Darragh O’Brien was prompted to radically change state planning law because a major property developer was refused planning permission for just one development, according to advice the housing minister received from the attorney general.
Attorney general Rossa Fanning last month warned O’Brien in the unpublished advice that proceeding with the change could give the appearance that government policy was “being led by developers”. Despite this advice, which was sent to O’Brien and three coalition leaders, government went ahead with the change.
The housing minister last month denied before a Dáil committee he was lobbied to introduce the controversial amendment that Sinn Féin housing spokesperson Eoin Ó Broin called “extraordinary” and “a very dramatic intervention”.
State housing and planning policy has long been accused of being unduly influenced by large property developers. One leading planning consultant told a 2016 housing report a developer delegation met with then housing minister Simon Coveney to make suggestions about housing legislation.
“And he went through what his vision was for the Irish planning property system. And we gave him our recommendations and they took it lock, stock and barrel and stuck it into the new housing bill,” he said.
‘Led by developers’
The Planning and Development Bill 2023 was introduced last year following a series of articles published by The Ditch that led to disarray at An Bord Pleanála and the resignation and later criminal conviction of its former deputy chairperson Paul Hyde.
Environmentalists, developers, opposition TDs and planning experts have expressed concerns about the bill. Planning lawyer Fred Logue said if “enacted it will represent one of the greatest acts of self harm that the Irish State has ever inflicted on itself”.
Housing minister Darragh O’Brien last month introduced a new amendment, number 605, to the bill before the Oireachtas Committee on Housing, Planning and Local Government.
The proposed provision would prevent planning authorities from refusing planning permission because housing growth targets in the area concerned had already been reached.
Social Democrats housing spokesperson Cian O’Callaghan, Green Party committee chairperson Steven Matthews and Sinn Féin’s Eoin Ó Broin have all criticised the amendment.
“Amendment No. 605 is extraordinary… It is a very dramatic intervention to have a statutory prohibition in primary legislation to prevent a planning authority or the commission from refusing planning permission for a specific reason. I am not aware of such a provision existing elsewhere,” said Ó Broin speaking before the committee on 21 February.
Though there were suggestions that O’Brien had been influenced by developers to introduce the amendment, the housing minister told the committee he was “absolutely not” lobbied about the provision.
‘According to Fanning the amendment used Wicklow-specific language – given it was prompted by a single planning application in the county’
The Ditch however has obtained legal advice O’Brien, Leo Varadkar, Micheál Martin and Eamon Ryan received from attorney general Rossa Fanning on 2 February, 2024.
The advice shows that the proposed amendment came about because one of the country’s biggest property developers was refused planning permission for a strategic housing development.
“It is understood that this proposed amendment has been prompted by a refusal of planning permission for a strategic housing development of some 98 units in Greystones in County Wicklow in May 2023,” wrote Fanning, referring to an application submitted to Wicklow County Council by Cairn Homes.
“In its decision, the planning authority refused the planning application on the basis that, notwithstanding that the site was zoned, the housing growth target for the area had already been achieved,” wrote Fanning.
Fanning went on to warn O’Brien that the new law could be seen as being introduced to appease property developers.
“A counter-argument to the proposed amendment is that one of the principal objectives of the bill is to ensure that there is a system led by plans which will govern the granting of planning permissions and that future development will be authorised in accordance with such plans, rather than being led by developers,” he wrote.
Were this amendment to be introduced, wrote Fanning, it could lead to situations where local authorities would grant permission to developments that were inconsistent with agreed housing plans.
“This proposed amendment, the argument goes, represents something of a departure from that principle by authorising planning authorities and the commission to grant permission for housing development which exceeds the targets that are set out in the relevant plans. It might be argued that this is to some extent inconsistent with the approach adopted in other parts of the bill,” wrote Fanning in his advice.
The attorney general also warned O’Brien of issues with the amendment’s wording.
According to Fanning the amendment used Wicklow-specific language – given it was prompted by a single planning application in the county – and this wording may not apply to other counties.
“The amendment refers to a "housing growth target” which appears to adopt the language used in the development plan for County Wicklow,” wrote Fanning, adding that other authorities may “use different terminology for similar concepts”. The attorney general told O’Brien the amendment may therefore need to use broader language.
“It might be appropriate to ensure that the text of the amendment is sufficiently broad such that it can encompass the different language that may be used in different development plans,” he wrote.
Fanning later in his advice addressed potential future problems with the draft law.
“While the proposed amendment is clearly targeted towards addressing the shortage in housing, it does not make express reference to this. This may well be because it is envisaged that the imperative to construct housing at speed and at scale will continue for some time into the future. However, even if these pressures have been alleviated, it is important to note that the amendment will nevertheless remain in force unless and until it is reviewed and amended,” he added.
Elsewhere in the advice Fanning referred to the Department of Housing explaining the reasons for the amendment in a media query.
“I understand that your department has articulated the policy rationale for the proposed amendment along similar lines in response to a press query on the subject,” he wrote.
Fanning quoted the department statement, which claimed the amendment was “intended to support the plan-led approach whereby matters related to housing numbers, estimated capacity and zoning are determined at the plan-making stage, but with an appropriate and proportionate element of flexibility in line with statutory guidance”.
O’Brien’s special adviser Kevin Dillon met with Cairn Homes strategic delivery and policy director James Benson four times since the developer was refused permission for the county Wicklow development in May 2023, according to the lobbying register.
O’Brien declined to comment when asked if he was lobbied to introduce the amendment.
