The need for the Minister for Housing to stop the contruction of new co-living schemes | Commencement Matter

8 February 2021

Ivana Bacik

Senator Ivana Bacik:

This Commencement matter is in the name of all the Labour Party Senators – Senators Hoey, Sherlock, Moynihan, Wall and me. I welcome the Minister of State, Deputy Peter Burke, to the House and thank him for taking this important issue.

In late November, the Minister for Housing, Local Government and Heritage, Deputy Darragh O'Brien, announced an eagerly awaited ban on the development of co-living schemes. His announcement was welcomed by all of us. The Minister was quoted as having expressed concern at the volume of co-living developments in the pipeline, their potential to put upward pressure on land prices and the standard of living involved. However, UCD's Orla Hegarty has estimated that, between developments already approved and those for which permission is currently being sought, there may be 3,000 co-living units in Dublin city by the time the ban is implemented. We are simply calling on the Minister to implement the ban with immediate effect, especially in respect of those developments where construction has not yet commenced.

In my area of Dublin Bay South two co-living applications are currently making the news, one in Merrion Road and one in Donnybrook in Dublin 4. The two applications are live. Submissions are going in to An Bord Pleanála. There have been quite a number of objections to both applications, including 115 objections to the Donnybrook Road development, and there are real concerns about standards of living. The Donnybrook Road development is more usually known as the Kiely's Pub development. In their report, Dublin City Council planners expressed serious concern about the bedroom size. Notwithstanding that, the council granted permission on 19 January for 91 co-living units, what one might call bedsits, but with communal kitchens and shared facilities. In addition to the small size of the bedrooms, shared facilities are not appropriate in a pandemic or to create sustainable communities. I will hand over to my colleague, Senator Sherlock.

Senator Marie Sherlock:

I thank the Minister of State for coming to the House today and taking our Commencement matter. What was implemented on 23 December was not a ban on co-living in this city or indeed in the country. It is not a ban for the communities that I live among and represent. There are two specific reasons for that. The first is the failure to retrospectively apply the ban. I will outline what that means for the communities I live among in Phibsboro, Stoneybatter and Dublin's North Inner City. Over the next 12 months, 1,096 co-living beds may secure planning permission to be built within an area 1.6 km in radius. That is an incredibly small area for such a large number of co-living units. What makes it all the worse is that the Department sat on a report from September and then waited until November for the ban to be announced and until December to actually give it effect.

The great irony of all this is that the Government made a song and dance about retrospectively applying income tax to pandemic unemployment payment recipients last year, and yet there is a failure to apply retrospectively a ban on co-living to the developments already in the planning system.

The second key reason that this is not a ban is because it allows a large exemption, which is if there was a proven need for this type of accommodation, then it will be permitted. The reality is that 55% of those on the social housing waiting list with Dublin City Council are individuals. These are single persons. It is not beyond the bounds of probability that at some stage co-living will be deemed appropriate for these individuals, such is the scale of the housing crisis in this city.

I make a particular appeal for the Government to revise this ban. I believe that a failure to do so will cast a real question over the Government's commitment to sustainable housing for communities in Dublin and throughout the country.

Minister of State for Local Government and Planning, Peter Burke TD:

I thank the Senator and Senators Moynihan and Bacik for giving me the opportunity to address this matter in the House. On his appointment, the Minister for Housing, Local Government and Heritage, Deputy O'Brien, undertook a review of co-living development. This work was prioritised among many other important matters. Further to that review it was indicated in a letter dated 23 November 2020 to all local authorities, An Bord Pleanála and the Office of the Planning Regulator that the preferred approach was to restrict the future development of commercial co-living development in Ireland. On completion of the necessary environmental assessment processes in the minimum time possible to ensure compliance with EU directive regulations, the Minister issued a subsequent letter to the planning authorities on 23 December 2020 giving notice that the updated Sustainable Urban Housing: Design Standards for New Apartments, Guidelines for Planning Authorities 2020 had been published as ministerial guidance under section 28 of the Planning and Development Act 2000, as amended.

