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Roche Publishes Strategic Infrastructure Bill 2006
(Fast-Track Planning)

Irish Times articles

(1) Fast-track planning process an erosion of democracy (Frank McDonald 17-02-06)
(2) Fast-track planning (Opinion section 17-02-06)
(3) Change will restrict power to object, say opponents (Liam Reid 17-02-06)
(4) Ringsend incinerator excluded from fast-track plan (Liam Reid 17-02-06)
(5) Roche unveils reforms of planning process (Ireland.com 16-02-06)

Irish Examiner articles

(6) Planning laws - Bord has to maintain its independence (Irish Examiner 17-02-06)
(7) Court procedures ‘will speed up planning delays’ (Michael O'Farrell 17-02-06)


(1) Fast-track planning process an erosion of democracy
(Frank McDonald, Environment Editor, Irish Times 17-02-06)

Dick Roche's proposed reforms of the planning system would seriously erode democratic participation in vital decisions that affect us all, writes Frank McDonald, Environment Editor.

The measures announced yesterday by Environment Minister Dick Roche are intended to circumscribe public participation in the planning process for the biggest, and frequently most controversial, projects - motorways, incinerators, landfills, oil pipelines, power stations, electricity pylons and rail projects.

It is clear that the "fast-track" planning regime now being proposed, with a special division of An Bord Pleanála serving as a one-stop shop, will apply to anything that the Government, or even a city or county manager, deems to be of "strategic importance" - even profit-orientated schemes emanating from the private sector.

Labour Party environment spokesman Éamon Gilmore rightly suggested that the move had been designed to "cut the public out of the planning process for major infrastructure projects".

None of these projects would have to go through the planning process at local level; they would be referred directly to the appeals board.

Local authorities, including councillors, would have a right to be consulted and have their views "taken into account" - but that's all.

In addition, An Bord Pleanála would have the power to require, say, the promoters of a waste incinerator to provide direct benefits to local communities affected by major infrastructure projects.

The only other comfort given to objectors is that the Strategic Infrastructure Bill 2006 extends the rules on access to judicial reviews for environmental NGOs (non-governmental organisations), to ensure that Ireland is in compliance with its international obligations under the Aarhus Convention on Public Participation.

However, it should be noted that the 2000 Planning Act narrowed the scope for judicial review of An Bord Pleanála's decisions to points of law; in other words, the High Court could not be asked to deal with the substance of any planning case. This restrictive measure inevitably led to a significant reduction in the number of legal challenges.

Since the Act came into force, 75 applications for judicial review have been made to the High Court, representing a small fraction of the board's decisions. Of these, 24 have been adjudicated so far, with leave refused in 15 cases, six other cases decided against the board (of which five were uncontested) and three in its favour.

The Bill has been welcomed as a major step forward by the Chambers of Commerce of Ireland, which had lobbied for the changes along with Ibec, the business and employers' organisation. But Ibec's director of enterprise, Brendan Butler, said they would have to be accompanied by measures to "tackle" legal challenges to planning decisions.

Butler has repeatedly blamed the row over Carrickmines Castle and the court actions it prompted for the enormous cost of completing the final leg of the M50, which worked out at €596 million, or €42.5 million per kilometre.

This is simply untrue. In fact, only €20 million of the total bill has been officially attributed to the Carrickmines controversy.

The main reason why the motorway cost so much was that the land required for it in south Co Dublin had to be bought at staggering prices during the height of the "Celtic Tiger" boom.

And even though plaintiff Dominic Dunne lost his case, he was awarded costs because the issues he raised were "truly of general public importance".

It is ironic to note that yesterday's publication of the Strategic Infrastructure Bill coincided with the deferral - for the fourth time in 10 months - by the Supreme Court of its judgment in Dunne's action challenging the constitutionality of the 2004 National Monuments (Amendment) Act, on which the M3/Tara case also hinges.

Clearly, the Government wants to limit public scrutiny as much as possible.

Since it was re-elected in 2002, it has filleted the Freedom of Information Act, abolished Dúchas (the State Heritage Service) when it was seen to be getting in the way of "progress", and amended the National Monuments Act to give the Minister total discretion.

