WESTERN AND MIDLANDS CIRCUIT CONFERENCE PAPERS 1. DEVELOPMENTS IN PLANNING, ENVIRONMENTAL AND LOCAL GOVERNMENT LAW

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1 WESTERN AND MIDLANDS CIRCUIT CONFERENCE PAPERS Papers herein: 1. DEVELOPMENTS IN PLANNING, ENVIRONMENTAL AND LOCAL GOVERNMENT LAW Tom Flynn BL 2. PLANNING AND DEVELOPMENT Esmonde Keane SC 3. EMPLOYMENT LAW OPTIONS FOR REDRESS AND CHOOSING YOUR FORUM: PARRALLEL CLAIMS, COMPENSATION AND TACTICS. John Eardly BL 4. RECENT DEVELOPMENTS IN EMPLOYMENT LAW INJUNCTIONS Ercus Stewart SC 5. Pre-Nuptial Agreements in Ireland Rachel Meagher BL 1

2 WESTERN AND MIDLANDS CIRCUIT CONFERENCE DEVELOPMENTS IN PLANNING, ENVIRONMENTAL AND LOCAL GOVERNMENT LAW Tom Flynn BL Saturday 21st July 2007 INTRODUCTION This paper will examine a number of developments in the area of Planning and Environmental law. In particular it will outline the new planning application procedures introduced by the Planning and Development (Strategic Infrastructure) Act, 2006 and the Planning and Development Regulations, Some significant new legislation in the area of water pollution is also briefly considered. Overview of the Planning and Development (Strategic Infrastructure) Act, 2006 The Planning and Development (Strategic Infrastructure) Act, (the 2006 Act ) introduced very significant changes to the existing planning regime. In summary the 2006 Act established a new division of An Board Pleanala the Strategic Infrastructure Division. It has exclusive responsibility for determining planning applications in respect of certain categories of development deemed to be Strategic Infrastructure Development. Applications for planning permission for Strategic Infrastructure Development are made directly to the Strategic Infrastructure Division of An Board Pleanala and are subject to materially different procedures than ordinary planning Applications. The 2006 Act also alters the development consent process in respect of local authority development, electricity transmission, gas pipelines and transfers the approval of such types of development to the Strategic Infrastructure Division of An Board Pleanala. Section 18 of the 2006 Act makes provision in respect of the Strategic Infrastructure Division of the Board. It provides that the Strategic Infrastructure Division is to be a stand alone division of the Board to deal with applications to be made under the new consent procedure provided for in the 2006 Act. Despite the commencement of the 2006 Act, at the date of writing some uncertainty surrounds the operation of the Strategic Infrastructure Division of An Board Pleanala. In particular some detailed procedural aspects of the operation of the Strategic Infrastructure Division remain to be clarified. In particular it is by no means clear whether the Board has 1 No 27 of

3 sufficient resources (particularly qualified personnel) to handle its new functions under the 2006 Act. The Definition of Strategic Infrastructure Development At the core of the 2006 Act is its introduction of a differentiated planning application scheme for categories of development deemed to be Strategic Infrastructure Development. Any development, which falls within this prescribed category, may subject to satisfying other conditions is subject to a specialised application procedure the most significant aspect of which is that the application must be made directly to the Board rather than a planning authority. The definition of Strategic Infrastructure Development is contained in s.6 of the 2006 act which amends s.2(1) of the 2000 Act. It states: strategic infrastructure development means (a) any proposed development in respect of which a notice has been served under section 37B(4)(a), (b) any proposed development by a local authority referred to in section 175(1) or 226(6), (c) any proposed development referred to in section 181A(1), (d) any proposed development referred to in section182a(1), (e) any proposed strategic gas infrastructure development referred to in section 182C(1), (f) any scheme or proposed road development referred to in section 215, (g) any proposed railway works referred to in section 37(3) of the Transport (Railway Infrastructure) Act 2001 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006), or (h) any compulsory acquisition of land referred to in section 214, 215A or 215B, being an acquisition related to development specified in any of the preceding paragraphs of this definition; Development Specified in the Seventh Schedule to the 2006 Act Any development can be subject to the specialised application procedure under the 2006 Act if it falls within the categories of development specified in the Seventh Schedule to be inserted into the 2000 Act by the 2006 Act. The categories of development specified in the Seventh Schedule cover a wide range of infrastructural development grouped under the following three broad headings:- Energy Infrastructure Transport Infrastructure Environmental Infrastructure Energy Infrastructure 1. Development comprising or for the purposes of any of the following: 3

4 An installation for the onshore extraction of petroleum or natural gas. A crude oil refinery (excluding an undertaking manufacturing only lubricants from crude oil) or an installation for the gasification and liquefaction of 500 tonnes or more of coal or bituminous shale per day. A thermal power station or other combustion installation with a total energy output of 300 megawatts or more. An industrial installation for the production of electricity, steam or hot water with a heat output of 300 megawatts or more. An industrial installation for carrying gas, steam or hot water with a potential heat output of 300 megawatts or more, or transmission of electrical energy by overhead cables, where the voltage would be 220 kilovolts or more, but excluding any proposed development referred to in section 182A(1). An oil pipeline and any associated terminals, buildings and installations, where the length of the pipeline (whether as originally provided or as extended) would exceed 20 kilometres. An installation for surface storage of natural gas, where the storage capacity would exceed 200 tonnes. An installation for underground storage of combustible gases, where the storage capacity would exceed 200 tonnes. An installation for the surface storage of oil or coal, where the storage capacity would exceed100,000 tonnes. An installation for hydroelectric energy production with an output of 300 megawatts or more, or where the new or extended superficial area of water impounded would be 30 hectares or more, or where there would be a 30 per cent change in the maximum, minimum or mean flows in the main river channel. An installation for the harnessing of wind power for energy production (a wind farm) with more than 50 turbines or having a total output greater than 100 megawatts. An onshore terminal, building or installation, whether above or below ground, associated with a natural gas storage facility, where the storage capacity would exceed 1mscm. An onshore terminal, building or installation, whether above or below ground, associated with an LNG facility and, for the purpose of this provision, LNG facility means a terminal which is used for the liquefaction of natural gas or the importation, offloading and re-gasification of liquefied natural gas, including ancillary services. Transport Infrastructure 2. Development comprising or for the purposes of any of the following: An intermodal transhipment facility, an intermodal terminal or a passenger or goods facility which, in each case, would exceed 5 hectares in area. A terminal, building or installation associated with a long-distance railway, tramway, surface, elevated or underground railway or railway supported by suspended lines or similar lines of a particular type, used exclusively or mainly for passenger transport, but excluding any proposed railway works referred to in section 37(3) of the Transport (Railway Infrastructure) Act 2001 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006). An airport (with not less than 2 million instances of passenger use per annum) or any runway, taxiway, pier, car park, terminal or other facility or installation related to it (whether as regards passenger traffic or cargo traffic). 4

