The “Locals Only” rules have their roots in the Sustainable Rural Housing guidelines established in 2005. These regulations bestow upon individuals from the local area the exclusive privilege to build in the open countryside, a right that is not extended to non-local residents to the same extent, if at all.
It is important to highlight that the “locals only” rule can manifest in various forms, but their fundamental aim remains constant – to restrict planning permission for developments to individuals residing within the specific area. In certain cases, these rules may even extend to permitting development projects exclusively for blood relatives of landowners within the locality.
Many Irish planning authorities have imposed restrictions on obtaining planning permission for one-off housing in rural areas. These restrictions are further reinforced by enurement clauses, which prohibit the original landowner from transferring the property for a specified time period.
The government defends these measures, citing their role in preserving the cultural and rural integrity of the local area. However, in doing so, it overlooks the fact that such policies carry a discriminatory nature. This is something which has been pointed out by the European Union.
Irish Approach to “Locals Only” Rule
The Special Policy area of the Department of the Environment, Heritage and Local Government issued a circular to each county manager in September 2008 dealing with rural housing policies and local needs criteria in Development Plans and more specifically conformity with Articles 42 and 56 of the EC Treaty on foot of a letter of formal notice in June 2007. The circular sets out that that Planning authorities should aim to support;
- The importance of encouraging development needed to sustain and renew established rural communities in both smaller rural towns and villages and wider countryside areas,
- The need to ensure that the planning system guides residential and other development to the right locations in rural areas in the interest of protecting natural and man-made assets in those areas, and
- The need to analyse the different types of economic, social and physical circumstances of different types of rural areas and to tailor planning policies to respond to these differing local circumstances.
European Union and the “Locals Only” Rule
Since 2013, the European Union has expressed concerns regarding the legality of the “Locals Only” rule, specifically with respect to the ‘Flemish Decree’ case.
In the 2013 ‘Flemish Decree’ case, which revolved around Belgian law, a “sufficient connection” was required to purchase property. The provisions of this decree bore striking similarities to those of the ‘Locals Only’ Rules, as they included restrictions based on the length of one’s residency, involvement in the community, and family ties to the locality.
In the case, Belgium attempted to justify this measure by stating that it was necessary to protect low-income individuals.
However, the Court of Justice of the European Union (CJEU) found the Belgian measure to be excessively restrictive and not proportionate to its stated objective. The CJEU ruled that such rules could potentially impede the Fundamental Freedoms guaranteed by EU Law, including the Free Movement of People, Workers, Establishment, Services, and Capital (Article 45 of The TFEU).
The effect of the Flemish Ruling
Despite the CJEU’s ruling, the Irish “Locals Only” planning rules remain in place by many local authorities. Nevertheless, a working group has been established to review the Planning Guidelines on Sustainable Rural Housing, aiming to align Ireland’s practices with EU Law.The Flemish Ruling; an Analysis
The prevailing view on the Flemish Ruling concerning the “Locals Only” rule is often portrayed in a simplistic, black and white manner. According to this perspective, the “Locals only” rules are seen as a necessary measure taken by local governments to safeguard rural land from excessive development. It is believed that lifting the restriction may lead to local landowners being priced out of the market and facing challenges as property prices rise. Thus, the ruling is criticised as an ideological approach to achieving European-wide equality, which, in practice, may come at the expense of the well-being of local communities.
While there is some truth to these prevailing narratives, a more comprehensive analysis of the CJEU’s Flemish Decision reveals a more nuanced view. Beyond the focus on free movement and integration, the court also acknowledges that a rule favouring proximity can work against the interests of locals themselves. Such a rule may hinder locals from exploring better opportunities elsewhere due to the fear of losing their future “sufficient connection” or “local” status. The actual impact of this effect remains uncertain, but it does offer an intriguing perspective.
Another interesting point is that the CJEU did not dispute the logic behind the Flemish rule. In fact, in their decision they recognized and reaffirmed the importance of protecting rural ecosystems. However, their contention lay in the proportionality of the measure. The court held that freedom of movement is a fundamental principle of the Union, and restricting it would require a more pressing and severe situation. This particular aspect is vital to highlight because the European Union is often portrayed as opposing national and local interests. However, this decision makes it evident that such a portrayal is not always accurate.
Given the CJEU’s acknowledgment of the rule’s merits, there is a clear implication that they would support other protections or movements, provided they were of lesser gravity.
- For instance, there is a recent Bord an Peanala scheme[1] in which one out of every five homes in a new Galway residential development is reserved for Irish speakers.
While the European Union has not officially commented on this specific scheme, it serves as a notable example of a lesser measure that strikes a middle ground between EU principles and national interests.
This emphasis is crucial as it reveals that the dichotomy between EU principles and national interests is not always as stark as presented by the media and local governments. There can be room for nuanced approaches and finding a balance that addresses both local concerns and broader EU objectives.
[1] https://www.irishtimes.com/business/construction/planners-rule-20-of-galway-scheme-be-reserved-for-irish-speakers-1.4856781
Conclusion
In conclusion, the “Locals Only” rule in Irish planning law continues to be a highly contentious issue, as it necessitates a delicate balance between the preservation of rural communities and the adherence to EU principles of free movement. The introduction of the Flemish Ruling, perceived by some as a potential victory against discrimination, has sparked concerns regarding its potential impact on rural communities and the possibility of excessive development.
Nevertheless, the Flemish Decision itself may hold the key to addressing these concerns. It emphasizes the importance of implementing proportionate measures and providing space for negotiation, with the aim of finding a middle ground that takes into account the interests and perspectives of all stakeholders involved. It is difficult to strike a balance that respects both the rights of locals and the European principles of free movement for EU citizens within the context of Irish planning law, and the matter has yet to be determined definitively in an Irish context of continuing local policies to limit access to rural housing which appear to be construed narrowly by planning authorities with inconsistent decisions and planning determinations. Ultimately it is anticipated that the matter will appear before the Courts for conclusive determination.
The Supreme Court has recently agreed to consider the nature of local development plans and how these can be legally challenged. These do not expressly concern the locals only rule but will be of assistance in this area.
Setanta Solicitors can advise you on planning law. Please contact us to schedule a no obligation consultation at info@setantasolicitors.ie or 01 215 0168