Dick Roche has cited the 28-day duration of the M3 motorway inquiry as evidence that this controversial project was thoroughly assessed before An Bord Pleanála approved it in August 2003. But most of it was taken up by consideration of the motorway's impact on individual landholdings, rather than the archaeological landscape around Tara.

Roche has also been fulsome in his praise for the "greatly improved performance" of the appeals board. After all, it is a fact that the board has approved every major road scheme that came before it since January 2003 - 27 in all - even, at least in one case, where the planning inspector who dealt with it recommended a refusal?

All of the inquiries into major road projects are conducted not by planners but by road engineers, usually retired from the public service and retained by the board on a consultancy basis.

According to An Taisce, they tend to treat it as "an administrative process to be gone through", rather than a serious examination of particular projects.

There is no reason to believe that this will change when An Bord Pleanála establishes a Strategic Infrastructure Division to deal with major projects, as the Government now envisages.

Deadlines for making decisions to ensure "speedy delivery" of projects are unlikely to provide time for the "robust analysis" mentioned by the Minister.

The appeals board also gave its approval to the controversial Indaver hazardous waste incinerator planned for Ringaskiddy, in Cork harbour, despite being given 14 reasons to say no by Philip Jones, the senior planning inspector who presided at a lengthy public inquiry into the project. Here again, the board put Government policy first.

So we are left with the bizarre situation of a two-tier planning process - one designed very specifically to "fast-track" motorways and other major schemes that would affect us all, with the minimum amount of input from the public, and the other for everything else, from domestic extensions to apartment blocks, office buildings and shopping centres.

As Margaret Thatcher once observed: "It's a funny old world."

© The Irish Times

(2) Fast-track planning
(Opinion section, Irish Times 17-02-06)

Government plans to fast track major construction projects are still incomplete because difficulties in the courts have to be resolved. Few would quibble about the need to avoid excessive delays and vexatious obstruction in regard to major structural developments, because of costly experiences in the past. But it is important that the public at large should continue to regard the planning process as being fair, transparent and responsive.

In publishing a Critical Infrastructure Bill yesterday, Minister for the Environment Dick Roche marked an end to three years of indecision and disagreement within Government. In future, local authorities will not decide on major projects. Planning applications and public objections to them will be considered together by a special section of An Bord Pleanála. And the courts will become involved only if there are substantial grounds for claiming the board's decision was invalid.

Critics of the legislation have complained the Bill removes an existing layer of local democracy. And it does. The initial, local authority process will cease. And concerned individuals may find it more difficult to organise campaigns of opposition. Provision has, however, been made to listen to the objections of elected representatives and of environmental groups.

The arrangements should speed up the planning process at the level of An Bord Pleanála. But delays in the courts and the quality of planning applications were the major impediments in the past. Mr Roche has suggested the High Court may, in future, deal with planning appeals under commercial case management, with special judges being appointed to hear cases. But he gave no indication as to timescale or what resources would be provided to address this critical element.

A shortage of Government funding for the employment of planning experts caused major problems in the past. A report by the Ombudsman in 2001 spoke of a system "in a state of collapse". Thankfully, that situation has changed. And a more efficient system will be in place when a revised national development plan is published later this year. In the drive for economic development, however, the objections of local communities must not be ignored. Concerns that the new process may do just that have been given weight by Michael McDowell's insistence that the old rules should apply to an incinerator application in his Dublin constituency. The emergence of a two-tier planning system would be entirely wrong. Speeding up an application process for selected projects is one thing; nudging a statutory planning authority towards desired outcomes would be quite another.

© The Irish Times

(3) Change will restrict power to object, say opponents
Liam Reid, Political Reporter, Irish Times 17-02-06

Opposition and environmental groups have claimed that the Government's proposed fast-track planning procedures would restrict the rights of local communities to participate in the planning process for major infrastructure projects.

The legislation was welcomed by business groups, although they warned that it would have a limited impact unless major reforms were introduced in how the legal system dealt with planning cases.

