If we can’t get a decision in more than three years on whether to build a data centre in the middle of a field in Co Galway, how on earth is the Government going to implement its recently announced €116 billion national investment programme? Ministers have promised to “speed up” the planning process, but the combination of an unpredictable planing system, the rights of objectors and the length of legal proceedings in this country could tie things up for years.
Our planning and legal systems give people a lot of rights to object – and to date have often not obliged them to demonstrate their interest in whatever they are objecting to. Fair enough to object to a skyscraper going up beside your house, a giant pylon running through your land or, to pluck one out of the air, the digging up of your local GAA ground to put in a metro. Clearly some system is needed to adjudicate.
But the right to object in Ireland runs very wide – and often seems to override the wider public interest. After all, even if objections are, eventually, overturned, the three or four years waiting for this to happen is a huge cost in itself.
It is important to be clear where the blockages are. In the case of Apple, the project was announced in February 2015 and An Bord Pleanála delivered its approval, having considered objections, 18 months later. It had already gone through the normal local authority process. Had it rested there, the project would have gone ahead.
It is the legal proceedings in the meantime which have dragged it all out interminably. One of the three objectors who went to court, Brian McDonagh, did not pursue the case to the Supreme Court. It emerged in the High Court that he had invested in land in Wicklow with the intention of attracting data centre investment there. However, two other local objectors persisted and with a Supreme Court hearing and possibly a referral to the European courts still in prospect, Apple called time.
Strategic infrastructure
The Government has said that in future data-centre projects will qualify as “strategic infrastructure” and thus skip the county council approval process – and go straight to An Bord Pleanála. This would have shortened the Apple planning process – before the judicial reviews were launched. But it would still then have entered the nether world of Irish legal proceedings.
I’m not sure skipping elected bodies is a good idea, in any case, in the planning process. The role of elected bodies is a way to ensure democratic accountability in planning – as is public consultation on the rules and how areas should develop. This also provides a context in which once-off objectors can be given shorter shrift.
Like most public policy issues, there is no one fix here. Moving data centres into the strategic investment box is a neat headline, but international investors will now be cautious. As well as the endless delays, the Supreme Court did rule that , were Apple to want to proceed, it would need to hear a case brought by two remaining objectors related to how an Environmental Impact Assessment was completed and might have to refer some issues to the EU court of justice. It may still hear the case. Complying with environmental regulations – in an era when objectors have specific rights in this area – is another area where more clarity is needed if we are not to face further court battles.
Moving data centres into the strategic investment box is a neat headline, but international investors will now be cautious
It all brings into focus the massive investment planned under the Government’s latest long-term investment programme covering areas such as roads, airports, ports, hospitals, schools, a metro line and, of course, housing,
Even if the plans get through An Bord Pleanála, are we to be delayed for years then as they chug through the legal system? Add in the complications of local politics and nimbyism – the Taoiseach and Minister for Finance, for example, are already grumbling about the route chosen for the metro through the latter’s constituency – and you would wonder will the plan ever get done.
Timelines for decisions
A 2016 report on An Bord Pleanála by a review group had detailed recommendations on how it should better undertake its work, including the planning of these major projects and specific timelines for decisions. New planning structures are also promised as part of the Government’s investment plan, to drive changes such as denser developments in cities. And the Government has discussed a new Bill to tighten up rights for third-party appeals via judicial review, including – in particular – a need to clearly demonstrate an interest, such as living close to the project involved. It is not clear whether it plans to be more aggressive seeking costs against objectors who lose in court, which would clearly prove a restraint.
But still. Business groups such as Ibec and Chambers Ireland have raised serious questions about our ability to deliver on the plan, unless big reforms are delivered. Ireland is unusual in having such wide third-party objection rights and the resulting delays are extended by the clogging-up of the courts system, due in part to a lack of judges. This is due in part to the fiasco caused by the row between Minister for Transport Shane Ross and his Government colleagues over judicial appointments. It is another part of the jigsaw of things which need to be sorted.
With more and more talk of a general election in the air over the next year, it is hard to see the delivery of a long-term investment plan getting the kind of priority it needs. The metro is a nice shiny project on paper, but when it involves digging up GAA and soccer fields in the constituency of a senior Minister don’t expect a pre-election rush to get it sorted out.