Planning and Development (Strategic Infrastructure) Act 2006
|
Amendment of Transport (Railway Infrastructure) Act 2001. |
49.— The Transport (Railway Infrastructure) Act 2001 is amended— | |
(a) in section 2— | ||
(i) in the definition of “environmental impact statement”, by substituting “section 37(3)(e)” for “section 37(2)(d)”, | ||
(ii) by inserting after the definition of “planning authority” the following definition: | ||
“ ‘ prescribed ’, in Part 3, means prescribed by regulations made by the Minister for the Environment, Heritage and Local Government;”, | ||
and | ||
(iii) in the definition of “railway undertaking”, by substituting “section 43(5)” for “section 43(6)”, | ||
and | ||
(b) by substituting the following sections for sections 37 to 47 (as amended by the Railway Safety Act 2005 ): | ||
“Application for a railway order. | ||
37.— (1) The Agency, CIÉ, or any other person with the consent of the Agency, may apply to An Bord Pleanála (referred to subsequently in this Act as the ‘Board’) for a railway order. | ||
(2) An application under subsection (1) shall specify if it is as a light rail, a metro or otherwise that the applicant desires the railway concerned be designated by the order. | ||
(3) An application under subsection (1) shall be made in writing in such form as the Minister may specify and shall be accompanied by— | ||
(a) a draft of the proposed order, | ||
(b) a plan of the proposed railway works, | ||
(c) in the case of an application by the Agency or a person with the consent of the Agency, a plan of any proposed commercial development of land adjacent to the proposed railway works, | ||
(d) a book of reference to a plan required under this subsection (indicating the identity of the owners and of the occupiers of the lands described in the plan), and | ||
(e) a statement of the likely effects on the environment (referred to subsequently in this Part as an ‘environmental impact statement’) of the proposed railway works, | ||
and a draft plan and book of reference shall be in such form as the Minister may specify or in a form to the like effect. | ||
(4) The construction of railway works, the subject of an application for a railway order under this Part, shall not be undertaken unless the Board has granted an order under section 43. | ||
Exempted development. | ||
38.— Each of the following shall be exempted development for the purposes of the Act of 2000: | ||
(a) development consisting of the carrying out of railway works, including the use of the railway works or any part thereof for the purposes of the operation of a railway, authorised by the Board and specified in a railway order or of any incidental or temporary works connected with such development; | ||
(b) development consisting of the carrying out of railway works for the maintenance, improvement or repair of a railway that has been built pursuant to a railway order. | ||
Environmental impact statement. | ||
39.— (1) An environmental impact statement shall contain the following information: | ||
(a) a description of the proposed railway works comprising information on the site, design and size of the proposed railway works; | ||
(b) a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects; | ||
(c) the data required to identify and assess the main effects which the proposed railway works are likely to have on the environment; | ||
(d) an outline of the main alternatives studied by the applicant and an indication of the main reasons for its choice, taking into account the environmental effects; and | ||
(e) a summary in non-technical language of the above information. | ||
(2) An environmental impact statement shall, in addition to and by way of explanation or amplification of the specified information referred to in subsection (1), contain further information on the following matters: | ||
(a) (i) a description of the physical characteristics of the whole proposed railway works and the land-use requirements during the construction and operational phases, | ||
(ii) an estimate, by type and quantity, of the expected residues and emissions (including water, air and soil pollution, noise, vibration, light, heat and radiation) resulting from the operation of the proposed railway works; | ||
(b) a description of the aspects of the environment likely to be significantly affected by the proposed railway works, including in particular— | ||
(i) human beings, fauna and flora, | ||
(ii) soil, water, air, climatic factors and the landscape, | ||
(iii) material assets, including the architectural and archaeological heritage, and the cultural heritage, | ||
(iv) the inter-relationship between the matters referred to in this paragraph; | ||
(c) a description of the likely significant effects (including direct, indirect, secondary, cumulative, short, medium and long-term, permanent and temporary, positive and negative) of the proposed railway works on the environment resulting from— | ||
(i) the existence of the proposed railway works, | ||
(ii) the use of natural resources, | ||
