THE PLANNING AND DEVELOPMENT STRATEGIC INFRASTRUCTURE BILL, 2006 A CRITICAL ANALYSIS OF ITS IMPLICAT

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THE PLANNING AND DEVELOPMENT (STRATEGIC
INFRASTRUCTURE) BILL, 2006A CRITICAL ANALYSIS
OF ITS IMPLICATIONS FOR ENVIRONMENTAL LAW

• TOM FLYNN
• BARRISTER-AT-LAW

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STRUCTURE OF PAPER

• A broad analysis of the Bill
• Background to the Bill
• The Bill and the wider context of the development
  consent process
• Strategic Infrastructure Development Some Key
  Aspects of the Bill
• An Inherently Critical Approach

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BACKGROUND TO THE BILL

• A long and controversial gestation
• Proposed Critical Infrastructure Board
• BILL Strategic Infrastructure Division
• Underlying Rationale Assumptions
• Are these correct ?
• Lack of prior policy analysis
• Lack of any prior policy consultation

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THE WIDER CONTEXT THE CURRENT DEVELOPMENT
CONSENT PROCESS

• A fragmented development consent process
• Current configuration a multidimensional
  process
• Waste/IPPC/Planning/C.P.O
• Limited integration within current process
• Case for better integration not addressed in
  the Bill

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THE WIDER CONTEXT THE ROLE OF COURTS

• A restrictive system of Judicial Review
• Too restrictive ?
• Judicial Review not an appeals process
• Significant delays in judicial review cases
• Proposed new division of the High Court
• Necessary to reduce delays to major
  infrastructure projects

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THE WIDER CONTEXT A COMPARATIVE PERSPECTIVE

• Role of legal system in development consent
  process
• A source of debate - UK Experience
• Part of a wider de-regulatory trend
• Raises really fundamental issues
• Competing pressures, interests, priorities
• Competing value systems

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PLANNING PERMISSION FOR STRATEGIC INFRASTRUCTURE

• S.37A Special Application Procedure
• Development within Seventh Schedule
• Compliance with condition in s. 37A 2
• A system of self-referral
• Not confined to economic/national development
• Nature of development not applicant is Critical

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PRE-APPLICATION CONSULTATIONS

• Pre-application discussions-nothing new?
• Mandatory and permissive elements
• A broad latitude as to advice which may be given
• No estopple arising from discussions
• Pro-developer ?

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APPLICATION PROCEDURES LOCAL AUTHORITY
PARTICIPATION

• Procedures broadly similar to 2000 Act 2001
  Regulations
• Full evaluation of procedure requires publication
  of Regulations
• Obligation on Planning Authority to submit report
  to Board
• Manager required to obtain and forward views of
  elected members to Board

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POWER OF BOARD TO SEEK FURTHER INFORMATION,SUBMISS
IONS OR OBSERVATIONS

• From any applicant or any person
• Powers to hold meetings with applicant or any
  person if necessary or expedient
• Meetings between applicant and third parties
• A degree of negotiation between applicant and
  the Board ?
• Confers flexibility but misguided ?

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EXPANSION OF MATTERS WHICH BOARD MUST HAVE REGARD
TO

• Obligation to have regard to confers a broad
  latitude
• Significant in context of Boards track-record on
  large infrastructure development
• Bill introduces additional policy objectives
• National Interest
• A re-calibration policy objectives in favour of
  development

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CHANGES TO JUDICIAL REVIEW PROCEDURES

• Applications for leave now ex-parte
• To extend time for leave need good and
  sufficient reasons and outside control of
  applicant
• Express power to require an undertaking as to
  damages
• Overall a restrictive regime made more
  restrictive

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ALTERATION OF PERMISSION OR CONSENT GRANTED

• New power broader that powers under 2000 Act
• S.146A-technical or clerical errors
• S.146B-any person carrying or intending to carry
  out strategic infrastructure development may
  request variation
• Key question Material Alteration
• Result Permissions or consents granted not
  final

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CONCLUSION

• Bill - justifiable on grounds its simply a
  recognition of the current reality ?
• Bill - unjustifiable because it removes an
  existing and vital layer of local democracy from
  the planning process?
• Overstated argument Board will be fully aware
  of local views and perspective ?

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CONCLUSION

• Bill is a missed opportunity to unify a
  fragmented development consent process
• Even in its own terms will only be a limited
  success
• A one dimensional solution to a multi-dimensional
  problem
• Biggest impact on the Board from independent
  appellate body to development consent body
• Lead to greater challenges to its decisions