I thank the Minister, Deputy Darragh O'Brien, who is here today.
Planning and Development (Amendment) (No. 2) Bill 2022: Committee Stage
Section 1 agreed to.
SECTION 2
Question proposed: "That section 2 stand part of the Bill."
Some of the amendments I am going to discuss later would have potential consequential implications in regard to section 2, so I may bring amendments on Report Stage that will address and reflect the issues that I will be debating in regard to my other amendments on other sections.
Question put and agreed to.
SECTION 3
I move amendment No. 1:
In page 4, to delete lines 3 to 9.
This amendment would delete section 3(b) of this Bill, which would amend section 34(12A) of the Planning and Development Act 2000. The Government proposes in subsection (12A) the substitution of “an application in respect of the following development shall be deemed not to have required, and not to require, a determination as to whether an environmental impact assessment is required” for the current wording, which is that “if an application for permission had been made in respect of the following development before it was commenced, the application shall be deemed not to have required a determination referred to at subsection (12)(b)”.
My concern is that, at the moment, there is within the principal Act a specification that a planning authority should be refusing to consider an application to retain unauthorised development of land, where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced, that application would have required that either an environmental impact assessment, EIA, or a determination as to whether an environmental impact assessment was required, or that an appropriate assessment or a determination as to whether an appropriate assessment was required. Effectively, at the moment, one cannot give this kind of retrospective permission in situations where there would have been a requirement for a determination on an environmental impact assessment or an appropriate assessment, or, indeed, an environmental impact assessment or an appropriate assessment.
The concern is that the proposed changes would mean one was implying they were deemed not to have required an assessment. My amendment would effectively remove the change. However, the Government could also bring a more moderate change, for example, that one should not be giving retrospective consent where, if a determination had been conducted, it would have been found to require an environmental impact assessment. Effectively, my amendment would remove the provision. I put it to the Minister that we certainly should not have a situation where, if a determination had been carried out, it would have been found to have an environmental impact assessment as a requirement. There certainly should not be a situation where such a project would be getting substitute consent or be eligible for substitute consent.
This goes to the core of what we will be discussing today, which is that there are reasons we have these processes in terms of the process and in terms of determining whether or not an environmental impact assessment or appropriate assessment is required and then, not in many cases but in some cases, in situations where it will be determined that they are required. What we certainly should not have is a situation where the mechanisms outlined in this Bill effectively provide a way around that process. That is the concern at the core of my amendment. Effectively, I am opposing the proposed language being inserted in this section 3(b) by the Government.
I welcome the Minister to the House. I disagree with the amendment. I look at the situation in Galway right now with Derrybrien. I believe we should be in the situation where we can review-----
It is not my amendment.
This is amendment No. 1 from Senator Higgins under section 3.
I will sit down for a few moments to get my thoughts together.
The amendment seeks to amend the Bill by deleting section 3(b), which I cannot accept. It would effectively allow a drafting inconsistency in subsection 12A of section 34 of the principal Act, which would not reflect the amendment to section 37(12) of the principal Act. Section 3(b) is actually a technical drafting amendment to amend section 34(12A) of the principal Act. The amendments in paragraph (b) reflect the related amendments at section 34(12), which amendments, in turn, have been introduced by section 3(a) of this Bill. The Senator has not sought to amend the main amendments to section 34(12) introduced by section 3(a) of the Bill.
For information, these amendments to section 3(a) are technical drafting amendments that have reformed section 34(12A) and (12)(b) of the principal Act on the basis that section 34(12)(a) already requires the planning authority to consider both whether a mandatory above-threshold environmental impact assessment, EIA, is required and to make a screening determination in the case of sub-threshold EIA development. Following this, section 34(12)(b), which prohibits planning authorities from considering retention applications for developments that would have required a determination as to whether an EIA is, indeed, to be carried out, that is, where a sub-threshold EIA development is screened in to require an EIA, is being deleted as it is superfluous. A screening of the EIA is a prerequisite for section 34(12A) to apply. I am not in a position to accept the amendment.
I thank the Minister for the clarification because it read as a conflict. That is why I had not sought to remove section 3(a) and section 3(b). Perhaps the Minister will confirm if it is the case that the mechanisms in respect of substitute consent will not be applied in regard to the unauthorised development of land where an EIA or appropriate assessment is required, or is determined to be required. If he could confirm that, it would allow me to withdraw the amendment.
I have given my response. I am happy to deal with any other queries on Report Stage if the Senator wishes to come back in then.
I will withdraw the amendment but I reserve the right to bring it back because I would like to be reassured in regard to the question. As the Minister has described it, the legislation does allow that one would not be able to give substitute consent in situations where either an EIA or an appropriate assessment might be required. I want to be very clear on that. However, there is still a concern in regard to situations where a determination might have been required. I am trying to figure out how the determination as to whether an EIA or appropriate assessment is needed happens in that situation. However, I take at face value the Minister's claim that this is potentially technical and can be addressed technically. I will withdraw the amendment at this time.