(iii) the emission of pollutants, the creation of nuisances and the elimination of waste, | ||
and a description of the forecasting methods used to assess the effects on the environment; | ||
(d) an indication of any difficulties (technical deficiencies or lack of know-how) encountered by the applicant in compiling the required information; and | ||
(e) a summary in non-technical language of the above information, | ||
to the extent that such information is relevant to a given stage of the consent procedure and to the specific characteristics of the railway works or type of railway works concerned, and of the environmental features likely to be affected, and the applicant may reasonably be required to compile such information having regard, amongst other things, to current knowledge and methods of assessment. | ||
(3) (a) If a person, before applying to the Board for a railway order, so requests, the Board shall, after consulting the person and such bodies as may be specified by the Minister for the Environment, Heritage and Local Government for that purpose, give a written opinion on the information to be contained in an environmental impact statement. | ||
(b) The giving of a written opinion in accordance with this subsection shall not prejudice the exercise by the Board of its powers pursuant to this Act to require an applicant to furnish further information in relation to the effects on the environment of the proposed railway works. | ||
(4) The European Communities (Environmental Impact Assessment) Regulations 1989 to 2005 and the Act of 2000 and any regulation made thereunder in relation to environmental impact assessment shall not apply to anything done under an order made under this Act. | ||
Publication of notice in relation to application for railway order. | ||
40.— (1) Before an application is made for a railway order, the applicant shall— | ||
(a) deposit and keep deposited at such place or places, being a place or places which is or are easily accessible to the public, as may be appointed by the Board, a copy of the draft order and all documents which will accompany the application, for not less than 6 weeks following the publication of the notice referred to in paragraph (b), | ||
(b) publish a notice in one or more newspapers circulating in the area to which the order relates— | ||
(i) indicating that an application will be made for an order, | ||
(ii) indicating the time and the place or places at which, and the period (which shall be 6 weeks) during which, a copy of the draft order and accompanying documents deposited under this section may be inspected, | ||
(iii) stating that the Board will consider any submissions in relation to the proposed order or in relation to the likely effects on the environment of the proposed railway works which are submitted in writing to it by any person within the period referred to in subparagraph (ii), | ||
(iv) stating that a copy of or extract from the draft order and accompanying documents may be purchased on payment of a fee not exceeding the reasonable cost of making such copy or extract, and | ||
(v) stating, if it be the case, that the proposed railway works are likely to have significant effects on the environment in Northern Ireland, | ||
(c) serve on the planning authority in whose functional area (or any part thereof) the proposed railway works are proposed to be carried out, on the Minister and on such other persons (if any) as the Board may direct a copy of the draft order and accompanying documents and the notice referred to in paragraph (b), | ||
(d) serve a copy of the notice referred to in paragraph (b) together with relevant extracts from the documents referred to in paragraph (a) on every (if any) occupier and every (if any) owner of a land referred to in the draft order, and | ||
(e) in a case where— | ||
(i) the proposed railway works are likely to have significant effects on the environment in Northern Ireland, or | ||
(ii) the authority referred to subsequently in this paragraph requests that such a copy be so sent to it, | ||
send a copy of the environmental impact statement to the prescribed authority in Northern Ireland, together with a notice, in such form as may be prescribed, stating that an application for approval of the said works has been made and that submissions may be made in writing to the Board (during the period specified in the notice referred to in subsection (1)(b)) in relation to the likely effects on the environment of the said works. | ||
(2) Members of the public may inspect a copy of a draft railway order and accompanying documents deposited under this section free of charge at the times and during the period specified in the notice referred to in subsection (1)(b) and may purchase copies of or extracts from any of the documents aforesaid on payment of a fee to the applicant not exceeding the reasonable cost of making such copies or extracts as may be fixed by the applicant. | ||
