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Dáil Éireann debate -
Thursday, 14 Oct 1999

Vol. 509 No. 3

Adjournment Debate. - National Infrastructure Projects.

This issue is of vital importance to the country's infrastructure. I raise it in the context of the recent successful objection to the south-eastern motorway and the leave granted to appeal to the Supreme Court for a judicial review of the Minister's order. I do not intend dealing with that case, but with its general application and the implication of this case being before the courts.

The south-eastern motorway and the Dublin port tunnel are the outstanding links in the ringroad around the city and as such are of national importance as routes to other parts of the country. They are of particular importance to HGVs and port traffic around the country. They are also of vital importance for traffic management for Dublin city which is rapidly becoming an unviable place to do business and which is increasingly becoming a nightmare to live in. The absence of a completed ringroad makes it impossible to remove the extraneous heavy traffic from residential and business areas and precludes the implementation of effective city-wide traffic management measures and the provision of efficient public transport in the city. In south County Dublin, it condemns the entire area to continued traffic mayhem and to escalated mayhem as traffic increases as the southern cross motorway comes to an abrupt halt in Ballinteer.

In addition, there are dozens of private and public investment decisions which are contingent on the south-eastern motorway being in place and which will now certainly have to be postponed and in some cases will be lost altogether. Of particular interest to the Minister in this context will be the entire Dún Laoghaire housing programme, both public and private, and the waste management strategy which is part of the Dublin-wide strategy. Neither of these projects can go ahead in the absence of the motorway.

This is only one motorway and one project of many which is being held up, interminably in some cases, as a result of court action by individuals or groups of individuals. They are being held up having been through the entire planning process which, and I am sure the Minister is aware of this, is time consuming and tortuous. Within the planning process for major infrastructural projects there are numerous safeguards and ample opportunity for those affected to make their case. In my experience every effort is made to accommodation people's needs. The process begins with the democratic decision that such projects are required and justifiable in the public interest. There are public consultation stages, both before and after full detailed designs have been drawn up. A full EIS is prepared in each case and a public inquiry heard to which an inspector gives lengthy consideration before making his recommendation to the Minister. Despite all of this we have case after case of works of national significance, which are clearly in the public interest, languishing for years in our courts or in the European courts.

As we embark on a new national development plan, at a time when we have clearly established the urgent need to tackle our national infrastructural deficit and intend to commit unprecedented billions to do so, we simply cannot ignore the need to introduce legislation which will make that possible. Without new legislation the national development plan will remain merely aspirational and our infrastructure, particularly our national roads, will remain that of a Third World country trying to cope with the transport needs of a fast growing economy. The biggest barrier to growth is our inadequate infrastructure. Unless we tackle the problems of planning delays we will simply not be able to sustain those growth rates at a rate anything like the rates for which we have the potential.

The new planning Bill presents an opportunity to deal once and for all with these problems. I welcome the provision of the Bill which transfers confirmation of what was previously a ministerial order to An Bord Pleanála. By placing such consideration in the hands of an independent body it removes the likelihood of at least one source of challenge on the grounds of conflict of interest but the legislation must go much further and limit the range of grounds on which such a court challenge can be brought. The list of grounds on which a challenge can be sought must be clearly indicated so that the promoting authority can establish clearly that it has taken all such issues into account at planning stage and An Bord Pleanála can show that it has also done so in making its order of confirmation. The grounds on which a judicial review can be sought are so open-ended that almost any reason can be given and accepted by the courts.

There is a need to amend the Roads (Amendment) Act, 1998, which was intended to limit the period within which an objector could lodge an appeal. There is a fatal flaw in the legislation in that it gives discretion to the courts. It was precisely the use of this discretion which successfully landed the south-eastern motorway before the Supreme Court. The Minister may say that it is too late to extricate this case from the courts but we must at least learn lessons from this debacle and ensure it is the national interest which prevails in such cases.

I thank the Deputy for raising this issue. The Government shares her concerns that serious delay can be caused in the case of major infrastructure and other development projects by applications by third parties to the courts for judicial review after all the planning procedures have been gone through. This issue has been given considerable attention in the context of the recently published Planning and Development Bill, 1999, which will introduce some further constraints on the taking of judicial review but not along the lines suggested by the Deputy.

The Constitution places considerable limitations on the use of legislation to restrict a citizen's right of access to the courts against the actions of public authorities. The Deputy suggests that legislation could allow a project to proceed on the basis that disputes regarding a decision on major infrastructure could be treated as a matter of compensation. The reality is however that many such disputes do not lend themselves to a monetary remedy. Property rights, environmental issues and environmental law play a major part in many judicial review proceedings and these matters cannot be left to be decided as a matter of compensation only. It is difficult to envisage therefore the introduction of a law along the lines suggested by the Deputy which would not infringe the Constitution or other binding international environmental instruments.

Under present planning law judicial review of a planning or An Bord Pleanála decision may only be allowed where an application for leave for judicial review is sought within two months of the decision and only where the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. A similar provision was introduced in respect of major road schemes by the Roads (Amendment) Act, 1998. Section 48 of the Planning and Development Bill currently before the Seanad extends these judicial review limitations to cover all local authority and An Bord Pleanála decisions in relation to development under the Bill, not just in relation to planning applications. This will cover decisions on compulsory purchase orders and decisions on local authority development – under Part 10 of the planning regulations – as well as local authority development which requires environmental impact assessment. The Bill further provides that applicants for judicial review will also have to show a substantive interest in the matter.

These provisions should go some way towards cutting down the number of judicial review cases taken against major public projects. The Government is not however prepared to rest there. Con sideration is being given to means of speeding up the judicial review process where judicial reviews are allowed. These could include the possibility of setting up a special division of the High Court so that judicial reviews in relation to planning matters and the provision of public infrastructure could be dealt with more expeditiously. Improved administrative procedures within the courts system could also help. An interdepartmental group has been established to examine as a matter of urgency these and other aspects of speeding up infrastructure projects.

On a wider front the planning Bill contains a number of fundamental reforms designed to streamline procedures and generally speed up the provision of public infrastructure. Time does not permit me to go into these but I refer the Deputy to the second reading speech on the Bill by the Minister, Deputy Dempsey, in the Seanad today.