PART 2

Strategic Infrastructure Developments - Jurisdiction of An Bord Pleanála under Principal Act to deal with them

3 .— The Principal Act is amended by inserting the following sections after section 37:

“Board’s jurisdiction in relation to certain planning applications.

37A.— (1) An application for permission for any development specified in the Seventh Schedule (inserted by the Planning and Development (Strategic Infrastructure) Act 2006) shall, if the following condition is satisfied, be made to the Board under section 37E and not to a planning authority.

(2) That condition is that, following consultations under section 37B, the Board serves on the prospective applicant a notice in writing under that section stating that, in the opinion of the Board, the proposed development would, if carried out, fall within one or more of the following paragraphs, namely—

(a) the development would be of strategic economic or social importance to the State or the region in which it would be situate,

(b) the development would contribute substantially to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate,

(c) the development would have a significant effect on the area of more than one planning authority.

(3) In subsection (2) ‘ prospective applicant ’ means the person referred to in section 37B(1).

Discussions with Board before making of application.

37B.— (1) A person who proposes to apply for permission for any development specified in the Seventh Schedule shall, before making the application, enter into consultations with the Board in relation to the proposed development.

(2) Such a person is referred to subsequently in this section and in sections 37C and 37D as a ‘prospective applicant’.

(3) In any consultations under subsection (1), the Board may give advice to the prospective applicant regarding the proposed application and, in particular, regarding—

(a) whether the proposed development would, if carried out, fall within one or more of paragraphs (a) to (c) of section 37A(2),

(b) the procedures involved in making a planning application and in considering such an application, and

(c) what considerations, related to proper planning and sustainable development or the environment, may, in the opinion of the Board, have a bearing on its decision in relation to the application.

(4) Where, following consultations under this section, the Board is of the opinion that the proposed development would, if carried out—

(a) fall within one or more of paragraphs (a) to (c) of section 37A(2), it shall serve a notice in writing on the prospective applicant stating that it is of that opinion, or

(b) not fall within any of those paragraphs, it shall serve a notice in writing on the prospective applicant stating that it is of that opinion.

(5) A notice under subsection (4)(b) shall include a statement that the prospective applicant’s application for permission, if it is proceeded with, must be made to the appropriate planning authority (and such an application, if it is proceeded with, shall be made to that planning authority accordingly).

(6) The Board shall serve a copy of a notice under subsection (4)(a) or (b), as the case may be, on the appropriate planning authority.

(7) No application for permission in respect of a development referred to in subsection (1) shall be made to a planning authority unless or until a notice is served under subsection (4)(b) in relation to the development.

(8) In this section ‘appropriate planning auth ority ’ means whichever planning authority would, but for the enactment of section 3 of the Planning and Development (Strategic Infrastructure) Act 2006, be the appropriate planning authority to deal with the application referred to in subsection (1).

Section 37B: supplemental provisions.

37C.— (1) A prospective applicant shall, for the purposes of consultations under section 37B, supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.

(2) The holding of consultations under section 37B shall not prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal proceedings.

(3) The Board shall keep a record in writing of any consultations under section 37B in relation to a proposed development, including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any planning application in respect of the proposed development relates.

(4) The Board may consult with any person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations under section 37B in relation to a proposed development.

Opinion by Board on information to be contained in environmental impact statement.

37D.— (1) Where a notice has been served under section 37B(4)(a) in relation to proposed development, a prospective applicant may request the Board to give to him or her an opinion in writing prepared by the Board on what information will be required to be contained in an environmental impact statement in relation to the development.

(2) On receipt of such a request the Board shall—

(a) consult with the requester and such bodies as may be specified by the Minister for the purpose, and

(b) comply with the request as soon as is practicable.

(3) A prospective applicant shall, for the purposes of the Board’s complying with a request under this section, supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.

(4) The provision of an opinion under this section shall not prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act and cannot be relied upon in the formal planning process or in legal proceedings.

Application to Board.

37E.— (1) An application for permission for development in respect of which a notice has been served under section 37B(4)(a) shall be made to the Board and shall be accompanied by an environmental impact statement in respect of the proposed development.

(2) The Board may refuse to deal with any application made to it under this section where it considers that the application for permission or the environmental impact statement is inadequate or incomplete, having regard in particular to the permission regulations and any regulations made under section 177 or to any consultations held under section 37B.

(3) Before a person applies for permission to the Board under this section, he or she shall—

(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and—

(i) stating that—

(I) the person proposes to make an application to the Board for permission for the proposed development,

(II) an environmental impact statement has been prepared in respect of the proposed development, and

(III) where relevant, the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or other party to the Transboundary Convention,

(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the application and the environmental impact statement may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),

(iii) inviting the making, during such period, of submissions and observations to the Board relating to—

(I) the implications of the proposed development for proper planning and sustainable development, and

(II) the likely effects on the environment of the proposed development,

if carried out, and

(iv) specifying the types of decision the Board may make, under section 37G, in relation to the application,

(b) send a prescribed number of copies of the application and the environmental impact statement to the planning authority or authorities in whose area or areas the proposed development would be situated,

(c) send a prescribed number of copies of the application and the environmental impact statement to any prescribed authorities together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to—

(i) the implications of the proposed development for proper planning and sustainable development, and

(ii) the likely effects on the environment of the proposed development,

if carried out, and

(d) where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of copies of the application and the environmental impact statement to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board.

