Accelerating Infrastructure? (2)
Reducing the Regulatory Burden?
I will take a break until the week commencing 5 January. Over Christmas I will re-publish my two most frequently read posts – without a paywall.
The Government’s 136 page Accelerating Infrastructure Report and Action Plan (3 December 2025) (“the Plan”) is the most wide-ranging review of how infrastructure is developed in the history of State.
The Plan proposes 30 “Actions” under four “Pillars” (p8). The four Pillars are;
Legal Reform (within which the Plan focuses almost entirely on Judicial Review, “JR”)
Regulatory Reform
Delivery and Coordination Reform
Public Acceptance
This post and that of last week provide commentary on the Plan. Solicitors Beauchamps and William Fry have published straightforward summaries, short and longer respectively.
My post last week looked critically at;
the context of the Plan, being the infrastructure deficit
the barriers to development identified by the Plan
the legal reforms proposed by the Plan, the vast majority of which concern the process of Judicial Review
After some detailed conclusions last week, I suggested overall that the Government will need to be very careful to ensure that its ‘reforms’ do not make the present situation worse rather than better.
This Post will focus on the regulation of infrastructure development and in particular;
its complexity and ‘imbalance’
the scale of reform necessary
specific issues presented by EU law
the proposed review of the role and function of the OPR
the effect on development plans and the role envisaged for National Planning Statements (“NPSs”, ss25/7 Planning and Development Act 2024, “PDA 2024”)
offer a conclusion
The latter part of this post is available only to paid subscribers. Page numbers refer to the Plan.
THE REGULATORY STRUCTURE
The Plan divides regulation into the “regulatory process” (p31) and the “planning process” (p34). Perhaps surprisingly, the Plan has no separate Planning Pillar.
Complexity and Imbalance
The Plan states that the regulation of infrastructure development has become too complex;
“Ireland’s regulatory landscape has become fragmented and overly complex” (p8)
“the volume and complexity of regulation has grown considerably over time” (p48 and 46)
“legislation underpinning the regulatory processes applied to critical infrastructure has significantly grown in complexity” (p50)
The Plan finds that there are now 95 bodies “with some degree of remit for regulation” (a particularly vague statement) and that “a careful examination of regulatory structures and processes is now timely” (p46).
The Plan acknowledges that, like most things, regulation is a balance between cost and benefit (p46). As Humphreys J likes to say in planning-law cases, “there are no solutions, only trade-offs” (quoting economist and historian Thomas Sowell, eg in Reid v ABP (No7) [2024] IEHC 27 §137).
The Plan outlines the complexity of the legal and regulatory process for infrastructure approvals (see last week’s post for the full quote) and refers to “regulation [which] adds only to process rather than outcome” (p8). The Plan concludes that, for all its disadvantages, regulation offers “little evidence of proportionate environmental or social benefits” (p26). The Plan offers no evidence for this statement either.
“Regulatory agencies and consenting processes must therefore achieve a balance between enabling essential activities and controlling the potentially adverse impacts of such activities and infrastructure...Ireland’s regulatory processes are currently failing to achieve this balance.” (p46 emphasis added and see p47)
It is not clear whether the reference to consenting processes is intended to refer to the planning system.
Although acknowledging the inevitability of a balance between regulation and development, the Government is clear in saying that a ‘correct’ balance is not presently being achieved.
Reform
The Plan and its 30 Actions are not the last word on reform of the process by which applications for infrastructure development are determined...far from it.
“complex and time-consuming task”
The Plan refers to a wide-ranging multi-agency/multi-jurisdictional “major legislative reform exercise” which will “review the existing legislative base that applies to the development of critical infrastructure in Ireland”. The Plan acknowledges that this will be a “complex and time-consuming task” (p49).
The Government intends to “develop and publish [NPSs] for critical infrastructure” which will set out “clear, unambiguous national policy objectives for the development of critical infrastructure” within the Revised NPF (April 2025) to replace the presently “challenging” number of legislative and policy requirements which developers must navigate (p48).
In my experience, very few (if any) legal/policy statements intended to simplify their predecessors have ever been successful in such ambition.
EU Law
The Plan sees specific problems in the application and content of EU law with regard to infrastructure development.
“Too often, effective regulation is impeded by a conservative interpretation of EU and Irish law within regulatory processes, and a defensive nature applied in the consenting processes.” (p46) I assume that the reference to “a defensive nature” is to a ‘defensive’ (designed to avoid/minimise the opportunity for challenge) application of EU law by decision-makers which has “evolved in response to multiple judicial challenges” (p46).
With respect to the last phrase, it is important to note that challenges to planning decisions do not come from the judiciary but from others (including developers) upon which the judiciary adjudicates.
The Government believes that common-law jurisdictions within the EU (of which Ireland is one, the others are Malta and Cyprus) are affected by EU law to a greater extent than member states with ‘codified’ legal systems (the vast majority) by EU legislation – there is a “divergence” in effect (p52/3).
