The most significant reform of Ireland’s planning system since the year 2000 is in the offing, Michael Walsh, former chair of the Law Society Conveyancing Committee, has said.

However, the ByrneWallace partner and property chair has said that the Planning and Development Bill 2023 does not deal with historic planning breaches that hinder transactions.

Proposed legal recognition

The Law Society has proposed legal recognition of a new class of ‘established non-conforming development’ (END) that would not be a blight on title, Walsh writes in this week’s Business Post.

Walsh adds that there is a compelling case for inclusion of this proposition in the bill.

Currently, conveyancing investigations must run back to October 1964 to determine whether there is any unauthorised development on the property.

In contrast, the legal requirement to investigate a period that is close to unregistered title back goes back 15 years, while planning history is four times as long.

Where planning documentation and records are missing or incomplete, this adds time and cost to transactions, Walsh points out. Some planning authorities do not hold any records dated before 2000.

Unauthorised developments remain an impairment on the property in perpetuity.

Law Society solution

The Law Society has a nuanced proposal to create a new class of development called ‘established non-conforming development’ (END), Michael Walsh writes.

Historic unauthorised development that has not been subject to enforcement action would be reclassified as an END, which would not retrospectively render the development authorised, and would exclude it from an unauthorised development definition.

This would shorten due diligence, similar to the lookback period for title review.

The Law Society proposes excluding from END developments that require an Environmental Impact Assessment (EIA), and a rebuttable statutory presumption that developments do not require this.

Walsh urged the Minister for Housing to thus amend the Planning and Development Bill 2023, in line with the stated objective of an improved conveyancing system.