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Launching judicial reviews for strategic infrastructure developments

The Planning and Development Act 2000 as amended provides for a special planning application process for strategic infrastructure development (SID). This procedure allows for the local planning authority to be bypassed entirely and the application be made directly to An Bord Pleanála, the Irish State planning appeals board. SID status is afforded to developments which are considered of strategic importance to the State. They most commonly consist of energy infrastructure, transport infrastructure, large housing development and environmental infrastructure projects.

Due to the fact that often these developments are large in scale and complexity, decisions of An Bord Pleanála are challenged on a regular basis by way of judicial review. Applications for consent to launch a judicial review must be made to the High Court. A new practice direction was issued in February 2018 concerning judicial review applications in this context. All applications for consent to launch a judicial review of permissions or decisions concerning strategic infrastructure developments must now only be made to an assigned Judge in the Commercial Court. Applications can be made at 10.30am every Thursday.

The applicant must lodge all required papers in a bound, indexed and paginated form with the Central Office marked “Strategic Infrastructure Application” no later than 4.00pm on the preceding Monday.

Where an applicant is granted permission to launch a judicial review, the Judge will provide the parties with all necessary additional directions with a view to ensuring a fair, just and expeditious hearing of the matter.

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Adequacy of reasons in planning decisions

In a case before the Supreme Court, Connelly v An Bord Pleanála & Ors [2018] IESC 31, the application for permission for a wind farm development consisting of six turbines was initially turned down by Clare County Council in 2011. However, following an appeal to the Planning Board, it was later granted permission in 2014. Ms Connelly, a local resident, then brought judicial review proceedings challenging the Board’s decision. The High Court ruled in favour of Ms Connelly and quashed the Board’s decision. The Board applied to the Supreme Court and was granted leave to bring a leapfrog appeal direct to the Supreme Court.

The central issue before the High Court and Supreme Court was whether adequate reasons were given by the Board in its decision (the Decision). In the Decision, the Board stated that it was satisfied that the information before it was adequate to undertake an Environmental Impact Assessment (EIA) and an Appropriate Assessment (AA) for the proposed development.

The Supreme Court held that in a case to which the environment impact assessment (EIA) regime applies, the decision must be sufficiently clear to enable any interested party to consider whether they may have grounds to challenge the decision on the basis that an adequate EIA had not been conducted. This requires that the decision, or other relevant and connected materials available to any interested party, must demonstrate that an EIA was carried out and that the decision maker properly had regard to the results of the EIA in coming to its conclusion.

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Distinction between mitigation measures and compensatory measures

The Court of Justice of the European Union (CJEU) clarified the distinction between mitigation measures and compensatory measures under Article 6 of the Habitats Directive. This followed a preliminary request from Ireland’s Supreme Court during proceedings.

The ruling of the CJEU clarifies that it is only when it is sufficiently certain that a measure will make an effective contribution to avoiding harm, guaranteeing beyond all reasonable doubt that the project will not adversely affect the integrity of the area, that such a measure may be taken into consideration when the appropriate assessment is carried out under Article 6(3).

Measures which are aimed at compensating for the negative effects of the project on a protected area can only be considered under Article 6(4).

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These 2018 developments yet again demonstrate the ever evolving planning law environment in Ireland and yet more changes and more references from the Irish Courts to the CJEU can be anticipated in 2019.

Accordingly, it is vital for developers to carefully consider best practice and ensure their planning applications comply with current Irish and EU jurisprudence to avoid lengthy and costly delays to their projects.

For more information relating to planning consents affecting your projects, contact a member of our Planning & Environment team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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