Amendment, by leave, withdrawn.
Section 3 agreed to.
Section 4 agreed to.
SECTION 5
Amendment No. 2 has been ruled out of order as it is in conflict with the principle of the Bill as read a Second Time.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 4, between lines 36 and 37, to insert the following:
“(c) the Board shall indicate to the applicant what further actions may be required in light of such a refusal.”,”.
This amendment would insert a new paragraph into the proposed new subsection (37L) of the principal Act. It proposes that in situations where the application for a substitute consent has been refused, the board would also indicate what are the actions consequent on such a refusal.
For example, will it relate to a change or removal of a development or a cessation of activity in respect of site usage or a development that is deemed not to be eligible for substitute consent? Basically, what happens next in that instance? It would be appropriate that in situations where there is a refusal of an application for substitute consent, the board would also indicate what are the appropriate actions, whether that be the removal of a development or the cessation of activity in respect of a development, such as in the context of quarries and so forth. After a refusal, what comes next? According to European law, refusal of applications for substitute consent should be the norm, given that substitute consent under the EU signal can only be granted in exceptional circumstances. The very nature of it means grants of substitute consent should be exceptional. It might be expected that it would be the norm for such applications to be refused. In those circumstances, it is important we start sending a signal in respect of what follows a refusal.
I thank the Senator for tabling the amendment. It seeks to amend section 5 of the Bill by inserting a new paragraph to the effect that "the Board shall indicate to the applicant what further actions may be required in light of such a refusal". I must oppose the amendment, which appears to have been misplaced in terms of its proposed insertion into the Bill as neither section 5 of the Bill as proposed by the Government nor section 37L of the principal Act contain any provisions relating to a refusal. Refusals in respect of an application under section 37L for permission are addressed under section 37N of the principal Act, but it is not clear to me whether the amendment was intended for inclusion in section 37N instead. If that is the case, that could be considered on Report Stage.
It seems the Minister is correct. In effect, the amendment should be inserted at line 27. It seems to have been placed incorrectly. Effectively, the issue that is being addressed in section 4 is the issuing of refusals, so that is the section where the amendment would properly lie. Nonetheless, it would still be useful at this point, in order that we can go forward as constructively as possible in respect of Report Stage, for the Minister to indicate his perspective on the inclusion of requirements with a refusal. The correct placing of the amendment should be on line 27, following the issuing of a refusal. As regards the substantive issue, to facilitate effective discussion on an amendment on this issue on Report Stage, I would appreciate it if the Minister were to indicate his perspective on the inclusion of consequent actions along with the issuing of a refusal.
We are happy to consider any further amendments on Report Stage. I do not think I should be expected to comment on an amendment that has not been tabled. I will wait and see what comes forward on Report Stage. At official level, we are happy, as we have been throughout this process, to provide technical briefings should they be required.
I will withdraw the amendment and reserve the right to reintroduce it on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 4 to 6, inclusive, have been ruled out of order as they are in conflict with the principle of the Bill as read a Second Time.
Amendments Nos. 4 to 6, inclusive, not moved.
Question proposed: "That section 5 stand part of the Bill."
I will speak to the section because it is a substantial area of the Bill. I disagree with the rulings in respect of my amendments. As I have indicated, I will raise this with the Seanad Committee on Parliamentary Privileges and Oversight. There has been an overinterpretation in respect of these issues and I am concerned we are moving towards a position where, effectively, Parliament is being constrained in respect of its appropriate work relating to decisions-----
Senator, this-----
It is important because that is a fundamental balance in terms of, if we have a situation where-----
If the Senator wishes to speak to section 5, she should do so.
I will speak to the section. I wish to highlight certain issues in this regard. A major concern relates to section 5(a), which introduces a new subsection that would, in effect, allow a person applying for substitute consent in respect of the development of land that the person has undertaken without appropriate permissions to apply at the same time for a new and different development of the land. As the land is the subject of an application for substitute consent, the person, in effect, is being allowed to apply for a new unrelated development on the site and, indeed, development of land adjoining the land in question. This is significant because what the Minister is doing through that paragraph is providing a fast-track for persons to send their applications for planning directly to An Bord Pleanála, bypassing the normal and proper planning processes. It acts as a reward. It is not simply that a development that was not given proper permission in the first place may be allowed to be retained, but that a person will be able to go directly to An Bord Pleanála in respect of new developments. This is significant and concerning because it absolutely guts the planning process.
It creates a direct conflict with previous rulings of the European court in respect of the idea that substitute consent should be exceptional. I refer to the ruling relating to a decision of the Irish High Court in a substitute consent case. In the context of the limits on member states, paragraphs 57 and 58 of the ruling in case C-215/06, the Commission v. Ireland, which is the original Derrybrien case, state:
While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful ... such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.
