Communications and data infrastructure are intended to be classified as strategic infrastructure development for the purposes of the Planning and Development Acts 2000 to 2017 (‘the PDA’).
Under amendments to be introduced by means of the Planning and Development (Amendment) Bill 2016 (‘the 2016 Bill), which was passed by the Seanad on 13 June 2018, communications and data infrastructure will be defined as:
A facility consisting of one or more than one structure, the combined gross floor space of which exceeds 10,000 square metres, used primarily for the storage, management and dissemination of data, and the provision of associated electricity connections infrastructure.
This amendment will allow planning applications for data centres that meet these criteria to be dealt with under fast-track strategic infrastructure development procedures. These procedures, introduced under the Planning and Development (Strategic Infrastructure) Act 2006, already apply to certain categories of development, including energy, transport, environmental, and health infrastructure.
The inclusion of communications and data infrastructure within the categories of development regarded as strategic infrastructure development will mean that applications for planning permission in respect of qualifying data centres may be made directly to An Bord Pleanála, rather than to the relevant planning authority in the first instance. This will also mean that any legal challenges to decisions of An Bord Pleanála in relation to planning applications for qualifying data centres will be dealt with by the High Court under special procedures introduced in February 2018 for strategic infrastructure development. Under these procedures, applications for leave to apply for judicial review must be made to a designated judge of the High Court.
Introducing the amendment in the Seanad, Damien English TD, Minister of State at the Department of Housing, Planning, Community and Local Government, indicated that maximum time limits for the making of decisions by An Bord Pleanála in relation to strategic infrastructure development applications are to be introduced. These time limits will be prescribed by way of regulations, subsequent to the enactment of the 2016 Bill. This proposal is being made as part of a wider package of measures intended to streamline the judicial review of strategic infrastructure projects more generally.
In June 2018 the Government published a Statement on the Role of Data Centres in Ireland’s Enterprise Strategy, which indicated that the current 8 week time limit for judicial review challenges to planning decisions is being reviewed.
The classification of data centres as strategic infrastructure, while streamlining the planning application process before An Bord Pleanála, will not of itself address delays encountered in the courts when such decisions are challenged. It remains to be seen whether the Government will introduce further reforms to judicial review procedures in respect of planning decisions relating to strategic infrastructure. Any such reform will have to balance carefully the right of access to justice under EU environmental law with the need to afford developers some assurance that any challenge will be dealt with expeditiously.