It is important to clarify that the ‘Flemish Decree’ was a March 2009 Decree of the Flemish Region (a Federal Region within Belgium), on land and real estate policy, which made the purchase or long-term lease of land (i.e. all immovable property, that included existing, homes, businesses and farms) in certain Flemish communes (local authorities) conditional upon there being a ‘sufficient connection’ between the prospective buyer or tenant and the relevant commune. As such, the Flemish Decree effectively restricted significantly more than development rights in respect of new housing. The broad scope of the Flemish Decree was such that it was successfully challenged in the European Court of Justice, which ruled that it was contrary to EU freedoms.
Under the Guidelines for Planning Authorities on Sustainable Rural Housing 2005 (which were issued under Section 28 of the Planning and Development Act 2000), planning authorities are required to frame the planning policies in their development plans in a balanced and measured way that ensures the housing needs of rural communities are met, while avoiding excessive urban-generated housing.
Since 2018, the National Planning Framework (NPF) has been in force as the overall national planning policy document, as part of Project Ireland 2040. In this regard, National Policy Objective (NPO) 19 of the NPF aims to ensure that a policy distinction is made between areas experiencing significant overspill development pressure from urban areas, particularly within the commuter catchment of cities, towns and centres of employment, on the one hand, and other remoter and weaker rural areas where population levels may be low and or declining, on the other. NPO 19 is also aligned with the established approach whereby considerations of social (intrinsic part of the community) or economic (persons working full or part time) need may be applied by planning authorities in rural areas under urban influence.
The NPF is a planning policy framework and provides an important strategic basis for interpreting the 2005 Guidelines. Work is currently underway in my Department on an update of the 2005 Guidelines and in doing so, having regard to the principles of the outcome of the ‘Flemish decree’ case, where relevant. I expect to receive an initial draft guidelines document in the coming weeks. Given the complexity of the issues involved, the need for environmental assessment and both internal and external consultation, I would expect updated guidelines to be available later in 2021.
In the interim, the NPF objectives together with the 2005 Guidelines, enable planning authorities to continue to draft and adopt county development plan policies for one-off housing in rural areas. My Department communicated to planning authorities (Circular letter PL 2/2017) on 31 May 2017, advising them that the existing 2005 Guidelines remain in place until advised otherwise by the Department.