I am pleased to bring the Planning and Development (Strategic Infrastructure) Bill 2006 before the Seanad. This represents one of the most important Bills I will bring forward as Minister for the Environment, Heritage and Local Government. In terms of the provision of infrastructure, it is probably one of the most important items of legislation that will be introduced in this parliamentary term.
The purpose of the Bill is to amend the Planning and Development Act 2000 to provide for the introduction of a streamlined planning consent procedure for strategic infrastructure developments. The new procedure will be administered by a new strategic infrastructure division to be established within An Bord Pleanála.
The Bill represents a major evolution of the planning code to meet the demands of a modern State. It will use the experience and competence of An Bord Pleanála, which already deals with many major types of infrastructure, including motorways, and can be expected to give the same robust examination to the projects covered by the Bill.
The new legislation is needed to ensure the continued economic development of our country in a sustainable manner. Gaps in our critical infrastructure pose a real threat to Ireland's growth, the environment and the standard of living the people of this country have, quite rightly, come to expect.
The Bill is of fundamental importance to our economy. We cannot run a modern society or a modern economy on 20th century infrastructure or even on 19th century infrastructure. We need new and secure ways of powering our homes. We need ways to get millions of people to work and to school in the morning without having to spend hours in their cars. We have to have places where we can recover or dispose of our waste and treat our waste water for the good of our environment.
We plan to invest over €43 billion in our infrastructure over the next five years. That is committed in programmes this Government has already launched. Potential investors need to know, at the very least, the timeframe within which the planning system proposes to assess their projects. Every well-publicised delay and risk of delay increases costs to private investors and ultimately the taxpayer. Ultimately, we all pay heavily for these delays, from our pockets and in our lives.
Before describing the specific provisions of the Bill, I would like to state its objective and tackle some of the misconceptions regarding what is proposed. The Bill is very specific in its provisions and there is no hidden subtext. It proposes that specific types of infrastructure, which are listed in the Bill, be eligible to apply to come within a single-step application process to An Bord Pleanála. The board itself will decide if they are of strategic importance having regard to the criteria, which are listed in the Bill. It is proposed that the board will take over responsibility, from the Minister for Transport, for deciding on rail orders, for heavy rail, light rail and the metro. Major electricity transmission lines will be subject to a special consent process, which will also be direct to the board. I also intend to amend the Bill to include consent for strategic pipelines. All of these consent processes will build on the existing processes that have applied to large local authority projects and motorways since 2001.
The type of environmental, transport or energy infrastructure listed in the Bill would have been provided only by State bodies in the past. This infrastructure is generally recognised as bringing major public benefit to the whole State or to a region.
Nowadays, major infrastructure is being provided by many different types of developer, including the State, State-sponsored bodies and private infrastructure providers, and through joint ventures and public private partnerships. The new legislation will cater for that by applying a consent process based not on the person making the proposal but on the type of proposed development involved.
My proposals are aimed at expediting major infrastructure proposals and do not cover developments such as shopping centres or office blocks. I heard a few comments in this regard and am mystified as to their origins. I do not wish to anticipate the debate on the Bill but I do not propose to introduce amendments thereto to include those types of developments. There were some bizarre ideas in some public comments.
Under this Bill, any member of the public, any residents' group or any local environmental group will have a full opportunity to make his or its views known on a proposed strategic infrastructure project. It is important that this be emphasised. The Bill sets out for the first time a role for local authority councillors to express their views to the board on applications made under the proposed strategic consent process. Members of this House will appreciate more than anybody else that putting councillors into key positions, as I am doing in this Bill, is a very positive development in terms of local democracy. I am therefore at a loss as to how it can be argued by some that this represents an attack on local democracy. Anybody who understands Irish planning law knows that since 1963, the person with whom power resides in this regard is the county manager. I am establishing a specific right and responsibility in law so the views of local authority members can be made known, recorded and sent to the strategic infrastructure division of the board.
The objective of the Bill is to provide a streamlined process so all stakeholders, statutory bodies, members of the public and local residents' groups will have a degree of certainty on when a timely and comprehensive decision will be taken on an infrastructure application. Having a clear view as to when decisions will operate is beneficial to those on any side of the argument.