An Bord Pleanála also moved to reassure communities that the new legislation would not make it easier to obtain planning approval for major projects and that they would continue to undergo a rigorous inquiry process. Environmental watchdog An Taisce said the proposals would "dilute the public's right to participation in the planning process". The local authority planning layer was being removed for large projects it stated, which meant that local communities "will have less time now to react to major applications for landfills, incinerators and other sensitive applications".

Labour Party environment spokesman Eamon Gilmore said the new procedures "will not bring forward a single infrastructural project by a single day.

"It will, however, greatly limit the right of the public and of local communities to voice their concerns over major developments. It will also irreparably compromise the independent nature of An Bord Pleanála."

He said there were "unacceptably long delays in the provision of essential infrastructure".

He added that it was a "urban myth" that delays to major projects were caused by planning objections. "Nothing could be further from the truth. Most of the delays in providing infrastructure are to due to delays in decision making at Cabinet level, design, land acquisition and bad management by Government."

Fine Gael environment spokesman Fergus O'Dowd welcomed the Bill but said the "total absence of judicial reform will still see planning applications subject to inordinate delays". He said it was "particularly disappointing" that the legislation made no attempt to equip planning bodies with the necessary expertise to "help restore public confidence in the planning system".

Green Party Environment spokesperson Ciarán Cuffe described the Bill as "an attack on local democracy" which "will do little or nothing to speed up the planning process".

"The main planning delays to major projects are due to High Court challenges and poor quality applications in the first instance. The Bill does nothing to remedy these failings."

Business lobby group Ibec welcomed the legislation but also called for legal reforms to be implemented as soon as possible.

© The Irish Times

(4) Ringsend incinerator excluded from fast-track plan
Liam Reid, Political Reporter, Irish Times 17-02-06

Minister for the Environment Dick Roche has said he would personally ensure that a proposed incinerator for Ringsend would not got through fast-track planning procedures announced by the Government yesterday, but denied this was because of the intervention of the local TD and Minister for Justice Michael McDowell.

The strategic infrastructure legislation, which will see major waste, gas pipelines, rail, airport and other large critical infrastructure projects bypass local planning procedures and go directly to a special division of An Bord Pleanála, is to come into force by the end of this year.

Mr Roche said he also expected changes in the High Court to help process judicial reviews of planning decisions, including the designation of specific judges for planning cases.

The Minister defended the proposals and denied that the ability of people to make observations or object to planning applications would be limited by the new laws.

"Full public consultation will be required, oral hearings may be held," he said. The board will also be legally required to take on the views of local authorities and elected representatives, including councillors and TDs, who will be specifically empowered to make observations on an individual planning application.

The legislation allows for a new "strategic consent process" which will streamline the planning process for major projects, and allow for pre-planning discussions with developers. An Bord Pleanála will also be able to take "more flexible decisions" by making variations to a proposal, instead of either accepting it with conditions or rejecting it, as is currently the case.

Mr Roche said that the legislation can also make it a requirement for developers to provide facilities or funding to local communities where a development is taking place. "It reflects what is already happening on the ground in relation to the development of some types of infrastructure at present," he said.

The legislation is very different to the original proposals for a separate infrastructure planning system which were withdrawn in mid-2004 amid opposition from Mr McDowell, who has been supporting constituents in opposing plans for an incinerator in Ringsend.

Mr Roche said he had made it clear to Dublin City Council management he wanted the incinerator proposal to go through the existing planning arrangements.

He said that if there was any attempt to delay the project so that it is included in the new procedures, he would "take the appropriate steps", although he did not believe this would be the case. He also denied the interest of Mr McDowell was the reason for this approach.

"It's not because there is a Cabinet Minister representing Dublin South East. It's because this process has been ongoing.

"I think it would be very unfair to the people of Dublin, who have views one way or the other on that, to allow them to avail of the planning process which was not in place when their concerns were first mooted."

Mr Roche is also introducing new laws against rogue developers, which will enable a planning authority to refuse planning permission for non-compliance on previous projects. The move was introduced after concerns were raised in the Dáil by Opposition politicians, including Eamon Gilmore of the Labour Party and Independent Catherine Murphy about unfinished housing estates.

