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Why is the Irish planning system so complex?
Author: Dr Rónán Kennedy, School of Law
Opinion: as highlighted by the saga of the Apple data centre in Athenry, Ireland's planning process can be slow, torturous and complex for all involved
One of the cases which the Supreme Court is due to hear this week during its sitting at NUI Galway is an appeal against the granting of planning permission to Apple for the construction of a data centre in Athenry. It is well known that the delays with this permission led Apple to drop this project. As the appeal arises from the extent to which Irish planning law is open to public participation, there may be further mis-guided pressure to change this when it emerges back into public view.
Unusually in Europe and worldwide, the Irish planning system allows anyone, whether or not they have some tangible interest in the locality (such as owning neighbouring land), to make submissions or observations on a planning application. The time limits for doing so are relatively tight, but many individuals and non-governmental organisations get involved. European environmental law also requires that developments that will have a "significant impact on the environment" are subject to a process of environmental impact assessment (EIA). These procedural requirements are often criticised as leading to delay, and this has particularly been the case in the fall-out from the Apple data centre debacle.
From RTÉ Radio 1's Today With Sean O'Rourke, Independent Group technology editor Adrian Weckler discusses Apple's data centre in Athenry
The timeline for the project began in early 2015, with a planning application submitted to Galway County Council in April of that year. This was for the first phase of the development, including one data hall and preparatory works for an electricity substation. The full development was to include eight data halls, the electricity substation, and various ancillary and support buildings and take 15 years to build.
Galway County Council granted permission in September 2015, which was appealed to An Bord Pleanála by two local residents, who objected on a variety of environmental grounds, including the greenhouse gas emissions that would be caused by the development and whether renewable energy could be used. An Bord Pleanála granted permission in August 2016, but this is under challenge in the courts. One of the main arguments advanced against the project was that the EIA should consider the long-term plan for the site, rather than the limited initial phase; this was rejected by the High Court.
The Irish planning process can be slow, particularly when legal challenges are taken
While Apple has dropped the project, the case continues despite this, as one of the other features of Irish planning law is that permission for a development attaches to the land for which it is granted rather than a particular individual. There is still a valid planning permission for the site, and it is possible that some other developer will build a data centre before it expires. The case was before the Supreme Court in October 2018 to deal with some preliminary issues regarding the scope of the appeal and whether a question would need to be referred to the Court of Justice.
The Irish planning process can be slow, particularly when legal challenges are taken. The government has made several changes to the system as a result, including limiting access to judicial review and removing certain categories of "strategic infrastructure" development from the remit of local authorities, so that applications are made directly to An Bord Pleanála. It intends to extend the definition of strategic development to include data centres: an amendment to planning legislation to enable this requires only a ministerial order.
From RTÉ One's Six One News, a report on calls for reform of the planning process after Apple's decision to scrap their plans for a data centre in Co Galway
Since early 2018, the courts have also required that challenges to strategic infrastructure projects are fast-tracked through the Commercial Court. Some commentators have suggested that observations should be limited to those with a tangible interest in the locality, while industry groups such as IBEChave called for significant stream-lining and fast-tracking. The public may, therefore, be further excluded from the planning process.
But if the process is slow, short-term reactive fixes are not a good solution. Irish planning law is full of them, and they make the system difficult to understand and hard for the public to engage with. The challenges of climate change, which are becoming more obvious on a daily basis, require a much more long-term approach. The recent Citizens’ Assembly deliberations on the topic demonstrate that the public can grasp complex environmental issues when they are given the opportunity to do so.
A planning system that encourages and welcomes public engagement, and provides scope for discussions about the difficult choices that every society will have to make as we have to reconcile environmental protection and economic development, would be a valuable support for this. Unfortunately, our political systems encourage short-term, local thinking and our elected representatives have shied away from tackling these questions.
From RTÉ Radio 1's The Business, Richard Curran talks to Maurice Mortell, Managing Director of Equinix Ireland, about why Ireland has become a global destination for data centres
When problems emerge in the planning system, the default response seems to be discourage public participation. Individuals need to fall back on the courts when politics lets them down. Ireland’s future interests would be better served by properly resourcing local government, encouraging it to integrate the Sustainable Development Goals into its decision-making and requiring developers to think through the environmental consequences of their proposals.