(3) A person may, during the period specified in the notice referred to in subsection (1)(b), make submissions in writing to the Board in relation to the proposed railway order or the likely effects on the environment of the proposed railway works. | ||
(4) Where the environmental impact statement and a notice referred to in subsection (1)(e) has been sent to the prescribed authority in Northern Ireland pursuant to that provision, the Agency, CIÉ, or the Board, in the case of any other applicant, as appropriate, shall enter into consultations with that authority regarding the potential effects on the environment of the proposed railway works and the measures envisaged to reduce or eliminate such effects. | ||
Further information to Board. | ||
41.— (1) Where the Board is of the opinion that an environmental impact statement furnished under section 37 does not comply with the provisions of section 39 or where it otherwise considers it necessary so to do, it shall require the applicant to furnish to it a document containing such further information in relation to the proposed railway works as it may specify and the applicant shall comply with any such requirement within such period as the Board specifies. | ||
(2) (a) If the document furnished under subsection (1) contains significant data in relation to the likely effects on the environment of the proposed railway works, the Board shall require the applicant— | ||
(i) to deposit and keep deposited at the place or each of the places appointed by the Board, a copy of the aforesaid document, | ||
(ii) to publish in one or more newspapers circulating in the area to which the proposed railway order relates a notice stating that further information in relation to the likely effects on the environment of the proposed railway works has been furnished to the Board, that copies of the document containing the information will be available for inspection free of charge and for purchase by members of the public, at the place or each of the places appointed by the Board, at specified times during the period of not less than 3 weeks beginning on the day of publication of the notice and that submissions in relation to the further information may be made to the Board before the expiration of the said period, and | ||
(iii) to serve notice of the furnishing of the further information to the Board, together with relevant extracts from the document aforesaid, on any person on whom notice was served pursuant to section 40(1) and to indicate to the person concerned that submissions in relation to the further information may be made to the Board during the period of not less than 3 weeks beginning on the day on which the notice is sent to the person concerned by the applicant. | ||
(b) Copies of further information in respect of which notice is published pursuant to a requirement under subsection (2)(a)(ii) shall be made available for purchase by members of the public during the period specified in the notice referred to in that provision for such fee as the applicant may fix not exceeding the reasonable cost of making such copies. | ||
(3) Members of the public may inspect the further information deposited under this section free of charge at the times and during the period specified in the notice referred to in subsection (2)(a)(ii). | ||
(4) A person may, during the period specified in the notice referred to in paragraph (a)(ii) or (iii), as appropriate, of subsection (2), make submissions in writing to the Board in relation to the further information deposited under this section. | ||
Oral hearings. | ||
42.— (1) The Board may, at its absolute discretion, hold an oral hearing into an application for a railway order. | ||
(2) Sections 135, 143 and 146 of the Act of 2000 (as amended by the Planning and Development (Strategic Infrastructure) Act 2006) shall apply and have effect in relation to an oral hearing referred to in subsection (1) and those sections shall be construed accordingly. | ||
Railway order. | ||
43.— (1) Whenever an application is made under section 37, the Board shall, before deciding whether to grant the order to which the application relates, consider the following: | ||
(a) the application; | ||
(b) the draft order and documents that accompanied the application; | ||
(c) the report of any oral hearing held under section 42 and the recommendations (if any) contained therein; | ||
(d) any submission duly made to it under section 40(3) or 41(4) and not withdrawn; | ||
(e) any submission duly made to it by an authority referred to in section 40(1)(c) or (e); | ||
(f) any additional information furnished to it under section 41; | ||
(g) the likely consequences for proper planning and sustainable development in the area in which it is proposed to carry out the railway works and for the environment of such works; and | ||
(h) the matters referred to in section 143 (inserted by the Planning and Development (Strategic Infrastructure) Act 2006) of the Act of 2000. | ||