A system of regularisation, such as that in force in Ireland [or the new one proposed here], ...[must not] have the effect of encouraging developers to forgo ascertaining whether intended projects satisfy the criteria.
It is clear that the Minister should not be encouraging or rewarding those who do not engage in proper processes. In effect, this paragraph rewards that practice. One would build something, apply for substitute consent and, along with that substitute consent, stick in what else one would like on that site and on an adjoining site. This is in a context where these signals are being sent direct to An Bord Pleanála. An Bord Pleanála is losing approximately 80% of the cases, and those cases, in terms of judicial reviews, relate to proper process. There are significant issues at the moment in respect of conflict of interest and review of the operation of the board. Through this paragraph, the Minister is stating there is a fast track and that a person who did something improperly in the past will now get to skip the normal application to a local authority, the normal processes in respect of public consultation and the other normal processes and simply go directly to An Bord Pleanála. That is the danger here. That directly conflicts with the rulings stating that there should not be any effect of encouraging developments. The paragraph creates a perverse incentive. That is extremely dangerous and would lead to poor-quality developments.
It creates a very real danger that at the minimum there would be a perception of an inappropriate dynamic between An Bord Pleanála and developers whereby they are in conversations that others, such as local authorities and the public, are no longer part of. This is a serious concern.
Other parts of section 5 also raise issues. I am afraid I will have to dwell on many substantive points because they are in the section. Section 5(f) inserts a new provision into section 37L. This provides:
(a) subsection (5), as substituted by section 5 of the Planning and Development (Amendment) Act 2022, applies, and
(b) the applicant for substitute consent informs the Board by notice in writing prior to it making its decision in respect of the application for substitute consent, in this subsection referred to as the 'first application', that he or she intends to submit an application for permission under subsection (1), as substituted by that section 5, in this subsection referred to as the 'second application'
This would allow for prior consultation between the developer and the board. There is concern about the dynamic this creates. Prior to the process there can be a conversation between developers and An Bord Pleanála on what might happen. The reason this matters is because overall the thrust of the Bill is removing some of the mechanisms and safeguards. While the substitute consent route was imperfect, at least it had some element of balance.
Previously if people wanted substitute consent they would either apply for the right to seek substitute consent and be subject to some form of scrutiny, or a local authority would give notice that substitute consent should be sought for a development. Now the power is shifting incredibly heavily into the hands of the developers. The local authority, as we will come to in later sections, will no longer have the right to demand that people seek substitute consent. Instead it will be directly up to the developer to decide to seek substitute consent. The conversation will be solely between the developer and An Bord Pleanála. Developers will also get to have a conversation prior to the process when they can decide whether they want to seek substitute consent. If developers have a conversation with An Bord Pleanála and realise they might not get substitute consent in respect of a development there is no mechanism for the State or a local authority to insist that they apply. People can have a conversation to see whether they are likely to get substitute consent and then decide whether to go ahead. This goes against the dynamic of it being the exception rather than the rule. It goes against proper process. These are the mechanisms for the first and second applications.
I also seek to delete section 5(g). It relates to the question of quarries in particular. One of the concerns that I will raise again on Report Stage is the question of whether quarrying should be allowed to continue when a substitute consent application is under way. I will come back to quarries in more detail when I will have an opportunity to do so later. We know this is one of the forms of development that is happening. We do not want to create dynamics whereby while an application for substitute consent is under way people can intensify their extraction in a "last chance saloon" approach with no limits. Certainly there should not be continued activity in a development that does not have proper planning in a situation where substitute consent has not yet been granted.
I have other issues regarding section 5 that I want to highlight for Report Stage.
I mentioned the continued extraction in quarrying. I should also note that the idea people would be able to apply for a new provision for quarrying on adjoining land at a time when initial quarrying has not been authorised is a real concern.
I oppose section 5 because it effectively gives developers with unlawful developments a key power. They can write to An Bord Pleanála to require it to delay deciding on an undecided application for substitute consent already before the board. This delay would be to allow the owner of an unlawful development to prepare an application for a new development to be considered alongside the substitute consent. The competent authority should be addressing these issues with speed and priority. The priority with an unlawful development should be to get it addressed immediately. The issue I have mentioned with regard to making new applications is a concern with regard to creating a bypass. It is also a concern because developers are being given powers to delay a decision in respect of substitute consent. This is a decision as to whether an unlawful development should continue, or unlawful extraction in the case of quarries, pending that developer making another application for a new development. Effectively, we are giving and transferring a significant amount of power to developers in this section. We are giving to developers who have committed unlawful developments powers that other developers do not have. People are getting a whole pile of powers that somebody else, who may be going through the proper process, applying in the normal way and doing everything right, will not have. This is wrong. It is straight-up wrong.
