Developers Manual
Introduction
1. Scope of Part V
2. Exemption Certificates
3. Pre-Application Consultations
4. The Planning Application / Decision
5. Part V Agreements
6. Assessment of Compensation, Costs and Profit
7. Dispute Resolution
8. Allocation of Land, Sites or Housing Units
9. Control on Re-sale of certain houses
10. Review of the Housing Strategy
Part V (Housing supply) of the Planning and Development Act, 2000 firstly required the Council to adopt a Housing Strategy as part of the Kerry County Development Plan and then to attach appropriate conditions to planning permissions.
The County Council will implement Part V in a way that encourages and facilitates a level of housing supply which will meet the demand of all sectors of the market within County Kerry. Front-line staff responsible for implementing Part V have been trained in the new procedures and the contact person in Kerry County Council is:-
Mr. John Sheppard, Senior Executive Engineer, Housing and he can be contacted at 066 – 7183571 or e-mailed at jsheppar@kerrycoco.ie
This manual has been prepared to assist developers with regard to the process under Part V.
The County Council at its meeting held on 17th September, 2001 approved the Council’s Housing Strategy which provided that housing developers are required to enter into agreements with the Council to provide the maximum allowable 20% of land or serviced sites or housing units for the purposes of social and affordable housing. The exact breakdown between social and affordable housing will be decided on a site by site basis, having regard to the number of social housing units already located in the areas adjacent to the site in question.
The first issue to be determined is whether Part V applies to a proposed residential development for which a planning application is to be submitted to the Council. If the answer is ‘no’ none of the subsequent procedures outlined in this manual will be relevant.
As a general principle, Part V applies to a proposal for residential development, including the residential element of mixed-use developments, submitted by private-sector developers to Kerry County Council in respect of lands zoned for development in the Kerry County Development Plan.
Part V does not apply to applications for permission for:
(a) development consisting of the provision of housing units by an approved voluntary body for letting for social housing under the Housing Act 1988;
(b) the conversion of an existing building or the reconstruction of a building to create one or more dwellings, provided that 50% or more of the existing external fabric of the building is retained; or
(c) the carrying out of works to an existing house.
A person before applying for planning permission for development –
(a) consisting of the provision of 4 or fewer housing units, or
(b) for housing on land of 0.2 hectares or less may request the planning authority for a certificate stating that Part V shall not apply to such small-scale development.
Developers, whose proposed developments come within this category, are strongly advised to apply to the Council for an exemption certificate before lodging a planning application, to avoid subsequent delays. It should be noted that small-scale developments are not exempted from the provisions of Part V unless and until an exemption certificate has been granted.
The application for a certificate shall be accompanied by a statutory declaration made by the applicant containing all of the information specified in section 97(5) of the Planning and Development Act, 2000 such as the history of the ownership of the land in question, and whether the applicant has an interest in any adjoining land. (Section 97 is intended to prevent the avoidance of the application of Part V by splitting up land into small allotments or by the making of multiple applications).
A decision on an application for an exemption certificates must issue within 4 weeks (unless further information is required).
If the Council refuses to grant an exemption certificate, the applicant has 3 weeks within which to appeal to the court.
Note: The granting of an exemption certificate does not imply that a planning permission will be granted for the proposed development.
3. Pre-Application Consultations
Section 96(4) of the Act requires an applicant for permission, when making the application, to specify the manner in which he or she would propose to comply with a condition requiring him or her to enter into an agreement with the planning authority regarding the provision of social / affordable housing on the site, and the planning authority in turn is required to have regard to such proposals.
It is in a housing developers own interest, therefore, to seek to negotiate with the Council on the transfer of the 20% of the land, serviced sites or housing units for social and affordable housing at the earliest possible stage in any pre-planning application discussions. This will facilitate the speedy drafting of a Part V agreement in the event of planning permission being subsequently granted for the proposed developments.
The Council will require the developer to supply the following information for the first pre-application meeting:-
a) the location of the site;
b) the size of the site (in excess of 0.2 hectares);
c) the developers initial estimate of the number of housing units to be provided and
d) a broad indication of the mix of types and sizes of units proposed.
