Speed Boost for Strategic Infrastructure Projects - International Law Office

In July 2006 the Planning and Development (Strategic Infrastructure) Act 2006 was signed into law. It has been introduced to address delays to strategic infrastructure due to the planning consent process.

For this purpose, a new division has been established within An Bord Pleanála, the planning appeals board. The act provides a streamlined planning consent procedure for strategic infrastructure developments, with applications made directly to this division - bypassing the need for consent from the local planning authority. This will affect the development of:

• large projects by or in partnership with a public authority;
  
  
• national roads and motorways; and
  
  
• railway infrastructure.

The act will have relatively limited impact on these kinds of project, as they were already assessed by a single decision-making body; although, under the act, the assessment of railway infrastructure will now be carried out by An Bord Pleanála, and not a government minister as previously.

However, the act will have a significant impact on the development of certain classes of transport, energy and environmental infrastructure. Examples include power generation, oil refining, air/rail/port transport infrastructure, incineration, landfill, water supply and waste water treatment. For these projects to benefit, An Bord Pleanála must be satisfied that the infrastructure satisfies one of three further preconditions:

• strategic economic or social importance to the state or region;
  
  
• substantial contribution to objectives of certain national or regional development guidelines; or
  
  
• significant effect on the area of more than one local planning authority.

The act does not cover topical and important projects relating to accommodation, healthcare, education or sports; nor does it apply to nuclear energy, iron and steel production, pharma-chemical projects or the offshore extraction of petroleum or gas.

If covered, a project will benefit from:

• the ability to bypass the need for local planning authority consent;
  
  
• direct access to consultation with An Bord Pleanála;
  
  
• a new streamlined consent procedure that usually involves a six-week public consultation followed by an 18-week assessment period (although this can be extended); and
  
  
• consideration of the 'national interest' when assessing the project.

The act may prove something of a double-edged sword, as there are also new burdens, such as the prospect of a condition requiring financial contributions to a community gain fund and potential liability for the costs of any person involved in the consent process.

Indeed, it is possible that the new consent process will in fact delay some projects. The act provides for a 24-week consent process, but it is possible to secure consent within 12 weeks under the existing procedure - provided that no appeal is made. This shorter lead-time was critical to the success of new combined cycle gas turbine power generation project in County Galway, and a large number of wind and hydro projects have been subject to no appeal.

In general, however, major projects are routinely appealed, and for such projects the timeline is reduced from 30 to 40 weeks. This is best illustrated by waste infrastructure: landfill and incinerator projects promoted by private developers can sometimes take a year or more to secure planning consent. Where such projects are promoted by or in partnership with a public authority, the applications have already been made directly to An Bord Pleanála. The proposed Dublin Waste-to-Energy project is a good example.

The act also introduces a new consent framework for electricity transmission lines and strategic gas infrastructure. In the latter instance, this represents a new form of consent entirely, without removing any of the several parallel layers of regulatory control.

For all of these kinds of strategic infrastructure consent, the act introduces new mechanisms for variation once consent has been granted, as follows:

• Clerical or technical amendments and non-material alterations can be made without public consultation;
  
  
• With material alterations, there is a limited public consultation and assessment process; and
  
  
• With material alternations that require an environmental impact assessment, there is provision for assessment of the variation only and not the whole amended project.

These changes will not become law until the minister for the environment, heritage and local government has issued the necessary commencement order(s), although these are expected within the coming months.

For further information on this topic please contact Brendan Slattery or Niav O'Higgins at Arthur Cox by telephone (+353 1 618 0000) or by fax (+353 1 618 0618) or by email (brendan.slattery@arthurcox.com or niav.ohiggins@arthurcox.com).