We in Ireland really have to get to grips with our planning. We have been told throughout that the problem is we have a planning process. The problem is we have not been applying the planning laws. We got pulled up in Europe on forestry because we did not apply the proper scrutiny. Then we had the forest appeals process and that was a problem so we gutted it. Again and again we try to remove blocks in the planning process rather than doing things right. Instead of pushing people and developers to do things right and, if anything, giving greater reward to those who apply the proper environmental standards, go through the proper processes, do things right and get things right from the beginning, we are constantly problem-solving for those who do things wrong. Then we have a situation where An Bord Pleanála gives them the permission they want. It is difficult and expensive to challenge a bad decision from An Bord Pleanála, but in the very few cases where people are able to challenge, the board loses many of them because it is shown not to have been doing the process right. It feels like this is yet another reward and yet another attempt to short-circuit proper process and give it retrospective imprimatur through legislation rather than investing in getting things right from the beginning.
I have minor questions on section 5 on which I will ask the Minister to expand. Section 5(b) proposes the deletion of "to further develop a quarry" and section 5(g) proposes to delete the words "in respect of a quarry". Am I right in thinking these two deletions will extend the application of section 37L to non-quarrying situations? Is this the name of the game? Is this the plan? Is it the case that at present the section is largely confined to quarries?
I have a related question. I want to ask a very specific question on this. This section proposes to insert the phrase "in respect of development of land". Will the Minister clarify what exactly is meant by the addition of this phrase?
I will try to deal with a number of questions and comments that have been asked and made, recognising the fact we are dealing with section 5.
We could have a very detailed debate on planning and the changes that the Government has made to make sure we have an efficient and effective planning system in our country.
I will address some of the points that have been made, particularly to section 5, and Senator Higgins's amendment to this, which would effectively delete the Government's proposal to allow simultaneous applications for all types of developments to be assessed - that speaks to the point made by Senator McDowell - by the board concurrently deciding with the substitute consent application in which case the legislation would revert to allowing simultaneous applications only for certain quarry developments to be assessed by the board concurrently with the substitute consent application. I believe that answers Senator McDowell's point.
The Government's proposal in the section is to expand the potential for simultaneous applications to all development types beyond the existing provisions that currently only apply to certain types of quarry developments. That is not an incentive and is considered reasonable. This is because it is envisaged that in the very rare circumstances indeed of substitute consent arising, it would most likely be sought when a developer who is proposing a new development that is not been either consented or indeed constructed in the normal way, discovers that to progress a new development on-site, a pre-existing unauthorised development needs to be regularised first. That is what this is about. In this regard, it is important to note that it is a material consideration of the board whether exceptional circumstances exist in a substitute consent proposal. Without this, incidentally, a substitute consent application must simply be refused. That is what will happen whether the applicant had or could reasonably have had a belief that the development was not unauthorised, as well as the additional material considerations as to whether the applicant has complied with previous planning permissions granted, or has previously carried out unauthorised development. The risk of exceptional circumstance not being deemed to exist and the application, therefore, being refused substitute consent is apparent if the applicant themselves cannot adequately demonstrate their own bona fides that they could have reasonably had a belief their development was not unauthorised.
It will also be misleading to the members of the public because we want a transparent planning system if an application for substitute consent was progressed, having been effectively triggered by a new development proposal on the same or on an adjoining site, and if the new development proposal was not available for consideration by the public at the same time but instead had to be considered in a separate planning application that can only be applied for years later, and which later application had to be considered by a planning authority instead of by the board who carried out the initial substitute consent assessment.
The ability to run substitute consent applications and related future-facing development applications at the same time will also be a benefit to the board's independent assessment process, as the parallel assessment approach will allow the board to be able to holistically assess proposals on the same or adjoining sites at the same time these proposals are inherently related to each other.
The Government's proposed amendments to section 37L of the principal Act will not change the fact that such applications for future development cannot be decided by the board until the substitute consent application, including, as I have mentioned, the consideration of whether the exceptional circumstance criteria are actually met, has been decided upon. The board will be required to decide upon the application for future development at the same time or as soon as possible after the decision on the application for substitute consent.
Any perceived benefits or incentives to a future-facing application of being able to apply directly to the board, instead of having to separately apply to the relevant planning authority first, will be outweighed by the inherent vulnerabilities and significant potential financial exposure if the related substitute consent application is actually refused. In such substitute consent cases that are refused, the relevant planning authority will be statutorily obliged to initiate enforcement proceedings against unauthorised developments to seek remediation of the site.
Furthermore, the future-facing planning application on the same or adjoining site may also be refused as a result of a refusal of substitute consent if, for example, it relies on any elements of the refused substitute consent proposal.
In other words, the legislative proposal which expands the provision to allow parallel substitute consent on planning applications for developments other than quarries does not provide an incentive to developers to use the provision instead of normal future-facing planning applications, noting the significant constraints and vulnerabilities for the developer attached to progressing a substitute consent proposal. Seeking out substitute consent to facilitate a simultaneous future planning application directly to An Bord Pleanála would simply not be a rational or financially practical approach for developers to consider, as opposed to simply applying for a planning permission requiring an environmental impact assessment, EIA, or appropriate assessment, AA, in advance of the development being built in the normal way and given the expenditure of significant capital costs on a project and the resultant risks of a refusal of substitute consent that would arise.