5 A harbour or port installation (a) where the area or additional area of water enclosed would be 20 hectares or more, or (b) which would involve the reclamation of 5 hectares or more of land, or (c) which would involve the construction of one or more quays which or each of which would exceed100 metres in length, or (d) which would enable a vessel of over 1350 tonnes to enter within it. Environmental Infrastructure 3. Development comprising or for the purposes of any of the following: A waste disposal installation for (a) the incineration, or (b) the chemical treatment (within the meaning of Annex IIA to Council Directive 75/442/EEC1 under heading D9), or (c) the landfill of hazardous waste to which Council Directive 91/689/EEC2 applies (other than an industrial waste disposal installation integrated into a larger industrial facility). A waste disposal installation for (a) the incineration, or (b) the chemical treatment (within the meaning of Annex IIA to Council Directive 75/442/EEC1 under heading D9), of non-hazardous waste with a capacity for an annual intake greater than 100,000 tonnes. An installation for the disposal, treatment or recovery of waste with a capacity for an annual intake greater than 100,000 tonnes. A groundwater abstraction or artificial groundwater recharge scheme, where the annual volume of water abstracted or recharged is equivalent to or exceeds 2 million cubic metres. Any works for the transfer of water resources between river basins, where the annual volume of water abstracted or recharged would exceed2 million cubic metres. A waste water treatment plant with a capacity greater than a population equivalent of 10,000 and, for the purpose of this provision, population equivalent shall be determined in accordance with Article 2, point 6, of Council Directive 91/271/EEC3. A sludge-deposition site with the capacity for the annual deposition of 50,000 tonnes of sludge (wet). Any canalisation or flood relief works where (a) the immediate contributing sub-catchment of the proposed works (namely the difference between the contributing catchments at the upper and lower extent of the works) would exceed 1000 hectares, or (b) more than 20 hectares of wetland would be affected, or (c) the length of river channel on which works are proposed would be greater than 2 kilometres. A dam or other installation designed for the holding back or the permanent or longterm storage of water, where the new or extended area of water impounded would be 30 hectares or more or where a new or additional amount of water held back or stored would exceed 10 million cubic metres. An installation of overground aqueducts each of which would have a diameter of 1,000 millimetres or more and a length of 500 metres or more. 5

6 Any coastal works to combat erosion or maritime works capable of altering the coast through the construction, for example, of dikes, moles, jetties and other sea defence works, where in each case the length of coastline on which the works would take place would exceed 1 kilometre, but excluding the maintenance or reconstruction of such works or works required for emergency purposes. Comment The above categories are largely self-explanatory. It will be noted that it largely mirrors the schedule of projects listed in the EIA Directive. A potential problem is that in many cases the categories of development contain thresholds which trigger their inclusion within the Seventh Schedule and in some cases determining whether these thresholds will be met can be technically difficult. A further potential problem is that many of the elements of the Seventh Schedule are not defined. This of course may give rise as to whether any particular development in fact falls within the Seventh Schedule e.g. what exactly constitutes an intermodal transhipment facility?. However, it is submitted that the onus will lie on the prospective applicant for planning permission to justify whether or not their development falls within or outside a particular category of the Seventh Schedule. The Condition under s.37a(2) However, the fact that a proposed development falls within the categories of proposed development within the special regime. This only occurs where the condition specified in s. 37A(2) is met and thus a second element is required. Section 37 (A)(2) provides: That condition is that, following consultations under section 37B, the Board serves on the prospective applicant a notice in writing under that section stating that, in the opinion of the Board, the proposed development would, if carried out, fall within one or more of the following paragraphs, namely (a) the development would be of strategic economic or social importance to the State or the region in which it would be situate, (b) the development would contribute substantially to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate, (c) the development would have a significant effect on the area of more than one planning authority. A number of aspects of this procedure are worthy of further comment: Given the nature of the majority of the categories of development listed in the Seventh Schedule it would appear that in many cases they will certainly meet the condition under s. 37A(2) The condition under s.37a(2) only becomes operative after consultations under Section 37B 6

7 There is only a requirement to meet one of the requirements under paragraphs under a-c. The procedure confers the Board with a significant role and discretion in determining whether a proposed development falls within its own jurisdiction. The system is one of self-referral where in the opinion of the Board, which given the wide nature of the criteria is unlikely to be easily challenged. There is no requirement that the development be of either economic and/or national significance. A development of social and/or regional importance is clearly capable of falling within the jurisdiction of the Board. Any of the categories of development listed within the Seventh Schedule, which would have a significant effect on the area of more than one planning authority would fall within the Boards jurisdiction. This latter provision is quite broad in nature, and could be viewed as a catch all provision, particularly given that the term significant effect is not in any way defined. It will be noted that the Bill makes no distinction between applications made by public, semi-state or private developers. It is the nature of the development not the nature of the applicant, which is critical in determining where the application falls within the remit of the Board. This is clearly designed to ensure that Public Private Partnerships or purely private developers of strategic infrastructure fall within the scope of the new procedures. Pre-Application Consultations A new feature under the 2006 Act its introduction of mandatory pre-application consultations this is contained in s.37b) which provides for pre-application discussions between a proposed applicant and the Board in relation to the proposed development if it falls within the categories of development specified in the Seventh Schedule to the Act: 37B. (1) A person who proposes to apply for permission for any development specified in the Seventh Schedule shall, before making the application, enter into consultations with the Board in relation to the proposed development. At first sight it may appear that there is nothing particularly radical in this provision. 2 A somewhat similar provision is to be found in s.247 of the 2000 Act and pre-planning consultations are already a feature of planning applications for large-scale developments. However, on closer analysis it becomes apparent that is a key difference between the two provisions. In contrast to the 2000 Act the provisions under s. 37 B of are mandatory- a prospective applicant must enter into consultations with the Board if the development falls within the Seventh Schedule there is no discretion in this regard. Having regard to the wording of the Act it is submitted the onus is clearly on the prospective applicant in this regard. Section 37B of the 2006 Act requires that an Bord Pleanála is always is consulted prior to the lodging of a planning application for any of the categories of development contained in the 2 Indeed the Courts have for some time recognised the existence of such pre planning consultation, see State (April) v. Naas UDC, Unreported, High Court, O Hanlon J., November 22nd 1983 and more recently in Ballintubber Heights Ltd v Cork Corporation, Unreported, High Court, O Caoimh J., June 21 st

