People who object to infrastructure projects could be offered damages rather than allow judicial reviews to delay a project, under a plan to give the Government more power to decide when and how the legal instruments can be used.
The Government yesterday unveiled its plan for speeding up the delivery of large projects amid concerns that Ireland’s infrastructure won’t be able to keep up with economic and population growth.
The new accelerating infrastructure report is highly critical of the impact of judicial reviews. It claimed that “virtually every planning decision related to critical infrastructure is subject to judicial review”.
A judicial review is a form of legal challenge where the High Court considers decisions by lower courts, tribunals and other administrative bodies, such as An Coimisiún Pleanála, to ensure decisions are reached properly, fairly and legally. The review, which is separate to the planning process and comes after planning is granted or denied, assesses the legal validity, not the merits, of the decision.
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Amid a suite of reforms proposed to limit when and how someone could take a judicial review against a project, and a new law that would fast-track specific high-profile projects, the Government is also going to bring forward proposals to place the entire judicial review process on a statutory footing.
“This potentially affords Government much greater flexibility to determine the circumstances in which judicial review procedures can be utilised. This could include measures that would significantly accelerate infrastructure provision such as limiting judicial reviews to the ultimate planning decision underpinning a decision, rather than currently where every licence, consent and planning condition is separately subject to judicial review,” the report said.
“It could also introduce tests that are common in other jurisdictions such as an assessment of the prospect of the success for any litigation before it is allowed to proceed or perhaps replacing the concept of project delays with damages, where rather than delaying a project, flaws are addressed retrospectively via damages.”
The other main recommendations in the report include “targeted” deregulation to cut delays to big projects, more co-ordination and oversight of big projects in the Department of Public Expenditure. It also suggests the development of a new “national narrative” to persuade communities of the national importance of big projects planned in their area.
The Government is also considering using artificial intelligence to draft documents and planning applications as part of a plan to speed up approval for infrastructure projects.
The new infrastructure plan will “identify” AI tools that can be used as part of the planning stages for infrastructure projects. The proposal is included in the new accelerating infrastructure report.
The report said during the approval and consenting stages of the planning system, “AI could play a role in the time-consuming process of drafting documents and applications, through to review stages where AI and digital tools can identify risk and additional cost points for future project planning.”
The report also said that AI could be used to “identify the common barriers and bottlenecks” to projects.
The same report said more State land should be made available for infrastructure projects, with State agencies and local authorities being expected to give regular reports to Government on “the progression of proposed land transfers”.
“Additional measures will be considered including the identification of bottlenecks and enforcement actions for noncompliance with agreements. There will be an expectation of full co-operation by all departments, agencies and local authorities, with failures to co-operate impacting on DPER’s willingness to consider the relevant departments’ and agencies’ sanction and consent requests.”