As such, the Government considers the proposal in section 5, including the transitional provisions, to be eminently reasonable. I hope I have addressed a number of the points raised by Senator Higgins. I have answered Senator McDowell directly. This is an eminently sensible approach and does not provide an incentive in any way, shape or form.
I disagree. This provision does provide an incentive because the disincentive in the legislation is the requirement to seek substitute consent but that applies in any event. If I have a site I want to build on and I have built something on it for which I do not have permission, there is then the question of seeking substitute consent.
What is very interesting is that this reveals the idea, another flaw in the Bill, that basically the decision on whether to apply for substitute consent becomes a discretionary one on the part of the developer. As the Minister said, if I had a site on which I wished to build or an adjoining site to an existing site, at the moment, if I was applying through the normal process for planning permission, the local authority could require me to first seek substitute consent as part of a process. It should not be the case that it is only when someone goes directly to An Bord Pleanála - this is a problem the Bill is setting up - where developers decide whether to apply for substitute consent, they can then attach a brand-new development to it, thereby skipping a major stage in the planning process, namely, the local authorities. That is a big prize.
The alternative, as currently exists, is that someone thinking of building on an unlawful development must first seek permission or substitute consent for the work that has been done or a local authority will require that person to seek substitute consent. All of the risks associated with applying for substitute consent already apply under the current system and they are rightly dealt with prior to a person going ahead with a new application to build something entirely new, bearing in mind that it is not just on the site in question but on an adjoining site.
The proposal therefore provides for a better and more incentivised situation than having someone simply apply to seek substitute consent and then go through the planning process in the normal way. This is a fast track and there is no way to describe it as anything other than that. The developer can go directly to An Bord Pleanála and skip the local authority stage, for example, if they wanted to start digging in a quarry and had effectively done something requiring an earlier consent.
This does not necessarily apply to related development but any other future-facing development someone may seek to have on a site. There is no level at which that is not a reward. If I have an application for something on a site and I do not have an unlawful development on that site, I will go through the full planning process, whereas someone who has an unlawful development can jump straight to An Bord Pleanála. That is what is happening.
That person would deal with the substitute consent application and the fact he or she had an unlawful development and then get in the queue behind somebody who does not have an unlawful development and is simply making an application. In the current situation, people with an unlawful development rightly have some paperwork to sort out before putting in a planning application and are behind people in the queue who are lawful in their actions. With this Bill, they are ahead. That is directly in contravention of the ruling and the definition which said developers should not be encouraged in this way and such a dynamic and incentive should not be created.
The Minister talks about high-stakes gambling. He is creating a danger with the determination where a desirable future development is considered alongside the substitute consent from An Bord Pleanála. There will be pressure, and unless substitute consent is given for the wrong thing, then a good proposal on an adjoining site will be bundled together with it. A dynamic is created. The Minister talked about the stakes being raised for the developer. The stakes will actually be raised for the planning system. If An Bord Pleanála decides a development is unlawful and does not give it retrospective permission, then it is jeopardising this new future project on the site next door. This is a wrongful shift in the power dynamics, scrutiny and planning in Ireland. There have been many such shifts but this is possibly the most egregious yet.
I genuinely think the Senator has made serious allegations in suggesting An Bord Pleanála would, in some way, not do its duty to adjudicate on planning applications on their merits. We either have faith in our planning system and the independence of An Bord Pleanála to do its job or we do not. I have faith. I am not happy with the delays in An Bord Pleanála and think one would have to be bonkers to want to take a route such as the one suggested, given the lengthy delays, which we are trying to address. The Senator suggested An Bord Pleanála will not adjudicate on something on its merits because it will feel pressure to do something else. That is a very unfair statement.
I do not think that all development is bad or that all developers are bad. I think people who find themselves in a position where they are looking for substitute consent, for whatever reason, are not in a situation which any rational person would like to be in to start with, bearing in mind what I consider to be the overblown decision of the Commission on Ireland. For example, people might be carrying out what appeared to be an exempt development, such as making a roadway on a farm. It could then appear it was too near to a pond used by the natterjack toad or such and somebody might point out that under the European directives, a natural habitats environmental impact assessment should be done but has not been done. If someone is contemplating applying for substitute consent from An Bord Pleanála before it is decided, or has already done so, it seems to be perfectly rational to ask, if the road is rerouted 100 yd away from the natterjack toad, if An Bord Pleanála will look at that instead of having the uphill battle of arguing about whether the natterjack toad would be affected by the track the person is building on the farm.
I do not see Senator Higgins's dark scenario here. It seems to bring some degree of flexibility and proportionality to a tricky situation for many people. Some of these substitute consent applications will concern activities with significant economic effects on jobs. Businesses may have to close and so on and people lose their jobs. Imagine if the Derrybrien wind farm was a factory. If there is a proportional way around a situation, we should try to encourage that rather than use a battering ram approach to the planning Acts to satisfy people who take a purist approach on these things. I am with the Minister on this matter.