8 7 th Schedule to the 2006 Act. This is irrespective of whether or not the condition under s.37a(2) is applicable or not. In many cases it will be readily apparent that it is. However, it is for the Board (not the prospective applicant) to decide whether the proposed development falls within the terms of s.37a(2). The 2006 Act explicitly forbids any planning application being lodged for development contained in the 7 th Schedule until this process has concluded. In any event presumably, any such an application would be declared invalid by the relevant planning authority in such circumstances. Thus the first thing any prospective applicant for planning permission must do is consider whether the proposed development falls within any of the categories of development listed in the Seventh Schedule Furnishing of Advice by the Board Although it is not required to do so, in any consultations with the prospective applicant the Board may give advice to the prospective applicant on the proposed application and in particular the following matters.3 This advice may include the following; (a) whether the development if carried out would fall within the scope of s.37a; (b) the procedures involved in making a planning application and in considering such an application; (c) and what considerations, related to proper planning and sustainable development, may in the opinion of the Board have a bearing on its decision in relation to the application.4 It is clear that the wording of (c) above is such to give the Board a very broad latitude as to the matters on which it may give advice to prospective applicants. It submitted that latitude is further extended by the fact that the advice given to the Board in discussions under s. 37B is not limited to matters referred to at s. 37B(a)-(c). It is submitted that the inclusion of the words and in particular may be taken as indicating that the matters referred to at 37B(3)(a)-(c) are not exclusive of the matters on which the Board can give advice. Thus, it is apparent that the Board has a very broad scope indeed in terms of the nature of advice it may furnish in respect of to a prospective applicant for planning permission.. This discretion is much broader that that conferred on planning authorities under s.247 of the 2000 Act. However is submitted that any such advice must be confined to the ambit of proper planning and sustainable development and cannot significantly stray beyond this. These requirements are supplemented by the provision of Article 210 of the Planning Regulations In particular Article 210(2) requires that, as part of the pre-application consultation, the Board must indicate to any applicant involved with strategic infrastructure: the plans, particulars and other information which are to be submitted the timeframes and sequencing of the application process any other matters that are considered appropriate. The Board may require a prospect applicant to undertake any of the additional measures 3 s.37b(1)(3) 4 s.37b(3)(a)-(c) 8

9 specified in the 2006 Regulations. It is to be anticipated that the Board will exercise it discretion to require prospective applicants to comply with these requirements in many cases. These requirements: which of the prescribed bodies need to be notified of the application. The prescribed bodies are selected from the list contained in Article 213 of the Planning Regulations. the arrangements for the erection of a site notice board, including its form and content. It should be noted that these arrangements are determined by the Board on an individual case-by-case basis at the time of the pre-application consultation. the provision of a specific place where the application, the EIS and other information may be inspected or copies purchased presumably this could be a nominated office of the developer or that of the planning authority the provision of application-related material on a web site, so that it can be accessed by third parties the use of local or national media the holding of meetings, with such meetings being with named bodies, persons or the general public. Additional provisions apply in relation to applications involving trans-boundary impacts, with these pertaining mainly to strategic infrastructure development close to the border with Northern Ireland. This provision is one of the most significant innovations of the 2006 Act. It remains to be seen in practice to what extent and in what manner the Board will exercise its permissive powers to furnish advice to prospective applicants. In effect this provision permits the Board to a least some degree guide a prospective applicant towards a successful application. Alternatively the Board may choose to interpret and apply the provision in fairly strict and minimalist manner. Service of Notice by the Board Where subsequent to the above, mentioned discussions the Board is of the opinion that an application would fall within or outside the scope of s. 37(A) it must serve a notice in writing on the prospective applicant stating it is of that opinion.5 Any such notice must contain a statement that the proposed development must be made to the appropriate planning authority i.e. the planning authority in which the proposed development will be situated.6 A copy of the notice must be served on the appropriate local authority and no application can be made to that authority until such a notice has been served. It should be noted there is an obligation on a proposed applicant to provide the Board with sufficient information in relation to the proposed development so as to enable the Board to assess the proposed 5 s. 37B (4) 6 s. 37B(5) 9

10 development.7 Consultations/Meetings with the Board As previously noted one of the innovations of the 2006 Act is its introduction of consultations with prospective applicants. In its Guidance Note on Public Participation the Board states: The purpose of pre-application 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, that adequate information is submitted and that issues relating to proper planning and sustainable development and the effects on the environment are adequately addressed from the outset in the application. It may be used to indicate if the Board foresees serious problems with the proposal or to advise the applicant on public consultation The Board has published Guidelines for Meetings between Board staff and applicants and/or others in the context of the 2006 Act. These provide valuable practical guidance on the operation of these provisions and are available on the Board s website.8the following elements are highlighted: The Board has indicated it is envisaged that, generally, two meetings will be required in relation to pre-application consultation meetings and scoping meetings where there was no pre-application consultations involved. The first meeting will be for the purpose of the Board team gathering information from the prospective applicant in relation to the proposed development and the second to give advice and/or seek further clarification in relation to the matters set down in the legislation e.g. section 37B(3) or sections 37(1) of the 2000 Act, as amended. Meetings will not be held following the submission of an application for permission/approval except with the consent of the Strategic Infrastructure Division of the Board. It is generally envisaged that any meetings required as part of the application process will be held before the oral hearing. Meetings will be conducted in an informal but structured manner chaired by an official from the Board in accordance with a clear and specific agenda furnished in advance by the Board. Meetings between the applicant, prospective applicant, any other person and Board officials will normally be held at the Board s offices. However, they may be held locally 7 s. 37C(1)

11 A record of the meeting will be prepared by the Board and be signed by the person who chaired the meeting. Other parties are permitted to take notes but not record the meeting. The Board has published detailed guidance on note taking on in the course of such meetings which is available on its website. The record of any meeting held subsequent to the submission of an application for permission/approval should be signed off and placed on file, generally within 14 working days of the meeting taking place. A copy of the record should also be forwarded to the persons with whom the meeting took place, to the applicant and to the planning authority. It is specifically provided that the holding of such consultations will not prejudice the performance by the Board of any of its other functions and cannot be relied upon in the formal planning process or in legal proceedings.9 In other words the Board is not estopped by anything it does or say s in such consultations. This general principle is already well established in Irish planning law.10 As already noted the Board is however required to keep a record in writing of any consultations held under s.37b in relation to a proposed development and a copy of such record must be kept on the planning application file. Consultations/meetings with other persons Also of note are the provisions of s. 37(C)(4) which provide: (4) The Board may consult with any person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations under section 37B in relation to a proposed development. Such consultations/ meetings may occur:- As part of the pre-application consultations for 7 th Schedule Development (section 37C (4)): As part of the consultations for the purposes of pre-application consultations in relation to section 182A or 182C applications (section 182E (7)). As part of possible meetings to be held with any person in relation to consultations required as part of pre-application consultations relating to Railway Orders (section 47C(2) of the Transport (Railway Infrastructure) Act 2001 as amended by section 50 of the 2006 Planning Act). However the 2006 Act clearly confers a wide discretion on the Board, on whom it may consult with during the course of consultations. It could include various government departments, planning authorities, statutory bodies e.g. EPA and other private bodies but also NGO s and local interests. 9 s.37c(2) 10 It is well accepted that a planning authority is not bound by the representations of its servants or agents as to whether a particular proposed development will or will not obtain planning permission, see Dublin Corporation v McGrath, (unreported, High Court,) McMahon J., November 17 th

