Planning for energy infrastructure
Philip Green, Assistant Director of Planning at An Bord Pleanála, explained its approach to energy infrastructure at an eolas seminar on this increasingly important policy area. Large scale projects of common interest will feature prominently in debates up to 2020.
An Bord Pleanála is increasingly in the public spotlight as debates around energy infrastructure become more intense. Speaking at eolas’ energy infrastructure seminar, the board’s Assistant Director Philip Green explained its processes for handling energy-related applications and also highlighted how a strategic European perspective is playing a growing role in how projects are delivered.
Energy infrastructure cases, Green explained, reach An Bord Pleanála in one of three ways:
1. appeals of decisions made by individual planning authorities;
2. the strategic infrastructure provisions of the Planning Acts; and
3. the body’s new function as the competent authority for projects of common interest (under EU Regulation 347/2013).
The first process allows for first and third party appeals once a decision has been made a local authority. An Bord Pleanála will make its determination, which in turn can be judicially reviewed. Public participation takes place at the local authority and appeals stages.
Strategic applications
The Planning and Development (Strategic Infrastructure) Act 2006 allowed for direct applications to An Bord Pleanála for projects deemed to be of strategic importance. Green explained: “It sought the expeditious determination of complex applications – a one-stop shop in effect which took out the role of the local authority as an application-determining body.” The Act came into effect in 2007 and the first decisions were issued in 2008.
This is similar to its pre-existing role in determining local authority projects that required an environmental impact assessment (EIA) and to its role (since 2010) in appropriate assessment cases.
Pre-application consultation takes place before the application is submitted. The application may or may not go to an oral hearing but the planning authority report will be a significant element of the case. The inspector, assisted by a technical consultant where necessary, makes his or her report to An Bord Pleanála and a decision is made by its Strategic Infrastructure Division. Again, this is also subject to a potential judicial review.
Energy projects considered by the Strategic Infrastructure Division are assessed according to three criteria:
1. whether the development is of strategic economic or social importance to the State or the region;
2. whether it contributes substantially to fulfilment of National Spatial Strategy objectives or any regional spatial and economic strategy in force; and
3. whether it has a significant effect on the area of more than one planning authority.
The 2006 Act added a seventh schedule to the Planning and Development Act 2000, which categorises energy and environmental planning applications. These include wind farms exceeding 25 turbines and with an output greater than 50MW. In addition, Section 182 of the 2000 Act refers to electricity transmission lines and strategic gas infrastructure projects.
Pre-application consultations are mandatory and have a limited scope i.e. to review procedures and relevant considerations. “We cannot pre-determine at these meetings the merits of the case,” Green stated. “It is the opportunity for the board to highlight issues which may be of concern, procedures to be followed and requirements regarding public consultations.”
Third parties are not specifically included at this point but the board does advise applicants to consult with the public, local authorities and other relevant bodies. The whole application file will be made public when complete, including the written records of the pre-application meetings.
A new applicant will meet a team from An Bord Pleanála, including a Director or Assistant Director, the reporting inspector and two administrators: one to advise on procedures and another to take minutes.
“I would strongly recommend that the project is worked up to a degree where you are fairly set in what you’re seeking to do,” Green commented. “Some of the initial cases that came into the board were very sparse and led to delays in the project. In fact, some of them are still ongoing.”
Environmental impact statement (EIS) scoping is discretionary at the request of the prospective applicant but oral hearings are at the discretion of the board.
He added: “It cannot be taken for granted that an oral hearing will be held in every [strategic infrastructure] case therefore full submissions need to be made in writing.” These submissions also need to be made directly by the applicants along with all the survey work and relevant documentation.
Likewise, persons who wish to make a submission on an application must make it in full, in writing and at the right time: “You can’t think of the oral hearing as a mechanism by which you expand your case or introduce more issues. That only causes delay and there is no guarantee that the opportunity is going to be made available.”
Even if an oral hearing does take place, An Bord Pleanála can limit its agenda e.g. where an inspector is satisfied that certain issues can be ruled out. The report can be quite lengthy, due to the complexity of the issues raised and the potential inclusion of an appropriate assessment and/or EIA. The “precise minutiae” of the board’s decision is explained in detail.