(2) If, after such consideration, the Board is of opinion that the application should be granted, it shall make an order authorising the applicant to construct, maintain, improve and, subject to section 11(7) in the case of the Agency, operate the railway or the railway works specified in the order or any part thereof, in such manner and subject to such conditions, modifications, restrictions and requirements (and on such other terms) as the Board thinks proper and specifies in the order and the Board shall furnish the applicant with a copy of the order. | ||
(3) (a) As soon as may be after the making of a railway order, the Board shall— | ||
(i) publish a notice in at least 2 newspapers circulating in the area to which the order relates of the making of the railway order and of the places where, the period during which and the times at which copies thereof and any plan referred to therein may be inspected or purchased at a cost not exceeding the reasonable cost of making such copies, and | ||
(ii) give notice to the prescribed authority in Northern Ireland of its decision in a case where a copy of the environmental statement has been sent to that authority in accordance with section 40(1)(e). | ||
(b) A notice referred to in paragraph (a) shall state— | ||
(i) the content and nature of the Board’s decision including any conditions attached thereto, | ||
(ii) that, in deciding whether to grant a railway order, the Board has had regard to the matters referred to in subsection 43(1), and | ||
(iii) a description where necessary of the main measures to avoid any adverse effects of the proposed railway works. | ||
(4) A railway order shall come into operation— | ||
(a) in case an application for leave to apply for judicial review of the order has not been made, upon the expiration of 8 weeks, and | ||
(b) in case such an application has been made and has not been withdrawn, in so far as it has not been declared invalid or quashed pursuant to that review, upon the final determination of the proceedings concerned or such other date as may be determined in those proceedings, and | ||
(c) in case such an application has been made and is withdrawn, upon the date of the withdrawal. | ||
(5) A person who has been granted a railway order may, with the consent of the Minister, make arrangements with another person to construct, maintain, improve or operate the railway or the railway works to which the order relates. | ||
(6) The Board may, if there is a failure or refusal to comply with a condition, restriction or requirement specified in a railway order, revoke the order. | ||
(7) (a) Where the Board proposes to revoke an order under this section, it shall notify the railway undertaking in writing of its proposal and of the reasons for it. | ||
(b) The railway undertaking may, not later than 3 weeks from the date of the sending of the notification, make submissions in writing to the Board and the Board shall— | ||
(i) before deciding the matter, take into consideration any submissions duly made to it under this paragraph in relation to the proposal and not withdrawn, and | ||
(ii) notify the railway undertaking in writing of its decision and of the reasons for it. | ||
(8) A notification of a proposal of the Board under subsection (7) shall include a statement that the railway undertaking may make submissions to the Board not later than 3 weeks from the date of the sending of the notification and a notification of a decision of the Board under subsection (7) shall include a statement that the railway undertaking may appeal to the High Court under subsection (9) against the decision not later than 3 weeks from the date of the sending of the notification. | ||
(9) Notwithstanding section 47(1), the railway undertaking may appeal to the High Court against a decision of the Board under subsection (6) not later than 3 weeks from the date of the sending of the notification of the decision under subsection (7) and that Court may, as it thinks proper, on the hearing of the appeal, confirm the decision of the Board or direct the Board to withdraw its decision and prohibit the making of the proposed order concerned. | ||
Provisions in relation to railway order. | ||
44.— (1) A railway order shall contain such provisions as the Board considers necessary or expedient for the purpose of the order. | ||
(2) Without prejudice to the generality of subsection (1), a railway order may— | ||
(a) specify any land or any substratum of land, the acquisition of which is, in the opinion of the Board, necessary for giving effect to the order, | ||
(b) specify any rights in, under or over land or water or, subject to the consent of the Minister in the case of a national road or the Minister for the Environment, Heritage and Local Government in the case of any other public road, in, under or over any public road, the acquisition of which is, in the opinion of the Board, necessary for giving effect to the order, | ||
(c) specify the manner in which the railway or the railway works or any part thereof to which the order relates are to be constructed, | ||
(d) fix the period within which the construction of the railway works is to be completed, | ||