In any pre-application meeting the Council will endeavour to provide sufficient information to the applicant regarding its intentions with respect to that site, to enable him or her to put forward proposals at the subsequent planning application stage which are capable (subject to the applicant’s consent) of forming the basis of an agreement under Part V. The Council having considered the nature of the proposed development will then indicate its preference for either land, services sites or units. In particular the Council will require the developer to specify/allow for the following if he/she proposes to comply with Part V by providing completed units.
The number and location within the site, of the units for both social and affordable housing.
Social/affordable units should be outwardly indistinguishable in appearance from the rest of the development.
These units may be spread throughout the development or may form a group depending on the characteristics of the site and the overall size of the development.
The exact nature of the specification (size, building materials, finishes and fittings) for the social housing units should be as per the Council’s specification (details are available from the Housing Engineer’s Office).
Spatial standards for the social housing units shall be as recommended in the Department of the Environment Social Housing Guidelines 1999. A maximum excess of 10% of the target gross floor area (Table B2.1) will be considered in the interest of design flexibility.
The Guidelines may be viewed on the Council’s website at http://www.kerrycoco.ie/planning/guidlines.asp
The Council will require 20% of any car parking being provided in the proposed housing development to be transferred with the social and affordable units.
The planning authority is required under Section 96(3) of the Act to have regard (inter alia) to:
The need to ensure the overall coherence of the development; and
the views of the applicant in relation to the impact of the agreement on the development.
4. The Planning Application and Decision
As stated above, an applicant for planning permission is required to specify the manner in which he or she would propose to comply with a condition implementing the social / affordable housing objectives of the Housing Strategy. Where the planning authority grants permission on foot of such an application, it shall have regard to any such proposals. If such proposals are not submitted with the planning application the application may be returned to the applicant and further information will be sought. It is important, therefore, that the developer should ensure that his/her proposals in relation to Part V are included with the planning application.
It is clear, therefore, that an application must submit (in addition to the normal plans and particulars) a proposal to transfer either land, service sites or completed units; the proposed allocation of the 20% quota as between social and affordable housing should be specified. The location of the land, sites or units within the site should be identified on the site layout. If serviced sites are being offered, the nature of the units capable of being built on those sites should be specified. If units are being offered, the description should include size, specification and access to facilities such as communal open spaces etc. The number of parking spaces being allocated to the proposed sites or units should be specified (see Chapter 3 above).
If permission is being granted a condition will be attached requiring that the applicant or any other person with an interest in the land to which the application relates, enter into an agreement with the Council, concerning the transfer to the Council of the ownership of land, completed units or serviced sites for the provision of social and/or affordable housing in accordance with Housing Strategy objectives. The planning conditions must require that the agreement be finalised before development commences.
Where for reasons of the size, shape or other attribute of the site, the Council (or the Board on appeal) considers that such an agreement is not practical, it may instead attach a condition to a planning permission requiring the payment to the Council of an amount equivalent in value to the transfer of 20% of the land. The condition shall provide that the sum shall be agreed between the Council and the person to whom the permission is granted, and that in default of agreement the sum shall be fixed by a property arbitrator in accordance with section 96(7) of the Act. It should be noted that the Council will only agree to this procedure in exceptional site circumstances.
A condition attached to the planning permission will set out the intention of the Council and the developer to enter into a Part V agreement only in general terms and will specify that the agreement must be finalised before development commences.
It is of critical importance that the completion of the agreement should not delay the start of the housing development and it is the Council’s objective to finalise the agreement, if possible, at the latest within 2 months of the grant of planning permission. As stated earlier, the Council will seek to reach agreement with the developer on major issues at pre-application consultations, leaving only the details to be fleshed out in the Part V agreement.
If agreement cannot be reached, outstanding issues should be referred to An Bord Pleanála or to the property arbitrator as appropriate for settlement (see section 7).
The agreement will provide for the transfer to the Council (or to a voluntary/co-operative housing organisation nominated by it ) of either:
(i) the ownership of 20% of the land within the site for which permission has been granted;
(ii) 20% of the completed housing units on the site, of such number and description as will be specified in the agreement; or
(iii) such number of fully or partially serviced sites as will be specified in the agreement.
Insofar as it is known at the time of the agreement, the Council shall indicate to the applicant its intention in relation to the provision of housing, including a description of the proposed housing units, on the land or sites to be transferred. Section 96 requires the Council in framing the agreement, to have regard to:
- the proper planning and sustainable development of the area;
- the Housing Strategy and relevant development plan objectives;
- the need to ensure the overall coherence of the development to which the application relates and
- the view of the applicant in relation to the impact of the development.