The State’s planning system is open to third parties and observations are invited at all stages in the process. All submissions are seriously considered and they can result in modifications and refusals.
Energy projects
An analysis of 33 energy-related projects shows that the following issues were important considerations in how they were decided:
• European directives and judgements;
• national and regional policy and guidance framework (or its absence);
• county development plan provisions (including wind energy strategies);
• EIAs and appropriate assessments; and
• local or site-specific issues e.g. water pollution, landscape impact, land slippage and road infrastructure.
The influence of EU legislation and judgments by the European Court of Justice is growing. An Bord Pleanála is keen to point out that it does not conduct strategic environmental assessments – a common misunderstanding in submissions from the public.
Looking forward, the board wants to see more plan-led development, achieved through the further development of national and regional policy on climate, energy and waste. Two Planning Bills were “in the pipeline” along with legislation on the foreshore.
Robust decisions would remain necessary. Green expected to see increased public interest and involvement in (and awareness of) energy projects and also increasing litigation or judicial review, especially regarding environmental issues.
The PCI process
Projects of common interest (PCIs) are designed to modernise Europe’s energy infrastructure and it encourages member states to streamline their permitting processes for these cases. PCIs cross boundaries and are identified on a central EU-wide list.
Green commented: “People may see it as an extra tier of bureaucracy but it does have certain advantages in identifying time limits and bringing various state agencies together to collate all the decisions that a project promoter may require.” The end product should be “a comprehensive decision”.
The EU prioritises ‘corridors’ of electricity, gas and oil infrastructure and ‘thematic areas’ such as smart grids, electricity highways, and carbon capture and storage projects.
An Bord Pleanála issues the permits for PCIs but has no role in identifying which projects should be considered as PCIs. This is done by regional bodies, which comprise representatives from member states, the European Commission, transmission system operators, project promoters and regulators.
The board is accountable to the Department of Communications, Energy and Natural Resources for this aspect of its work and the process is being driven by the Commission’s Directorate-General for Energy.
Some clear benefits for applicants stand out:
• financial assistance for studies and works;
• a single co-ordinating body for the project;
• a requirement for statutory consent applications to run in parallel; and
• priority status being given at a national level.
The necessity of a project from an energy policy perspective can be established without prejudice to its exact location, routing or technology. When certain conditions are met, authorisation should be given where the public interest overrides an adverse impact on the environment.
A promoter is required to lodge a ‘public participation concept’ with An Bord Pleanála, which will set out what the promoter will do in terms of participation before and after the application is lodged. The board can approve or modify that concept or enter into trans-boundary co-ordination.
“We get three-and-a-half years to run through the project from initial inception, when we receive the notification, up until the permit is finally issued,” Green continued. The pre-application stage covers two years with the application stage taking up to one-and-a-half years. The Regulation allows for a nine-month extension where necessary.
An Bord Pleanála effectively acts as an umbrella group for all permitting agencies (e.g. the Environmental Protection Agency and Health and Safety Authority) and must co-ordinate its approach with them.
Applicants and other interested parties are encouraged to consult the board’s projects of common interest manual. Promoters will be required to present an annual project report once a year and the board is itself required to submit annual reports to regional groups on progress or delays. The PCI process aims to deliver 248 key energy infrastructure projects across Europe up to 2020. Affirming the process, outgoing Energy Commissioner Günther Oettinger has said it will help to “quickly build the infrastructure we need to ensure Europe’s energy security.” Oettinger added that crisis situations “highlighted the need to better connect energy networks” and interconnection was also “crucial for an integrated energy market where consumers get the best value for their money.”
Ireland’s PCIs
• Sub-sea interconnector (700MW) between Brittany and County Cork
• Renewable energy export sources to Britain (up to 6GW)
• Hydroelectricity storage projects (96GWh per day) and connections to England
• North/South electricity interconnector (768MW)
• Projects that facilitate bi-directional flows of gas and electricity
(e.g. upgraded Scotland-Northern Ireland Pipeline and Islandmagee Gas Storage Project)
• Shannon liquefied natural gas terminal (117GWh per day)
• North Atlantic Green Zone (cross-border smart grid project)
Figures refer to planned capacity
Source: ec.europa.eu/energy/infrastructure