12 Scoping Requests Section 37D of the 2006 Act permits a prospective applicant to seek information in writing from the Strategic Infrastructure Division of the Board on the information it would require to see included in an environmental impact statement. Any such request must contain sufficient information to enable the Board make a determination. Scoping cannot be requested in respect of development falling within the 7 th Schedule cases unless the Board has given an opinion under section 37B that the proposed development is strategic infrastructure. Before providing a scoping opinion, the Board must consult with bodies specified by the Minister including the relevant planning authority, and may also invite submissions or observations from other prescribed bodies (listed in article 213 of the 2001 Regulations, as amended) regarding the information to be contained in the EIS. Planning authorities will be required to issue such comments in written format. Article 211 of the Planning Regulations requires that the Board consult with both the applicant and also the Departments of the Environment and Natural Resources, the EPA and the planning authority for the area in which the development is proposed. Additionally, submissions or observations may be invited by the Board from some of the much wider range of organisations listed in Article 213 of the Planning Regulations The Board must reply to such a request as soon as may be. In its guidelines the Board has stated that generally, a period in the order of 3 weeks will be specified for the relevant bodies to make submissions. The Board will notify the planning authority of its file reference number of any request for a written opinion on the information to be contained in an EIS. It is specifically provided that the provision of an opinion shall not prejudice the performance by the Board of any other of its functions under the Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal proceedings.11 The Application Procedure in respect of Strategic Infrastructure Development Section 37E sets out the procedure for making an application to the Board. This procedure very broadly mirrors the existing procedures for making an application for planning permission under the 2000 Act, and the Planning and Development Regulations, (in particular Article 214 thereof) although there are some significant differences. What follows is an outline of the key elements: Newspaper Notice Prior to making an application to the Board, the applicant must publish notice of the proposed development in a newspaper circulating in area or areas, which it is proposed to carry out the development.12 The newspaper notice must be published before the actual planning application is lodged with an Bord Pleanála. The newspaper notice must indicate: that the applicant intends to apply to an Bord Pleanála for permission for the development the nature and location of the proposed development as opposed to the brief description of the development required in ordinary planning applications 11 S.37D(4). 12 s.37(e)(1)(a) and Art. 212 of the 2001 Regulations. 12

13 that an EIS has been prepared if relevant, that the development may have significant effects on another member state the times and places where the application and the EIS may be inspected free of charge or purchased on payment of a specified fee (which must not exceed the cost of making copies) the period over which the application and the EIS may be inspected or purchased which must be not less than six weeks that submissions or observations to an Bord Pleanála are invited on (a) the implications of the development to proper planning and sustainable development and (b) the likely effects of the development on the environment if it is carried out that an Bord Pleanála is entitled to grant permission for the development, make such modifications to the proposed development and to grant permission in respect of the development so modified, grant permission for only part of the development or to refuse permission13. The newspaper notice must be published in a newspaper circulating in the area in which the development is to take place. Notification of Application Prior to an application being lodged with an Bord Pleanála, the Applicant is required to forward copies the EIS and planning application to the planning authority in which the development is situated. In addition the applicant is required to forward copies of the EIS and application to the prescribed bodies with a potential interest in the application. Unless the prescribed body consents to receiving the application in electronic form, each is required to receive one hard copy of the application and the EIS. These prescribed bodies are listed in Article 213 of the Planning Regulations and are selected by the Board as part of the preapplication consultation process. The application and EIS sent to the prescribed bodies must be accompanied by a notice from the applicant which states: that submissions or observations may be made in writing to an Board Pleanála over the same period as specified in the newspaper notice (with the latter not being less than of a six week duration) that all submissions and observations must relate to the implications of the development on proper planning and sustainable development and the likely effects on the environment on what is proposed the types of decision available to the Board (refuse, grant subject to conditions, modify and grant subject to conditions, etc). At any time after this subsequent to the notification the Board is entitled to require that additional copies of the application and EIS is forwarded to these or other non-listed bodies. 13Article 212 of the 2001Regulations, which requires that the newspaper notice must indicate the types of decision an Board Pleanála is to make (eg grant, refuse, grant with conditions, etc) 13

14 Where an application may have trans-boundary implications, copies of the application and EIS must be sent to specified bodies in the effected country. This material must be accompanied by a notice stating that submissions and observations may be made within the period specified to other consultees and set down in the newspaper notice. Submission of Planning Application Article 214 of the 2001 Regulations requires that 10 copies of the planning application and the EIS must be submitted to the Board. These must be accompanied by all the plans and other information that the Board requested to receive in the pre-application consultation. Besides this information, the following must be included: a copy of the newspaper notice the list of the prescribed bodies notified by the developer about the application and the date of dispatch of these notifications a list of any public notice given or other public consultation conducted by the application either independently or at the request of the Board. Such a list must include the dates of these consultations. Article 214(2) permits the Board to specify that some or all of the above documentation can be submitted electronically. Power of the Board to Seek Further Information in respect of an application Section 37F of the 2006 Act enables the Board to seek additional information in respect of an application, including a revised environmental impact statement.14 These powers are amplified and detailed in Article 218 of the 2006 Regulations. It may also request further submissions or observations from the applicant or any person who made submission or observations, or any other person who, may in the opinion of the Board, have information which is relevant to the determination of the application.15 It may also hold a further meeting with the Applicant. The powers conferred on the Board by this provision are broadly similar to the powers conferred on the Board under s. 128 and s.129 of the 2000 Act, although they are somewhat broader in ambit. Role of local authorities in the Application process As previously noted the key change introduced by the 2006 Act is its transfer of jurisdiction to determine applications for planning permission for strategic infrastructure development from planning authorities to the Board. This has led to the understandable criticism that the Act undermines the ability of local community s ability to participate in the planning process. To counteract and address such criticisms the 2006 Act makes extensive provision for participation by the relevant local planning authority in the application process. This is achieved by way of a number of provisions contained in sections 37E(4) to 37E(8). These may be summarised as follows: 14 s.37f(1)(a) 15 s. 37F(1)(c) 14