It is hoped that, in respect of most sites to which Part V applies, agreement in principle will have been reached between the Council and the developer by the time the planning application is lodged.
In relation to the agreement the following matters will need to be addressed:
(a) If land or sites are being transferred, the Council must maintain the land or sites in such a way as not to detract to a material degree from the amenity, character or appearance of the land or houses in the area. The agreement should deal with such matters as:-
- what infrastructural services will be provided to the lands being transferred and rights of way and connection rights thereto;
- how vehicular access will be provided;
- pedestrian linkages and boundary treatment between the two parts of the overall site;
- the provision of adequate public or communal open space to serve the needs of residential development on lands being transferred;
- the relative phasing of development on two parts of the site and the impact of construction on earlier phases of the development;
- the differences and/or similarities between the types of housing and the design of such housing, on the two parts of the site.
(b) Broadly similar issues will arise in respect of the transfer of fully or partially serviced sites, except in this instance the nature of the sites will influence the type of housing units capable of being built on them.
(c) In the case of completed houses or apartments being transferred, the agreement will need to specify:-
- the number and location within the site, of the units;
- the amount to be paid by the Council to the developer in respect of the properties being transferred.
The Council’s Housing Strategy acknowledges that Voluntary/Co-operative Housing Organisations have made and continue to make a valuable contribution to provide social housing in the county. Part V of the Planning and Development Act 2000 allows, with the prior agreement of the Council for the making available of completed units, serviced sites or land to approved Voluntary/Co-operative Housing bodies as one option for developers to comply with the terms of Part V. In relation to bigger developments the Council is prepared to consider entering into agreement with developers which would enable lands or services sites to be made available to approved Voluntary/Co-operative Housing bodies as a way of complying with the statutory obligations under Part V. In discussions with developers regarding individual planning applications the Council will make it clear at the earliest possible stage, if the involvement of an approved Voluntary/Co-operative Housing body is an appropriate way of meeting the terms of the Council Housing Strategy.
6. Assessment of Compensation, Costs and Profits
The Council will negotiate the compensation payable to the owner of housing land for the transfer of land, serviced sites or completed units to the Council under Part V.
The basis for such compensation is set out in Section 96 of the Act. In summary, where ownership of land is transferred to the planning authority under an agreement, the planning authority will pay compensation to the landowner an amount which is equal to:-
- The existing use value of the land calculated on the assumption that it was at the time and would remain unlawful to carry out a development on the land other than exempted development; or
- Where the land was purchased or a legally enforceable agreement to purchase was secured by the applicant before 25th August, 1999 the price paid or amount agreed to be paid under an option (including interest charges that have been incurred), for the land, where that is greater than the existing use value.
The level of compensation in respect of the land must be determined in accordance with the existing use, whether that use is agricultural, industrial or commercial, or even derelict waste land, on the assumption that no development, other than exempted development can be carried out on the land. The level of compensation can, therefore, vary. However, no account may be taken of the value which would otherwise attach to the land because of its zoning or “development value” or because of planning permission granted on the land.
Where completed units are being transferred to the Council compensation will be based on the site costs, calculated as if the land were transferred to the authority on the basis set out above, together with the building and attributable site development costs as agreed between the Council and the developer, including a reasonable commercial profit on these costs.
Similarly, where partially or fully serviced sites are being transferred to the Council, compensation will be based on the site costs, calculated as if the land were transferred (as set out above) and the pro-rata attributable site development costs as agreed between the Council and the developer, including a reasonable commercial profit on these costs.
The DOELG Guidelines offer the following advice in calculating development costs and profits:-
- Where houses are transferred “building and attributable development costs” will apply to the completed house (in a completed development). In the case of serviced sites, “attributable development costs” will apply to the site development works carried out to the extent agreed between the planning authority and developer. These costs should be determined as an average per unit over the entire development, adjusted to reflect the varying sizes of dwelling units being provided. The purpose of this approach is to avoid abnormal costs associated with a section of the overall development being charged in full against the social or affordable housing element thus reducing a developer’s average cost for the remainder of the development or vice a versa.