At present, it is normal for major applications for infrastructure to be subject to an appeal, even after lengthy consideration at local level. The Bill will shorten the period before a final decision is reached because one stage of the existing planning permission system will not apply to these projects. Many delays in the past have been caused by poorly prepared applications and environmental impact statements. The board will be able to tackle this directly. Infrastructure promoters will have to discuss their proposals in advance with the new strategic infrastructure division of the board. The board will, in this way, be able to ensure that an application it receives is in line with the proper planning guidelines pertaining to the area and has been put together properly.
It has been suggested that much of the problem with project delays lie not in the planning system itself but in the judicial process. I agree that unnecessary delays in the judicial system are unacceptable. I am pleased at the initiative being introduced in the High Court, which should improve the management of these cases through the process. Allied with the changes I am proposing to judicial reviews of planning decisions through the Bill, we should be able to achieve significant savings in legal challenges.
I am an admirer of the work the High Court has done, specifically in the area of the commercial courts. If that same efficiency is translated into planning, we will all be winners. Changes to the system of judicial review will benefit everybody, including the person taking the legal challenge, the infrastructure provider and, ultimately, the citizens of the State.
We cannot be complacent about difficulties in our planning system. It is very good and ideal when handling planning applications with a local impact in a local framework, but it does not work adequately for infrastructure that results in a major public benefit to a wider area or to the entire country. The national benefits must be balanced against purely local concerns to arrive at the best decision for the country as a whole.
I will now outline the content of the Bill. As I have explained, section 3 introduces a new strategic consent process through the insertion of a number of new sections into the Planning and Development Act 2000, namely, sections 37A to 37I. These sections set out the detailed procedures for the strategic consent process for the types of infrastructure falling within the classes listed in the new Seventh Schedule, inserted by section 5 of the Bill. Any infrastructure provider seeking permission for those types of strategic infrastructure will apply first to the new strategic infrastructure division of An Bord Pleanála for a decision on whether the particular project is of strategic importance. Where the division decides the project in question is of strategic importance, based on criteria set out in section 37A, an application with an environmental impact statement can be made directly to it.
Section 37A sets out the basis upon which the strategic infrastructure division can decide an issue is of strategic importance. It will have to assess whether a project is a development of strategic or social importance to the State or the region in which it is to be located; a development that would contribute to the objectives of the national spatial strategy; or a development that would have a significant effect on the area of more than one planning authority. If the strategic infrastructure division decides that a project is not of strategic importance, then, under section 37B, it must write to the prospective infrastructure provider telling him or her to apply in the normal manner to the local authority.
Section 37B also provides that the strategic infrastructure division must enter into discussions with a prospective applicant to give advice on the proposed development. This advice will deal with both planning and procedural considerations and should allow the division to indicate to prospective infrastructure providers the issues that any planning application will have to address before being submitted. Better prepared applications and environmental impact statements should help to ensure that we put the right infrastructure in place without undue or unnecessary delay.
Section 37C provides for the avoidance of any doubt that any pre-consultations will in no way prejudice any of the functions of An Bord Pleanála or its strategic infrastructure division. In addition, written records will have to be kept of such consultations and made available if an application is made. This is very important to ensure transparency.
Section 37D allows a prospective applicant to seek information from the strategic infrastructure division on the information it would require to see included in an environmental impact statement. This is a standard scoping provision and a requirement of the EIA directive.
Section 37E sets out the application procedure. Before an application is made to the strategic infrastructure division, the applicant must publish notice of the proposed development. The notice must, among other things, give details of the six-week consultation period for the public to outline its observations directly to the strategic infrastructure division. Copies of the environmental impact statement will be available at the office of the local planning authority for members of the public to read and copy. As with all important applications, many State bodies will have to be notified of the application. The Department of the Environment, Heritage and Local Government will have to be notified in respect of heritage issues.
I wish to highlight sections 37E(4) to 37E(7), which set out the ten-week period within which local authorities and, more importantly, local councillors will prepare their views on the proposed development. As it stands, local councillors normally have no direct role in taking decisions on planning applications, other than in setting the policies for their areas in development plans. This provision gives them a new specific role whereby managers will be required to obtain and forward the views of the elected members of the council to the board. I suggest that it is a welcome change from the point of view of local democracy. I am sure Senators will welcome the changes being made to the roles of local councillors.
