We should consider a special planning court to deal with legal challenges to major infrastructure projects in the ordinary courts, writes Nicola Dunleavy
ADDRESSING IRELAND'S infrastructure deficit is a serious challenge for the Government. The introduction of a specialist "Infrastructure Court", to deal with medium to large-scale planning and construction cases, modelled on the successful Commercial Court (a list of the High Court that handles commercial cases of high value), could assist in cutting time and costs for delivery of our much-needed infrastructure.
The new planning regime for strategic infrastructure, under the Strategic Infrastructure Act, is, so far, shortening the planning process for strategic infrastructure projects. An Bord Pleanála is generally granting permission within 18 weeks, the decision-making objective for strategic infrastructure.
By comparison, the waste-to-energy plant in Poolbeg took around one year and five months to get permission. Unfortunately, the strategic infrastructure regime only applies to certain projects in energy, transport and environmental sectors.
Some projects seen as strategic are not included, eg new pharmaceutical or healthcare facilities, and this should be re-examined. However, once planning permission is obtained, challenges to that permission can be prohibitively lengthy and expensive, diluting benefits of the strategic infrastructure regime.
The time it can take to secure a planning permission free of legal challenges is a factor that may reduce Ireland's attractiveness for foreign investment in an uncertain economic climate. Delays can have an effect on the availability of financing, because bank financing is not committed until any court challenge to the planning permission is over.
If the lending market moves before the court challenge is concluded, banks may not be able to adhere to initial terms, with consequences for developers. This risk is materialising at present. Delay can even affect Ireland's balance sheet.
For example, Ireland faces landfill fines from the EU for not diverting waste from landfill, because of a shortage of alternatives. Alternative waste projects can take years to go through likely court challenges. These factors have led to calls for a specialist planning court.
After planning is granted, any challenge is concluded and a project commences, construction disputes may arise.
The idea of a dedicated "Construction Court" has been raised, which would be similar to that in the UK or Australia.
The vast majority of construction contracts in Ireland (public and private) opt for the confidential, private arbitration process. However, compared with the Commercial Court, arbitration has long delays.
An arbitration in a medium to large project can take two to three years, if not substantially more, with a right to challenge the decision in the High Court. In the Commercial Court, many cases take four to five months, with 90 per cent of cases concluded in less than 47 weeks.
Another serious disadvantage is that arbitration decisions are not published, so there are few Irish "precedents" to guide interpretation of construction contracts. This leads to confusion - precisely the same type of claim can get very different decisions from different arbitrators.
Is there merit in combining the suggestions for a Planning Court and a Construction Court into an "Infrastructure Court" modelled on the Commercial Court? It is important to recognise the success of the Commercial Court in handling some planning challenges and construction disputes, with a big cut in delays.
An alternative to an Infrastructure Court would be to expand the categories of infrastructure-type disputes that can be referred to the Commercial Court. If there is a major switch from arbitration as a dispute resolution mechanism in construction, additional court resources would be essential.
There may also be advantages to a specialist court which would hear challenges to infrastructure projects over a certain threshold. That specialist court would gain tremendous expertise from seeing all angles of a project and all the differing viewpoints.
Under such an Infrastructure Court or extended categories for the Commercial Court, it would be important to address the current delays on appeal to the Supreme Court.
There are many other factors that may prevent or delay implementation of the National Development Plan, some of which are outside of Ireland's control.
It would certainly be welcomed among domestic and international contractors and banks if Ireland is seen to grasp this nettle of spiralling costs and delays so we remain an attractive jurisdiction for investment.
• Nicola Dunleavy is a partner in the projects, energy and construction group at Matheson Ormsby Prentice solicitors, Dublin