- For the purpose of acquiring houses or sites, profit is to be taken as meaning a reasonable profit, determined by reference to prices for work pertaining to competitive tenders for similar work current in the locality. In the final analysis, the houses to be provided must be affordable and the agreement must clearly state the price at which the units are to be transferred. If agreement on these matters cannot be reached between the developer and the planning authority, the default position will be the transfer of land to the planning authority and the planning authority should invoke this, where necessary, to avoid wasting time.
In order to calculate the appropriate level of compensation the Council will require details in respect of :-
- Gross floor area
- Site costs
- Substructure costs
- Superstructure costs
- External works an site development works costs
- Indirect project costs/overhead charges
- Value added tax on building costs
- Design team fees
- Value added tax on design team fees
- Planning authority fees, charges, development contributions, etc.
- Fire certificate fees
- Capital contributions, utility connection charges
- Inflation allowances / financing costs
- Other miscellaneous charges (specify)
Section 96(8) of the Act provides that where, because of a dispute in respect of any matter relating to the terms of a Part V agreement, the agreement is not entered into within 8 weeks of the grant of planning permission for the housing development concerned, the applicant (or any other person with an interest in the site) may refer certain matters – generally relating to compensation – to a property arbitrator and certain other matters to An Bord Pleanála.
The matters which can be referred to a property arbitrator are:
(a) a dispute relating to the transfer of serviced sites or completed units to the Council;
(b) a dispute as to the amount of compensation payable for the transfer of land to the Council or
(c) a dispute as to the sum payable to the Council where for reasons of size, shape or other attribute of a site, the Council (or the Board on appeal) consider that an agreement for the transfer of land, sites or units is not practical and where instead a sum equivalent in value to the transfer of 20% of the land is payable.
Section 187 of the Act (recovery of compensation from a planning authority) applies to compensation payable for the transfer of land to the Council.
All other matters in dispute may be referred by the Council or any other prospective party to the agreement to An Bord Pleanála for determination.
Both the property arbitrator and the Board are required to determine matters referred to them as soon as practicable.
8. Allocation of land, sites or completed units
When ownership of land is transferred, the Council will consider whether a portion of the lands should be made available to an approved voluntary/co-operative housing body for the provision of housing for persons on the social housing waiting list. Similarly, the Council will consider whether to negotiate the transfer of serviced sites or completed units directly to an approved voluntary/co-operative housing body.
Allocation of social housing will be done in accordance with the Scheme of Letting Priorities prepared by the housing authority under Section 11 of the 1988 Act and taking account of the assessment of needs carried out under Section 9 of that Act.
It is Council policy, in the allocation of social housing to have all applicants vetted on estate management grounds to ensure insofar as possible that no allocation is made to person(s) engaged in anti-social behaviour. Furthermore, the Housing Department of the Council organises a series of information seminars and the pre-tenancy courses for new tenants moving into new Council dwellings. Experience has show that these seminars/pre-tenancy courses have proven very beneficial in impressing on new tenants the importance of their responsibilities as well as their entitlements. The Council intends continuing this policy for all new dwellings acquired for social housing under Part V.
The Planning and Development Act 2000 provides that affordable housing may be sold or leased* to eligible persons. The Act defines an eligible person as a person “who is in need of accommodation and whose income would not be adequate to meet the payments on a mortgage for the purchase of a house to meet his or her accommodation needs because the payments calculated over the course of a year would exceed 35% of that person’s annual income” after income tax and PRSI are deducted. In determining the eligibility of a person, the planning authority must take into account half the annual income net of income tax and PRSI of any other person who might reasonably be expected to reside with the eligible person and contribute to the mortgage payments. The Council must also take account of any other financial circumstances of the eligible persons and any other person who might reasonably be expected to reside with the eligible person and contribute tot he mortgage payments. Eligibility is to be determined when an application is submitted to the Council and reviewed when allocation of a house is to be made to determine if the circumstances of the person have changed to a degree which affects that person’s priority of the eligibility of a house.
