Member Article

The Planning and Development (Strategic Infrastructure) Bill 2006 was published on 16 February 2006 (a pdf version of this Bill is available at the end of this article). The idea of creating a “fast track” planning procedure for major infrastructural projects had been mooted for over three years. While the previous proposal anticipated the creation of a new infrastructural planning board, this proposal will instead go through the existing planning appeals board (An Bord Pleanála) albeit through a specialist division. The Bill is now being debated by the Dáil, it has already been through the Seanad, and it is expected to be passed by June 2006. One of the key changes to the existing planning regime is that projects will not have to get local authority approval first, and dialogue and communication between developers and An Bord Pleanála will be facilitated. There will be a “strategic consent” process for major projects where An Bord Pleanála will first be asked to decide whether a project qualifies for the new consent process. Such developments must be of strategic, economic or social importance to the State or the region in which they would be located; they must contribute significantly to the fulfilment of the objectives in the National Spatial Strategy or regional planning guideline; and the development must have a significant effect on the area of more than one planning authority. Projects covered The types of projects stipulated in the legislation include incinerators, landfills, gas terminals, hazardous waste facilities, gas and oil pipelines, large pylon projects, power stations, oil refineries, wind farms, air terminals, sea ports and sewage plants. Local authority involvement Local authorities and elected representatives, while no longer having the opportunity to adjudicate on such development applications directly, will nevertheless have special rights to make submissions on proposed developments within their areas. Expedited process By getting rid of the local authority planning stage, and ensuring a specialist division within An Bord Pleanála properly resourced and experienced to handle such strategic project applications, it is hoped that the length of time it takes to get development consent/planning permission will be reduced. This will not interfere in any way with the obligation to produce an environmental impact statement. Judicial review One of the main challenges facing major infrastructure projects in the past has been the time delays associated with judicial review challenges. To seek to improve this, it is proposed (but not confirmed) that there will be a designated planning judicial review division in the High Court, or at least a designated judge, to hear such cases. The usual preliminary "leave" stage in planning judicial review proceedings is being dispensed with, which will speed things up too. We have previously been able to secure expeditious planning judicial review adjudication, acting on behalf of developers, by securing entry to the commercial division of the High Court where stringent case management rules apply and hearings are fast tracked. Judicial review of planning decisions is already based on narrow grounds: the proceedings cannot advance unless “substantial grounds” have been demonstrated, and there is no appeal from the High Court to the Supreme Court unless the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken. Public interest groups are to be facilitated in being allowed to challenge decisions even where no direct interest can be shown. Commentary Resourcing High Court judges to be able to handle these sorts of cases, within dedicated case management rules akin to those applying in the Commercial Division, will make the biggest difference to project delivery in our view.

 

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