15 Within 10 weeks of receipt of an application each planning authority is required to submit to the Board a report setting out its views on the proposed development.16 The requirement to submit a report is mandatory. It may be noted that this time limit is quite short although the Board may be extend the time. The report by the planning authority on the application must set out the views of the authority on (a) the effects of the development on the environment and (b) the effects on the proper planning and sustainable development of the area The Guidelines for Planning Authorities published by the Board detail the matters which should be included in the planning authority report The Guidelines also recommend that the planning authority report will include the views/recommendations of all relevant departments and personnel in the local authority as well as the planning authority s overall considered view on the proposal. Prior to submission to the Board any such report must be put before the members of the planning authority, who may give their views on the proposed development and by resolution attach recommendations to the report.17 It is worth noting that under the 2000 Act, local councillors had no direct role in planning applications. In contrast under the 2006 Act they are conferred with a statutorily enshrined opportunity to put their views on the applications in respect of Strategic Infrastructure Development before the Board. It is to be anticipated that local representatives will robustly exercise this power. Whether or not local authorities will be in position to meet the time-limits imposed under the 2006 Act remains to be seen. Power of the Board to hold meetings The most innovative feature of s.37f is that it confers the Board with the power to hold meetings with the applicant or any other person.18 This power may be exercised where it appears to the Board that such meetings are:- expedient for the purpose of determining the application, or necessary or expedient for the purpose of resolving any issue with the applicant for permission, or resolving any disagreement between the applicant any other third party, including resolving any issue or disagreement in advance of an oral hearing. Written records of any such meetings must be kept by the Board and made available for inspection.19 It is apparent that the Board has a very broad discretion to hold a meeting under this provision. However it must be noted that the provision is permissive such meetings may be 16 s.37e(4) 17 s.37(e)(5) 18 s.37f(1)(e) 19 s.37f(3) 15

16 held by the Board, its employees or indeed any person20 appointed by the Board. It appears there is no specific right for an applicant and/or an objector or third party to request a meeting with the Board, however there is nothing in the Act to prevent them seeking such a meeting. Nor it appears is there any obligation on the Board to hold a meeting with objectors even where it had held a meeting with an applicant. This provision represents a significant change in the manner in which planning applications and appeals have to date been determined in Ireland. In general planning applications were considered by planning authorities purely on the basis of the documentation accompanying the application, any submissions or observations received and any replies to requests for further information. This new provision seems to envisage a degree of negotiation between the applicant, and the Board - to be conducted at such meetings. This process of negotiation with developers will occur in private, and it appears in the absence of objectors and third parties.21 The 2006 Act does not delimit or prescribe in any detail the subject matter of such meetings. However, the Board has published Guidelines for Meetings between Board staff and applicants and/or others in the context of the 2006 Act which have been discussed above. Submissions or observations Any person or body may make a submission or observation in relation to an application for permission within the timescale specified in the public notice relating to the effects on the proper planning and sustainable development of the area and on the environment. The requirements for submissions or observations are specified in Article 217 of the 2006 Regulations. Failure to comply with these requirements is fatal. Any submissions should be in writing and must be accompanied by the appropriate fee. In general, there is no entitlement to elaborate on submissions or observations to the Board. However, the Board may ask any person to elaborate upon any submissions or observations made, and this may include the planning authority. The Board must have regard to all submissions made relating to the proposed development where they are made in accordance with the Act or Regulations, and the decision by the Board on the planning application must state this fact. Oral hearing As in all planning applications the Board at it absolute discretion may hold an oral hearing in respect of any application. The detailed provisions are contained in s.22 of the 2006 Act. The Board has indicated that it is likely that an oral hearing will be held in most cases unless the application can be readily determined by way of written submissions. Where an oral hearing is being held, the planning authority will be notified and will be expected to attend and participate. Timelimits 20 s.37f(4) 21 Although a written record of such meetings must subsequently be made available for inspection the Act stipulates no timeframe for making available any such record. 16

17 Under s.37j of the 2006 Act the Board is required to ensure that pre-application Consultations are completed and that decisions on applications are made as expeditiously as is consistent with the proper planning and sustainable development of the area, and to avoid delays. Under the 2006 Act the Board also has a statutory objective to make a decision under s.37g on foot of an application under s. 37E within 18 weeks beginning on the last day for making submissions or observations by the public. The Board has power to serve a notice extending the time for making its decision where it is not possible to make the decision within the 18 weeks period.22 The Minister has power to designate certain categories of development to be of special strategic, economic or social importance to the state to be determined as expeditiously as possible and may be give a direction to the Board to give priority to such categories of development. Matters which the Board must have regard to when making its decisions When making a decision in respect of an application under the 2006 Act the Board must consider:23 (i) (ii) (iii) (iv) the EIS submitted; any submissions and observations made; any information furnished in accordance with a request by the Bord from the applicant for further information; and any other relevant information before it relating to (a) the likely consequences of the proposed development for proper planning and sustainable development in the area within which it is proposed to situate the development and (b) the likely effects on the environment of the proposed development. The Board must also consider; (a) (b) (c) any report or recommendation prepared in relation to the application (including the report of the person conducting any oral hearing of the proposed development) the provisions of the Development Plan or Plans for the area the provisions of any Special Amenity Area Order relating to the area 22 Section 37J(4) 23 Section 37G 17

18 (d) (e) (f) (g) if the area or any part of the area is a European site or an area prescribed for the purposes of Section 10 (2) (c) of the Principal Act, to consider that it will have an effect on same; the national interest; the National Spatial Strategy and any Regional Planning Guidelines in force in the area; any relevant policies of the Government, the Minister or any other Minister of the Government; and (h) Act. any relevant provisions of this Act and any regulations made under this Additional matters which the Board must have regard to Apart part from the foregoing matters under the s.143 of the 2000 Act the Board is under a general obligation to have regard to the policy and objectives of the Government, a state authority and other public authorities. This obligation to have regard to does not require slavish adherence to such guidelines or even necessarily fully adopt the policies contained therein. 24 However, the Board cannot ignore such policies.25 Notwithstanding, the limited nature of the obligation to have regard to such policies and objectives this provision has proved of considerable significance in determining the outcome of a number of appeals. This is particularly so in the case of appeals relating to waste disposal or recovery facilities where Government policy appears to have been a critical factor in swaying the Board as regards the ultimate outcome of the appeal.26 Section 26 of the 2006 Act amended s.143 of the 2000 Act to provide that among the policies and objectives which the Board must have regard to in making any decision, are the national interest, and any effect its decision may have on issues of strategic economic or social importance to the state, as well as to the National Spatial Strategy and any Regional Planning Guidelines in force. The effect is to greatly broaden the scope of the Board s discretion particularly in the context of major infrastructure projects. This is unsurprising given the underlying ethos of the Act. Decision of the Board Having considered the foregoing matters the Board may decide to: (i) to grant the permission 24 see Glencar Exploration plc-v- Mayo County Council (2002) I.L.R.M per Quirk J, in McEvoy v Meath County Council, [2003] 1 I.R Most notably in the Board s decision on the proposed Indaver incinerator in Ringaskiddy, Co. Cork which cited Government policy on waste. 18

