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Seanad Éireann debate -
Tuesday, 28 Jun 2022

Vol. 286 No. 8

Planning and Development (Amendment) (No. 2) Bill 2022: Report and Final Stages

I remind Senators that a Senator may speak only once on Report Stage, except the proposer of an amendment, who may reply to the discussion on the amendment. Also on Report Stage, each non-Government amendment must be seconded.

I move amendment No. 1:

In page 4, to delete lines 3 to 9.

I second the amendment.

This amendment seeks to delete section 3(b), which amends section 34(12A) of the Planning and Development Act 2000, by substituting "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 "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 (12B)".

Section 34(12) of the principal Act specifies that a planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission has been made in respect of the development concerned before it was commenced, the application would have required that one or more than one of the following was carried out, either a determination as to whether an environmental impact assessment is required or an appropriate assessment.

I cannot accept the proposed amendment from Senators Higgins and Ruane to delete section 3(b). The amendment was previously proposed and rejected on Committee Stage as it would effectively allow a drafting inconsistency between section 34(12A), which would not reflect the amendments to section 34(12) of the principal Act. Section 3(b), which the Senators propose to delete, is a technical drafting amendment to amend section 34(12A) of the principal Act.

The amendments to section 3(b) reflect the related amendments at section 34(12), which in turn have been introduced by section 3(a) of the Bill. As previously stated on Committee Stage in Seanad Éireann, it is notable that Senator Higgins has not sought to amend the main amendments to section 34(12) introduced by section 3(a) of the Bill. For information purposes, the purpose of the amendments to section 3(a) are technical drafting amendments, which have been reformed into sections 34(12)(a) and (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 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 considering retention applications for developments that would have required a determination as to whether an EIA is required to be carried out, that is, where a sub-threshold EIA development is screened to require EIA, is being deleted as superfluous as screening for EIA is a prerequisite for section 34(12)(a) to apply. Therefore, for the above reasons, I must reject the proposed Opposition amendment No. 1.

Amendment, by leave, withdrawn.

Amendments Nos. 2 and 3 are ruled out of order as they are in conflict with the principle of the Bill as read a Second Time.

Amendments Nos. 2 and 3 not moved.

Amendments Nos. 4 and 8 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 4:

In page 4, line 33, after “land” to insert “, for a related purpose,”.

I second the amendment.

Amendment No. 4 seeks to add a condition to the provision in the Bill that a person who applies for substitute consent in respect of a development of land can also apply for permission for substitute consent for adjoining land. The condition our amendment would add is that the development on adjoining land must be for a purpose related to the original development. This is to ensure that people can only apply for substitute consent on adjoining land where substitute consent has also been sought for similar development on the primary piece of land. We do not want to see situations where completely unrelated developments are being pushed through the substitute consent process.

Amendment No. 8 is similar to amendment No. 4 in that it seeks to add the condition that developments on adjoining land given permission under substitute consent must be related to the original development. It deletes the wording in section 5 that it is not required to be the same as the primary development and changes it to a requirement that the development is related. I look forward to the Minister of State's response.

I thank Senator Black for her contribution. In accordance with groupings of amendments proposed in the Seanad, I will address Opposition amendments Nos. 4 and 8 together, as they both seek to amend section 5 of the Planning and Development Act (Amendment) (No. 2) Bill 2022 by requiring section 37L applications to have a related purpose to the substitute consent application development.

Proposed amendment No. 4 concerns the insertion of "for a related purpose" after the word "land" in new paragraph (a) of section 37L(1), as inserted by paragraph (a) of section 5 of the Bill.

Amendment No. 8 concerns the substitution of the phrase "must be related to" for "it is not required to be the same as" or "of the same description as" in the amendment to 37L(3), as inserted by section 5(c) of the Bill. I cannot accept the Senator’s proposed opposition to this section, which concerns simultaneous application for future development under section 37L of the principal Act.

As previously set out in my response to Opposition amendments, this amendment to the principal Act widens the type of development availability for any future development consent assessed. This means that the applicant is not restricted to application related only to the same type of development as a substitute consent application but can seek to change the use of the land to suit development needs.

The proposed amendment to section 37L will also allow the potential for an integrated approach to assessment by An Bord Pleanála for such related development proposals on the same or adjoining sites, but it will also be of benefit for the understanding of the public, as assessments will be held at similar times and by the same authority rather than by separate authorities.