Section 37F enables the board to seek additional information, including revised environmental impact statements. An innovative feature of this section is that it gives the board the power to hold meetings with relevant stakeholders if it appears to the board that such meetings are necessary. This increase in the flexibility of the board in handling disputes should make it possible to achieve better outcomes for all.
Section 37G gives the board the power to grant permission for a strategic infrastructure project, with or without modification. The board may also refuse to grant permission for a project. It is hoped that projects which are unacceptable, for example because of their location or environmental impact, will be identified at the informal pre-planning stage. If a promoter wishes to pursue a case to the decision stage, the board will have to deal with it. Matters raised during the consideration by the board of the final proposal and the submissions made on the proposal will be considered as part of the decision-making process. The board must have regard to a wide range of issues, including submissions and objections made by local people and the local authority, the local development plan, the national spatial strategy and the national interest, before it makes its decision. The board will be able to balance local and national concerns and make the right decision for the country.
One of the most important aspects of this Bill is the enabling power under section 37G(7) that will allow the board to set conditions relating to the payment of development contributions and the provision of community gain in localities where infrastructure will be located. Communities will be deemed to gain from infrastructure if they will benefit from the relevant facilities or if other novel initiatives, such as scholarships, are provided for. This power, which will ensure that something is given back to the community, reflects what is happening in the development of certain types of infrastructure at present.
Section 37H sets out the notification procedures to be followed by the board on foot of decisions made by it. Section 37H(2) enables the board to recover from the person seeking permission its full costs and those of the planning authorities which participated in the decision-making process. Many local authorities have to carry huge cost burdens when they process planning applications. This section will give local authorities a much more equitable right to cover their full costs, particularly in cases of very complex developments.
Section 37J sets out for the board the statutory objective period of 18 weeks in which a decision is to be made, in line with the standard period that applies to all board decisions. Given the complexities of some projects which are submitted for approval, more than 18 weeks will sometimes be required. However, this section provides for matters to be finalised as expeditiously as is consistent with proper planning and sustainable development in such cases.
Section 4 provides for the insertion of the new sections 182A and 182B in the Planning and Development Act 2000. The purpose of the sections is to provide for a single approval for electricity transmission lines requiring an environmental impact statement, or located in the functional areas of more than one planning authority. The notification procedures and decision-making roles of the board in these sections are similar to those provided for in the new strategic consent process. They allow for a regional or national viewpoint to be applied to lines which are critical to balanced regional development into the future.
As I have already mentioned, section 5 inserts a new Schedule to the 2000 Act which lists the range of environmental, transport and energy projects which can considered under the strategic consent process. The board will decide whether individual projects within those classes will be dealt with under the strategic consent process. The types of infrastructure involved include gas and oil storage and production facilities, wind farms with an output of 100 MW or more, airports, harbours and ports, waste management facilities such as landfill and incineration facilities and water and waste water facilities. It does not include office blocks or retail parks, even though the myth that it does is already taking hold.
Nor does it include nuclear energy projects. Senators are familiar with my record in this area. I know that a Member in the other House has some views on this matter, although I do not know where they are coming from. Everyone knows I would never seek to introduce nuclear energy to Ireland, through the back door, the front door or any other part of the building. The provisions of the Electricity Regulation Act 1999 ensure that nuclear power cannot be used for the production of electricity in Ireland.
I have given an overview of the new strategic consent process. At present, most if not all of these projects are ultimately decided on by An Bord Pleanála through the existing appeal process. The Bill provides that the board will be in a position to decide whether particular projects can go through a streamlined process, which is a new provision. I am taking the opportunity in section 34 to incorporate the decision-making process for railway lines and metros into the remit of the board's strategic infrastructure division, thereby replacing the role of the Minister for Transport in this area. This involves limited changes to the Railway (Infrastructure) Act 2001, mainly to align the timeframes and procedures with those used in the Bill for other consents.
I propose to highlight the main issues arising in the rest of the Bill. Section 8 proposes an amendment to section 34 of the 2000 Act. It will make it clear that planning authorities can impose conditions in respect of lands neighbouring a proposed development and owned by the developer, where such conditions are required to maintain an existing amenity which benefits the public. The need for this provision arose on foot of a recent Supreme Court decision which cast doubt on whether planning authorities or the board could do this. I am taking the opportunity presented by this Bill to close any gap that exists in that regard.
