26 March 2007
The most important piece of planning legislation in recent years came into effect in the Republic of Ireland on 1 January 2007. The purpose of the Planning and Development (Strategic Infrastructure) Act 2006 is to provide an expedited process for projects of significant national or regional interest.
Put simply, such projects will go straight to determination at a national level. This will shorten the application procedure overall and means that, for the first time, there is an opportunity for developers to dialogue directly with national planning authority An Bord Pleanala ('the planning board').
Which projects are covered?
The types of project covered include energy infrastructure, transport infrastructure and environmental infrastructure projects. This includes power stations (but not nuclear), roads, bridges, rail projects, airports, landfills, incinerators and gas pipeline networks. Even if the project appears to come within the type of projects listed, the planning board will need to be satisfied that certain conditions have been met. These include: that the project is of strategic importance to the state or the region; that it contributes substantially to objectives included in national or regional planning policy documents; or that the project would have a significant effect on the area of more than one planning authority.
What is different about the process?
The main difference is that, under the new act, the likely period for receiving a planning decision on a large project is far shorter.
Under the existing regime, unless the project is a local authority one, any application for development has to go to the local authority first. Local authority projects of significance, ie those that require an environmental impact assessment, go directly to the board already. Any environmental impact assessment (EIA) required on a non-local authority project has to be submitted to the local authority and then to the planning board on appeal. Local authority projects needing an EIA go directly to the board.
The local authority then has to make a decision within eight weeks. Once the decision is made by the local authority, both the applicant and any third party who has made submissions at the local authority stage can appeal the decision to the board within a maximum period of four weeks .
As its statutory objective, the board has to make a decision within 14 weeks, but this is not legally binding. This period is typically extended for large projects, either because there are requests for additional information or because there is an oral hearing (public inquiry). Also, the board's resources generally make it difficult to give particularly large projects the time required to make decisions any earlier.
Therefore, under the existing regime, the likely period for receiving a decision on a large project is 35 weeks-plus (assuming there is an oral hearing). The new act provides a basic 24-week process, which is a significant improvement.
What does it mean for developers?
The changes certainly mean that it will be quicker to get a decision, and with one expert body having control over the process there should be greater certainty and consistency. Developers are likely to have an opportunity to talk directly with the board - the decision-maker. This is an opportunity that has never existed before and which should prove beneficial for both.
There are also provisions that, if changes are necessitated following the consent, there is an opportunity for a limited reopening of public consultation. This is important: for example, an incinerator company that applied for an extension of its planning permission for additional capacity commenced a public inquiry this week. While the planning inspector sought to limit the ambit of the inquiry to the increased capacity, this has proved impossible under the existing law. As a result, the inquiry is anticipated to last a very long time and reopen all of the arguments that would have been brought up when the first inquiry was dealt with.
Third party rights
Third party rights are, on balance, unaffected, and this has been deliberately and carefully considered, although this may yet prove the basis for challenge. While there is no longer a local authority stage for objections, those objections can be made to the board and, to balance any concerns over the foreshortened period, there is a great ability for third parties to bring judicial review challenges.
Significant infrastructural projects are often delayed because the board's decision is challenged by judicial review. Although lawyers have more recently succeeded in getting judicial review challenges into the commercial division of the High Court (where typically cases can be determined in around 18 weeks), this is not always possible. The general High Court judicial review list suffers from a severe lack of resources and cases can take many years to be dealt with.
In addition, any appeal from a High Court decision to the Supreme Court can result in a delay of 18 months. That said, under planning legislation, no appeal to the Supreme Court is permitted unless the High Court judge certifies that a significant point of law of public importance arises. This can be extremely difficult to obtain from a judge who has just refused the judicial review relief sought. Nevertheless, the absence of a designated infrastructure court or additional judicial resources means that judicial review challenges still present a significant barrier to the timely delivery of infrastructure projects.
Also, under planning judicial review, there is a contested preliminary stage, the objective of which is to limit the number of planning judicial review cases that are granted permission to continue. An applicant has to show that they have a 'substantial interest' and 'substantial grounds', and this is difficult. In practice, however, if applicants succeed in getting the necessary permission, the full hearing tends to be a virtual duplication of the initial hearing, with the disadvantage of additional costs and additional delay. During the drafting of the 2006 act, consideration had been given to dropping the contested permission stage, but this has been removed from the final version.
The next steps
The application for an incinerator in Poolbeg, Dublin commenced before the introduction of the 2006 act and it will continue under the pre-existing regime. It is currently before the board and a public inquiry is expected to be heard in mid-2007, despite the fact that the commercial viability of the project is in question.
The same applies to a proposed second terminal at Dublin Airport. A proposed alternative to the ongoing and contentious project by a joint venture between Shell and Statoil to pipe offshore gas on to land in the west of Ireland has been talked about as the first project that may make use of the new procedure, although this is being denied by the operators. The planning board has recently been reported as having resourcing and industrial relations problems just trying to deal with its current workload. Watch this space.
•Alison Fanagan is a partner at A&L Goodbody