(e) contain provisions as to the manner in which the railway works are to be operated and maintained, | ||
(f) without prejudice to paragraph (g), contain such provisions as the Board thinks proper for the protection of the public generally, of local communities and of any persons affected by the order, | ||
(g) contain provisions 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 railway works are to be constructed, being a facility or service that, in the opinion of the Board, would constitute a gain to the community, | ||
(h) provide for the determination by arbitration of any specified questions arising thereunder, | ||
(i) contain such provisions ancillary or incidental to any of the matters aforesaid as the Board considers necessary and proper. | ||
(3) A provision of a railway order referred to in subsection (2)(g) shall not require such an amount of financial resources to be committed for the purposes of the provision being complied with as would substantially deprive the person in whose favour the order operates of the benefits likely to accrue from the making of the order. | ||
(4) The Board may, with the consent of the Minister, in a railway order designate the railway to which the order relates as a light railway or as a metro. | ||
Compulsory acquisition of land. | ||
45.— (1) Upon the commencement of a railway order, the Agency or CIÉ shall thereupon be authorised to acquire compulsorily any land or rights in, under or over land or any substratum of land specified in the order and, for that purpose, the railway order shall have effect as if it were a compulsory purchase order referred to in section 10(1) of the Local Government (No. 2) Act 1960 (inserted by section 86 of the Housing Act 1966 ), which has been duly made and confirmed and, accordingly, that section shall apply and have effect in relation to the order with the modifications that— | ||
(a) references to the local authority shall be construed as including references to the Agency or CIÉ as the case may be, | ||
(b) references to the Minister for the Environment, Heritage and Local Government shall be construed as references to the Board, | ||
(c) the reference in subsection (4)(a) to section 78 of the Housing Act 1966 shall be construed as including a reference to subsections (1), (4) and (5) of that section, | ||
and with any other necessary modifications. | ||
(2) Where the Agency or CIÉ proposes to acquire land pursuant to subsection (1) and, in the opinion of the Agency or CIÉ, as the case may be, it is more efficient and economical to acquire additional adjoining land, the Agency or CIÉ, as the case may be, may do so with the consent of the Minister and of any person having an interest in or right in, under or over the adjoining land notwithstanding the fact that the adjoining land is not specified in the railway order. | ||
(3) The Agency or CIÉ shall comply with any directions of the Minister in relation to land acquired by it pursuant to subsection (1). | ||
Notification of grant of railway order. | ||
46.— As soon as may be after the making of a railway order, the railway undertaking shall— | ||
(a) deposit and keep deposited at the head office of the railway undertaking and at such other place as may be specified by the Board, during the period of 5 years following the opening for traffic of the railway, a copy of the order and the plan referred to therein and the aforesaid order and plan shall, while so deposited, be open to inspection by members of the public free of charge, at all reasonable times, and copies of or extracts from any of the documents aforesaid may be purchased on payment of a fee to the railway undertaking not exceeding the reasonable cost of making such copies or extracts, and | ||
(b) serve a copy of relevant extracts from the railway order and the plan referred to therein on every planning authority for the area (or any part thereof) to which the order relates and to every (if any) occupier and every (if any) owner of land referred to in the railway order. | ||
Judicial review of railway order and related acts. | ||
47.— (1) A person shall not question the validity of a railway order made or any act done by the Board in the performance or the purported performance of its functions under sections 37 to 46 otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ) (the ‘Order’). | ||
(2) The Board may, at any time after the bringing of an application for leave to apply for judicial review of any act to which subsection (1) applies and which relates to a matter for the time being before the Board, apply to the High Court to stay the proceedings pending the making of a decision by the Board in relation to the matter concerned. | ||
(3) On the making of such an application the High Court may, where it considers that the matter before the Board is within the jurisdiction of the Board, make an order staying the proceedings concerned on such terms as it thinks fit. | ||