(4) The planning authority for the area (or, as the case may be, each planning authority for the areas) in which the proposed development would be situated shall, within 10 weeks from the making of the application to the Board under this section (or such longer period as may be specified by the Board), prepare and submit to the Board a report setting out the views of the authority on the effects of the proposed development on the environment and the proper planning and sustainable development of the area of the authority, having regard in particular to the matters specified in section 34(2).

(5) The manager of a planning authority shall, before submitting any report in relation to a proposed development to the Board under subsection (4), submit the report to the members of the authority and seek the views of the members on the proposed development.

(6) The members of the planning authority may, by resolution, decide to attach recommendations specified in the resolution to the report of the authority; where the members so decide those recommendations (together with the meetings administrator’s record) shall be attached to the report submitted to the Board under subsection (4).

(7) In subsection (6) ‘ the meetings adminis trator’s record ’ means a record prepared by the meetings administrator (within the meaning of section 46 of the Local Government Act 2001 ) of the views expressed by the members on the proposed development.

(8) In addition to the report referred to in subsection (4), the Board may, where it considers it necessary to do so, require the planning authority or authorities referred to in that subsection or any planning authority or authorities on whose area or areas it would have a significant effect to furnish to the Board such information in relation to the effects of the proposed development on the proper planning and sustainable development of the area concerned and on the environment as the Board may specify.

Section 37E: supplemental provisions.

37F.— (1) Before determining any application for permission under section 37E the Board may, at its absolute discretion and at any time—

(a) require the applicant for permission to submit further information, including a revised environmental impact statement,

(b) indicate that it is considering granting permission, subject to the applicant for permission submitting revised particulars, plans or drawings in relation to the development,

(c) request further submissions or observations from the applicant for permission, any person who made submissions or observations, or any other person who may, in the opinion of the Board, have information which is relevant to the determination of the application,

(d) without prejudice to subsections (2) and (3), make any information relating to the application available for inspection, notify any person or the public that the information is so available and, if it considers appropriate, invite further submissions or observations to be made to it within such period as it may specify, or

(e) hold meetings with the applicant for permission or any other person—

(i) where it appears to the Board to be expedient for the purpose of determining the application, or

(ii) where it appears to the Board to be necessary or expedient for the purpose of resolving any issue with the applicant for permission or any disagreement between the applicant and any other party, including resolving any issue or disagreement in advance of an oral hearing.

(2) Where an applicant submits a revised environmental impact statement to the Board in accordance with subsection (1)(a) or otherwise submits further information or revised particulars, plans or drawings in accordance with subsection (1), which, in the opinion of the Board, contain significant additional information on the effect of the proposed development on the environment to that already submitted, the Board shall—

(a) make the information, particulars, plans or drawings, as appropriate, available for inspection,

(b) give notice that the information, particulars, plans or drawings are so available, and

(c) invite further submissions or observations to be made to it within such period as it may specify.

(3) Where the Board holds a meeting in accordance with subsection (1)(e), it shall keep a written record of the meeting and make that record available for inspection.

(4) The Board, or an employee of the Board duly authorised by the Board, may appoint any person to hold a meeting referred to in subsection (1)(e).

(5) Before making a decision under section 37G in respect of proposed development comprising or for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board may request the Environmental Protection Agency to make observations within such period (which period shall not in any case be less than 3 weeks from the date of the request) as may be specified by the Board in relation to the proposed development.

(6) When making its decision under section 37G on the application the Board shall have regard to the observations, if any, received from the Environmental Protection Agency within the period specified under subsection (5).

(7) The Board may, at any time after the expiration of the period specified in a notice under section 37E(3)(a) for making submissions or observations, make its decision under section 37G on the application.

(8) The making of observations by the Environmental Protection Agency under this section shall not prejudice any other function of the Agency.

Decision by Board on application under section 37E.

37G.— (1) When making a decision in respect of a proposed development for which an application is made under section 37E, the Board may consider any relevant information before it or any other matter to which, by virtue of this Act, it can have regard.

(2) Without prejudice to the generality of subsection (1), the Board shall consider—

(a) the environmental impact statement submitted under section 37E(1), any submissions or observations made, in response to the invitation referred to in section 37E(3), within the period referred to in that provision, the report (and the recommendations and record, if any, attached to it) submitted by a planning authority in accordance with section 37E(4), any information furnished in accordance with section 37F(1) and any other relevant information before it relating to—

(i) the likely consequences of the proposed development for proper planning and sustainable development in the area in which it is proposed to situate the development, and

(ii) the likely effects on the environment of the proposed development,

(b) any report or recommendation prepared in relation to the application in accordance with section 146, including the report of the person conducting any oral hearing of the proposed development and the written record of any meeting referred to in section 37F(3),

(c) the provisions of the development plan or plans for the area,

(d) the provisions of any special amenity area order relating to the area,

(e) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(f) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(g) the matters referred to in section 143,

(h) any relevant provisions of this Act and of any regulations made under this Act.

(3) The Board may, in respect of an application under section 37E for permission—

(a) decide—

(i) to grant the permission, or

(ii) to make such modifications to the proposed development as it specifies in its decision and grant permission in respect of the proposed development as so modified, or

(iii) to grant permission in respect of part of the proposed development (with or without specified modifications of it of the foregoing kind),

or

(b) decide to refuse to grant the permission,

and a decision to grant permission under paragraph (a)(i), (ii) or (iii) may be subject to or without conditions.