In the very rare cases where substitute consent is sought, it is sought after a bona fide mistake by the developer has been realised, often following a court judgment that has revised the common legal understanding of whether a development or class of developments were a breach of the law whereby a developer thereafter seeks to formally correct the mistake and where the developer is also exposed to significant negative risk of mandatory enforcement and remediation of the site if substitute consent is refused.

In this regard, it is important to note that it is material consideration for An Bord Pleanála in considering whether exceptional circumstances exist in the substitute consent proposal; whether the applicant had or could reasonably have had a belief that the development was not unauthorised, as well as the additional material consideration of whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development. In other words, the risk of exceptional circumstances not being deemed to exist and therefore being refused substitute consent is apparent if the applicant cannot adequately demonstrate his or her bona fides that he or she could reasonably have had a belief that the development was not unauthorised.

Any perceived benefit to future-facing applications of being able to apply directly to the board instead of having to apply separately to the relevant planning authority first will be significantly outweighed by the inherent vulnerabilities and significant potential financial exposure if the related substitute consent application is refused. In such cases, the relevant planning authority will be statutorily obliged to initiate enforcement proceedings against the unauthorised development to seek remediation of the site. Furthermore, the future-facing planning application on the same or adjoining site may also be refused if, for example, it relies on any element of the refused substitute consent proposal. In other words, the legislative proposal to allow parallel substitute consent and planning applications is not unnecessarily developer-friendly in scope, noting the significant constraints and vulnerabilities for the developer attached to progressing a substitute consent proposal as well as the application's benefits to the public in allowing an holistic assessment of two related proposals on the same or adjoining sites.

Having regard to the above, the Government's proposed amendments to section 37L are considered to be reasonable. As such, I must oppose amendments Nos. 4 and 8.

Amendment put and declared lost.

Amendments Nos. 5, 7 and 11 are related and may be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 5:

In page 4, line 33, after “land” to insert the following:

“for a related purpose where such development has a commercial value of not greater than €5,480,000 million,”.

I second the amendment.

This seeks to add the condition that, where a person applies for substitute consent for the land subject to the application, the development cannot have a commercial value of more than €5.48 million. This is to stop scenarios where large development projects are rammed through the planning process and are not subject to strict criteria.

Amendment No. 7 is similar, in that it seeks to add a condition that, where a person applies for substitute consent in respect of land adjoining a development, it will not be granted where the commercial value of the proposed development is more than €5.48 million. This is to ensure that large-scale developments are subject to a planning process rather than the substitute consent process, which is designed to be the exception, not the rule.

Amendment No. 11 is an alternative to amendments Nos. 5 and 7 and is a blanket provision to prevent developments with commercial values of more than €5.48 million from being subject to the provisions of this section.

I will put the question. Actually, I apologise to the Minister of State.

I thought that the Acting Chairperson was going to let me off the hook.

I thank Senator Black for these amendments, which all relate to the imposition of a monetary threshold on the scope of substitute consent by seeking to amend section 5 of the Bill. I oppose the amendments, which seek to apply a limit of €5.48 million to the upper commercial value of any future-facing development of the land that is the subject of the application for substitute consent. Such an imposition would unreasonably limit the type and extent of any future development permissible and runs contrary to the reasonable objective of section 5. The Government's amendments to the Bill are intended in exceptional circumstances to bring developments that have been determined to be operating outside of environmental planning law back into the planning framework irrespective of the commercial value of the sites. In the rare cases where substitute consent is sought, it arises after a bona fide mistake has been realised by the developer - this often follows a court judgment that has revised a common legal understanding of whether a development or class of developments was in breach of the law - and the developer seeks to correct the mistake formally, with the developer exposed to the significant negative risk of mandatory enforcement and remediation of the site if substitute consent is reduced.

It is not the Bill's intention to preclude any site from being brought back into the planning system by way of substitute consent based on commercial or monetary value. Therefore, I oppose the amendments.

Amendment put and declared lost.

Amendment No. 6 is out of order because it is in conflict with the principle of the Bill as read a Second Time.

Amendment No. 6 not moved.

I move amendment No. 7:

In page 4, to delete lines 35 and 36 and substitute the following:

“(b) development of land adjoining the land, for a related purpose to the subject of the application for substitute consent, where such a development does not have a commercial value of greater than €5,480,000.”,”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 8:

In page 5, lines 1 and 2, to delete “is not required to be the same as, or of the same description as,” and substitute “must be related to”.