(4) Subject to subsection (5), an application for leave to apply for judicial review under the Order in respect of an order or act to which subsection (1) applies shall be made within the period of 8 weeks beginning on the date on which the order was made or, as the case may be, the date of the doing of the act by the Board. | ||
(5) The High Court may extend the period provided for in subsection (4) within which an application for leave referred to in that subsection may be made but shall only do so if it is satisfied that— | ||
(a) there is good and sufficient reason for doing so, and | ||
(b) the circumstances that resulted in the failure to make the application for leave within the period so provided were outside the control of the applicant for the extension. | ||
(6) References in this section to the Order shall be construed as including references to the Order as amended or replaced (with or without modification) by rules of court. | ||
Section 47: supplemental provisions. | ||
47A.— (1) In this section— | ||
‘ Court ’, where used without qualification, means the High Court (but this definition shall not be construed as meaning that subsections (2) to (6) and (9) do not extend to and govern the exercise by the Supreme Court of jurisdiction on any appeal that may be made); | ||
‘ Order ’ shall be construed in accordance with section 47; | ||
‘ section 47 leave ’ means leave to apply for judicial review under the Order in respect of an order or act to which section 47(1) applies. | ||
(2) An application for section 47 leave shall be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Board, to the applicant for the railway order, where he or she is not the applicant for leave, and to any other person specified for that purpose by order of the High Court, and the Court shall not grant section 47 leave unless it is satisfied that— | ||
(a) there are substantial grounds for contending that the order or act concerned is invalid or ought to be quashed, and | ||
(b) (i) the applicant has a substantial interest in the matter which is the subject of the application, or | ||
(ii) the applicant— | ||
(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection, | ||
(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and | ||
(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c) of the Act of 2000, would have to satisfy by virtue of section 37(4)(d)(iii) of that Act (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv) of that Act shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were a reference to the class of matter into which the order or act, the subject of the application for section 47 leave, falls). | ||
(3) A substantial interest for the purposes of subsection (2)(b)(i) is not limited to an interest in land or other financial interest. | ||
(4) Notwithstanding the making of an application for section 47 leave in respect of a railway order, the application shall not affect the validity of the railway order and its operation unless, upon an application to the Court, the Court suspends the operation of the railway order until the application is determined or withdrawn. | ||
(5) If the Court grants section 47 leave, no grounds shall be relied upon in the application for judicial review under the Order other than those determined by the Court to be substantial under subsection (2)(a). | ||
(6) The Court may, as a condition for granting section 47 leave, require the applicant for such leave to give an undertaking as to damages. | ||
(7) The determination of the Court of an application for section 47 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. | ||
(8) Subsection (7) shall not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution. | ||
(9) If an application is made for judicial review under the Order in respect of part only of an order or act to which section 47(1) applies, the Court may, if it thinks fit, declare to be invalid or quash the part concerned or any provision thereof without declaring invalid or quashing the remainder of the order or act or part of the order or act, and if the Court does so, it may make any consequential amendments to the remainder of the order or act or the part thereof that it considers appropriate. | ||
(10) The Court shall, in determining an application for section 47 leave or an application for judicial review on foot of such leave, act as expeditiously as possible consistent with the administration of justice. | ||
(11) On an appeal from a determination of the Court in respect of an application referred to in subsection (10), the Supreme Court shall— | ||
(a) have jurisdiction to determine only the point of law certified by the Court under subsection (7) (and to make only such order in the proceedings as follows from such determination), and | ||
(b) in determining the appeal, act as expeditiously as possible consistent with the administration of justice. | ||
(12) Rules of court may make provision for the expeditious hearing of applications for section 47 leave and applications for judicial review on foot of such leave.”. |