(4) Where an application under section 37E relates to proposed development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board shall not, where it decides to grant permission, subject that permission to conditions which are for the purposes of—

(a) controlling emissions from the operation of the activity, including the prevention, limitation, elimination, abatement or reduction of those emissions, or

(b) controlling emissions related to or following the cessation of the operation or the activity.

(5) Where an application under section 37E relates to proposed development which comprises or is for the purposes of an activity for which an integrated pollution control licence or a waste licence is required, the Board may, in respect of that development, decide to refuse a grant of permission under this section, where the Board considers that the development, notwithstanding the licensing of the activity, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development will be situated.

(6) The Board may decide to grant a permission for development, or any part of a development, under this section even if the proposed development, or part thereof, contravenes materially the development plan relating to any area in which it is proposed to situate the development.

(7) Without prejudice to the generality of the Board’s powers to attach conditions under subsection (3) the Board may attach to a permission for development under this section—

(a) a condition with regard to any of the matters specified in section 34(4),

(b) a condition requiring the payment of a contribution or contributions of the same kind as the appropriate planning authority could require to be paid under section 48 or 49 (or both) were that authority to grant the permission (and the scheme or schemes referred to in section 48 or 49, as appropriate, made by that authority shall apply to the determination of such contribution or contributions),

(c) a condition requiring the applicant to submit further information to it or any other local or state authority, as the Board may specify before commencing development, or

(d) a condition requiring—

(i) the construction or the financing, in whole or in part, of the construction of a facility, or

(ii) the provision or the financing, in whole or in part, of the provision of a service,

in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a substantial gain to the community.

(8) A condition attached pursuant to subsection (7)(d) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the permission operates of the benefits likely to accrue from the grant of the permission.

(9) In subsection (7)(b) ‘ appropriate planning authority ’ means whichever planning authority would, but for the enactment of section 3 of the Planning and Development (Strategic Infrastructure) Act 2006, be the appropriate planning authority to grant the permission referred to in this section.

(10) The conditions attached under this section to a permission may provide that points of detail relating to the grant of the permission may be agreed between the planning authority or authorities in whose functional area or areas the development will be situate and the person carrying out the development; if that authority or those authorities and that person cannot agree on the matter the matter may be referred to the Board for determination.

(11) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005 , a reference, however expressed, in this section or sections 37H to 37J to the area in which the proposed development would be situated includes, if the context admits, a reference to the 2 or more areas in which the proposed development would be situated and cognate references shall be construed accordingly.

Section 37G: supplemental provisions.

37H.— (1) The Board shall send a copy of a decision under section 37G to the applicant, to any planning authority in whose area the development would be situated and to any person who made submissions or observations on the application for permission.

(2) A decision given under section 37G and the notification of the decision shall state—

(a) the main reasons and considerations on which the decision is based,

(b) where conditions are imposed in relation to the grant of any permission, the main reasons for the imposition of any such conditions, and

(c) the sum due to be paid to the Board towards the costs to the Board of determining the application under section 37E, and, in such amount as the Board considers to be reasonable, to any planning authority that incurred costs during the course of consideration of that application and to any other person as a contribution to the costs incurred by that person during the course of consideration of that application (each of which sums the Board may, by virtue of this subsection, require to be paid).

(3) A reference to costs in subsection (2)(c) shall be construed as a reference to such costs as the Board in its absolute discretion considers to be reasonable costs, but does not include a reference to so much of the costs there referred to as have been recovered by the Board by way of a fee charged under section 144.

(4) A grant of permission under section 37G shall be made as soon as may be after the making of the relevant decision but shall not become operative until any requirement made under subsection (2)(c) in relation to the payment by the applicant of a sum in respect of costs has been complied with.

(5) Where an applicant for permission fails to pay a sum in respect of costs in accordance with a requirement made under subsection (2)(c) the Board, the authority or any other person concerned (as may be appropriate) may recover the sum as a simple contract debt in any court of competent jurisdiction.

(6) A person shall not be entitled solely by reason of a permission under section 37G to carry out any development.

Regulations.

37I.— (1) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of—

(a) consultations under section 37B,

(b) the giving of an opinion under section 37D,

(c) applications for permission under section 37E, and

(d) decisions under section 37G.

(2) Without prejudice to the generality of subsection (1), regulations under this section may—

(a) make provision for matters of procedure in relation to the making of an application under section 37E, including the giving of public notice and the making of applications in electronic form, and

(b) make provision for matters of procedure relating to the making of observations by the Environmental Protection Agency under section 37F(5) and matters connected therewith.

Objective of the Board in relation to applications under section 37E.

37J.— (1) It shall be the duty of the Board, having regard to the special importance of applications relating to development that may fall within section 37A(2), to ensure that—

(a) consultations held on foot of a request under section 37B are completed, and

(b) a decision under section 37G on an application made under section 37E is made,

as expeditiously as is consistent with proper planning and sustainable development and, for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the holding of those consultations or the making of that decision.

(2) Without prejudice to the generality of subsection (1) and subject to subsections (3) to (6), it shall be the objective of the Board to ensure that a decision under section 37G on an application made under section 37E is made—

(a) within a period of 18 weeks beginning on the last day for making submissions or observations in accordance with the notice referred to in section 37E(3)(a), or

(b) within such other period as the Minister may prescribe either generally or in respect of a particular class or classes of matter.

