Failure to plan

Apple’s decision in May to abandon plans for an €850 million data centre in Athenry, Co Galway, has highlighted what many believe are profound problems in our planning system. After all, how can such a signature project that was first submitted for planning permission in April 2015 and cleared the appeals board in August 2016 still be bogged down in judicial review proceedings nearly three years later?

And, remember, the Supreme Court has yet to rule on the case brought by objectors to the data centre. While Apple has dropped out of the case, the State has now joined proceedings because the appeals have raised important legal issues concerning An Bord Pleanála's obligations under EU law when assessing such projects.

As if this isn't disincentive enough for anyone planning to develop a data centre in Ireland, the Supreme Court has also indicated that it may be necessary to refer some of the planning issues in the Apple case to the Court of Justice of the EU. Not exactly the-best-small-country-in-the-world-to-do-business stuff. Meanwhile, a similar Apple project in Denmark, announced at the same time as Athenry, is already up and running while the tech giant has just unveiled plans for a second Danish centre.

It's worth pointing out that the Irish planning system is subject to third-party submissions and appeals at almost every level. Examples include: during the consultation process for land zoning and when a local area plan is being prepared; rights of submission and observation at the planning application stage; rights of appeal to An Bord Pleanála after permission is granted; and the right to seek judicial review after An Bord Pleanála determines the appeal.

Lengthy process

This lengthy process is leading to uncertainty in many cases, according to Hubert Fitzpatrick, director of housing, planning and development at the Construction Industry Federation. "Third parties need not have any locus standi [a direct interest in the subject matter] to support their appeal. They can be resident anywhere remote from the proposed development and still have rights to delay a project through the appeal process. Objectors, at a minimum, should be required to have adequate locus standi to object to a development and show that they would be personally affected by a particular proposal. Spurious appeals should not be tolerated."

IDA chief executive Martin Shanahan is on record as saying that a much higher degree of predictability in relation to our planning processes is needed. "Not predictability about outcomes, but definitive timelines that are appropriate for the pace at which the commercial world works."

Fitzpatrick agrees, citing possible improvement to the planning system being made around timeframes for pre-planning meetings; sign-off on compliance conditions; standard wording for development bonds; timeframes for An Bord Pleanála to make decisions on appeals; and strict timeframes within which judicial review proceedings could be determined by the courts.

However, Ciarán Cuffe of the Green Party believes the focus of reform "should be on the courts system rather than on planning. A well-resourced environmental branch of the High Court could assist in resolving similar court actions [as in the Apple case] in a more timely manner. This would not impinge on human rights but would ensure that there would be a strong body of knowledge and expertise available within the judiciary when needed."

The Cantillon column in The Irish Times recently opined "you would almost believe judges are an integral part of the planning process" given the frequency of court appeals against decisions made by our "dedicated planning system". Judges, too, have pointed out to litigants that the purpose of judicial review is only to ensure that the planning decision was arrived at legally – not whether it was a good planning decision or not.

But none of this deters determined and well-resourced objectors, who know the glacial speed at which the Irish courts system moves means time is on their side. Cuffe’s suggestion of a “well-resourced environmental branch of the High Court” seems sensible in this regard. Speeding up the judicial review process might rebalance a system weighed far too heavily in favour of objectors and where sight of the greater good often gets lost in a blizzard of conflicting opinions.

Fitzpatrick suggests that challenging a decision of An Bord Pleanála by judicial review which delays a development “should carry potential compensation obligations for the objector in favour of the project developer. An objector should also be obliged to produce security for costs when taking any judicial review proceedings.”

However, not everyone agrees that the planning system is the problem. Dr Lorcan Sirr, who lectures on housing and urban economics at DIT, maintains the current system levels the playing field and balances the influence of vested interests.

“There is a convenient narrative that the planning system is broken and is a problem across many aspects of the built environment, but typically it is not,” he says. “In this instance, Apple, it appears the judicial process was a large part of the delays encountered. Apple and the IDA would have had access to the best planning and legal advice before applying and would have known full-well the likely risks involved, including delay due to challenges. The faux outrage at how the application panned out is more about politics than planning.

“Many political careers have been built on the ability to influence the planning system on behalf of constituents. Local politicians who call for wholesale reform of the planning system will also be the first to express outrage when the penny drops that ‘reform’ also means they could lose their political ability to influence what does and does not get built in their constituencies.

“Ultimately, there are too many cooks stirring the planning broth, from local politicians to national ministers to vested interests to uninformed commentators. Although we are currently removing powers from the planning professionals – the local authority planners – if we left them to do their jobs, as trained professionals, without interference, there would be much more certainty and consistency in planning decisions across the board.”

Pre-planning process

Nearly all commentators believe greater use of the pre-planning process can greatly expedite matters. Problems can be identified early, solutions found, and the decision-making of planners accelerated.

Meanwhile, as Ireland gets itself worked up about how its planning system treats data centres, it looks like this land and energy-hungry sector could be set for disruption.

Microsoft announced in June that it has sunk a data centre off the coast of Orkney in a bid to make the internet faster and more eco-friendly. Project Natick, a 40ft cylinder powered by tidal turbines and wave energy converters, uses sea water for cooling, thus removing one of the biggest energy demands of data centres.

It’s hoped that Natick will see data centres able to operate untouched and maintenance-free for about five years. The container-sized data centre, as powerful as several thousand high-end consumer PCs, would then be recovered, reloaded with new equipment and returned to the seabed. Microsoft estimates a Natick data centre could last at least 20 years.

The project offers great potential for speeding up web browsing and video streaming as data centres – the backbone of the internet – could then be easily located close to population centres, as more than half the world’s population live within 120 miles of the coast.

One would imagine, too, that submarine data centres wouldn't trouble the courts – here and in Europe – with judicial review proceedings.