© The Irish Times

(5) Roche unveils reforms of planning process, Ireland.com 16-02-06

Minister for the Environment Dick Roche has today unveiled his proposals to create a new division of An Bord Pleanála that will deal with major infrastructural projects.

The Strategic Infrastructure Bill is aimed at speeding up the consent process for major infrastructure projects of national importance.

Mr Roche said today he was announcing the changes to "bring about a greater efficiency in the provision of infrastructure.

"Every unnecessary delay in infrastructure development results in costs increases . . . cost increases which more often than not have to be met by the taxpayer," Mr Roche said.

Under the Bill, responsibility for deciding on approvals of railway orders, including light rail and metros will be transferred from the Minister for Transport to An Bord Pleanála.

The Bill also proposes to deal with other issues including rogue developers, the rights of environmental NGOs to access the courts as provided for in the Aarhus Convention and compensation for sub-surface lands.

Developers responsible for unfinished housing estates can be refused planning permission on the grounds of past history. The developer will then have to apply to the High Court for the decision to be overturned, reversing the burden of proof from the planning authority to the applicant.

Subsurface land 10 metres or more below the surface will have no value unless a person can show that the land is more valuable to them. Minister Roche said he introduced this provision due to subsurface development becoming an increasing fact of life.

Last year, the Government abandoned plans for a separate fast-track planning authority for major road and infrastructure projects, opting instead for major reform of An Bord Pleanála.

The Government pledged in 2003 to create a new fast-track process following delays to major road and infrastructure projects that were, in part, blamed on the planning process.

But, criticising the new Bill, the Labour Party said it would not bring forward "a single project by a single day" and would damage the planning process.

"It will, however, greatly limit the right of the public and of local communities to voice their concerns over major developments. It will also irreparably compromise the independent nature of An Bord Pleanála," said the party's environment spokesman, Eamon Gilmore.

However, Mr Roche described the criticism that the Bill would jeopardise the public rights as "bizarre" and said "nothing could be further from the truth".

Mr Gilmore also said it was an "urban myth" promoted by the Government that long delays in the provision of essential infrastructure were due to planning objections by the public.

"Most of the delays in providing infrastructure are to due to delays in decision making at Cabinet level, design, land acquisition and bad management by Government. For example the country's lamentable provision of broadband has nothing to do with planning."

Mr Gilmore said Labour had recommended the creation of a separate division of the High Court to deal with planning issues.

The Green Party accused the Government of undermining local democracy and said the Bill would do little to speed up major projects and would "dramatically curtail the public's participation in the planning process".

Green Party environment spokesman Ciarán Cuffe said the Bill was an "attack on local democracy" and would do little to speed up the planning process.

"The main planning delays to major projects are due to High Court challenges and poor quality applications in the first instance. The Bill does nothing to remedy these failings," he said. "The Bill will allow controversial developments such as gas refineries, port land reclamation and incinerators to bypass local government. The views of local authority staff, councillors and the public will be sidelined."

© 2006 ireland.com

(6) Planning laws - Bord has to maintain its independence
Irish Examiner 17-02-06

THE ink is barely dry on fast-track planning proposals unveiled yesterday by Environment Minister Dick Roche and already serious questions are being raised about the ramifications of the coalition’s bid to accelerate major infrastructural projects.

Predictably, opposition parties are highly critical of this initiative, aimed at pushing through reforms of An Bord Pleanála and effectively by-passing the country’s local authorities.

Speeding up the consent process for such ventures as incinerators or port facilities should not mean diluting the public input to the planning process.

Nor, as stressed by the Green Party, should it undermine local democracy by negating people’s rights to question and, if necessary, object to projects perceived as contravening the communal interest.

It would indeed be a retrograde step if, as suggested by Labour, the rights of individuals and communities to voice concerns over such developments were restricted by the Strategic Infrastructure Bill.

At the same time, however, there is an undeniable need to streamline the present system, where projects become interminably bogged down in long-running legal battles. Invariably, lawyers are the sole beneficiaries of such costly cases.

It would be a travesty if the new bill were to become an unfettered charter to allow developers to trample all over the rights of individuals and local communities.