(3) Where it appears to the Board that it would not be possible or appropriate, because of the particular circumstances of the matter with which the Board is concerned, to determine the matter within the period referred to in paragraph (a) or (b) of subsection (2) as the case may be, the Board shall, by notice in writing served on the applicant for permission, any planning authority involved and any other person who submitted submissions or observations in relation to the matter before the expiration of that period, inform the authority and those persons of the reasons why it would not be possible or appropriate to determine the matter within that period and shall specify the date before which the Board intends that the matter shall be determined.

(4) Where a notice has been served under subsection (3), the Board shall take all such steps as are open to it to ensure that the matter is determined before the date specified in the notice.

(5) The Minister may by regulations vary the period referred to in subsection (2)(a) either generally or in respect of a particular class or classes of applications referred to in section 37E, where it appears to him or her to be necessary, by virtue of exceptional circumstances, to do so and, for so long as the regulations are in force, this section shall be construed and have effect in accordance therewith.

(6) Where the Minister considers it to be necessary or expedient that a certain class or classes of application under section 37E that are of special strategic, economic or social importance to the State be determined as expeditiously as is consistent with proper planning and sustainable development, he or she may give a direction to the Board that priority be given to the determination of applications of the class or classes concerned, and the Board shall comply with such a direction.

(7) The Board shall include in each report made under section 118 a statement of the number of matters which the Board has determined within a period referred to in paragraph (a) or (b) of subsection (2) and such other information as to the time taken to determine such matters as the Minister may direct.

Nuclear installations: no development in respect of them authorised.

37K.— Nothing in this Act shall be construed as enabling the authorisation of development consisting of an installation for the generation of electricity by nuclear fission.”.

4 .— Part XI of the Principal Act is amended by inserting the following sections after section 182:

“Electricity transmission lines.

182A.— (1) Where a person (hereafter referred to in this section as the ‘undertaker’) intends to carry out development comprising or for the purposes of electricity transmission, (hereafter referred to in this section and section 182B as ‘proposed development’), the undertaker shall prepare, or cause to be prepared, an application for approval of the development under section 182B and shall apply to the Board for such approval accordingly.

(2) In the case of development referred to in subsection (1) which belongs to a class of development identified for the purposes of section 176, the undertaker shall prepare, or cause to be prepared, an environmental impact statement in respect of the development.

(3) The proposed development shall not be carried out unless the Board has approved it with or without modifications.

(4) Before an undertaker makes an application under subsection (1) for approval, it shall—

(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and—

(i) stating that—

(I) it proposes to seek the approval of the Board for the proposed development,

(II) in the case of an application referred to in subsection (1)(a), an environmental impact statement has been prepared in respect of the proposed development, and

(III) where relevant, the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or other party to the Transboundary Convention,

(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the application and any environmental impact statement may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),

(iii) inviting the making, during such period, of submissions and observations to the Board relating to—

(I) the implications of the proposed development for proper planning and sustainable development in the area or areas concerned, and

(II) the likely effects on the environment of the proposed development,

if carried out, and

(iv) specifying the types of decision the Board may make, under section 182B, in relation to the application,

(b) send a copy of the application and any environmental impact statement to the local authority or each local authority in whose functional area the proposed development would be situate and to the prescribed authorities together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to—

(i) the implications of the proposed development for proper planning and sustainable development in the area or areas concerned, and

(ii) the likely effects on the environment of the proposed development,

if carried out, and

(c) where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of copies of the application and the environmental impact statement to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board.

(5) The Board may—

(a) if it considers it necessary to do so, require an undertaker that has applied for approval for a proposed development to furnish to the Board such further information in relation to—

(i) the effects on the environment of the proposed development, or

(ii) the consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said development of such development,

as the Board may specify, or

(b) if it is provisionally of the view that it would be appropriate to approve the proposed development were certain alterations (specified in the notification referred to in this paragraph) to be made to the terms of it, notify the statutory undertaker that it is of that view and invite the undertaker to make to the terms of the proposed development alterations specified in the notification and, if the undertaker makes those alterations, to furnish to it such information (if any) as it may specify in relation to the development, in the terms as so altered, or, where necessary, a revised environmental impact statement in respect of it.

(6) If an undertaker makes the alterations to the terms of the proposed development specified in a notification given to it under subsection (5), the terms of the development as so altered shall be deemed to be the proposed development for the purposes of this section and section 182B.

(7) The Board shall—

(a) where it considers that any further information received pursuant to a requirement made under subsection (5)(a) contains significant additional data relating to—

(i) the likely effects on the environment of the proposed development, and

(ii) the likely consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said development of such development,

or

(b) where the undertaker has made the alterations to the terms of the proposed development specified in a notification given to it under subsection (5)(b),

require the undertaker to do the things referred to in subsection (8).