I second the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 9:

In page 5, lines 10 to 12, to delete all words from and including “be” in line 10 down to and including line 12 and substitute “not be made under subsection (1) as substituted by that section 5.”,”.

I second the amendment.

This seeks to amend the new subsection (5) being inserted into section 37L by removing the provision whereby an application for substitute consent made prior to the coming into operation of this section but on which a decision has not been made may be able to seek substitute consent under subsection (1). We have a number of concerns about this section. It is not appropriate that applications already under way would be subject to this new regime, in respect of which there are serious questions over due process and access to justice.

I thank the Senator for her contribution. This amendment seeks to oppose generally a transitional provision in subsection (5)(d), which seeks to amend section 37L(5) of the principal Act. Subsection (5)(d) comprises a transitional provision that will allow ongoing substitute consent applications that are before the board but have not been determined by it prior to the new provision's coming into operation to make parallel future-facing planning applications under the new amended provisions of section 37L. Such future-facing applications must be made within six months of the coming into operation of section 5 of the Bill.

This is a typical transitional provision and is considered reasonable, as it extends the provisions of section 37L to substitute consent applications that have not been determined by An Bord Pleanála at the date that the new provisions come into force. Therefore, I must oppose the amendment.

Amendment put and declared lost.

Amendment No. 10 is ruled out of order because it is in conflict with the principle of the Bill as read a Second Time.

Amendment No. 10 not moved.

I move amendment No. 11:

In page 6, between lines 8 and 9, to insert the following:

“(a) by the insertion of the following subsection after subsection (13):

“(14) The provisions of this section shall not apply to a development with a commercial value in excess of €5,480,000 million.”.”.

I second the amendment.

Amendment put and declared lost.

I move amendment No. 12:

In page 8, line 5, after “177K(1J)” to insert the following:

“and shall ensure consistency with the legal requirement that regularisation shall not offer applicants concerned the opportunity to circumvent Community rules or to dispense with applying them, and does not have the effect of encouraging developers to forego ascertaining whether a development satisfies the criteria of Article 2(1) of Directive 85/337 as amended”.

I second the amendment.

This seeks to address a core concern with the legislation by adding the stipulation that the definition of "exceptional circumstances" should "ensure consistency with the legal requirement that regularisation shall not offer applicants concerned the opportunity to circumvent Community rules" and should not have the effect of encouraging developers to forgo checks on whether a development "satisfies the criteria of Article 2(1) of Directive 85/337". This language mirrors the judgment in case C-215/06 and goes to the core of the issue, namely, that substitute consent should be the exception rather than the rule and that we should not be incentivising developers to try to circumvent the planning process or environmental obligations.

I thank the Senator for her contribution. Unfortunately, I cannot accept the proposed amendment, as section 177D is being repealed under section 21 of the Bill and the exceptional circumstance criteria under section 177D(2) are being moved wholesale to section 177K as the new subsection (1J), as inserted by section 16 of the Bill.

It is important to note that all of the text of the exceptional circumstance criteria previously contained in section 177D(2) will be retained in its new location in section 177K of the principal Act. In this regard, the proposed amendment is superfluous as section 177K, which is the successor to section 177D(2), already requires that in considering whether exceptional circumstances exist the board shall have regard to specified matters including, in section 177K(1J)(a), whether regularisation of the development concerned would circumvent the purpose and objectives of the environmental impact assessment directive or the habitats directive.

Other criteria in section 177K(1J), which have been carried over verbatim from section 177D(2), which is to be repealed, include: that the board shall have regard to whether the applicant had or could reasonably have had a belief that the development was not unauthorised; whether the ability to carry out an assessment of the environmental impacts of the development for the purpose of an environmental impact assessment or an appropriate assessment and to provide for public participation in such an assessment has been substantially impaired; the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development; the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated; and whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development.

As the Senators will be aware, these criteria were developed on the basis of legal advice from the Office of the Attorney General, following consultation with the European Commission in 2010 and following the European Court of Justice, ECJ, Derrybrien case relating to the scope and interpretation of the environmental impact assessment directive.

Having received significant legal advice from the Office of the Attorney General in drafting this Bill, I am satisfied that the criteria in section 177K(1J) meet the requirements of the ECJ Derrybrien judgment as well as other ECJ and Irish national court judgments since then, including the Supreme Court judgment of July 2020 on quarries and substitute consent, which it should be recalled was the genesis for the initial amendment of the present substitute consent provisions in December 2020, by way of the Planning and Development, and Residential Tenancies, Act 2020, which introduced the consideration of the exceptional criteria in the main substitute consent stage. For all the reasons just discussed, I must oppose amendment No. 12.

