Ireland: Speeding Up Strategic Infrastructure Developments? New Measures Proposed

Last Updated: 20 February 2018
Article by Deborah Spence, Maeve Delargy, Danielle Conaghan, Jacinta Conway, Laura Rafferty and Yvonne Scannell
Most Read Contributor in Ireland, July 2018

From 26 February 2018 onwards, the first of a number of proposed new measures aimed at combatting delays arising from Court challenges to Strategic Infrastructure Developments (or "SID") will come into effect. These proposals are timely, with the National Planning Framework published on 16 February, alongside the Government's capital spending plan for the next decade.

The announcement of the proposals also comes against the backdrop of several years of heavy activity in terms of judicial review challenges to planning decisions, with a total of 170 judicial review applications having been taken against An Bord Pleanála in the last five years. In terms of SID applications, the Board granted permission for seven private SID projects in 2016, and four of these were judicially reviewed. The proposed Apple Data Centre was the subject of a judicial review challenge, although its substation (which was SID) was not. Data centres are not currently classed as SID. However, the Planning and Development (Strategic Infrastructure) (Amendment) Bill 2017 was introduced on 26 October 2017 and proposes that data centres which are of "significant economic importance" to the local authority area they are located in will now be classed as SID.

The Government's proposals fall under three headings:

  • Reduced time limits to bring judicial review proceedings for SID;
  • Criteria to assist the Courts in determining whether an applicant has 'sufficient interest' to bring a judicial review;
  • New court rules to accelerate the legal process.

REDUCED TIME LIMITS

The Government confirmed that existing time-limits for bringing judicial review applications in respect of certain planning decisions could be reduced from eight weeks to four weeks.

This is significant in particular when contrasted with England and Wales, where the time limit for bringing a judicial review of a planning decision is six weeks from the date of the decision and Northern Ireland, where the time limit is three months. The proposed four week time period for SID would provide welcome certainty to developers wishing to break ground more quickly on a project, confident that the decision was free from judicial challenge. However there have already been indications from interest groups, including An Taisce, that the proposed reduction in time limits may in itself be challenged in the High Court.

SUFFICIENT INTEREST

Currently, any party seeking to judicially review a planning decision, must demonstrate that it has a 'sufficient interest' in order to be allowed to bring a challenge. The term 'sufficient interest' is not defined in the Planning Acts, and has been the subject of discussion in a number of judicial review cases, most recently before the Supreme Court in Grace & Sweetman v. An Bord Pleanála. The Supreme Court found that participation in the planning process undoubtedly confers an entitlement to pursue a legal challenge, but that a person may have standing without participating if they have 'sufficient proximity', having regard to:

  1. the nature of the development, and
  2. any amenity in the location of the development (e.g. if the land is protected on environmental grounds such as an SPA or SAC) which might potentially be impaired.

The Government has proposed that it will set out criteria in legislation to assist the Courts in determining whether a party has 'sufficient interest'. It has been suggested that an individual will have to show that the proposed development directly impacts them in order to bring a Judicial Review challenge. It has also been proposed that there will be special rules for NGOs, who may now have to prove that they are not-for-profit, are active in the environmental sphere and have been set up for more than three years in order to have standing. This would be a change to the current position, where they only have to demonstrate that they have been pursuing the aim of environmental protection for the 12 month period preceding the application.

NEW HIGH COURT PRACTICE DIRECTION

In tandem with the Government's announcement, the High Court published a new Practice Direction for judicial review challenges of SID decisions. High Court Practice Direction 74 comes into effect on 26 February 2018 and provides that:

  • Mr Justice Barniville has been assigned to hear all SID judicial review leave applications, which should assist in providing consistency in decision making;
  • all papers in support of the application are to be lodged the
  • Monday before the leave application (which will be heard on a Thursday), which will allow Mr Justice Barniville an opportunity to fully consider the application in advance;
  • if the leave application is successful, directions will be given by Mr Justice Barniville to ensure a "fair and expedient hearing of the matter", which it is hoped will allow the case to progress to hearing more quickly, as has been the case for SID judicial reviews granted entry into the Commercial List.

WHAT'S NEXT?

The proposals are very much in their infancy, and certainly, as proposed, they are not without their potential difficulties and it is clear that they are already under careful scrutiny from interest groups. However, any proposals that assist with ensuring SID can progress through the Court system more smoothly and expeditiously, without hampering the right of wide access to justice, are to be welcomed.

In the meantime, we will continue to monitor the progress of these proposals and the workings of the new SID leave procedure.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions