The Planning and Development (Strategic Infrastructure) Act 2006 made significant changes to the way strategic infrastructure developments are determined within the planning system. This document gives guidance on the main features of the system including public participation.
Strategic infrastructure development can generally be described as development which is of strategic economic or social importance to the State or a region. It also includes development which will contribute significantly to the fulfilment of any of the objectives of the National Spatial Strategy or any regional spatial and economic strategy for an area, or which would have a significant effects on the area of more than one planning authority.
Planning applications for certain large scale private development, generally of a class which requires environmental impact assessment (EIA) and which the Board certifies as meeting the criteria referred to in Q1, will be made directly to An Bord Pleanála (the Board). These are listed in the 7th Schedule of the 2000 Planning Act which was inserted by the 2006 Act and other amendments (referred to as 7th Schedule development). Heretofore, such planning applications were made to the local planning authority (e.g. county council) with a right of appeal to the Board. Applications for approval of gas and electricity infrastructure and railways will also be made to the Board generally by the relevant utility providers.
In addition to 7th Schedule development, strategic infrastructure development includes: proposed development by local authorities in their own functional area which requires EIA; certain EIA developments by the State which heretofore did not require planning permission; major gas pipelines and their associated terminals, buildings and installations; high voltage (110kv or more) electricity transmission lines and interconnectors; motorways and other major roads; development by or on behalf of a local authority on the foreshore; railway works including light rail and metro systems and certain associated commercial development on adjacent land; and compulsory acquisition of land associated with certain of the above developments.
While the procedures for all cases will not be the very same, in general, there will be a three-step process but these do not apply in all cases: -
(i) Consultations: where a prospective applicant for permission / approval / other consent requests pre-application consultations with the Board,
(ii) Scoping: where a prospective applicant requests the Board to ‘scope’ the EIS for the project (see Q9), and
(iii) Application: where the applicant submits an application for planning permission, approval or other consent to the Board.
Applications for planning permission relate to 7th Schedule development. Approvals relate generally to all other strategic infrastructure development although some cases use different terminology. Apart from terminology, there is no significant difference.
The purpose of consultations is to try to ensure that the subsequent application for permission/ approval is of a high standard, e.g. that correct procedures are followed and that issues relating to proper planning and sustainable development and the effects on the environment and habitats that may have a bearing on the Board’s consideration of the case are addressed from the outset in the application. It could be used to indicate if the Board foresees specific issues arising with the proposal or to advise the applicant on public consultation. It applies to 7th Schedule, State, electricity transmission lines / interconnectors, gas, railway and road development and must be requested before an application for permission / approval is made.
Where a request for consultations is received by the Board, the Board will include the request in its weekly list of ‘cases received’. It will also be posted on its website. When the consultations have been concluded, the Board will include it in its weekly list of ‘cases determined’ and post it on its website. In addition, the Board’s file which will include records of any meetings held with prospective applicants during this phase will be available for inspection and purchase when the consultations have concluded.
Generally, yes. However, in the case of 7th Schedule development and strategic gas infrastructure development, an application may only be made to the Board where it certifies that the development would be of strategic economic or social importance, or meets certain other criteria – see Q1. Otherwise a planning application must be made in the normal way to the local planning authority with the usual provision for an appeal to the Board against the planning authority’s decision. (Note that consultations only apply to developments referred to in Q6).
Scoping is a discretionary procedure provided for in EU directives whereby a prospective applicant may request the consent authority (the Board in this case) to give an opinion in writing on what information will be required in an environmental impact statement (EIS) in relation to a proposed development. In the case of strategic infrastructure development, it applies to 7th Schedule, local authority, State, electricity transmission lines / interconnectors, gas and railway development, but it is not a mandatory requirement. Prescribed Bodies specified in the Planning and Development Regulations will be requested by the Board to input into this scoping process.
The procedures referred to at Q7 above will apply also to scoping.
Before applying to the Board, the prospective applicant must publish notice of the proposed application in at least one newspaper circulating in the area. In addition site notices will also be required in most cases. These notices will indicate the nature and location of the proposed development, that an EIS and/or NIS has been prepared (where required), the times and places where the application (and EIS/NIS) can be inspected, that an application is to be made to the Board for planning permission / approval, the types of decision which the Board may make and that submissions may be made to the Board by the public and others e.g. prescribed bodies. The Board will also include notice of receipt of the application in its weekly list of new cases and post it on its website.