Is the Senator pressing the amendment?

Amendment put and declared lost.

I move amendment No. 13:

In page 13, to delete line 34.

I second the amendment.

Amendment No. 13 seeks to delete the repeal of section 177B of the 2000 Act. This section gives power to local authorities to give notice of direction to developments to apply for substitute consent. Its repeal is a regressive step and removes local authorities from this part of the planning process. It marks another point where we are disempowering our local authorities and removing local community representatives from the planning process. I do not think we have received an adequate explanation as to why the section is being repealed. I completely oppose its removal. It is disheartening to see power being taken away from councillors again.

I will speak to amendment No. 13, as tabled, which seeks to amend the Bill by deleting the provision that repeals section 177B of the principal Act. I cannot accept the proposed amendment, as one of the key objectives of the Bill is that the current two-stage substitute consent process - which includes various alternate initial steps prior to applying for substitute consent, such as that contained in section 177B, is to be replaced with a single-stage substitute consent application process that is fully in compliance with the environmental impact assessment directive and related ECJ judgments, such as the Derrybrien judgment and the recent Supreme Court judgment on quarries and substitute consent.

For information, section 177B of the Act provides that where a planning authority becomes aware of a development granted permission for which a screening, environmental impact assessment or appropriate assessment was or is required, and in respect of which a final judgment of an Irish court or the ECJ has been made that the permission was in breach of law, the planning authority must direct the person to apply to the board for substitute consent. The requirement to obtain leave from the board under sections 177C and 177D or a direction from a planning authority under section 177B to apply for substitute consent is being repealed, in which case a person can apply for substitute consent directly to the board.

I note that it is presently the case that if a person requested to submit a substitute consent application under section 177B refuses to do so, it will become a planning enforcement matter for the relevant planning authority, pursuant to sections 177O(3) and (4) of the principal Act. The deletion of section 177B does not change the fact that if a developer is operating an unauthorised development which should have been subject to environmental impact assessment or appropriate assessment but which was not, the development can still be subject to planning enforcement by the relevant planning authority in the normal way, in accordance with the provisions of section 154 of the principal Act. In this regard, there is no diminution of the planning authority’s ability to initiate planning enforcement against unauthorised development. It is for this reason that I must oppose amendment No.13.

Is the Senator pressing the amendment?

Amendment put and declared lost.

I move amendment No. 14:

In page 14, between lines 34 and 35, to insert the following:

“Report on substitute consent

23. The Minister shall, within 18 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining—

(a) the number of applications for substitute consent received since this section was commenced and the number granted which were granted, and

(b) the mechanisms employed by the Board to determine compatibility of decisions on application with rulings of the Court of Justice of the European Union regarding exceptionality in respect of the granting of substitute consent.”.

I second the amendment.

Amendment No. 14 seeks to ensure that within 18 months of the passing of the legislation, the Minister will lay a report before the Oireachtas outlining the number of applications for substitute consent received since the section commenced and the number of applications which were granted, and "the mechanisms employed by the board to determine compatibility of decisions on application with rulings of the ECJ regarding exceptionality in respect of the granting of substitute consent". The amendment seeks to ensure transparency around the process, and emphasises the need for the Department to collect and publish adequate data on this drastic change to the planning process, and how such changes intersect with EU law.

This amendment seeks to insert a provision that provides for the laying of a report by the Minister before both Houses following the introduction of these proposed legislative amendments. Specifically, amendment No. 14 seeks to impose a ministerial obligation to lay a report before both Houses of the Oireachtas within 18 months of the passing of this Act, outlining data on substitute consent applications received and-or granted, any impacts identified in respect of other planning applications, and the relevant exceptional circumstance in respect of each successful application.

While I understand the intention behind the proposed amendment, I am opposing amendment No. 14, as existing planning reporting arrangements are already in place that are robust and fit for purpose. All planning decisions and related information are published promptly to the website of An Bord Pleanála, including any considerations of exceptionality by the board, and additionally, specific arrangements are in place to allow Members of both Houses to make direct inquiries of the board in relation to substitute consent planning matters. For the reasons just outlined, I must oppose amendment No. 14.

Is the Senator pressing the amendment?

Amendment put and declared lost.

