Go to source for the Strategic Infrastructure Act

THE PLANNING AND DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006

For those with an interest, I'd advise having a look at the Act itself. There are many commentators around, but few articles capture the scope and detail of the Act.

http://www.oireachtas.ie/documents/bills28/acts/2006/a2706.pdf

Here's a short review of its main provisions and some comment ...

The Planning and Development (Strategic Infrastructure) Act 2006 (“the Act”) consolidates development consent powers for all major infrastructural projects in the hands of the Board. The Act was signed into law on 16 July 2006 and certain provisions commenced on 17 October 2006.


New Strategic Consent Procedure

Section 3 of the Act provides for a new strategic consent procedure to be adopted for the types of infrastructure listed in the Seventh Schedule of the Planning and Development Act 2000 (“PDA 2000”) namely Energy Infrastructure, Transport Infrastructure, Environmental Infrastructure.

The Act states that if a project is of a type set out in the Seventh Schedule and if the Board considers the proposed development to be of critical importance an application accompanied by an Environmental Impact Statement (“EIS”) is to be made directly to the Board without the necessity for an application to the local planning authority.


Application Process

The application procedure to the Board is broadly similar to a standard planning application for local authority development pursuant to the PDA 2000 and the Planning and Development Regulations 2001 ie publish notice, invite submissions, notify prescribed bodies etc.

The planning authority for the area must prepare and submit a report setting out the views of the authority on the proposed project to the Board within 10 weeks of receipt of the application.

The Board retains the power to refuse to deal with an application if it believes either the application or the EIS is inadequate or incomplete. An applicant can request guidance in writing from the Board in advance in relation to what should be included in an EIS.


Decision Making Process

When making a decision in relation to a proposed development, the Board must consider the EIS, submissions and observations made and any further information furnished and any other relevant information before it.

The Board must now also consider any Report prepared, relevant Development Plan, Special Amenity Area Order, the National interest, National Spatial Strategy and Regional Guidelines and Government policies.

Decision Making Powers of the Board

Once the Board has considered all of the above matters the Board is entitled to grant or refuse permission or grant permission with modifications.


Time Frames

* It is the duty of the Board to ensure that a decision in relation to a S.3 application is made as expeditiously as is consistent with proper planning and sustainable development.

* A decision should be made within a period of 18 weeks beginning on the last day for making submissions or as the Minister may prescribe. Where the Board cannot achieve this it must notify the applicant as to the reason why it is not possible and specify a new date for its decision.


Judicial Review

A challenge to any decision of the Board can only be brought to the High Court by the Judicial Review process.

There are a number of procedural changes to the judicial review process under the Act. Key points include:

* The time for making an application is now to be assessed from either the date of any decision made or the date of any other act by a planning authority/Board.

* An extension of the rules on access to judicial review for environmental NGO’s.

* The Court may require the applicant to give an undertaking as to damages as a condition of granting permission to bring the case.

Other key changes

There are other provisions in the Act dealing with additional powers to be allocated to the Board in relation to permissions, decisions and approval under the PDA 2000. Key provisions include;

* Giving the Board the ability to amend any planning permission, decision or approval made by it or to correct any clerical error.

* Conditions for regulating the development or use of land next to land proposed to be developed and in the same ownership can be imposed in circumstances where it is expedient for the development in question or where any existing public amenity must be maintained.

* The planning authority can refuse permission to a developer on the grounds of his/her past history of non compliance of planning. If an applicant wishes to have his decision over turned they must bring an application to the High Court.

* Section 49 of the Act contains a lengthy section involving significant amendments to the Transport (Railway Infrastructure) Act 2001.

Commentary/Reaction

Some commentators believe that the legislation is too pro-developer and that it removes an existing and vital layer of local democracy from the planning process. Others have argued that there is every possibility that the Board will be fully aware of important local views in any event.

There has been a lot of criticism that the judicial review process is now even more restrictive! Of course the real issue is to try and tackle the significant delays in relation to judicial reviews in the High Court. There was a proposal to bring in a specialist division in the High Court to deal with this but this has been put on hold. Application to the Commercial Division of the High Court will likely continue to be the only way to ‘fast track’ such litigation.

There is no doubt that the Act presents a lot of challenges for the Board. They have now moved from an independent appellate body to a development consent body and one would query whether this will lead to greater challenges to its decisions. One would query also whether the Board will get the additional resources it clearly needs to meet these deadlines.