Month: August 2019

On 1 July 2019 new planning regulations came into effect governing the use of short-term tourist related lettings such as Airbnb in areas where rent pressure zones apply.

The Regulations were introduced in an effort to ease the housing crisis by freeing up properties which are currently used for Short Term Lettings or Airbnb and introducing them back into the traditional long-term rental sector.

Short-Term Letting is defined in the Regulations as ‘the letting of a house or apartment or part of a house or apartment, for a period not exceeding 14 days’.

The Regulations introduced the requirement for planning permission in respect of short-term lettings as this is now considered a material change of use for properties which are located in high demand areas. However, where property owners do apply for planning permission it is likely that this will be refused by the Local Authority in rent pressure zones, which will effectively ban short-term lettings in these areas.

Exemptions:

The Regulations provide exemptions to the requirement for planning permission in respect of short-term lettings where the property is the owner’s principal private residence (‘PPR’).

In particular where the property owner rents part of their PPR as a short-term let while they are still resident there, this is exempt under the Regulations and no planning permission is required.

However, where the property owner is temporarily absent from the house and they let the entire premises for short-term letting, this is considered to be an exemption only where the letting is capped at 90 days per year, with a limit of 14 days per letting. Anything in excess of this will require planning permission for change of material use of the property.

Second property:

Where a person owns a second property located in a rent pressure zone and intends to let it on a short-term basis, they must retain planning permission for this property to be used for tourism or short-term letting purposes. No exemption applies in respect of the second-property and all short-term lettings require planning permission.

Registration:

Property owners who are availing of short-term lettings but fall under the exemptions in the Regulations must notify their local authority using the prescribed forms. In particular where a property owner is letting part of their PPR on a short term basis or is letting their entire property for less than 90 days per year, they must indicate this to their local authority at the beginning and end of each year and provide supporting evidence as to why they are exempt from requiring planning permission under the Regulations in respect of their short-term letting arrangements.

 Enforcement:

The Planning Authorities in each functional area are now responsible for monitoring and enforcing compliance with the new requirements. Planning Authorities can take extensive actions where there has been a material change of use of a property and where planning permission has not been retained or complied with. Non-compliance with the Regulations carries a maximum penalty of a €5,000 fine and/or 6 months imprisonment.

If you would like more information on this topic, please contact:

Ciara McDonnell, Partner

There has been much debate surrounding what constitutes ‘reasonable accommodation’ for employees with a disability. A recent landmark Supreme Court decision, Nano Nagle School v Marie Daly, addressed three of the main issues in its decision, as follows;

Section 16 – Tasks v Duties:

Section 16(1) of the Act provides that an employer is not required to retain an individual in employment if that person is no longer fully competent to undertake their duties.

The Court emphasised that this provision cannot be read in isolation and that section 16 of the Act must be read in its entirety. In particular it noted that s.16(1) must be read in harmony with s.16(3) which provides a duty on an employer to make ‘reasonable accommodation’ and to take ‘appropriate measures’ to facilitate an employee maintaining their position with a disability.

What constituted an ‘appropriate measure’ was always a matter for the courts to decide and up until now the courts had taken the view that a delegation of ‘tasks’ was considered an ‘appropriate measure’ but that delegation of ‘duties’ went beyond this. The Supreme Court emphasised that there is no real distinction between tasks and duties. Accordingly, there is no reason why certain duties cannot be removed or ‘stripped out’ once it doesn’t place a disproportionate burden on an employer. The test must be one of fact, reasonableness and proportionality and the duty of determining what is reasonable accommodation is one for the deciding tribunal.

Free-standing Obligation:

The Court was critical of the Labour Court’s finding that there existed a ‘free-standing’ obligation on an employer to carry out an evaluation of all the available options, irrespective of whether the employee is capable of doing the job. The Supreme Court held that an obligation is not free-standing, and failure of compliance will not, in itself, give rise to compensation. The Court emphasised there is no mandatory duty of consultation with an employee in each and every case and the Act does not provide for compensation simply by the absence of consultation as this could not in itself constitute discrimination under s.8 of the Act. The Court observed however that a wise employer will provide meaningful participation in vindication of his duty under the Act.

United Nations Convention on the Rights of Persons with Disabilities:

The Court addressed the applicability of EU law to the case and noted that the United Nations Convention on the Rights of Persons with Disabilities (“CRPD”) was approved by the EU Community and ratified by Ireland in 2018. It stated that in accordance with Article 261(2) TFEU, international agreements such at the CRPD were binding on its institutions and therefore prevailed over Acts of the European Union. Accordingly, any EU Directives which relate to disability one to be interpreted in harmony with the U.N Convention and more specifically that the EU concept of disability was explicitly aligned with the CRPD.

Conclusion:

The decision offers some clarity and guidance for both employers and employees and highlights the importance of the following key points:-

1. There is no free-standing obligation on employers to consider the viability of re-organisation of work and redistribution of tasks among other employees;
2. There is no duty to create a different position to accommodate an employee with a disability;
3. There is no distinction to be made between ‘tasks’ and ‘duties’;
4. An employer can delegate duties to another employee;
5. The UNCRPD is applicable and prevails over Acts of the European Union.

If you would like more information on this topic, contact David Pearson, Partner at dpearson@jwod.ie or 021 7300200.