The main purpose of issuing the updated apartment guidelines was to give effect to the conclusion of the co-living review process and to introduce a specific planning policy requirement for a presumption against the granting of planning permission for co-living development. The reasons informing this decision included: the inappropriate scale and location of co-living developments permitted and proposed at the time of the review; the need for a local authority-led evidence-based approach to guide the provision of this type of accommodation, which may be informed by the housing need and demand assessment process and which is being developed with local government sector; potential impact on land values if the number of proposals at the time of review were to continue to increase in current housing market conditions; new Government policy and priorities as set out in the new Programme for Government: Our Shared Future, with a strong emphasis on expanded social and affordable rented housing sectors; and the fact that at the time of review there was sufficient quantum of co-living units either permitted or subject to planning consideration to prove the co-living concept.

Accordingly, specific planning policy requirement No. 9 of the updated guidelines as published in December 2020 provides that there will be a presumption against granting planning permission for shared accommodation or co-living development unless the proposed development is either required to meet the specific demand identified by a local planning authority further to a housing need and development assessment process or is, on the date of publication of these updated guidelines, a valid planning application to a planning authority, an appeal to An Bord Pleanála, or a strategic housing development planning application to An Bord Pleanála, in which case the application or appeal may be determined on its merits. As such, specific planning policy requirement No. 9 includes provision to preclude consideration of new proposals for co-living development, and was a proportionate, measured and swift response, in accordance with the Minister's powers under the Planning and Development Act.

The crucial point is that the Planning and Development Act 2000 includes explicit provision under section 30 of the Act to ensure the Minister shall not exercise any power or control relating to any particular case with which a planning authority or the board - An Bord Pleanála - is or may be concerned, notwithstanding section 28 relating to guidelines. This is to protect the independence and integrity of the planning system. It was not, therefore, within the powers of the Minister or the Government under the Planning and Development Act simply to ban the construction of co-living schemes in cases where applicants had already entered the planning process prior to issuing updated guidelines. Furthermore, it is not is within the powers of the Minister or the Government under the Planning and Development Act simply to ban the construction of co-living schemes where construction has not commenced and there is a valid planning permission in place.

Planning permission is granted in accordance with the policy and legislation in place at the time of the decision. A policy change after permission has been granted does not affect the legitimacy of that permission. Where planning permission has already been granted for a particular development, such as shared accommodation, the applicant generally has five years to implement that permission. It is noted, however, that there is a provision in the Planning and Development Act to revoke or modify a permission under section 44 of that Act, but this is not a ministerial function. Rather, it is a function of the planning authority.

Senator Ivana Bacik:

I thank the Minister of State for setting out the legal position. Of course, all present respect the independence and integrity of the planning process. However, as my colleague, Senator Sherlock, stated, the unfortunate net effect is that the ban announced by the Minister, Deputy Darragh O'Brien, really does not amount to a ban. As Senator Sherlock and I have outlined, there is immense dissatisfaction and discontent in communities across Dublin about the manner in which these applications continue to be live and the manner in which permission has been granted subsequent to the announcement of the ban because applications were made before the announcement by the Minister on 23 December. We have heard just how many schemes, therefore, are going to proceed despite construction not having commenced and permission not having been granted prior to 23 December. That is the real concern. All present know why it is the real concern. It is clear that co-living schemes maximise profits for developers. Such schemes are not subject to the same minimum standard as other types of residential development are and they raise serious concerns about their potential to create sustainable communities. We all know there is significant need for housing and housing construction, but co-living schemes are not the way to build sustainable communities across Dublin.

Minister of State for Local Government and Planning, Peter Burke TD:

I thank the Senators for giving us the opportunity to clarify the matter. Within six months of coming into office, the Minister, Deputy O'Brien, has acted within the full powers available to him. I think this is key here. The law is the law. The law is very robust in the context of the planning authorities. The Minister has acted as best he can under the powers available to him but also having regard to the integrity of An Bord Pleanála and the planning system. Obviously, retrospective treatment of the planning law is not appropriate. It is very different from Revenue law. It is like chalk and cheese.