I move amendment No. 15:

In page 14, between lines 34 and 35, to insert the following:

“Report local authority powers in respect of substitute consent

23. The Minister shall, within 18 months of the passing of this Act, lay a report before both Houses of the Oireachtas outlining the implications or impact of this legislation in respect of the powers of local authorities with regard to the substitute consent process and the way in which the process impacts on the policies and objectives contained within each local authority’s Local Development Plan.”.

I second the amendment.

Amendment No. 15 seeks to ensure that within 18 months of the passing of the Act, the Minister lays a report before the Houses on the impact of the "legislation in respect of the powers of local authorities with regard to the substitute consent process and the way in which the process impacts on the policies and objectives contained within each local authority’s Local Development Plan".

As I mentioned earlier, this Bill removes local authorities entirely from the process and is a regressive step, particularly at a time when we are trying to return powers to city and county councillors and when local authorities are finalising their development plans. It also increases the power of An Bord Pleanála, an organisation we know as a matter of public record is not without its flaws and controversies. I hope the Minister of State will accept this amendment.

Amendment No. 15 seeks to insert a provision that provides for the laying of a report by the Minister before both Houses of the Oireachtas following the introduction of these proposed legislative amendments. Specifically, amendment No. 15 seeks to impose ministerial obligations to lay a report before both Houses of the Oireachtas within 18 months of the passing of this Bill outlining the implications or impact of this legislation. While I understand the intention behind the proposed amendment, I am opposing it because existing planning reporting arrangements are already in place and fit for purpose.

All planning decisions and related information are published promptly on the website of An Bord Pleanála and specific arrangements are now in place to allow Members of both Houses to make direct inquiries of the board regarding subsequent consent planning matters. These provisions, which relate to the assessment of individual projects by the board, have no substantive impact on the policies and objectives contained in each local authority's development plan, which is adopted pursuant to the reserve functions of each member of the council. For these reasons, I am opposing amendment No. 15.

Amendment, by leave, withdrawn.

I move amendment No. 16:

In page 14, between lines 34 and 35, to insert the following:

"Review of Act

23. The Minister shall, within 18 months of the passing of this Act, review the operation of this Act and in such a review shall seeks the views of city and county councillors and the Joint Oireachtas Committee on Housing, Local Government and Heritage and upon completion of the review shall lay it before both Houses of the Oireachtas.".

This amendment seeks a review within 18 months of the operation of this Bill within 18 months of its passing. It also seeks that the review should seek the views of city and county councillors and the Oireachtas Joint Committee on Housing, Local Government and Heritage, and that upon completion of the review, it shall be laid before both Houses of the Oireachtas. I will not go through my concerns again because I have already done so but I would say that when we are drastically changing a process, we should have an opportunity to review the new process and all appropriate stakeholders should be consulted.

I second the amendment.

Amendment No. 16 seeks to insert a provision that provides for the laying of a report by the Minister before both Houses. Specifically, amendment No. 16 seeks to impose a ministerial obligation to lay a report before both Houses within 18 months of the passing of the Act with the report having previously reviewed the Act, including having sought the views of city and county councillors and the Oireachtas Joint Committee on Housing, Local Government and Heritage beforehand.

I understand the thrust of the Senators' amendment but I do not think it is required. Existing planning reporting arrangements from the Planning Act, as amended by this Bill, are already in place and are robust and fit for purpose. All planning decisions related to information are published promptly on the website of An Bord Pleanála. Additionally, specific arrangements are in place to allow Members of both Houses to make direct inquiries of the board regarding substitute consent planning matters.

In addition, while the Oireachtas Joint Committee on Housing, Local Government and Heritage has already had the opportunity to scrutinise this Bill as part of the pre-legislative scrutiny process, the committee may consider and report to Dáil Éireann on matters relating to planning policy and may, therefore, form an appropriate vehicle relating to any post-implementation assessment in due course without the need for the duplication of the committee's responsibility in this Bill. It is for these reasons that I am opposing amendment No. 16.

Amendment, by leave, withdrawn.
Bill received for final consideration.

When is it proposed to take the next Stage?

Question, "That the Bill do now pass", put and agreed to.
Cuireadh an Seanad ar athló ar 8.25 p.m. go dtí 10 a.m., Dé Céadaoin, an 29 Meitheamh 2022.
The Seanad adjourned at 8.25 p.m. until 10 a.m. on Wednesday, 29 June 2022.
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