In a democracy, it is essential to strike a balance between the common good and the interests of minorities. With that in mind, the public inquiry process was seen as a fail-safe, ensuring a broad canvas of interests would be taken into consideration when controversial planning issues arose.

To an alarming extent, however, An Bord Pleanála is increasingly perceived as over-turning the recommendations of its own planning inspectors where issues of a contentious nature have to be decided.

Rightly or wrongly, this scenario raises the risk of the public inquiry process being discredited.

Notwithstanding the prevalence of the nimby - not in my backyard - syndrome, most people still have faith in the planning laws. But if unpopular projects repeatedly receive the green light in the teeth of recommendations from planning inspectors, the system will be undermined in the eyes of a sceptical public.

It goes without saying that if objectors believe the cards are being stacked against them, even before the inquiry process begins, the process will be regarded as little more than window dressing.

Given that enormous sums of public money are involved in major projects, it may be counter-productive to further remove from public gaze the decision-making machinery of the country’s primary planning body.

Therefore, An Bord Pleanála must guard against undue interference from vested interests. It would be appalling if its independence was sacrificed on the altar of political expediency.

While several weeks will be allowed for the public and local authorities to voice their concerns, Labour’s Eamonn Gilmore contends the new bill will not advance “a single project by a single day”.

He argues that projects can be stymied by Government’s failure to make up its collective mind. Delays in providing vital infrastructure were not due to planning objections by members of the public. The Dublin Airport planning debacle is a case in point.

To avoid long legal delays, it would make sense to create a separate arm of the High Court to deal with planning issues.

In the final analysis, there is an onus on Bord Pleanála in its handling of future projects of major mportance, to strike a careful balance between national interest and the fragile rights of individuals and local communities.

© 2006 Irish Examiner

(7) Court procedures ‘will speed up planning delays’
Michael O’Farrell, Political Reporter. Irish Examiner 17-02-06

NEW High Court procedures to speed up inordinate and expensive delays in planning cases will soon be introduced, Environment Minister Dick Roche indicated yesterday.

Mr Roche said the measure, combined with the Government’s Strategic Infrastructure Bill, would greatly speed up the roll-out of major infrastructure projects.

The bill, which was finally published yesterday, aims to create a new division of An Bord Pleanála tasked only with infrastructure developments of State importance.

Although reform of the courts does not form any part of yesterday’s bill, Mr Roche said the Attorney General, the Justice Department and the President of the High Court all agreed changes were necessary.

Under the bill, responsibility for approving railway, light rail and metro projects will be transferred from the Minister for Transport to An Bord Pleanála.

It also addresses several side issues, one of which involves allowing the Government free use of land below 10 metres unless the owner can prove the subsurface is of value to them. The proposal is an obvious precursor to the anticipated construction of a metro system for Dublin.

The bill proposes to allow the authorities to refuse planning permission to developers responsible for unfinished housing estates.

The developer will then have to apply to the High Court for the decision to be overturned, reversing the burden of proof from the planning authority to the applicant.

However, opposition parties and business group IBEC warned that without parallel reform of the High Court system, long delays would remain as planning objections reach the courts.

Fine Gael environment spokesman Fergus O’Dowd said the absence of judicial reform would still see delays continue.

“The fact the bill is not accompanied by any reform of the judicial appeals process, where the real delays in getting these infrastructure projects up and running lies, shows this bill is about headlines rather than getting things done.

“With the courts taking almost two years to decide on cases of strategic infrastructural importance, I see very little prospect of the minister delivering on his promise to speed up delivery of these key projects.”

Labour environment spokesman Eamon Gilmore said the bill would not speed up projects.

“It will, however greatly limit the right of the public and of local communities to voice their concerns over major developments, he said accusing the Government of perpetrating an urban myth that planning objections by the public were responsible for most delays,” he said.

Green Party environment spokesman Ciaran Cuffe said: “This bill is an attack on local democracy, and will do little or nothing to speed up the planning process. The main planning delays to major projects are due to High Court challenges and poor quality applications in the first instance. The bill does nothing to remedy these failings.”

The criticisms were rejected by Mr Roche, who said politicians would be able to make submissions to An Bord Pleanála in the same way they can now.

© 2006 Irish Examiner

     

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