(8) The things which an undertaker shall be required to do as aforesaid are—

(a) to publish in one or more newspapers circulating in the area or areas in which the proposed development would be situate a notice stating that, as appropriate—

(i) further information in relation to the proposed development has been furnished to the Board, or

(ii) the undertaker has, pursuant to an invitation of the Board, made alterations to the terms of the proposed development (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the development as so altered or a revised environmental impact statement in respect of the development has been furnished to the Board,

indicating the times at which, the period (which shall not be less than 3 weeks) during which and the place, or places, where a copy of the information or the environmental impact statement referred to in subparagraph (i) or (ii) may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to that information or statement may be made to the Board before the expiration of the indicated period, and

(b) to send to each prescribed authority to which a notice was given pursuant to subsection (4)(b) or (c)—

(i) a notice of the furnishing to the Board of, as appropriate, the further information referred to in paragraph (a)(i) or the information or statement referred to in paragraph (a)(ii), and

(ii) a copy of that further information, information or statement,

and to indicate to the authority that submissions or observations in relation to that further information, information or statement may be made to the Board before the expiration of a period (which shall be not less than 3 weeks) beginning on the day on which the notice is sent to the prescribed authority by the undertaker.

(9) In this section ‘ transmission’, in relation to electricity, shall be construed in accordance with section 2(1) of the Electricity Regulation Act 1999 but, for the purposes of this section, the foregoing expression, in relation to electricity, shall also be construed as meaning the transport of electricity by means of—

(a) a high voltage line where the voltage would be 110 kilovolts or more, or

(b) an interconnector, whether ownership of the interconnector will be vested in the undertaker or not.

Section 182A: criteria for decision, certain exemptions, etc.

182B.— (1) Before making a decision in respect of a proposed development the subject of an application under section 182A, the Board shall consider—

(a) the environmental impact statement submitted pursuant to section 182A(1) or (5), any submissions or observations made in accordance with section 182A(4) or (8) and any other information furnished in accordance with section 182A(5) relating to—

(i) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the proposed development of such development, and

(ii) the likely effects on the environment of the proposed development,

and

(b) the report and any recommendations of a person conducting any oral hearing relating to the proposed development.

(2) The Board may, where it is satisfied that exceptional circumstances so warrant, grant an exemption in respect of a proposed development from a requirement under section 182A(2) to prepare an environmental impact statement except that no exemption may be granted in respect of proposed development where another Member State of the European Communities or a state which is a party to the Transboundary Convention has indicated that it wishes to furnish views on the effects on the environment in that Member State or state of the proposed development.

(3) The Board shall, in granting an exemption under subsection (2), consider whether—

(a) the effects, if any, of the proposed development on the environment should be assessed in some other manner, and

(b) the information arising from such an assessment should be made available to the members of the public,

and it may apply such requirements regarding these matters in relation to the application for approval as it considers necessary or appropriate.

(4) Notice of any exemption granted under subsection (2), of the reasons for granting the exemption, and of any requirements applied under subsection (3) shall, as soon as may be—

(a) be published in Iris Oifigiúil and in at least one daily newspaper published in the State, and

(b) be given, together with a copy of the information, if any, made available to the members of the public in accordance with subsection (3) to the Commission of the European Communities.

(5) The Board may, in respect of an application under section 182A for approval of proposed development—

(a) approve the proposed development,

(b) make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,

(c) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or

(d) refuse to approve the proposed development,

and may attach to an approval under paragraph (a), (b) or (c) such conditions as it considers appropriate.

(6) Without prejudice to the generality of the foregoing power to attach conditions, the Board may attach to an approval under subsection (5)(a), (b) or (c) a condition requiring—

(a) the construction or the financing, in whole or in part, of the construction of a facility, or

(b) the provision or the financing, in whole or in part, of the provision of a service,

in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a substantial gain to the community.

(7) A condition attached pursuant to subsection (6) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the approval under this section operates of the benefits likely to accrue from the grant of the approval.

(8) The Minister may make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications under section 182A for approval.

(9) Without prejudice to the generality of subsection (8), regulations under that subsection may require the Board to give information in respect of its decision regarding the proposed development for which approval is sought.

(10) In considering under subsection (1) information furnished relating to the likely consequences for proper planning and sustainable development of a proposed development in the area in which it is proposed to situate such development, the Board shall have regard to—

(a) the provisions of the development plan for the area,

(b) the provisions of any special amenity area order relating to the area,

(c) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(d) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(e) the matters referred to in section 143, and

(f) the provisions of this Act and regulations under this Act where relevant.

(11) (a) No permission under section 34 or 37G shall be required for any development which is approved under this section.

(b) Part VIII shall apply to any case where development referred to in section 182A(1) is carried out otherwise than in compliance with an approval under this section or any condition to which the approval is subject as it applies to any unauthorised development with the modification that a reference in that Part to a permission shall be construed as a reference to an approval under this section.

(12) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005 , a reference, however expressed, in this section to the area in which the proposed development would be situated includes, if the context admits, a reference to the 2 or more areas in which the proposed development would be situated and cognate references shall be construed accordingly.

Application for approval of strategic gas infrastructure development.

182C.— (1) Where a person (hereafter referred to in this section as the ‘undertaker’) intends to carry out a strategic gas infrastructure development (hereafter referred to in this section and section 182D as ‘proposed development’), the undertaker shall prepare, or cause to be prepared—

(a) an application for approval of the development under section 182D, and

(b) an environmental impact statement in respect of the development,

and shall apply to the Board for such approval accordingly, indicating in the application whether the application relates to a strategic upstream gas pipeline or a strategic downstream gas pipeline.