Section 9 provides for an important amendment to section 35 of the 2000 Act to allow planning authorities to refuse planning permission to rogue developers on the grounds of their past history of non-compliance with planning requirements. All of us are familiar with the trail of rogue developments in this country. It was a major problem in the past, although it died down for a while, and it is starting to reappear. Section 9 will give local authorities an opportunity to refuse planning permission to people who have bad track records on the basis of their non-compliance with previous planning applications. Applicants will have to apply to the High Court if they want such a decision to be overturned. I am sure Members on all sides of the House welcome this provision because it puts the onus on developers to prove they have good records. It reverses the burden of proof by putting it on the developer rather than the planning authority. The developer will have to prove that a decision to refuse planning permission is not warranted. This provision was included in a Labour Party Private Members' Bill, which I supported at that time. In this Bill, I am taking the first available opportunity to amend the 2000 Act.
Sections 10 and 11 deal with aspects of the judicial review provisions in the planning code. I am making two fundamental changes to the provisions. I am changing the way in which applications are made to the court for leave for judicial review. In future, they will be done ex parte rather than on notice, which should help to streamline the system and to expedite hearings. I am extending access to apply for leave for judicial review for major decisions to include environmental non-governmental organisations. This will ensure that concerned groups have access to the courts in appropriate cases and will help meet Ireland’s obligations under the Aarhus Convention on public participation.
The non-governmental organisations will have to meet certain standards. For example, they will be required to show that they have been operating for over a year. Other requirements, relating to membership or not-for-profit status, for example, can be prescribed. Environmental non-governmental organisations will have to establish substantial grounds for any challenge and will have to act within the eight-week timeframe.
Sections 13 to 18, inclusive, deal with the changes to the board to accommodate the new permanent strategic infrastructure division and other procedural matters. The number of board members will be increased to ten and the range of organisations from which members can be selected have been consolidated into four panels. The division will normally consist of five members, namely, the chairperson, the deputy chairperson and three ordinary members, with a quorum of three for its meetings. The chairperson can also call a meeting of the entire board to discuss a particular application if considered necessary. This division will deal with applications under the strategic consent process, with rail orders and electricity consents, and it will handle the infrastructure consents that currently go directly to the board, namely, major local authority projects and motorways.
Section 24proposes the insertion of three new sections into the 2000 Act. The effect of these sections will be to allow the board to correct and amend a previously granted permission or consent. A similar power is already enjoyed by the EPA for licences that it issues, while the Ombudsman has indicated there should be a power to issue corrections.
There have also been complaints about the situation that currently pertains if a project has to be changed after the approval process is undertaken, such as when discoveries are made after excavations have begun. In such a case, the full consent process for the whole development must be followed with all the delay that that entails. This applies even where only a small part is affected in a minor way.
The new section 146(b) will enable the strategic infrastructure division to make substantive changes to infrastructure. The environmental impact of those changes will have to be assessed and, if necessary, an environment impact statement prepared under the new section 146(c). Every public representative will come across a situation where there is an error in a planning application. The Ombudsman made the point in her report that there should be some way of correcting this situation.
Section33 amends the Acquisition of Land (Assessment of Compensation) Act 1919, by inserting an additional compensation rule to provide that the value of any land lying ten metres or more below the surface of the land shall be taken to be nil unless the contrary is shown by a claimant. This provision reflects the fact that sub-surface works are increasingly required for today's road and rail networks, especially the forthcoming metro. This provision will remove existing doubts about the value of substrata lands.
On Committee Stage, I intend to amend the Gas Act 1976 to bring the consent process for the construction of strategic gas pipelines within the remit of An Bord Pleanála. I also intend to introduce some additional technical amendments to the foreshore part of the 2000 Act. Other amendments are intended to ensure that our planning process functions for the good of all.
This Bill will facilitate a more streamlined approach to decision making in respect of strategic infrastructure. It will provide a better service for all stakeholders, infrastructure providers, State bodies and the general public alike. This will happen through a single stage process of approval for projects, a rigorous assessment of all projects against sustainability and environmental criteria, full public consultation, including a statutory right for councillors to be heard, as well as a certainty of timeframes. My proposals are designed to ensure the correct balance between individual rights and the broader public and national interest. I believe that I have got the balance right. I look forward to discussing these provisions in detail in a constructive and helpful Committee Stage debate and I will listen with interest to the contributions on Second Stage. I commend the Bill to the House.