Yes. The applicant must make the application and the EIS available for inspection and for purchase (for the reasonable cost of making the copy) for a period of at least six weeks. The documentation will also be available for viewing and downloading on the internet. The documents will also be available at the Board’s offices and those of the planning authority in whose jurisdiction the proposed development would be located.
Yes. The Act makes provision for wide ranging public participation in relation to strategic infrastructure development. Any person or body may make submissions to the Board within the period allowed for the application to be inspected (minimum of six weeks) in relation to the implications of the proposed development on the proper planning and sustainable development and the likely effects on the environment of the proposed development. It is important to note that the Regulations require that any such submission shall state the subject matter of the submission and the reasons, considerations and arguments on which it is based in full. (Article 217 of the Regulations refers). It is important to comply with this requirement of the Regulations as the Board may, at its absolute discretion, decide not to hold an oral hearing having regard to the nature of the issues arising (see questions below). Where meetings have been held between the Board and prospective applicants under the consultations or scoping procedures referred to earlier, the record of any such meetings will be made available for inspection. Where the Board requests further significant information in relation to the application, it will make arrangements for this information to be made available locally for public inspection.
Yes. Submissions must be received in the offices of the Board within the period (minimum six weeks) specified in the notice published by the applicant.
If the last day of the period for receipt of submissions falls on a weekend, public holiday or other day the Board’s offices are closed, the latest day for receipt will be the next on which the offices are open.
The period from the 24th December to 1st January inclusive (i.e. 9 days) is excluded for the purposes of calculation of all periods of time under the Planning Acts. Therefore, if the period for making a submission falls between 24th December to 1st January (both dates inclusive), the last day for making the submission is extended. So, for example, if the last of a six-week period falls on 24th December, the last day for making a submission is 2nd January, and if the last day of a six-week period falls on 29th December, the last day for making a submission is 7th January.
Note: the above may be amended in the light of regulations. Ideally, we would say that the public notice will state the last day (and time) for receipt of submissions which, under regulations, we would have the authority to dictate. We would then factor weekend opening / Christmas period into the relevant period and delete all references to those periods in the public notice. Non-local authority cases, which are subject to pre-application consultation, will adopt this approach.
Yes. The Board has an absolute discretion whether to hold an oral hearing of any strategic infrastructure development case. The Board may not direct the holding of an oral hearing in all cases, particularly where the Board considers that the nature of the issues arising can be adequately and appropriately assessed by way of written submissions. Where an oral hearing is to be held the inspector has discretion as to the conduct of the hearing. In addition the Board may at its absolute discretion given the nature of the proposed development and issues arising, consider directing a limited agenda for the oral hearing. All parties will be notified in writing by the Board should such a direction be made (see Q20 below). The Board may also hold a meeting with the applicant, and in certain cases, other bodies/persons who, in the opinion of the Board, may have relevant information. A record will be kept of these meetings and made available for public inspection and purchase. The Board may decide to hold an oral hearing and a meeting(s) in the same case. Where a meeting is called, it may be held either before or after the oral hearing.
Yes. The Board has set a fee of €50 for the making of a submission to it in relation to an application for strategic infrastructure development. Where the Board invites further submissions, no additional fee will be charged where the person making the submission has already paid a fee.
There is no automatic right. However, the inspector conducting the oral hearing has discretion to hear a person who did not make submissions to the Board if it is considered appropriate in the interest of justice to allow the person to be heard. Any such person who is allowed to make a submission shall be required to pay the appropriate fee.
Yes. An Oral Hearing Procedures document is available from the Board and on its website which sets out the main procedures involved. The main points to note are that the inspector has discretion as to the conduct of the hearing but must conduct the hearing expeditiously and without undue formality. He/she may limit the time within which any person may make points or arguments, or may refuse to allow a point or argument not relevant to the hearing or that is repetitious. This is particularly relevant in cases where there may be a large number of people wishing to make a submission to the oral hearing.
The Board may at its absolute discretion and following a recommendation of the inspector direct the holding of a limited agenda oral hearing where only specified matters relating to a case are discussed.
