A High Court decision yesterday means that developers will have to provide more housing units to meet their social and affordable housing obligations under the Planning Acts.
The decision by Mr Justice Frank Clarke in proceedings relating to housing developments of some 149 units by Glenkerrin Homes in Dublin and some 244 units by Murphy Construction in Glanmire, Cork, is regarded as a major victory for local authorities in seeking to provide social and affordable housing in their areas.
The effect of the judge's findings is that local authorities are more likely to secure, at market rates, some 20 per cent of units in developments for social housing purposes than has been the case to date.
Proposals advocated by Glen-kerrin and Murphy Construction in their respective cases would have involved only about 7 per cent of units being allocated free by developers to Dún Laoghaire Rathdown Council and Cork County Council, the respective planning authorities in the areas.
The decision also means that property arbitrators, when determining how social and affordable housing obligations should be met, will have to follow a detailed formula set out by the judge. That formula is along the lines favoured by local authorities and not developers.
The judge stressed that, in both cases before him, because of the way events had developed, the only practical way at this stage for both developers to meet the social and affordable housing requirements was by providing built units. However, there were other means of meeting social and affordable housing obligations which might be agreed or adopted in other cases.
Mr Justice Clarke was also strongly critical of the drafting of the social and affordable housing provisions set out in Part V of the Planning Act 2000. He said the "devil is in the detail" of such legislation but the provisions failed to provide specific meanings for important issues.
While the "broad drift" of Part V might be clear, the reality was that it was very difficult to tell how the Oireachtas intended the legislation should be implemented in practice, he said. The more one looked at the legislation, the more difficult it was to construe. It was not clear, for instance, how units were to be valued.
It was "regrettable" that the legislation did not appear to have received the detailed consideration it warranted at the drafting stage, he said. This meant the court was left in a difficulty when interpreting it.
The legislation, for instance, presupposed agreement on the amount of units to be transferred but problems arose, as in these cases, when there was no such agreement and it was unclear what was to happen when dispute resolution procedures came into being. The courts were often criticised for adopting interpretations of laws which were then stated to be against the spirit of those laws but the other side of the coin applied here, he said. Against that background, he believed the construction of the legislation advocated by Cork County Council in its case could work and was the most harmonious approach.