19 (ii) (iii) (iv) to make such modifications to the proposed development as it specifies in its decision and to grant permission in respect of the proposed development as so modified or to grant permission in respect of part of the proposed development (with or without specified modifications of it of the foregoing kind) or decide to refuse to grant the permission. Power to materially contravene the Development Plan Under the 2006 Act the Board has the power to grant the permission for a development even if the proposed development contravenes materially the Development Plan relating to any area in which it is proposed to situate the development.27 It is important to note that the power to materially contravene the development is absolute, this is in contrast to the position in respect of ordinary development where the power of the Board to materially contravene the development plan may only be exercised in a limited set of circumstances.28 However these circumstances included where the proposed development was of strategic or national importance or where permission should be granted having regard to Regional Planning Guidelines. Thus, it is apparent that in any event, even without the 2006 Act most SID development would in any event have been open to be granted permission by the Board even if this required a material contravention of the Development Plan. IPPC Licences and Waste Licences Similar to the position under the 2000 Act, s.37g(4) of the 2006 Act provides that in circumstances where the proposed development relates to an activity for which an Integrated Pollution Prevention and Control (IPPC) Licence or a Waste Licence is required, the Board shall not, where it decides to grant permission apply conditions which are for the purposes of (a) (b) controlling emissions from the operation of the activity, including the prevention, limitation, elimination, abatement or reduction of those emissions or control emissions relating to or following the cessation of the operation or the activity. In circumstances where an IPPC Licence or a Waste Licence is required the Board is entitled, in respect of that development, to refuse a grant of permission where the Board considers that the development, notwithstanding the licensing of the activity, is unacceptable on environmental grounds having regard to the proper planning and sustainable development of the area in which the proposed development is to be situated s.37(g)(6) ( as inserted by the 2006 Act) 28 s.37(2)(b). 29 S. 37(G)(5). 19

20 Alteration of Previously granted permissions or consents A provision of some significance is contained in s. 30 of the 2006 Act which inserts three new sections into the 2000 Act.30 The effect of these three new sections will be to permit the Board to correct and amend a previously granted permission or consent. This is a relatively radical departure in Irish planning law as the powers introduced are border that the existing powers to modify a planning permission under s.44 of the 2000 Act.31 The most uncontroversial as aspect of this provision is s.146a, which provides for amendments of a technical or clerical nature to be made to all decisions made by the Board.32 However potentially much more contentious is the amendment proposed by s.146b of the Act. It permits the Board on the request of any person who is carrying or intending to carry out strategic infrastructure development to alter the terms of the development the subject of a planning permission, approval or other consent granted under the Act.33 Upon receipt of such a request the Board must as soon as practicable make a decision as to whether the requested alteration would constitute a material alteration of the terms of the development concerned.34 The Board has a range of options open to it, depending on whether it considers the requested alteration would constitute a material alteration of the terms of the development concerned.35 If it satisfied that the requested alteration would not constitute a material alteration of the development concerned it may make the alteration, and notify the person who made the request. Where it considers the requested alteration is a material alteration of the development it may, refuse to make the alteration requested, or make its own alteration to the terms of the development concerned. Where the Board considers that the proposed alteration to the terms of a strategic infrastructure development is likely to have significant effects on the environment, it must require an EIS to be submitted.36 It is clear this provision is been introduced primarily in an attempt to address the difficulties, which have arisen in some road projects where subsequent to the grant of approval by the Board and the commencement of the works, archaeological excavations have revealed discoveries of significance. This may give rise to a need to vary the permission or consent e.g. to vary the route of the road. Because under the 2000 Act the power to vary a planning permission may only be exercised in limited circumstances, even a minor variation in a development may require a fresh planning application with all the delay that that entails. This applies even where only a small part of the development is affected even in a minor 30 ss. 146A,146B, and 146 C. 31 s.44 confers a planning authority with the power to revoke or modify a planning permission where it no longer conforms with the provisions of a development. The power is typically exercised in circumstances where due to a change in the development plan the permission granted is no longer in accordance with the plan. The section prescribes a procedure which must followed prior to any modification. In brief, this requires service of a notice on the applicant to whom the permission was granted or any other who may be materially affected, invite submissions or observations from the applicant or such persons. Any person served with such notice has a right of appeal to the Board against any decision to revoke or amend the permission. 45 It may be noted that the EPA under the Protection of the Environment Act, 2003 already enjoys such powers, in respect of licences that it issues. The Ombudsman has recommended there should be a power conferred on planning authorities to issue corrections to planning permissions. 33 s.146b(1) 34 s.146b(2) 35 s.146(b)(3) 36 s. 146B(4) and 146(c) 20

21 way. It should be noted that these provisions if enacted will also apply to railway orders.37 It will be noted that the term material alteration is not clearly defined in the Act. Many will consider this change to be a relatively pragmatic solution to a problem, which has caused difficulties in major infrastructure projects in the past. However, as a consequence result of the introduction of this provision the precise nature and route alignment of developments such as motorways, light rail lines, heavy rail lines, metro, will remain uncertain, and open to change even after the grant of permission by the Board. It is apparent that even minor changes to the route of a motorway, light or heavy rail line, or metro can have significant impacts on individuals and communities. In these circumstances is not difficult to anticipate that the operation of these provisions may give rise to litigation. Miscellaneous Changes introduced by the 2006 Act. Section 7 of the 2000 Act is amended by inserting a new requirement that the planning authorities must include, in the planning register, particulars of any proposed local authorities own developments under Section 179. Section 34 of the 2000 Act is amended by s. 8 of the 2006 Act. It provides that conditions for regulating the development or use of land, next to land proposed to be developed, and in the same ownership, can be imposed in circumstances where it is expedient for the development in question or where any existing public amenity must be maintained. Power to Refuse Planning Permission for past failures to comply An important amendment to Section 35 of the 2000 Act is also provided for under Section 9 of the 2005 Act. It amends the provisions of Section 35 of the Principal Act to enable the planning authority refuse permission to a developer on the grounds of his or her past history of non-compliance of planning. The Planning Authority must serve a notice on the applicant specifying the past failures and inviting submissions within a period specified in the notice. Having considered these submissions the planning authority may decide to refuse the grant of planning permission concerned and notify the applicant accordingly.38 There is no right of Appeal to An Board Pleanala in this regard. If an applicant wishes to have this decision overturned, they must bring an application to the High Court to do so. This must be done by notice of motion within 8 weeks from receipt of notification of the refusal of planning permission. The High Court may confirm or annual the decision and direct the planning authority to consider the application for planning permission without reference to the provisions of the Section. This amendment is designed to address the limitations of the previous procedure under the 2000 Act. This procedure was relatively complex and required a planning authority to apply to the High Court to for an authorisation to refuse planning permission. For this reason it was not generally availed of by planning authorities. Under the new procedure no Court application is necessary it is for the applicant for planning to bring a court application. It remains to be seen whether this will result in greater use of this provision by planning authorities. 37 s.146d 38 S. 9 of the 2000 Act. 21