It is not a matter of what An Bord Pleanála would do. The issue is that a stage would be skipped. The question of the two issues being bundled is not one that I raised. The Minister raised the fact that having the two applications combined creates a different dynamic. It is not about each thing being considered on its merits. The fact is that a substitute consent application is considered at the same time as a new planning application. I have no problem with An Bord Pleanála considering planning applications after they have gone through the proper process, which happens all the time. I note that it is not simply about a road and another nearby road. Perhaps the Minister will clarify this. The legislation does not require that the development be related, such that a road could be rerouted. It could be a question of having a quarry and wanting to build an unrelated factory on an adjoining site. As I understand it, the requirement is simply that it be on related or adjoining land rather than having a related purpose. That is a key difference. One can have substitute consent for one thing that allows one to then go directly to An Bord Pleanála about something different. I think that is relevant.
I know people would like to bypass the local authorities, but I also know that many issues are rightly identified during the local authority process. Using the Derrybrien wind farm as an example, there is a reason that we have faith in the planning system. If we have faith in the planning system, why skip a stage of it? Why skip the stage of the planning system where local authorities are involved? If we have faith in the planning system, why not realise that there is value in the multiple stages? It results in better projects that have been quizzed and which have been pushed to meet standards. They did not make terrible mistakes which result in us paying fines or having to do messy mop-up operations. There is a reason for having a multi-stage planning process. I have faith in it, but I do not have faith in the idea of short-circuiting it, because we are more likely to make mistakes and to see planning for projects go through which then requires retrospective fixing. I do not believe that those with an unlawful development on their site should have a more advantageous situation-----
(Interruptions).
No. The only disadvantage the Minister has outlined is the disadvantage of having an unlawful application following which people need to apply to fix it retrospectively, which is a matter entirely within their control and is already subject to a substitute consent process. The additional hurdle of substitute consent is intrinsic to them. However, the new planning application provides them with a different, advantageous route to that planning permission compared with somebody who does not have an unlawful development, which is wrong.
I attempted to address as best I can in the clearest possible way the reality of the situation. There is no incentive. How could there be an incentive to look for a parallel application when one is tying a future proposal to what could be a potentially toxic unauthorised development that somebody happens upon? I have addressed the matter -----
As opposed to sequentially.
The Minister, without interruption.
I have listened intently to what the Senator has to say and I appreciate her input, I genuinely do, but section 5 is fundamental to the operation of this piece of legislation. I have addressed the points in detail and Senator McDowell has also made his contribution which I agree with. I note the Senator's amendments on this were ruled out of order because they were seen to be in direct conflict with the main thrust of the Bill. I do not think I have anything further to say on section 5. I strongly recommend that it is a fundamental part of the legislation and needs to be passed as published.
The like-with-like here is a sequential process where one seeks to substitute consent and then one seeks a planning permission versus a simultaneous process where one seeks substitute consent and a planning permission at the same time and effectively get to skip a stage in the process. I think it is a concern. I accept we disagree and because we disagree so fundamentally on it, it is very difficult for me to amend this section. It would be worth considering even just the point on related development because it is different if it is a matter of a related development that someone might say "I have done this, could I change this and do it this way?".
Could the Minister confirm that it is not required to be a related development but it can be a different development in terms of that land that is not related to the current process which does not have appropriate planning?
I think I have addressed in detail the Government's position on section 5 and how it will operate.
Question put:
The Committee divided: Tá, 28; Níl, 7.
Tá
- Ahearn, Garret.
- Ardagh, Catherine.
- Blaney, Niall.
- Buttimer, Jerry.
- Byrne, Malcolm.
- Byrne, Maria.
- Carrigy, Micheál.
- Cassells, Shane.
- Conway, Martin.
- Craughwell, Gerard P.
- Cummins, John.
- Currie, Emer.
- Daly, Paul.
- Davitt, Aidan.
- Dolan, Aisling.
- Fitzpatrick, Mary.
- Gallagher, Robbie.
- Horkan, Gerry.
- Keogan, Sharon.
- Kyne, Seán.
- Lombard, Tim.
- McDowell, Michael.
- McGreehan, Erin.
- O'Donovan, Denis.
- O'Reilly, Pauline.
- O'Sullivan, Ned.
- Seery Kearney, Mary.
- Wilson, Diarmuid.
Níl
- Boylan, Lynn.
- Higgins, Alice-Mary.
- Moynihan, Rebecca.
- Ó Donnghaile, Niall.
- Sherlock, Marie.
- Wall, Mark.
- Warfield, Fintan.
Tellers: Tá, Senators Seán Kyne and Robbie Gallagher; Níl, Senators Alice-Mary Higgins and Fintan Warfield.
Question declared carried.