*This refers to a shared ownership lease under Section 2 of the Housing (Miscellaneous Provisions) Act, 1992
Affordable housing may be sold or leased to eligible persons in accordance with a scheme of priorities developed by each housing authority – the approval of such a scheme is a matter for decision by the County Council. The scheme of priorities will ensure that allocation of housing is done in an open and transparent way. In preparing a scheme of priorities, the housing authority will have regard to their experience in operating such schemes for social housing purposes. While individuals may be eligible for both social and affordable housing, completely separate lists must be operated for the allocation of such housing. The scheme should be fully transparent and set out clearly the basis for prioritising the allocation of affordable housing. The scheme of priorities may be reviewed, and if necessary, amended by the members of the County Council at any time. The actual allocation of housing is a managerial function.
- Section 98 of the Act provides that in preparing a scheme of priorities for affordable housing, planning authorities should have regard, inter alia, to:
- the accommodation needs of eligible persons who have not previously purchased or built a house for their occupation or for any other purpose, e.g. first time purchasers;
- the current housing circumstances of eligible persons;
- the income or other financial circumstances of eligible persons (priority can be accorded to eligible persons whose income level is lower than that of other eligible persons – in these cases, the capacity to make monthly mortgage repayments on the property should be taken into account);
- the period for which eligible persons have resided in the area of the development plan;
- whether eligible persons own houses or lands in the area of the development plan or elsewhere;
- distance of affordable housing from places of employment of eligible persons;
- such other matters as the planning authority considers appropriate or as may be prescribed for the purpose of this section.
It is hoped to have a Scheme of Priorities for allocating affordable housing prepared and approved by Council in the next few months. Copies of the approved scheme can be made available on request at that stage.
9. Control on re-sale of certain houses
A planning authority may sell or lease houses provided or sites made available by it for social or affordable housing. The selling or leasing of houses or land will be subject to terms and conditions decided by the planning authority which should specify, inter alia, the basis on which a house sold or leased will be occupied and the need to notify the planning authority in the event of a proposed resale of the house or site. In the event of a house or land being first resold within 20 years of the purchase date, the vendor must pay the planning authority a percentage of the proceeds of the sale. This approach will ensure that there is not profiteering while a the same time allowing purchasers retain the full benefits of ownership after a reasonable time. The local authority will be fully recouped on its equity on any sale within the first ten years. Thereafter, the local authority’s equity will be abated at a rate of 10% between the 11th and 20th year.
In calculating the amount payable, the planning authority should have regard to any material improvements made by the person to whom the house was first sold (including works for the purpose of extending, enlarging, repairing and converting the house but not decorating works). The amount to be allowed should reflect the contribution of the improvements to the sale price of the house.
The amount payable will be reduced by 10% per annum after the tenth year that the person to whom the house or land was sold has been occupying it as their normal place of residence. The Act provides that the planning authority should reduce the amount payable so that the proceeds of the sale (excluding solicitors and auctioneers fees and costs) are not reduced below the price actually paid. Any monies accruing to the planning authority under these provisions must be paid into the separate account for housing purposes.
10. Review of the Housing Strategy
It is essential that the housing strategies are kept up-to-date and reflect trends in the housing market. The Manager is, therefore, required within 2 years of the marking of the development plan, as part of his review of the implementation of the plan generally, to carry out a review and report on the implementation of the housing strategy. The report should cover issues such as:-
- The outcome of the strategy;
- The success of the strategy in addressing the housing needs of the area covered by the development plan;
- The changes that have taken place in the housing market;
- Any new housing requirements identified.
In any event, the Manager may carry out a review of the housing strategy as a consequence of a change in the housing market that could significantly affect the strategy. Variables that would trigger a review of the housing strategy include:-
- Significant variation in house prices from the values assumed in the current strategy.
- Significant change in interest rates from the values assumed in the current strategy.
- The results of the next census of population and Assessment of Need for social housing both due for completion in the first half of 2002.
However, it should be noted that a review should only take place when there are significant implications for the housing strategy given the need for certainty in relation to the development plan to give developers confidence to plan for the medium term.
A review may also be carried out on foot of regulations made by the Minister in relation to the criteria determining affordability. Following such reviews, where the report by the Manager indicates new or revised housing needs, the Manager may recommend to the local elected representatives that the strategy be amended and the development plan varied.
Contact Information
Room 13,
Planning Department
Rathass,Tralee,
Co. Kerry
Tel: (066) 7183582
Fax: (066) 7120328
E-mail: plan@kerrycoco.ie
Get directions to this office
To report unauthorised developments
please email enforcement@kerrycoco.ie
