The Government is mulling big moves to try to speed up the delivery of vital infrastructure. It will soon receive the final report of a taskforce set up to advise on how to accelerate the whole process, chaired by former Glen Dimplex boss Sean O’Driscoll.
If the Coalition fails here, then it is no exaggeration to say its whole term will be in peril. Housing and investment targets will go by the board and public services will suffer. No pressure, so.
Politically this will not be easy. In theory, everyone is in favour of big improvements in power, water, transport and housing.
But in practice those directly affected – by big construction projects and the operation of whatever is being built – will object. And the strength of these objections can often, politically, be more pressing than the overriding need to get things done.
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It is estimated to take around twice as long now to deliver a big project as it did 20 years ago. This is largely the result of a raft of new rules introduced, many driven by European Union legislation and Ireland’s interpretation of this. It has turned planning rules, in the words of the Supreme Court, into “an untidy patchwork, confusing almost to the point of being impenetrable”.
And this has meant objectors could always find a way to argue that – in meeting one or other part of the extraordinary obligations put upon them – public bodies had failed to follow the correct procedure.
The number of judicial reviews to planning decisions have ballooned – reaching 147 last year. Allowing for two or three days in court each, we have a legal industry around this that could now be worth €15 million to €20 million a year.
A clear example of all this is the planned Greater Dublin Drainage Scheme, involving a wastewater plant in Clonshaugh and a 27km pipe to the coast at Portmarnock with an outflow for the treated water another 6km offshore close to Ireland’s Eye.
The case for the plant rests on the ongoing growth in Dublin’s population, the existing wastewater system being at full capacity and the need to build thousands more homes in its catchment area.
Without new capacity, Uisce Éireann says it will not be able to supply new housing from around 2028 on. This would be a single point of failure for a key element of the Government’s housing plan.
The project was first submitted for planning in 2018 and approved by An Bord Pleanála in late 2019. The initial planning process seemed to progress well and led to some important changes and commitments from Uisce Éireann - in part in response to objections – in relation to construction and, importantly, in treating the outflow with ultraviolet light as a safeguard for water quality.
The next key point was a judicial review of the planning approval taken by a Portmarnock swimmer.
In late 2020, in a judgment on this, the High Court refused a range of substantive claims relating to the way the decision was taken. But it accepted one procedural flaw, which was that An Bord Pleanála failed to seek the observations of the Environmental Protection Agency (EPA) on the likely impact on waste water discharges. Its approval was thus invalid. The judge did not find that this led to any additional environmental danger – just that the correct step was not taken.
Crucially, the judge decided in April 2021 to “remit” the project back to the stage where An Bord Pleanála considered the report from its inspector – the moment of the procedural failure. A quick fix you might think? But no. An extraordinary delay followed.
It was mid-2023 before Uisce Éireann submitted additional information (why this delay happened is not clear) and further public submissions were invited. Three more reports on various environmental aspects were commissioned.
An updated inspector’s report running to more than 350 pages was submitted in May this year – adding to the 400-page original one in 2018 – offering, among other things, the revelation that there were now four Bronze Age ring forts in the area of the project, up from three originally identified.
Now, following an approval by An Coimisiún Pleanála – which has replaced An Bord Pleanála – in July, another judicial review has been taken by a group called Wild Irish Defence. The detailed grounds of this have still to emerge, though comments during the planning process by one of the principals of the group have held, among other things, that aspects of the environmental assessment were not properly undertaken.
There are a few key messages from all this. One is that there are multiple procedural grounds on which judicial reviews can be sought – and it is worth noting that, resulting from a previous Supreme Court judgment, the bulk of the costs of many of these cases land on the State.
Campaigners have taken on the role of policing approvals to an extraordinary extent, often with little financial downside. Their cases are often accepted as legitimate and sometimes they win.
The second key point is the long delay in trying to “put right” the procedural flaw identified in the first judgment. This reflects a fear – which spreads across public administration – of making an error, which can then be jumped on in court. And despite all this, the legal system provides for a further judicial review to now be taken.
How does the Government respond?
The work of the accelerating infrastructure group will be key. New legislation covering critical projects – and perhaps in some cases giving emergency powers – is likely and so are enforceable planning timelines. A quicker way needs to be found to correct procedural errors identified in court.
And there is likely to be a limit on the amount of costs the State will cover for a judicial review – currently these can cost €150,000 to €200,000 in legal fees – and a further tightening of the rules about taking these cases, beyond that already in the new Planning Act.
Navigating this will not be easy as the State has obligations under national and EU law and the Constitution. But the current system is hugely weighted in favour of objectors and does not serve the common good. It needs to change.
“Getting things done” will involve upsetting people. But the Government has no choice. It has to bet that the public are so fed up with inadequate housing provision, packed and often slow public transport and inadequate services that they will support moves to speed things up.
Politicians and state agencies need to show leadership in selling this, including the importance of “unsexy” projects in areas such as sewage treatment and electricity supply,
If the flipside of not proceeding with the drainage plant is no new houses in north Dublin and more spillage of raw sewage from the Ringsend plant, then this needs to be spelt out.
The political murmurings suggest the Coalition is preparing to bite the bullet. After an unconvincing start to its term, when everything seems to be moving slowly, seeing will be believing.
