Proposed rules aim to limit court challenges to building projects

Government fears challenges such as that to Apple data centre could scare off multinational investment

The building plan has for an Apple data centre in Athenry, Co Galway, has been delayed for more than two years by a series of planning objections and legal actions.

The building plan has for an Apple data centre in Athenry, Co Galway, has been delayed for more than two years by a series of planning objections and legal actions.

 

The Government is to introduce new rules in an attempt to restrict court challenges to major building projects.

As it gears up to launch the 10-year €115 billion capital plan, the Cabinet on Tuesday discussed and approved measures that would make it more difficult to delay or block major infrastructure projects, large housing developments and data centres.

A plan by technology giant Apple to build a massive data centre near Athenry, Co Galway, has been delayed for more than two years by a series of planning objections and legal actions, sparking fears in Government that such challenges could slow infrastructure projects and scare off further multinational investment.

On Tuesday, after considering a memo prepared in the Department of the Taoiseach, the Government agreed that time-limits for some planning applications could be reduced, and that the period to launch judicial reviews of major planning decisions should be halved from eight weeks to four weeks.

In addition, Ministers intend to tighten the rules for who is eligible to take judicial review proceedings, which can sometimes delay the awarding of planning permissions by years.

Criteria

A statement from Government Buildings last night said new legislation would “set out criteria in legislation to assist in determining whether an applicant has sufficient interest to instigate a judicial review of a strategic infrastructure development”.

According to a senior Government source familiar with behind the scenes discussions on the subject, would-be litigants will have to prove that a development impacts on them in a direct way.

Aerial view of the Apple Data Centre site at Athenry, Co Galway: the building plan has been delayed for more than two years by a series of planning objections and legal actions
Aerial view of the Apple Data Centre site at Athenry, Co Galway

One source said there was a view in Government that some judicial review cases – where a court is asked to examine the process by which administrative decisions were made – were an abuse of the legal process.

According to a Government source, Ministers have been told by developers involved in other projects that some objectors threatening judicial review proceedings are looking to be paid off.

In addition, the new rules are likely to restrict the type of organisations that can challenge an award of planning permission for a major project in a judicial review case. It is expected that NGOs seeking to take such cases will have to show that they are not-for-profit organisations, that they are active in the environmental sphere and they were set up more than three years before.

Discretion

Although judges will still have discretion in deciding whether litigants can bring judicial review proceedings, the legislation will be intended to reduce the numbers of cases taken in the courts.

The Government also decided to ask the courts to introduce rules to accelerate the legal process where judicial review cases do go ahead, including a strengthened pre-hearing process and the possible use of a “written-submissions only” court process. This would avoid the need for lengthy court hearings.

Under the Strategic Infrastructure Act, certain types of major projects – national roads, railways, housing developments of more than 100 properties, large hospitals, etc – go straight to An Bord Pleanála for a one-stage planning process. Last year, following the delays to the Apple data centre, it agreed to include data centres under the act. That legislation is to be commenced in the Seanad next week.