It is important to note that, regardless of whether or not an oral hearing is held, or of the type of oral hearing held, all written submissions received will be taken into account in the assessment and decision of the Board.It is an offence to obstruct or hinder a person conducting a hearing. A court can impose severe penalties where a person is convicted of such an offence. In addition, the court can order the convicted person or anybody with whose consent, connivance or approval the offence was committed to pay to the Board or any other person who appeared at the oral hearing their additional costs ensuing from the obstruction or hindrance.
Yes. The applicant and any person who makes submissions to the Board in relation to the application can request the holding of an oral hearing. No additional fee (over and above the application fee or the fee for making submissions or observations) is payable (unlike in the case of planning appeals
Yes. The Board has extensive power to request additional information from the applicant and others in relation to the application. It may request a revised EIS or revised NIS from the applicant and may request further submissions from the applicant, persons who made submissions in relation to the application, or any other person including prescribed bodies who may have relevant information. Where a revised EIS, NIS or further information which, in the opinion of the Board, contains significant additional information on the effects of the proposed development on the environment is received, the Board will make the EIS/NIS/further information available for inspection, invite further submissions to be made within a specified period and give notice of those matters. Parties should note that any request for further information is at the absolute discretion of the Board. The availability of such powers to the Board does not in any way negate the requirement for all parties to make their full and complete submissions on the case at the outset as described in the preceding paragraphs. This will assist in avoiding delay in the processing of the application.
Strategic infrastructure development will be decided on the same basis as normal planning appeals e.g. the proper planning and sustainable development of the area and the effects, if any, the proposed development would have on the environment and, where applicable a European site. The Board will have regard to such matters as the policies and objectives of the local development plan(s), Ministerial planning guidelines, regional planning guidelines, the National Spatial Strategy, the policies and objectives of the Government and the national interest. In addition, the Board must consider the application which is before it, including the EIS, and/or NIS if any, any submissions made to the Board in relation to the application, the report of the local planning authority(s), including any recommendations submitted by the elected members of the authority, and the report and recommendation of the Board’s inspector on the application/oral hearing.
Q24 Can the Board’s decision materially contravene the provisions of the local development plan(s)?
Yes. While the Board will have regard to the policies and objectives of the local development plan, or, where the development has an impact on more than one local authority, all relevant local development plans, the Board’s decision may contravene materially the provisions of these plans.
Yes. While the Board must have regard to the report and recommendation of its inspector, it is not obliged to accept the recommendation. In any case where the Board does not accept a recommendation to grant or refuse, it will state the reason(s) for doing so. It is also important to note that even in cases where the Board does accept the recommendation as regards a grant or refusal, the Board may modify elements of the proposed development, make changes to the conditions to be attached to the grant or the reasons for a refusal, which, in planning terms, make significant changes to the decision vis-à-vis the recommendation
The Board has a statutory objective to determine strategic infrastructure cases within eighteen weeks commencing on the last day for receipt of submissions from the public. Where it is not possible or appropriate to determine the case within that time frame, the Board will notify all concerned and give a revised date by which it intends to determine the matter.
Yes. All those involved in the application including those who made submissions or were heard at the oral hearing will be notified of the decision by post. The decision may also be posted on the Board’s website.
Yes, but only with the Board’s express approval. The Board may alter the terms of the development for which it has granted permission or approval where it receives a request from a person who is carrying out, or who is intending to carry out, strategic infrastructure development, in the following circumstances:-
(i) Where the alteration would not constitute a material alteration, it may do so without public consultation.
(ii) Where the proposed change would constitute a material alteration, but is not likely to have significant effects on the environment, the Board may permit such alteration after the information relating to the requested change has been made available for inspection and the Board, at its discretion, has invited any person (including members of the public) to make submissions in relation to the request.
(iii) Where the proposed change is likely to have significant effects on the environment, the Board will require the applicant to prepare an EIS in relation to the proposed alteration and submit it to the Board. The usual EIA procedures will then apply, e.g. public notification of EIS, provision for public submissions to the Board etc.
