It's time to challenge the 'only locals need apply' housing policy

Talking PropertyAre local authority rules aimed at keeping outsiders from buying homes constitutional? Pat Igoe says it's high time they were tested

This is a republic so we are all equal. Unless, that is, you want to buy a new house particularly in Wicklow and some other counties. Then, unless you are a local, you may find that you are not as equal as you thought and that the local authority may try to keep you out.

Planning permissions are now regularly showing-up with conditions requiring a purchaser to have a local connection. New housing developments in Wicklow including Rocky Valley Crescent in Kilmacanogue and Racefield in Newcastle have such barriers against non-locals as did recent developments at Woodleigh in Blessington and Woodstock in Kilcoole.

The "only natives need apply" policy is in direct contrast to the worldwide globalisation trend of reducing barriers. Restraints against the free flow of people are falling, not rising, worldwide. This also applies here, even in the housing market. It is less than six months since the Government here lifted a ban on non-Irish people buying houses here outside our cities and towns without prior consent.

The Land Act of 1965 had required non-Irish or, since 1995, non-EU people to first seek the consent of the Department of Agriculture's Land Commission before buying land or houses outside towns and cities.

But not anymore. Since last November, anybody from Vladivostok or San Diego can buy land or property in any town, village or townland in Ireland - if they can afford Irish prices, that is. But there is now one caveat. Whether you are from Drogheda or Dusseldorf, and you want to buy a new house particularly in Wicklow, have your solicitor check the planning permission conditions first.

There is considerable concern about the "local need" discriminatory planning conditions, according to the Law Society's law reform committee. Letters had been received by the Society from a large number of solicitors. Concerns focussed firstly on the legitimacy of these conditions; secondly, on the vague phrasing of some of these conditions; and, thirdly, on the role solicitors were being obliged to play.

Wicklow TD Billy Timmins criticizes the policy. He argues that it is imperative for Wicklow that a mix of people should be "taken on board to assist social cohesion".

This planning condition is an artificial restriction, according to Mr Timmins. Housing developments in urban areas, such as Bray, Greystones and Arklow, were not attracting this planning condition. One frustrated estate agent last week referred to these conditions as "utter nonsense".

But another local TD and now Labour deputy leader, Liz McManus, has suggested that these conditions are "a genuine effort" to deal with the problem of over-development of sensitive areas while trying to cater for local needs. Also, without the policy, the Government could refuse to put infrastructure in place. For would-be buyers in Rocky Valley Crescent in Kilmacanogue, the planning condition reads: "At least half of the dwelling units shall be restricted to first-time owners in the area who are permanent native residents (a person who was either born and reared in the family home or resided for at least 10 consecutive years) or within 8 km of the village of Kilmacanogue or those who by virtue of their employment require to live in the village. The remainder of the houses shall be provided for local growth only".

It is boring. But, it is worth re-reading. You may see it again. Other planning permissions require one year local residency or employment. While Wicklow is most prominent, other counties also seek to favour their own.

The Clare county development plan states that, to protect rural houses from inflationary price rises, planning permissions in rural areas will be confined to "local rural persons". The Galway development plan also expresses a preference in favour of Irish speakers. Ditto Waterford, where if you want to buy a house in a new development in the Ring Gaeltacht area, your chances will be much better if you have "a reasonable fluency" in Irish.

There seems to be little uniformity of policy among the country's 88 planning authorities on positive discrimination.

The Law Society's law reform committee, chaired by Roddy Bourke, a Dublin-based solicitor, ultimately believes that, where there is a legitimate purpose, the condition would be held to be lawful in an Irish court, but particularly discriminatory planning conditions would be susceptible to legal challenge. The conditions could be invalid under EU law.

But the uncertainty remains. These discriminatory conditions have not yet been tested for their constitutionality. One leading senior counsel in planning law suggested last week that it was now time that they were considered by the Supreme Court.

Frustration is mounting with what is seen as unhelpful interference by local authorities against the wishes of both vendors and purchasers and with uncertain effect. Buyers can usually later sell on in the open market.

The winds of discontent are gathering. Sooner, rather than later, we can expect a day out in the Supreme Court.

Pat Igoe is a solicitor who writes on legal matters for the Law Society Gazette