Housing and the Law

“The public interest in housing...is not a public interest in housing at all costs.”

Michael Furminger BL is available to speak at Conferences and/or bespoke seminars on house building and the law.

In its most comprehensive statement of housing policy, the last Government acknowledged both failure and crisis.

• "Our objective is that everybody should have acces to sustainable, good quality housing to purchase or rent at an affordable price, built to a high standard, and located close to essential services, offfering a high quality of life."

• "...in the short-term we are facing a wider gap between supply and demand."

• "In this time of crisis..."

(Housing for All: A new housing plan for Ireland, September 2021, Foreword of Messrs Martin, Varadkar and Ryan, p8).

This post will;

• highlight various aspects of the current housing situation

• look at one response of the last Government

• ask whether, in context, the current housing situation can properly be seen as a “crisis”

• look at the importance of zoning in increasing housing supply

• clarify the role of the law in housing provision

• highlight the importance of the field in which we work and of getting planning decisions 'right'

Does the imperative to build homes oust the jurisdiction of the Court?

“Crisis” Documented

Three organisations reported in August of last year on different aspects of the housing situation.

• The Residential Tenancies Board reported an increase in the number of tenancies by 8% and in the number of private landlords by 7% between the summer of 2023 and March 2024. The proportion of tenancies connected to 'corporate landlords' (100+ tenancies) increased from 9.5% to 11.2% (double those figures in Dublin). The number of private tenancies is increasing as is the proportion of 'big' landlords.

• The CSO reported that residential property prices had exceeded their 'Celtic Tiger' peak.

• Savills revealed that between 2015 and 2023 the State's population growth outsripped new home construction by a rate of almost 4:1 (significantly higher than the UK rate of 2:1 and a typical EU rate of 2.25:1).

The Housing Commission's report published in May of last year disappeared largely without trace. The Commission referred to the housing policies of successive governments whose "interventions have not resolved failures that are fundamentally systemic." The Commission "identified as core issues, ineffective decision making and reactive policy making where risk aversion dominates." (p5)

Government's Response

In the new “integrated hierarchy of plan-making” (Planning and Development Bill 2023, Explanatory Memorandum, p3), 'breaking ground' and 'topping out' may lose their place as the most practical steps in increasing housing supply. Provision for housing in the NPF and in Local Authority Development Plan zoning may be more significant.

In the weeks prior to last November's General Election, the last Government published house-building targets in the context of finalising the new NPF, subject to environmental assessment and the approval of the Dáil.

The new targets enabled conversations regarding Development Plans and investment decisions to continue. They also made sense of the Government's request of Planning Authorities last summer to assess whether more land should be zoned for housing.

Crisis?

Homes are being built;

• More than 55,000 homes were commenced in 2024

• Financial services firm Davy predicts that housing completions will rise from 34,000 in 2024 to 42,000 in 2025 to 50,000 in 2026. Figures confirmed by MyHome in association with the Bank of Ireland.

• Fianna Fáil and Fine Gael promised 50/60,000 new homes each year in their election manifestoes

A “crisis” is something which, by definition, is out of the ordinary. The housing academic Lorcan Sirr has argued that the housing situation “should perhaps be called a permacrisis”. Fellow academic (and now Social Democrat TD) Rory Hearne says that;

“the struggle to have a home of our own is one with a very long history in this country. It is deeply connected to our independence as a people and a nation.”

(Gaffs: Why No One Can Get a House, and What We Can Do About It, Harper Collins, 2022, p25)

Perhaps the housing situation is less a crisis and more a longstanding and 'out of sync' aspect of this island's striking and ongoing transformation from the 'crash' of 2008, the stagnation of the 1950s or even the existential crisis of 1845-50.

Zoning

The Government's request that Planning Authorities zone more land for housing is perhaps recognition of the fact that the most practical policy to increase the amount of housing is for it to be provided for in local Development Plans.

As a matter of planning practice and of law, without residential zoning provision there will be no new housing. Residential zoning will be essential to the new Government's housing ambitions.

Section 10(2)(a) of the Planning and Development Act 2000 requires that a Development Plan includes objectives for the zoning of land. The equivalent (although interestingly slightly different) provision in the Planning and Development Act 2024 (“the new Act”) is section 43(6).

Zoning specifies the type or category of works or uses permissible on particular land (O'Donnell v ABP [2023] IEHC 381, para 61) (eg housing, open space, light industrial, retail etc).

“The determination of land use objectives in a development plan is perhaps the single most significant policy function entrusted to elected local councils...” (Humphreys J, Jones v SDCC [2024] IEHC 301 para 230)