Taoiseach Simon Harris floated the idea of creating a Department of Infrastructure at the MacGill summer school last month. The Donegal talkfest is the sort of place where such notions can be safely aired and soon forgotten. By his own admission the Taoiseach had more work to do to flesh out his idea.
Hopefully he has come to the same conclusion as most other observers, which is that the reason we make such a meal of delivering infrastructure in this country is not because we don’t have enough government departments.
If anything, the biggest achievement on this front over the last few decades has been taking responsibility for developing projects out of the hands of government departments and giving it to dedicated State agencies. The two most effective of these are the National Roads Authority and the Rail Procurement Agency, which have already been merged into Transport Infrastructure Ireland. Others include EirGrid and Uisce Éireann.
A lot has been done to try to ease the paths of these agencies, including allowing them to sidestep the local planning process and seek permission directly from An Bord Pleanála (ABP) – now rebranded as An Coimisiún Pleanála.
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Under this process the public and other interested parties can see copies of the planning application, make observations and, if the board feels one is warranted, take part in an oral hearing. But the crucial thing is that the board’s decision cannot be appealed.
Introduced in 2007, the measure made perfect sense as the projects involved inevitably ended up at ABP anyway given the chronic Nimbyism that characterises our attitude to infrastructure projects no matter how badly needed.
If the Taoiseach really wants to do something that will speed up the delivery of infrastructure projects he could tackle the abuse of the judicial review process, which has been weaponised as way of objecting to these infrastructure projects that are approved directly by ABP.
In theory someone can only seek a judicial review of an ABP decision on the basis that the board didn’t follow its own rules and procedure’s in making its decision. The correctness or otherwise of the decision is not at issue. But if the judicial review succeeds, the decision falls.
A recent study by the Department of Public Expenditure and Reform looked at the impact of judicial reviews on Strategic Housing Developments, which were private sector projects that because of their scale were able to apply directly to ABP for planning permission.
The study looked at 401 SHD applications since the process was introduced in 2017. Perhaps the single most informative statistic in the report is that a quarter of the rulings were subject to a judicial review. It stretches credulity that in a quarter of the cases ABP did not follow its rules and procedure in some meaningful or material way.
It implies that many of these reviews were sought on technicalities or details that were tangential at best to the true impact of the project but in the hands of a skilled lawyer were sufficient to bring the project down.
The report alludes to the possibility of judicial reviews being used as a sort of pseudo-appeal mechanism and notes that there was a higher probability of a judicial review being sought over permission for developments that attracted a lot of public interest in the form of observations to ABP.
But the report also found that despite the judicial reviews the SHD process was still faster than the traditional two-tiered local authority process for large scale developments by an average of about five months.
Judicial reviews had a substantial negative effect on the commencement rate for the projects that were approved under the SHD. The average commencement rate within one year was 39 per cent but it rose to 50 per cent when projects caught up in the judicial reviews were excluded.
The SHD system has now been replaced by Large-Scale Residential Development (LSRD) system. Under this arrangement the local authority phase of the planning system is restored, but time limits are imposed on decision-making. But at the end of the process a judicial review is still a possibility.
The judicial review genie is now well and truly out of the bottle when it comes to infrastructure. And no matter how important the project may be in terms of national interest it is now part of the tool kit of any well-resourced objector whose personal interest may differ.
The right to seek a judicial review of whether a public body followed its rules and procedures when making a decision is grounded in the Constitution and any attempt to limit its scope in areas such as critical national infrastructure would probably require a referendum.
It is very hard to imagine such a referendum getting off the ground, never mind being passed. Politicians are not that keen to invest their political capital in projects that seek to take away rights rather than enhance them, particularly when it comes to that most prized of assets – the family home.
Much easier and safer to waffle on about a department of infrastructure.
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