(2) An application under subsection (1) for approval of a proposed development shall, if it will consist of or include a pipeline, be accompanied by a certificate in relation to the pipeline provided under section 26 of the Gas Act 1976 , as amended, or section 20 of the Gas (Amendment) Act 2000 by—

(a) in the case of a strategic upstream gas pipeline, the Minister for Communications, Marine and Natural Resources, or

(b) in the case of a strategic downstream gas pipeline, the Commission.

(3) The proposed development shall not be carried out unless the Board has approved it with or without modifications.

(4) Before an undertaker makes an application for approval under subsection (1), it shall—

(a) publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and—

(i) stating that—

(I) it proposes to seek the approval of the Board for the proposed development,

(II) an environmental impact statement has been prepared in respect of the proposed development, and

(III) where relevant, the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or other party to the Transboundary Convention,

(ii) specifying the times and places at which, and the period (not being less than 6 weeks) during which, a copy of the application and the environmental impact statement may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),

(iii) inviting the making, during such period, of submissions and observations to the Board relating to—

(I) the implications of the proposed development for proper planning and sustainable development in the area or areas concerned, and

(II) the likely effects on the environment of the proposed development,

if carried out, and

(iv) specifying the types of decision the Board may make, under section 182D, in relation to the application,

and

(b) send a copy of the application and the environmental impact statement to—

(i) the local authority or each local authority in whose functional area the proposed development would be situate,

(ii) any prescribed bodies,

(iii) where the proposed development comprises or is for the purposes of a strategic downstream gas pipeline, the Commission, and

(iv) where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, the prescribed body of the relevant state or states,

together with a notice stating that submissions or observations may, during the period referred to in paragraph (a)(ii), be made in writing to the Board in relation to—

(I) the implications of the proposed development for proper planning and sustainable development in the area concerned, and

(II) the likely effects on the environment of the proposed development,

if carried out.

(5) The Board may—

(a) if it considers it necessary to do so, require an undertaker that has applied for approval for a proposed development to furnish to the Board such further information in relation to—

(i) the effects on the environment of the proposed development, or

(ii) the consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said development of such development,

as the Board may specify, or

(b) if it is provisionally of the view that it would be appropriate to approve the proposed development were certain alterations (specified in the notification referred to in this paragraph) to be made to the terms of it, notify the undertaker that it is of that view and invite the undertaker to make to the terms of the proposed development alterations specified in the notification and, if the undertaker makes those alterations, to furnish to it such information (if any) as it may specify in relation to the development, in the terms as so altered, or, where necessary, a revised environmental impact statement in respect of it.

(6) If an undertaker makes the alterations to the terms of the proposed development specified in a notification given to it under subsection (5), the terms of the development as so altered shall be deemed to be the proposed development for the purposes of this section and section 182D.

(7) The Board shall—

(a) where it considers that any further information received pursuant to a requirement made under subsection (5)(a) contains significant additional data relating to—

(i) the likely effects on the environment of the proposed development, and

(ii) the likely consequences for proper planning and sustainable development in the area or areas in which it is proposed to situate the said development of such development,

or

(b) where the undertaker has made the alterations to the terms of the proposed development specified in a notification given to it under subsection (5)(b),

require the undertaker to do the things referred to in subsection (8).

(8) The things which an undertaker shall be required to do as aforesaid are—

(a) to publish in one or more newspapers circulating in the area or areas in which the proposed development would be situate a notice stating that, as appropriate—

(i) further information in relation to the proposed development has been furnished to the Board, or

(ii) the undertaker has, pursuant to an invitation of the Board, made alterations to the terms of the proposed development (and the nature of those alterations shall be indicated) and, if it be the case, that information in relation to the terms of the development as so altered or a revised environmental impact statement in respect of the development has been furnished to the Board,

indicating the times at which, the period (which shall not be less than 3 weeks) during which and the place, or places, where a copy of the information or the environmental impact statement referred to in subparagraph (i) or (ii) may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy) and that submissions or observations in relation to that information or statement may be made to the Board before the expiration of the indicated period, and

(b) to send to each prescribed authority to which a notice was given pursuant to subsection (4)(b)—

(i) a notice of the furnishing to the Board of, as appropriate, the further information referred to in paragraph (a)(i) or the information or statement referred to in paragraph (a)(ii), and

(ii) a copy of that further information, information or statement,

and to indicate to the authority that submissions or observations in relation to that further information, information or statement may be made to the Board before the expiration of a period (which shall be not less than 3 weeks) beginning on the day on which the notice is sent to the prescribed authority by the undertaker.

(9) In the case of a proposed development comprising or for the purposes of a strategic downstream pipeline, the Board shall request the Commission to make observations within such period (which period shall not be less than 3 weeks from the date of the request) as may be specified by the Board in relation to the proposed development, including observations in relation to any safety or operational matters.

(10) The Minister, after consultation with the Minister for Communications, Marine and Natural Resources, may make regulations to provide for matters of procedure in relation to the making of a request of the Commission under subsection (9) and the making of observations by the Commission on foot of such a request.

(11) In this section ‘Commission’ means the Commission for Energy Regulation.

Section 182C: criteria for decision, certain exemptions, etc.

182D.— (1) Before making a decision in respect of a proposed development the subject of an application under section 182C, the Board shall consider—

(a) the environmental impact statement submitted pursuant to section 182C(1) or (5), any submissions or observations made in accordance with section 182C(4), (8) or (9) and any other information furnished in accordance with section 182C(5) relating to—

(i) the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the proposed development of such development, and

(ii) the likely effects on the environment of the proposed development,

and

(b) the report and any recommendations of a person conducting any oral hearing relating to the proposed development.