22 NEW INFRASTRUCTURAL CONSENT PROCEDURES FOR ELECTRICITY TRANSMISSION AND GAS INFRASTRUCTURE Introduction A feature of the 2006 Act is that it introduces new consent procedures in respect of infrastructural projects such as gas pipelines, electricity lines railways and roads. The principal feature of this new consent procedure is the transfer of the consent approval process from the relevant Minister to the Board and the adoption of many of the procedural changes introduced in respect of SID under the 2006 Act. These new procedures are contained in Parts 2 and 4 of the 2006 Act The combined effect of these provisions is to transfer to An Bord Pleanála the powers of approving of infrastructural development projects and related land acquisition involving electricity transmission, gas infrastructure, rail, metro and light rail construction, the construction of and expansion of airports (at present vested in various ministers, such as the Minister for Transport, or the Minister for Communications, Marine and Natural Resources). The provision also makes the carrying out of State projects that require an environmental impact statement (EIS) subject to An Bord Pleanála approval. Thus the Board, which has already vested in it by Pt XIV of the Planning and Development Act 2000 the power to approve local authority land acquisition for the purposes of the construction of roads, sewers, sewerage treatment plants, and other facilities under a range of statutes set out in s.214 of the 2000 Planning Act, now has added to it a range of additional powers under the Air Navigation and Transport Acts 1993 and 1998, the Electricity Regulation Act 1999, the Transport (Railway Infrastructure) Act 2001, the Gas Act 1976 and the Gas (Amendment) Act Similarly, the functions of the Minister for Transport for the purposes of compulsory acquisition of land in relation to development of airports are transferred to the Board under s.38 of the new Act. The Minister for Transport is also the Minister to whom applications for a Railway Order are made under the Transport (Railway Infrastructure) Act These powers also are transferred to the Board under s.49 of the new Act. There is also a new procedure requiring the State to apply to An Bord Pleanála for approval in respect of a development it proposes to carry out which requires an environmental impact assessment. Requirement to enter into consultations It is important to notes that s.182e of the 2006 Act requires a person who intends to apply for approval under s.182b (electricity) or 182D (gas) to enter into consultations with the Board, which may give advice in relation to the proposed application with particular regard to the procedures involved and what considerations related to proper planning and sustainable development or the environment may, in the opinion of the Board, have a bearing on its decision. The provisions are obviously similar to the pre-consultations procedures in respect of all SID development previously outlined. 22

23 ELECTRICITY TRANSMISSION Introduction The 2006 Act amends Part XI of the 2000 Act by inserting two sections dealing with electricity: ss.182a and 182B. These provide that no permission under s.34 of the 2000 or s.37g shall be required for any development which is approved under these sections. Where a person intends to carry out development comprising or for the purposes of electricity transmission, namely high voltage lines where the voltage will be 110kv or more or an interconnector whether or not ownership of the interconnector will be vested in them, that person (or that undertaker) must apply to the Board for approval under s.182b. If the development is one that would require an EIS under s.176 of the Planning and Development Act 2000 and Pt 10 of the Regulations, then an EIS must be prepared. Procedure The making of the application must be advertised in the normal way and copies of the application sent to each local authority in whose functional area the proposed development would be situate and to the prescribed authorities. If the proposed development is likely to have transboundary effects copies of the application and the EIS are to be sent to the prescribed authority of the relevant State or States. Request for further information The Board may provisionally form the view that it would be appropriate to approve the development if certain alterations were to be made to its terms. If so, the Board may notify the statutory undertaker that is of that view. Alternatively, the Board may request further information. Where it considers any further information received contains significant additional data, or where alterations to the terms of the proposed development have been carried out as a result of a notification, the Board may require the undertaker to publish a further notice in the newspapers, and to indicate that submissions or observations in relation to that further information or statement may be made to the Board within a defined period of not less than three weeks. Powers of the Board Under s.182b the Board must consider the EIS, the likely consequences for proper planning and sustainable development, the likely effects on the environment, and the report and any recommendations of a person constructing any oral hearing relating to the proposed development. The Board has the power to approve the development, refuse the development or make such modifications to it as it specifies in the approval, and the power to approve it in part only. Once again the Board has the power to require the undertaker by condition to construct or finance in whole or in part the construction of a facility or finance in whole or in part the provision of a service in the area in which the proposed development would be situated being a facility or service that in the opinion of the Board would constitute a substantial gain to the community. However, such a condition must not be so onerous as to deprive the person in whose favour the approval under this section operates of the benefits likely to 23

24 accrue from the grant of the approval. GAS INFRASTRUCTURE The 2006 Act introduces new procedures in respect of strategic gas infrastructure gas. Prior to the 2006 Act gas pipelines and associated land acquisition orders required the consent of the Minister for Communications, Marine and Natural Resources if they were upstream pipelines - namely pipelines operated or constructed as part of a gas production project or used to convey natural gas from one or more such projects to a processing plant or terminal or final coastal landing terminal, e.g Bellinaboy in Mayo. However transmission pipelines, namely the pipelines downstream of the processing plant or terminal required the consent of the Commission for Energy Regulation. These functions were transferred to the Board under s.37 of the 2006 Act Infrastructure Act. The substantive provisions are contained in ss.182c and 182D.The provisions of ss.182c and 182 D are drafted in terms very similar to those of ss.182a and 182B, and apply to applications in relation to strategic gas infrastructure which is defined as: any proposed development comprising or for the purposes of a strategic gas pipeline... and associated terminals, buildings and installations, whether above or below ground. A strategic upstream gas pipeline is one proposed to be constructed as part of a gas production project or for conveying unprocessed natural gas from the gas production project to a processing plant or terminal or final coastal landing terminal. A strategic downstream gas pipeline is a gas pipeline other than an upstream gas pipeline, which is designed to operate at 16 bar or greater and is longer than 20 kilometres in length. The 2006 Act requires39 any person who intends to apply for approval under s.182b (electricity) or 182D (gas) to enter into consultations with the Board, which may give advice in relation to the proposed application with particular regard to the procedures involved and what considerations related to proper planning and sustainable development or the environment may, in the opinion of the Board, have a bearing on its decision. RAILWAY ORDERS INCLUDING LIGHT RAIL AND METRO Introduction The Transport (Railway Infrastructure) Act 2001 established the Railway Procurement Agency ( RPA ) and a new system of development consent in respect rail and light rail projects. Under this system CIE or any person with the consent of the RPA could apply to the Minister for Transport for a Railway Order authorising the carrying out of the works specified in the order and the acquisition of the necessary land and rights over land. The Minister appointed an inspector who conducted a public inquiry, drafted a report and recommendation to the Minister who subsequently made the decision. 39 s.182e 24

