutional challenge was adjourned generally, meaning it can be revived later while not at this point proceeding.

New application

It is open to Cairn to change its plans in a new application to the board in the hope of appeasing its opponents. But a constitutional challenge can still go ahead if the next iteration of the company’s plan is not to their liking.

Ciarán Cuffe, Green MEP and a former urban planner, said there was a clear case for a significant volume of housing on the Donnybrook lands. “I suspect they will eventually get planning permission for a high density development on the site, as it is located on a well-served public transport corridor. The new buildings may end up being further away from the surrounding dwellings to better protect their privacy and light,” he said.

Mr Cuffe remains critical of fast-track planning because it limits the public’s right to appeal and questioned whether it had made a “real impact” on the housing crisis in Dublin. “It was meant to deliver more housing but that is open to question.”

Indeed data from the Department of Housing suggests speedy construction does not inevitably follow swift planning approval.

An Bord Pleanála received 296 applications for strategic housing developments and had decided 260 cases by February, granting permission in 190 cases, including 48,397 housing units (comprising 12,991 houses, 27,624 apartments and 7,782 build-to-rent units), as well as 769 shared accommodation units and 12,173 student bed spaces.

But construction lags, notwithstanding the fact that much of the sector has been at a standstill due to coronavirus. The department said works have commenced on 54 – or 28.4 per cent – of total permissions granted as of February. Excluding permissions granted in 2020 and 2021, the data suggests works have commenced on 45 per cent of the permissions granted in 2018 and 2019.

The fast-track planning process was due to expire at the end of the year and there is a commitment in the programme for government not to extend it. But the effective date has been extended to February 2022 because of a Covid-related extension of planning deadlines during the first lockdown last spring.

Quite where the Montrose project will be at that point can only be guessed at.