(2) The Board may where it is satisfied that exceptional circumstances so warrant, grant an exemption in respect of proposed development from a requirement under section 182C(1) to prepare an environmental impact statement except that no exemption may be granted in respect of proposed development where another Member State of the European Communities or a state which is a party to the Transboundary Convention has indicated that it wishes to furnish views on the effects on the environment in that Member State or state of the proposed development.

(3) The Board shall, in granting an exemption under subsection (2), consider whether—

(a) the effects, if any, of the proposed development on the environment should be assessed in some other manner, and

(b) the information arising from such an assessment should be made available to the members of the public,

and it may apply such requirements regarding these matters in relation to the application for approval as it considers necessary or appropriate.

(4) Notice of any exemption granted under subsection (2), of the reasons for granting the exemption, and of any requirements applied under subsection (3) shall, as soon as may be—

(a) be published in Iris Oifigiúil and in at least one daily newspaper published in the State, and

(b) be given, together with a copy of the information, if any, made available to the members of the public in accordance with subsection (3), to the Commission of the European Communities.

(5) The Board may, in respect of an application under section 182C for approval of proposed development—

(a) approve the proposed development,

(b) make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,

(c) approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or

(d) refuse to approve the proposed development,

and may attach to an approval under paragraph (a), (b) or (c) such conditions as it considers appropriate.

(6) Without prejudice to the generality of the foregoing power to attach conditions, the Board may attach to an approval under subsection (5)(a), (b) or (c) a condition requiring—

(a) the construction or the financing, in whole or in part, of the construction of a facility, or

(b) the provision or the financing, in whole or in part, of the provision of a service,

in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a substantial gain to the community.

(7) A condition attached pursuant to subsection (6) shall not require such an amount of financial resources to be committed for the purposes of the condition being complied with as would substantially deprive the person in whose favour the approval under this section operates of the benefits likely to accrue from the grant of the approval.

(8) The Minister may, after consultation with the Minister for Communications, Marine and Natural Resources, make regulations to provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications under section 182C for approval.

(9) Without prejudice to the generality of subsection (8), regulations under that subsection may require the Board to give information in respect of its decision regarding the proposed development for which approval is sought.

(10) In considering under subsection (1) information furnished relating to the likely consequences for proper planning and sustainable development of a proposed development in the area in which it is proposed to situate such development, the Board shall have regard to—

(a) the provisions of the development plan for the area,

(b) the provisions of any special amenity area order relating to the area,

(c) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(d) if the proposed development would have an effect on a European site or an area prescribed for the purposes of section 10(2)(c), that fact,

(e) the matters referred to in section 143, and

(f) the provisions of this Act and regulations under this Act where relevant.

(11) (a) No permission under section 34 or 37G shall be required for any development which is approved under this section.

(b) Part VIII shall apply to any case where development referred to in section 182C(1) is carried out otherwise than in compliance with an approval under this section or any condition to which the approval is subject as it applies to any unauthorised development with the modification that a reference in that Part to a permission shall be construed as a reference to an approval under this section.

(12) Without prejudice to the generality of section 18(a) of the Interpretation Act 2005 , a reference, however expressed, in this section to the area in which the proposed development would be situated includes, if the context admits, a reference to the 2 or more areas in which the proposed development would be situated and cognate references shall be construed accordingly.

Procedures in advance of seeking approval under section 182B or 182D.

182E.— (1) A person (a ‘prospective applicant’) who proposes to apply for approval under section 182B or 182D shall, before making the application, enter into consultations with the Board in relation to the proposed development.

(2) In any consultations under subsection (1), the Board may give advice to the prospective applicant regarding the proposed application and, in particular, regarding—

(a) the procedures involved in making such an application, and

(b) what considerations, related to proper planning and sustainable development or the environment, may, in the opinion of the Board, have a bearing on its decision in relation to the application.

(3) A prospective applicant may request the Board to give to him or her an opinion in writing prepared by the Board on what information will be required to be contained in an environmental impact statement in relation to the proposed development; on receipt of such a request the Board, after consulting the prospective applicant and such bodies as may be specified by the Minister for the purpose, shall comply with it as soon as is practicable.

(4) A prospective applicant shall, for the purposes of—

(a) consultations under subsection (1), and

(b) the Board's complying with a request under subsection (3),

supply to the Board sufficient information in relation to the proposed development so as to enable the Board to assess the proposed development.

(5) Neither—

(a) the holding of consultations under subsection (1), nor

(b) the provision of an opinion under subsection (3),

shall prejudice the performance by the Board of any other of its functions under this Act or regulations under this Act, or any other enactment and cannot be relied upon in the formal planning process or in legal proceedings.

(6) The Board shall keep a record in writing of any consultations under this section in relation to a proposed development, including the names of those who participated in the consultations, and a copy of such record shall be placed and kept with the documents to which any application in respect of the proposed development relates.

(7) The Board may, at its absolute discretion, consult with any person who may, in the opinion of the Board, have information which is relevant for the purposes of consultations under this section in relation to a proposed development.”.

5 .— The Principal Act is amended by inserting the following Schedule after the Sixth Schedule:

Section 37A.

“SEVENTH SCHEDULE

Infrastructure Developments for the purposes of sections 37A and 37B

Energy Infrastructure

1.— Development comprising or for the purposes of any of the following:

—An installation for the onshore extraction of petroleum or natural gas.