(i) Where a clerical error is involved, or where the Board considers it necessary to clarify what it intended should be facilitated by the permission or approval, the Board may amend its decision. Such amendment may not, however, result in a material alteration to the terms of the development. The Board may invite submissions to it before it decides to amend a decision.
(ii) In the case of 7th Schedule development, the Board may provide that points of detail relating to the grant of permission may be agreed between the planning authority(s) in whose area the development will take place and the person carrying out the development. Any such agreement must be confined to the points specified by the Board. Where agreement is not reached, the matter will be referred to the Board for a determination.
The validity of a decision taken by the Board may only be questioned by making an application for judicial review under Order 84 of The Rules of the Superior Courts (S.I. No. 15 of 1986). Sub-section 50(6) of the Planning and Development Act 2000 requires that subject to any extension to the time period which may be allowed by the High Court in accordance with subsection 50(8), any application for judicial review must be made within 8 weeks of the decision of the Board. It should be noted that any challenge taken under section 50 may question only the validity of the decision and the Courts do not adjudicate on the merits of the development from the perspectives of the proper planning and sustainable development of the area and/or effects on the environment. Section 50A states that leave for judicial review shall not be granted unless the Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed and that the applicant has a sufficient interest in the matter which is the subject of the application or in cases involving environmental impact assessment is a body complying with specified criteria.
Section 50B contains provisions in relation to the cost of judicial review proceedings in the High Court relating to specified types of development (including proceedings relating to decisions or actions pursuant to a law of the state that gives effect to the public participation and access to justice provisions of the EU Directive on the assessment of the effects of certain public and private projects on the environment. The general provision contained in section 50B is that in such cases each party shall bear its own costs. The Court however may award costs against any party in specified circumstances. There is also provision for the Court to award the costs of proceedings or a portion of such costs to an applicant against a respondent or notice party where relief is obtained to the extent that the action or omission of the respondent or notice party contributed to the relief being obtained.
General information on judicial review procedures is contained on the following website, www.citizensinformation.ie.
Disclaimer: The above is intended for information purposes. It does not purport to be a legally binding interpretation of the relevant provisions and it would be advisable for persons contemplating legal action to seek legal advice.
The Board may, at its absolute discretion, award a contribution towards the costs incurred by persons during the course of consideration of the application which it considers to be reasonable. This applies in 7th Schedule, electricity transmission, gas infrastructure and railway projects, local authority sponsored development, local authority compulsory acquisitions, road developments and compulsory acquisitions relating to the 1976 Gas Act and the 1998 Air Navigation Act.
In the case of 7th Schedule cases, electricity transmission and gas infrastructure, the Board must make the costs award at the same time as it makes its decision on the planning application before it. Accordingly, it will generally request submissions in relation to the award of costs from relevant persons at an intermediate stage in the case; probably following the conclusion of the oral hearing, where there is one. It will not entertain applications for costs after the period which it sets in any individual case. Cost recovery can be processed following the making of a decision of the Board in respect of a railway order application.
In a case of where the Board grants an application for a railway order, the Board may revoke the order where there is a failure or refusal to comply with a condition, restriction or requirement specified in the railway order. Any person may write to the Board if they consider that the Board’s order is not being implemented in accordance with the grant and the Board will follow-up on the matter.
Otherwise, the Board has no powers of enforcement. Enforcement of planning decisions and interpretation of conditions imposed in decisions are primarily the responsibility of the local planning authority. In accordance with enforcement provisions in Part VIII of the 2000 Planning Act, a planning authority must follow up on genuine complaints made to it by members of the public regarding unauthorised development including non-compliance with planning decisions. Any person may apply to the High or Circuit Court for an injunction in relation to unauthorised development in certain circumstances.
In circumstances where it is considered that the planning authority is not following up on a genuine complaint in relation to unauthorised development / enforcement, the Ombudsman may be willing to assist in resolving the issue.
Yes. The Board maintains a well-publicised, accessible, transparent and simple-to-use system of dealing with complaints about the quality of service provided by it. Details of the system are set out in its Customer Services Action Plan. All complaints will be dealt with fairly and impartially and an appeal mechanism applies. However, the Board cannot re-open a decided case other than in accordance with the procedures referred to in Q28 or Q29 above and will not discuss the merits of a case once its decision is made.
Last update: August, 2015.