I thank the joint committee for allowing me to address it on this issue at short notice, particularly in light of the fact I only appeared before it this time last week. The amendment to be discussed was determined with the Attorney General after the draft motion discussed at last week's committee meeting had been put before the Houses. I trust members will understand the position after I have had an opportunity to outline and discuss the reasons behind the proposed amendment.
I thank my officials who have set out in detail the issue for consideration. We must consider the resolution of a technical problem with the application of Part 1 of Schedule 2 to the Planning and Development Regulations 2001. I am advised the change is necessary for the avoidance of doubt and to ensure the continued sound operation of the exempted development regime under the regulations.
Part 1 of Schedule 2 to the Planning and Development Regulations 2001 sets out over 50 classes of development which are exempt from planning permission, ranging from certain extensions to new houses, the change of use of business premises, or the putting in place of temporary structures to the provision of harbours or gas infrastructure which are subject to consent under separate legislation. A range of conditions are built into the regulations to ensure there is no blanket exemption per se and that the necessary safeguards are provided. I have been advised by the Attorney General that there is a potential legal lacuna in the interaction between the exempted development regulations and the ecological protection mechanisms under the habitats regulations that needs resolution by way of a simple amendment to the regulations.
The general exemption provided under Schedule 2, Part 1 of the regulations is conditioned by Article 9 of the regulations. Article 9(1)(a)(vii) states the general exemptions will be disapplied where an exempted development under the Act would consist of or comprise, among other things, interference with a site of ecological interest. Under the current exempted development regulations, there is no mechanism to reinstate the exemption, even where an assessment of the ecological impacts has been concluded to the satisfaction of my Department under the habitats regulations. Planning permission in these cases would be required under the current regulations. The clear advice from the Attorney General is that this does not represent rational regulation. Rational regulation and a consistent approach to environmental protection requires that there be no unnecessary duplication of consent processes. The disapplication of the exemption in subparagraph (vii) makes no sense in respect of ecological sites where an appropriate assessment that meets the requirements of the habitats directive is carried out and where the development is otherwise exempted.
The amendment before the committee is simply rationalising the consent procedure, while ensuring the appropriate consenting Minister safeguards the protected habitats and species in question by ensuring full compliance with the requirements of the habitats regulations. The problem could arise in the provision of infrastructure which is exempt from planning permission, as they are consented under other enactments — this could include the construction, extension or removal of docks, quays, jetties, piers and breakwaters authorised under the Harbours Acts and the provision of underground pipelines for the transmission of gas consented under the Gas Acts. The practical difficulty was highlighted with the latter class of project and specifically the laying of the landfall part of the submarine pipeline for the Corrib Gas project. This part of the project involves the excavation of a 19 m wide portion of the sea-face at Glengad Head to make it into a ramp for the purposes of putting the machinery in place to pull the pipeline ashore. When complete and the pipeline is in place, that part of the sea-face will be reinstated as it is now. I understand the timeline for the project envisages the laying of the pipeline from the wellhead to landfall in the coming months.
This is the only part of the Corrib project affected by the amended regulation I am proposing. It is being dealt with under a legacy regime which involves the following: a consent under section 40 of the 1976 Gas Act, as amended, which issued by the Minister for Communication, Energy and Natural Resources; a foreshore licence under the 1933 Foreshore Act, as amended, issued by the Minister for Agriculture, Fisheries and Food; and an appropriate assessment under the 1997 habitats regulations. The final piece necessary to give effect to these consent processes was that an appropriate assessment be undertaken in accordance with the habitats regulations. My Department was asked to advise the consent authorities on whether such an assessment had been undertaken. Following further detailed work and research by the developer and the provision of the required information for my Department's scientific staff, they have formed the opinion that a full appropriate assessment of the impacts of these works has now been undertaken. Subject to detailed mitigation measures being implemented in full, my Department is satisfied that the proposed works as described will not adversely affect the integrity of the designated sites. Despite the completion of this assessment and the consent processes under the Gas and Foreshore Acts, under the current exempted development regulations, there is no mechanism to reinstate the exemption. This general deficiency is what the amendment seeks to remedy. The somewhat Byzantine system of consents that previously pertained to major infrastructural projects has been resolved through the enactment and commencement of the Strategic Infrastructure Act which covers all major infrastructural projects, be they sponsored by the private or public sectors, including gas and oil pipelines and related facilities, oil refining, electricity generation, roads, rail, airports, ports, waste treatment and disposal projects.
The second element of the Corrib project, the re-routing of the main onshore gas pipeline, is being dealt with under the Strategic Infrastructure Act and before An Bord Pleanála. A single consent process, administered by An Bord Pleanála, with clear provision for scoping of potential environmental, archaeological and ecological impacts at pre-application stage, public consultation at the application stage and consultation with prescribed statutory consultees at all stages, are the key elements in thislegislation. It is necessary to achieve co-ordination of consent procedures and the removal of unnecessary regulation. There remains one area where I am yet to be satisfied that this has been achieved. It relates to the foreshore process which is based on legislation that is over 70 years old. The transfer of foreshore functions to my Department in the next few months affords me an opportunity to address this issue.
From the point of view of better regulation, it is my intention to complete an urgent review of the operation of the foreshore functions and ensure they are tightly integrated with the modern planning processes available under the 2000 Planning Act and the 2006 Strategic Infrastructure Act. This will require primary legislation. I look forward to engagement with the committee in the future on this issue.
I will briefly come back to clarify one or two issues raised subsequent to last week's discussion on exemptions for certain renewable technologies. Perhaps this issue has been covered by the officials but I would like to clarify matters. The new exemptions are primarily intended to stimulate demand for new renewable technologies in the specified sectors and encourage a wider range of interests to take positive steps to reduce their carbon footprints.Great care was taken to ensure that the exemptions and the various conditions attaching are well within the limits before which environmental impact assessment requirements become necessary.
On the issue of transparency, my Department held a three month public consultation process on the initial proposals last October and the final regulations reflect a balance of the views expressed in 51 submissions received from a cross section of society, including individuals who made submissions in their own right. It is also worth pointing out that all those who made a submission supported the proposals. The conditions attached to the exemptions reflect a balance between the views expressed in the public consultation.
I intend to publish a summary of the submissions received during the consultation process shortly. As I stated during the committee debate, I welcome feedback from all sectors on the operation of these exemptions, as well as on those that were introduced last year for micro-renewable technologies for domestic houses.
I again thank my officials. I will take questions and will take as much time as is necessary. I must attend the Seanad later for an Adjournment matter and I will be abroad from tomorrow evening as I must attend a Council of Ministers meeting in Paris.