25 The 2006 Act, introduces certain amendments to the 2001 Act. The principal change is that an application for a rail order is now made to An Bord Pleanála. Sections 37 to 47 of the 2001 Act are replaced by new ss.37 to 47, similar in purpose and effect to those replaced save that the Board is substituted for the Minister. A further significant change introduced by the 2006 Act is that the holding of a public enquiry under the 2001 Act, is replaced by an oral hearing conducted by the Board a change which will have little practical effect. However, of much greater significance is the fact that in contrast to the procedure under the 2001 Act where the Public Inquiry was mandatory, under the 2006 Act an oral hearing is no longer mandatory but at the discretion of the Board. Revocation of Railways Orders The 2006 Act makes provision in s.43, subs. (6) to (9), for a procedure whereby the Board may revoke a Railway Order if there is a failure or refusal to comply with a condition, restriction or requirement specified in an order. Notification to the railway undertaking concerned is required, and consideration of submissions received. There is an appeal to the High Court against the making of a revocation order and the High Court may either confirm the Board s decision or direct the Board to withdraw its decision and prohibit the making of the proposed order. DEVELOPMENT BY LOCAL AUTHORITIES AND STATE AUTHORITIES Development by State Authorities It used be the position that development by the State (i.e. The Government & its Departments) was exempt from the need for planning permission. This was to some degree based on an extension of crown immunity and public policy considerations. However, following the decisions of the Supreme Court in Howard v The Commissioners of Public Works and Byrne v The Commissioners of Public Works (relating to interpretative centres in Wicklow & the Burren) this no longer applies. The 2001 Regulations list certain classes of development to which the requirement of the 2000 Act in respect of planning permission do not apply. These developments are listed in Part 9 of the Regulations. They include developments such as Garda Stations, Courts, Army Barracks etc. The regulations also require notice of such proposed development be advertised and details of the proposed development be made publicly available. In certain circumstances it must notify the planning authority. The State Authority is obliged to have regard to any submissions made in respect of the proposed development. STATE DEVELOPMENT REQUIRING AN EIS The 2006 Act has introduced a new procedure requiring the State to apply to An Bord Pleanála for approval in respect of a development it proposes to carry out which requires an environmental impact assessment. Prior to the 2006 Act the State, even if the development it proposed to carry out required an EIS, was not obliged to apply for planning permission to any body other than itself, and went through a procedure which was very similar to the 25

26 procedure required for applications to the planning authority or An Bord Pleanála which may be summarised as follows: Publication of notice of the development which it intends to carry out; Erection of a site notice on the land or structure where the proposed development would be situated, and makes available for inspection a document describing and outlining the nature and extent of the proposed development; Make available maps identifying clearly the land on which it proposes to carry out the development and drawings and particulars describing and outlining the external appearance of the building or other premises or installation; Give notice to the local planning authority and to the Minister for the Environment, Heritage and Local Government if there are any protected structures; Have regard to any submissions or observations made by a planning authority or other body or persons in accordance with the Regulations. Ultimately the Minister or the State authority proposing to carry out the development decides whether the development should or should not go ahead. This procedure was objectionable on the grounds that it lacks independence as clearly the Minister or State authority was acting a judge in its own cause,. This is now to be changed under the 2006 Act. In essence the Minister or State authority will have to apply to An Bord Pleanála for consent to carrying out the development if it requires an environmental impact assessment in a similar manner as a road authority would apply for approval of a road development or a gas exploration company for approval of a gas pipeline. New Procedure Where State authority proposes to carry out development that requires an environmental impact assessment, a new section, s.181a, requires an application for approval to be made to An Bord Pleanála. Publication of the application for approval is required in the way normally required of local authorities, with submissions or observations being invited within a specified period. The Board can require further information and further notification of the public where significant additional data is furnished. Under s.181b the Board must consider the EIS, the likely consequences for proper planning and sustainable development, the likely effects on the environment and the report and any recommendations of a person constructing any oral hearing relating to the proposed development. The Board has power to approve the development, refuse the development or make such modifications to it as it specifies in the approval, and the power to approve it in part only. Once again the Board has the power to require the State authority by condition to construct or finance in whole or in part the construction of a facility or finance in whole or in part the provision of a service in the area in which the proposed development would be situated 26

27 being a facility or service that in the opinion of the Board would constitute a substantial gain to the community. However, such a condition must not be so onerous as to deprive the person in whose favour the approval under this section operates of the benefits likely to accrue from the grant of the approval. Section 181C requires consultation with the Board by the State authority prior to the making on an application for approval under s.181b. The European Communities (Drinking Water) Regulations 2007 The issue of water quality (or rather the lack thereof) is addressed in the European Communities (Drinking Water) Regulations ( the Regulations ). The Regulations came into operation on March 8 th, 2007 revoking previous drinking water regulations.41 In essence the Regulations set out the duties of suppliers of drinking water, namely to ensure that water is wholesome and clean and meets certain other specified requirements. For the purposes of the Regulations water is deemed to be wholesome and clean if it is free from any micro-organisms and parasites and from any substances numbers or concentrations of which constitute a potential danger to human health. Interestingly, the Regulations42 provide for injunctive relief to be granted by the High Court if the court is satisfied that a person has failed to comply with a direction or a requirement of the Regulations. The High Court may make grant interim of interlocutory relief if deemed appropriate. The Regulations confer authorised persons i.e. local authority officials with extensive powers of inspection and entry onto premises if there is reasonable powers for believing there is, or may be a risk to human health.43 Any person who obstructs or impedes an authorised person in the exercise of his powers is guilty of an offence. The Regulations add to the already extensive range of legislative controls in the area of water pollution. They also enhance the range of remedies available to local authorities in addressing water pollution. Equally, they further expand the level of liability on those responsible for such pollution. Water pollution is now subject to controls under the Local Government (Water Pollution) Acts , Fisheries (Consolidation) Acts , The European Communities (Good Agriculture Practice for the Protection of Waters) Regulations, ( the nitrates Regulations ). As a result careful consideration needs to given as to which of these various statutory enactments provides the most appropriate remedy in any given case. TOM FLYNN B.L S.I. No. 106 of S.I. No 439 of Article Article S.I. No. 378 of

28 Strategic Infrastructure Development (SID) Flowchart (This flowchart gives a general indication of the stages involved in SID cases. However, procedures can vary depending on the particular type of SID involved) Pre-application stage Consultations 1 Prospective applicant requests preapplication consultations with Board Board advises on proposed application, PP&SD 2, environmental issues and procedures. In 7 th Schedule cases (private development), Board notifies applicant & planning authority (PA) if SID application can be made. (If application cannot be made, neither can Scoping request). Scoping Prospective applicant may request Board to scope 3 environmental impact statement (EIS) Board may consult with others. Board may request further information. Board complies with request as soon as practicable. Board consults with prescribed bodies. Application Stage Application Applicant publishes notice of application 28