Sections 6 and 7 agreed to.
SECTION 8
Question proposed: "That section 8 stand part of the Bill."
I want to indicate that it is my intention on Report Stage to table amendments in respect of the section. I refer particularly to the issue around where a decision to impose a condition that arises is materially different in respect of the terms and conditions from a recommendation report of the person assigned to report on the application for permission on behalf of the board. That is a positive measure but I may look to further strengthen these provisions. I am aware that we have had a considerable number of cases and cases being highlighted in situations whereby in respect, for example, of An Bord Pleanála, we have had inspector's reports that do not seem to have been reflected in the decisions. It is not necessarily intrinsically against that paragraph but I may look to add further strengthening in respect of that issue. The more information we can have, the better.
Question put and agreed to.
SECTION 9
Question proposed: "That section 9 stand part of the Bill."
The section allows for the area where the Minister might provide for regulations in such matters as procedure and administration. It would be useful to understand exactly what the problem is at the moment with the system we have. We already have a system for applying for substitute consent. Section 5 expands it and mainly seems to be an expansion to allow for simultaneous new applications. It would be useful for us to have reports on a few issues. This is where the regulations may come in. These may be issues that should be addressed through the regulations. It would be useful to know what kinds and what level of applications for substitute consent are happening currently; if there was a change in either the nature or volume of applications for substitute consent that may emerge after the passing of the Bill; the number of applications deemed to be successful and not successful; and the number of applications for substitute consent that might be accompanied by additional new applications for planning permission. I mention the current situation because it would be very useful for us to have a baseline. It would also be appropriate that within the regulations or such regulations as the Minister might make, he or she would specify the identification of patterns in respect of how these new powers are being used, what their impact is. This is because of that duty to ensure that we have not created, as I believe we will, an incentive in respect of developers and developments. One of the ways we need to be looking to the impact and ensuring that we main the principle of this being an exception rather than a new rule or new form of rule or, indeed, a new route towards planning that will have to be by monitoring. I will table amendments to the section on Report Stage seeking that within the regulations the Minister may set, there will be significant monitoring requirements and perhaps, while being appropriately careful in respect of data protection of individual cases, mechanisms that allow for the identification of concerns or patterns.
Question put and agreed to.
SECTION 10
Question proposed: "That section 10 stand part of the Bill."
Perhaps I should wait until section 12. This is one of the areas that will be coming to more sections later. We are deleting some of the powers that local authorities have at the moment in requiring an application for substitute consent. I am not sure if it is in this section or a later one. I want to indicate my intention to try to address the issue. Even if we wanted to have this alternate route-----
Is the Senator going to speak later on a different section?
I will leave it at this point.
Question put and agreed to.
Section 11 agreed to.
SECTION 12
Amendments Nos. 7 and 8 are related and may be discussed together. Is that agreed? Agreed.
I move amendment No. 7:
In page 8, line 4, after “shall” to insert “be subject to the criteria set out in section 177D(2) and”.
The amendment seeks to add a new caveat to the definition of "exceptional circumstance" being inserted into section 177A of the principal Act. The caveat is that the exceptional circumstances should be subject to the criteria set out in section 177D(1B)(2), which outlines that in considering whether exceptional circumstances exist, the board should have regard to whether regularisation of the development would circumvent the purpose and objectives of the EIA or the habitats directive; and whether the applicant had or could reasonably have had a belief that the development was not unauthorised. This would be important in situations where persons may have multiple applications. The board should further have regard to whether the ability to carry out an assessment of the environmental impacts of the development for the purposes of the EIA or appropriate assessment, and to provide for public participation have been substantially impaired, the actual or likely significant effect on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development, and the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated. Again, it goes back to the question of what comes next, even in a situation of refusal. The board shall further have regard to whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development. That is absolutely crucial so that we do not have a situation whereby if someone carries out one unauthorised development, they get substitute consent and an additional planning permission thrown in on the side and can then do it again. The board shall also have regard to such other matters as it may consider relevant.
I also note that the question of exceptional circumstances in the Bill has not been subject to public consultation, unless I am unaware of a public consultation.
This comes under the remit of environmental decision making because the issuing of substitute consent and the decision about how to proceed in a situation where proper environmental screening was not conducted is a decision with environmental implications so, again, the definition of exceptional circumstances should itself have been subject to public scrutiny and debate. Could the Minister indicate what steps have been taken to determine whether the definition of exceptionality proposed in the legislation complies with the definition envisaged in the ECJ ruling? I strongly believe there are concerns relating to that provision of the ECJ ruling that there should not be the creation of an encouragement or incentive to developers through the provisions of this Bill. I would like to ask the Minister how that is part of the ruling on exceptionality, how that is being addressed and what remedial steps might be taken if it does emerge that there is an encouragement effect. This comes back to the question of monitoring the impact.
