Analysis: Land Development Agency to expand its current function to acquire land privately
Aoife Brannigan and David Phelan of RDJ LLP outline the Land Development Agency’s powers to acquire land privately and highlight what the application process for private land owners entails.
The Land Development Agency (LDA) performs the functions given to it under the Land Development Agency Act 2021. One of the core goals of the LDA is to increase public land available for the provision of public housing.
On Friday 21 July 2023, the LDA announced that it is now seeking expressions of interest from private landowners as it plans to begin purchasing privately-owned sites for the delivery of affordable housing.
This announcement marks a significant shift in the LDA’s policies which had previously been focused solely on developing lands owned by public bodies although this is not the first adoption of a new direction as the LDA’s function expanded previously with other schemes such as Project Tosaigh.
The LDA’s powers and obligations under the Act
The LDA was established with the primary purpose of developing and managing relevant public land, for the provision of affordable and social homes.
Under the Act, the LDA was given broad powers to facilitate the provision of social and affordable housing, including the power to develop and/or prepare relevant public land for development. Section 2 of the Act sets out a long list of purposes for which the Act was introduced. It is clear that the intention was to keep the objectives as broad as possible to assist in housing delivery. For instance, Section 2(a) has the ambition to “to increase the supply of housing in the State” and Section 2(f) has the objective to “combat long-term housing shortage…”
To achieve these aims, the LDA has been provided with a wide range of powers and functions including Section 14(i) of the Act, which provides the ability to acquire land other than public lands and Section 14(j), the ability to enter into commercial contracts and arrangements with third parties. It is clear from Section 14(2) of the Act that the LDA has been granted significant discretion in how it meets the Act’s objectives as it is granted “all powers necessary or expedient to perform its functions”.
LDA decision to use its powers for the purpose of buying private sites
Exercising its broad discretion, the LDA has signalled that they will now be pursuing a policy of purchasing private lands with a particular interest on sites with existing planning permission for over 200 homes.
The LDA is seeking expressions of interest from landowners and will consider all submissions received, but will be initially focused on large-scale sites of potential use for higher density homes in particular in the cities of Dublin, Cork, Limerick, Galway and Waterford. Expressions of interest must be submitted using the LDA’s submission form (linked here) via secure email before 4pm on Friday 25 August 2023.
Submissions will be graded and selected according to set criteria such as location/proximity to services and amenities, legal status, scale, site price, delivery timelines and planning status. In the guidance information provided by the LDA, they have indicated that sites being offered should be freehold or freehold equivalent, with good marketable title, vacant possession and be free from encumbrances. If vacant possession is not readily available at the relevant site, the applicant can set out the route it can take to obtain vacant possession.
The application form also contains a section to provide details on any third-party easements or rights of way required to facilitate the redevelopment of the site. It is clear given the somewhat technical confirmations needed in the submission form, that certain legal confirmations will be required in order to ensure the applicant does or can, meet the criteria.
Given the tight deadline, landowners who may have suitable sites or are assessing whether or not to engage with the LDA process to sell such sites, will need to prepare, along with relevant advisors, detailed submission documents.
Certain technical requirements and legal confirmations will be needed to show the criteria for selection is met later in the process, for instance, showing that the applicant holds “good marketable title” to the proposed development site.