New laws aimed at fast-tracking apartment size changes could result in High Court challenges, lawyers warn
High Court
challenges, legal sources have warned.
The planned amendments to the Planning and Development Bill 2025 would allow developers who have already secured planning permission to build smaller and more apartments in the same scheme without submitting a fresh planning application. Instead they could apply for a 'permitted modification', which the relevant planning authority must determine within eight weeks.
Minister for Housing
James Browne
last Tuesday issued the new apartment guidelines, which allow developers to build smaller apartments in a greater density. The guidelines reduce the minimum size of a studio apartment from 37 sq m to 32 sq m. They also do away with restrictions on the specific mix of units within a development.
The move is aimed at closing a viability gap between the cost of building apartments and their achievable sale price.
READ MORE
There was a fear this change to standards would result in further delays to building, as developers would have to resubmit planning applications to benefit from them. There are about 57,000 apartments proposed for Dublin for which construction has not yet started, the
Department of Housing
said last week.
In an effort to address these concerns over delay, the department has proposed amending the Planning Act to allow developers to incorporate changes to their scheme without making a fresh application.
This amendment, seen by The Irish Times, will go to the Seanad for approval on Tuesday, before going back to the Dáil on Wednesday.
Part 44B of the Planning and Development (Amendment) Bill 2025 outlines how a developer with planning permission could modify their permission in line with the new apartment standard guidelines.
They could apply to the original planning authority, either the local council or
An Coimisiún Pleanála
, for a 'permitted modification' by providing revised drawings.
The planning authority must approve the revisions within eight weeks of receiving them.
The change cannot be granted as a permitted modification if the development has already commenced, if an environmental impact assessment is required, or if the changes would result in the number of dwellings in a strategic development zone exceeding the number permitted by a planning scheme.
The Bill says any decision made under this amendment cannot be appealed to An Coimisiún Pleanála.
However, one legal source said the legislation is flawed and potentially unconstitutional due to the lack of public consultation on what could be a significant change to a developer's building plan.
Any 'permitted modification' decision could be challenged in the High Court by way of judicial review, sources said.
Another planning lawyer said the new guidelines for apartment standards are quite modest in what they are trying to achieve and because of this the amended legislation came as no surprise.
However, they also said that if an existing planning permission had previously been the subject of a judicial review, it is unlikely a developer will seek to amend their current permission by way of this 'permitted alteration' clause because it would open them up to the possibility of another unwanted legal action.
The Social Democrats' housing spokesman Rory Hearne TD said he is 'deeply cynical' of the changes to the Bill. He claimed they point to a Government 'ramming through amendments' to the Act, 'giving no time for detailed discussion or analysis of changes that will have profoundly negative impacts on housing for decades to come'.
'These changes are another example of the Government sacrificing younger generations to the investor funds and developers who are clearly the priority interests for the Government,' the deputy said.
'We will be vigorously opposing these changes being bulldozed through the Dáil and Seanad this week,' he said.
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