Amendment No. 8 would also seek to insert a caveat into section 12 that would provide that while exceptional circumstances should other than in section 177K(2A)(b) be construed in accordance with section 177K(1J), the definition should also reflect the obligation to ensure there is no creation of a precedent or incentivisation with regard to applying for leave to substitute consent with exceptional circumstances. Again, this is trying to ensure that those paragraphs of the ECJ ruling that made it explicitly clear that should be nothing that encourages or incentivises developers in any way are applied. This is not about being against developers. I am all for developers going through the normal routes and putting forward developments. We all want different developments to happen. The amendment is about ensuring that there is nothing that would incentivise or encourage developers to go this route or that could be construed as in any directly or indirectly incentivising or rewarding unlawful development. Again, I am asking that this be made explicit in the Bill.
I will respond to both amendments. We had a long discussion around section 5 and I reject any notion that there is an incentivisation within this. What we are doing is bringing forward a process for either regularisation through a proper transparent process or if that fails, enforcement. That is what it would lead to. Amendment No. 7 seeks to amend section 12 of the Bill by inserting a reference in the definition of exceptional circumstances to the criteria set out in section 177D(2) of the principal Act.
I cannot accept the proposed amendment given that section 177D is being repealed as section 21 of the Bill and the exceptional circumstances criteria from the section the Senator is trying to amend - section 177D(2) - are being moved wholesale to section 177K to a new subsection (1J) as inserted by section 16 of the Bill. It is important to note that all of the text relating to exceptional circumstances criteria previously contained in the section the Senator is attempting to amend, which is section 177D(2), will be retained in a new location - section 177K.
The definition of exceptional circumstances in section 177A of the principal Act has been amended by section 12 of this Bill on technical drafting grounds to clarify that there is a separate unrelated use of the phrase "exceptional circumstances" in section 177K(2A)(b) that was introduced by the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 relating to a decision by the board as to whether an environmental impact assessment was required as opposed to relating to the criteria applied by the board under section 177K(1A)(a) whether substitute consent can be granted or not. The technical clarification is considered to be both necessary and reasonable.
In amendment No. 8, the Senator seeks to amend section 12 of the Bill by inserting a reference in the definition of exceptional circumstances to a requirement to "also reflect the obligation to ensure that there is no creation of a precedent or incentivisation". Again, I cannot accept the proposed amendment as the insertion of "creation of a precedent or incentivisation" is superfluous in that every single substitute consent application case that comes before the board would be considered on its own merits with regard to the exceptionality criteria that were formerly located in section 177D and that are now moved to section 177K. It is important that this is understood because as no two development proposals are identical, no precedent can be set by the board in its decisions that would have to be followed by the board in future consent applications. I cannot accept the proposed amendment as the insertion of a reference to incentivisation is also superfluous. I have previously set out on amendment No. 2 that the legislative proposal to allow parallel substitute consent and planning applications does not in any way, shape or form provide an incentive to developers to use substitute consent application provision instead of normal future-facing planning applications noting the significant constraints and vulnerabilities that there would be for any developer that will be attached to progressing a substitute consent proposal, including potential liability to planning enforcement if the substitute application is refused, which would require the demolition of any unauthorised development and the remediation of the site fully and rightly at a cost to the developer.
I thank the Minister for some of the clarifications, particularly with regard to precedent, which is useful to have on the record. However, I continue to disagree regarding the question of incentivisation. The Minister outlined that there is a risk in applying for substitute consent and said that is the main caveat. The concern is that at the moment, a local authority can require a developer to seek a substitute consent but the Bill as set out basically leaves that decision about whether to apply for substitute consent to the discretion of a developer, which is not appropriate in itself. Regarding the additional difficulty that has been suggested by the Minister and the fact that the developer has to take the risk by applying, the fact that there is discretion as to whether or not to apply is something granted by the Bill itself. Previously, a local authority could tell a developer to seek substitute consent for this unauthorised development and the developer would have to seek that consent and would then be able to apply for new planning permission. Again, this is the key point. It is not a matter of planning permission versus planning permission and seeking substitute consent. Under the current scenario, there is a requirement for somebody with an unlawful development to apply for substitute consent. The developer can then apply for planning permission. Under the Bill, the developer is able to choose whether to apply for substitute consent and apply directly for planning permission. It is an incentive.
I really appreciate the clarification in terms of precedent. It is something that needs to be monitored very closely in terms of what decisions are made. However, I will bring forward a new version of this amendment that removes the reference to precedent and simply deals with our substantive difference, which is the fear of incentivisation. I will withdraw the amendment and bring forward a new version on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 8, line 5, after "177K(1J)" to insert the following:
"and shall also reflect the obligation to ensure that there is no creation of a precedent or incentivisation".
I withdraw this amendment and reserve the right to introduce it on Report Stage.
Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
Cuireadh an Seanad ar fionraí ar 5.30 p.m. agus cuireadh tús leis arís ar 6 p.m.
Sitting suspended at 5.30 p.m. and resumed at 6 p.m.