—A crude oil refinery (excluding an undertaking manufacturing only lubricants from crude oil) or an installation for the gasification and liquefaction of 500 tonnes or more of coal or bituminous shale per day.

—A thermal power station or other combustion installation with a total energy output of 300 megawatts or more.

—An industrial installation for the production of electricity, steam or hot water with a heat output of 300 megawatts or more.

—An industrial installation for carrying gas, steam or hot water with a potential heat output of 300 megawatts or more, or transmission of electrical energy by overhead cables, where the voltage would be 220 kilovolts or more, but excluding any proposed development referred to in section 182A(1).

—An oil pipeline and any associated terminals, buildings and installations, where the length of the pipeline (whether as originally provided or as extended) would exceed 20 kilometres.

—An installation for surface storage of natural gas, where the storage capacity would exceed 200 tonnes.

—An installation for underground storage of combustible gases, where the storage capacity would exceed 200 tonnes.

—An installation for the surface storage of oil or coal, where the storage capacity would exceed 100,000 tonnes.

—An installation for hydroelectric energy production with an output of 300 megawatts or more, or where the new or extended superficial area of water impounded would be 30 hectares or more, or where there would be a 30 per cent change in the maximum, minimum or mean flows in the main river channel.

—An installation for the harnessing of wind power for energy production (a wind farm) with more than 50 turbines or having a total output greater than 100 megawatts.

—An onshore terminal, building or installation, whether above or below ground, associated with a natural gas storage facility, where the storage capacity would exceed 1mscm.

—An onshore terminal, building or installation, whether above or below ground, associated with an LNG facility and, for the purpose of this provision, ‘LNG facility’ means a terminal which is used for the liquefaction of natural gas or the importation, offloading and re-gasification of liquefied natural gas, including ancillary services.

Transport Infrastructure

2.— Development comprising or for the purposes of any of the following:

—An intermodal transhipment facility, an intermodal terminal or a passenger or goods facility which, in each case, would exceed 5 hectares in area.

—A terminal, building or installation associated with a long-distance railway, tramway, surface, elevated or underground railway or railway supported by suspended lines or similar lines of a particular type, used exclusively or mainly for passenger transport, but excluding any proposed railway works referred to in section 37(3) of the Transport (Railway Infrastructure) Act 2001 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006).

—An airport (with not less than 2 million instances of passenger use per annum) or any runway, taxiway, pier, car park, terminal or other facility or installation related to it (whether as regards passenger traffic or cargo traffic).

—A harbour or port installation—

(a) where the area or additional area of water enclosed would be 20 hectares or more, or

(b) which would involve the reclamation of 5 hectares or more of land, or

(c) which would involve the construction of one or more quays which or each of which would exceed 100 metres in length, or

(d) which would enable a vessel of over 1350 tonnes to enter within it.

Environmental Infrastructure

3.— Development comprising or for the purposes of any of the following:

—A waste disposal installation for—

(a) the incineration, or

(b) the chemical treatment (within the meaning of Annex IIA to Council Directive 75/442/EEC ¹ under heading D9), or

(c) the landfill,

of hazardous waste to which Council Directive 91/689/EEC ² applies (other than an industrial waste disposal installation integrated into a larger industrial facility).

—A waste disposal installation for—

(a) the incineration, or

(b) the chemical treatment (within the meaning of Annex IIA to Council Directive 75/442/EEC under heading D9),

of non-hazardous waste with a capacity for an annual intake greater than 100,000 tonnes.

—An installation for the disposal, treatment or recovery of waste with a capacity for an annual intake greater than 100,000 tonnes.

—A groundwater abstraction or artificial groundwater recharge scheme, where the annual volume of water abstracted or recharged is equivalent to or exceeds 2 million cubic metres.

—Any works for the transfer of water resources between river basins, where the annual volume of water abstracted or recharged would exceed 2 million cubic metres.

—A waste water treatment plant with a capacity greater than a population equivalent of 10,000 and, for the purpose of this provision, population equivalent shall be determined in accordance with Article 2, point 6, of Council Directive 91/271/EEC ³ .

—A sludge-deposition site with the capacity for the annual deposition of 50,000 tonnes of sludge (wet).

—Any canalisation or flood relief works where—

(a) the immediate contributing sub-catchment of the proposed works (namely the difference between the contributing catchments at the upper and lower extent of the works) would exceed 1000 hectares, or

(b) more than 20 hectares of wetland would be affected, or

(c) the length of river channel on which works are proposed would be greater than 2 kilometres.

—A dam or other installation designed for the holding back or the permanent or long-term storage of water, where the new or extended area of water impounded would be 30 hectares or more or where a new or additional amount of water held back or stored would exceed 10 million cubic metres.

—An installation of overground aqueducts each of which would have a diameter of 1,000 millimetres or more and a length of 500 metres or more.

—Any coastal works to combat erosion or maritime works capable of altering the coast through the construction, for example, of dikes, moles, jetties and other sea defence works, where in each case the length of coastline on which the works would take place would exceed 1 kilometre, but excluding the maintenance or reconstruction of such works or works required for emergency purposes.”.

¹O.J. No. L194/39 25.7.1975

²O.J. No. L377/20 31.12.1991

³O.J. No. L135/40 30.5.1991