Listening to Sean O’Driscoll, chairman of the Economic and Social Research Institute (ESRI), and member of the Government’s infrastructure taskforce, interviewed recently raised my hopes for a dawning realisation at Government level of the infrastructural crisis we face. Our administrative and legal procedures simply cannot overcome or unlock the logjam in time to prevent very serious damage to the Irish economy and Irish society.
O’Driscoll, a very experienced private sector chief executive, spoke plainly and truthfully about a number of issues including capital spending cutbacks. He observed that the Irish planning process had developed from a two-tier system involving local planning authorities and an appeal board process, to a three-tier one encompassing a veritable legal industry grounded on judicial review.
I would go much farther than O’Driscoll in predicting the crisis for economic infrastructure. The recently enacted Planning and Development Act redesignating An Bord Pleanála as An Comisiún Pleanala – the largest-by-volume enactment ever made by the Oireachtas – will compound rather than mitigate our disastrous planning process and Government’s dismal record. The new commission is to be chaired by Paul Reid, formerly head of Fingal County Council and of the Health Service Executive. Frankly, it really doesn’t matter who stands on the bridge of the new planning commission that increasingly resembles a governmental RMS Titanic.
The commission, as I have written here, is to be a single competent agency to decide on appeal matters as trivial as whether a bin shelter can be constructed in a front garden or the height of an extension to a family home. At the same time it could rule on decisions as far reaching as whether Metrolink should be built; whether offshore wind farms should be permitted in the Atlantic; all major State and local authority compulsory purchase orders; the number of flights to be allowed into Dublin Airport; whether a Shannon-Dublin water supply project or new Cork-Limerick motorway should be allowed to proceed.
There is a way to unblock Ireland’s infrastructural logjam
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What is it about Ireland that all of these massively different functions are vested in a single non-governmental agency? How is it hoped that such a vast range of powers and functions can be exercised by a single body entirely free from the curse of lengthy judicial review proceedings?
There is another way. Challenges to legislation enacted by the Oireachtas, as distinct from decisions made by non-governmental agencies including the planning commission, are far less likely to be brought or to succeed. The Victorian model of having the legislature authorise major infrastructural development by statute is the answer – subject to modification to take account of EU legal requirements.
When the fledgling Irish Free State determined to harness the Shannon’s hydroelectric potential, it enacted, even before the establishment of the ESB, a law in 1925 providing for the construction at Ardnacrusha. This law also provided for the canals involved, the compulsory purchase of land and legal interests affected, and State financing of what was then a massive piece of national infrastructure.
For 30 years, the construction of a Shannon-Dublin water supply scheme has been acknowledged as necessary at Government level. But nothing has happened. Uisce Éireann believes the project might take 10 more years for completion, even if it was given the Government’s green light today.
Why not, instead, pass a “Shannon-Dublin Water Supply Scheme Act”? It would have the following features: the promoter, Uisce Éireann, would submit detailed plans, including compulsory acquisition of wayleaves and other land. It would set out environmental impact assessments required by European law. Receipt and consideration of any third-party submissions would be completed by a select committee of the Oireachtas and the committee would authorise the works, as varied or approved, to be completed.
Subsequent challenge to the construction of the project would face the hurdle of proving the unconstitutionality of the measure. Judicial review would simply not arise.
The government of the day could kick-start and see through to completion major infrastructural projects if this model, like Victorian legislative infrastructural projects, were adopted.
The same could apply to the national power grid, major sewage disposal facilities and major rail projects. The legislative option incorporating such approval could even address passenger numbers at Dublin Airport.
Only a handful of Senators opposed central features of the Planning and Development Act, which has created monstrous new planning legal processes centred on the new planning commission, along with national development policies and guidelines, and the wholly unnecessary Office of the Planning Regulator.
Far from being an answer to the coming crisis identified by O’Driscoll, the 2024 Act is a charter for its continuation. It is a recipe for ongoing failure, even with its legally flimsy restriction on future judicial reviews. If the Government’s infrastructural taskforce doesn’t understand this, it too will fail.
