I move amendment No. 101:
In page 34, before section 31, to insert the following new section:
"Amendment of Part X of Principal Act.
37.—The Principal Act is amended by the insertion of the following Parts after Part X:
"PART XA
Substitute Consent
Interpretation.
177A.—(1) In this Part—
‘exceptional circumstances' shall be construed in accordance with section 177D(2);
‘remedial environmental impact statement' shall be construed in accordance with section 177F;
‘remedial Natura impact statement' shall be construed in accordance with section 177G;
‘substitute consent' means substitute consent granted under section 177K.
(2) Subject to this Part, a word or expression that is used in the Part and that is also used in the Birds Directive or the Habitats Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the Birds Directive or the Habitats Directive.
Application to apply for substitute consent where notice served by planning authority.
177B.—(1) Where a planning authority becomes aware, in relation to a development in its administrative area, for which permission was granted by the planning authority or the Board, that a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union has been made that the permission was in breach of law, invalid or otherwise defective in a material respect because of—
(a) any matter contained in or omitted from the application for permission including omission of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or
(b) any error of fact or law or procedural error,
it shall give a notice in writing to the person who carried out the development or the owner or occupier of the land as appropriate.
(2) The notice referred to in subsection (1) shall—
(a) inform the person to whom it is given of the proceedings and findings referred to in subsection (1),
(b) direct the person concerned to apply to the Board for substitute consent no later than 12 weeks from the date of the notice,
(c) direct the person concerned to furnish with his or her application a remedial environmental impact statement or remedial Natura impact statement or both of those statements, as the case may be,
(d) advise the person concerned that he or she may make submissions or observations in writing to the planning authority no later than 4 weeks from the date of the notice.
(3) Not later than 8 weeks after the giving of the notice under subsection (1) the planning authority shall—
(a) where no submissions or observations are made to the authority under subsection (2)(d), confirm the notice, or
(b) where submissions or observations are made to it under subsection (2)(d), subject to subsection (4), decide to confirm or withdraw the notice.
(4) A planning authority may withdraw a notice under subsection (3)(b) only where the authority has been shown that a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union has not been made that the permission granted for the development was in breach of law, invalid or otherwise defective in a material respect because of the matters set out in subsection (1).
(5) The planning authority shall notify in writing the person to whom the notice under subsection (1) was given of the withdrawal or confirmation of the notice and the reasons therefor.
(6) (a) Where the decision of the planning authority is to confirm the notice under subsection (3)(a), the notification referred to in subsection (5) shall also contain a direction to apply for substitute consent not later than 12 weeks after the giving of the notification under subsection (2) and the person to whom the direction is given shall comply with the direction.
(b) Where the decision of the planning authority is to confirm the notice under subsection (3)(b), the notification referred to in subsection (5) shall also contain a direction to apply for substitute consent not later than 12 weeks after the giving of the notification under subsection (5) and the person to whom the direction is given shall comply with the direction.
(7) The planning authority shall send a copy of a notice given under subsection (2) or (5) to the Board.
(8) Details of the confirmation or withdrawal of the notice by the planning authority shall be entered by the authority in the register.
(9) For the purposes of this section and section 177C, a judgment shall be deemed to be a final judgment where—
(a) the time within which an appeal against the judgment may be brought has expired and no such appeal has been brought,
(b) there is no provision for appeal against such judgment, or
(c) an appeal against the judgment has been withdrawn.
Application for leave to apply for substitute consent where notice not served by planning authority.
177C.—(1) A person who has carried out a development referred to in subsection (2), or the owner or occupier of the land as appropriate, to whom no notice has been given under section 177B, may apply to the Board for leave to apply for substitute consent in respect of the development.
(2) A development in relation to which an applicant may make an application referred to in subsection (1) is a development which has been carried out where an environmental impact assessment or an appropriate assessment, or both of those assessments, as the case may be, was or is required, and in respect of which—
(a) the applicant considers that a permission granted for the development by a planning authority or the Board may be in breach of law, invalid or otherwise defective in a material respect, whether pursuant to a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise, by reason of—
(i) any matter contained in or omitted from the application for permission including omission of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or
(ii) any error of fact or law or a procedural error,
or
(b) the applicant is of the opinion that exceptional circumstances exist such that it may be appropriate to permit the regularisation of the development by permitting an application for substitute consent.
(3) An applicant for leave to apply for substitute consent under subsection (1) shall furnish the following to the Board:
(a) any documents that he or she considers are relevant to support his or her application;
(b) any additional information or documentation that may be requested by the Board, within the period specified in such a request.
(4) Where an applicant for leave to apply for substitute consent under subsection (1) fails to furnish additional information or documentation within the period specified in a request under subsection (3)(b), or such additional period as the Board may allow, the application shall be deemed to have been withdrawn by the applicant.
(5) The Board may seek information and documents as it sees fit from the planning authority for the administrative area in which the development the subject of the application under this section is situated, including information and documents in relation to a permission referred to in subsection (2)(a) and in relation to any other development that may have been carried out by the applicant and the planning authority shall furnish the information not later than 4 weeks after the information is sought by the Board.
Decision of Board on whether to grant leave to apply for substitute consent.
177D.—(1) The Board shall only grant leave to apply for substitute consent in respect of an application under section 177C where it is satisfied—
(a) that a permission granted for development by a planning authority or the Board is in breach of law, invalid or otherwise defective in a material respect whether by reason of a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise, by reason of—
(i) any matter contained in or omitted from the application for the permission including omission of an environmental impact statement or a Natura impact statement or both of those statements as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or
(ii) any error of fact or law or procedural error,
or
(b) that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.
(2) In considering whether exceptional circumstances exist the Board shall have regard to the following matters:
(a) whether regularisation of the development concerned would circumvent the purpose and objectives of the Environmental Impact Assessment Directive or the Habitats Directive;
(b) whether the applicant had or could reasonably have had a belief that the development was not unauthorised;
(c) 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;
(d) 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;
(e) the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated;
(f) whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development;
(g) such other matters as the Board considers relevant.
(3) In deciding whether it is prepared to grant leave to apply for substitute consent under this section the Board shall have regard to any information furnished by the applicant under section 177C(3) and any information furnished by the planning authority under section 177C(5).
(4) The Board shall decide whether to grant leave to apply for substitute consent or to refuse to grant such leave.
(5) The decision of the Board under subsection (4) shall be made—
(a) 6 weeks after the receipt of an application under section 177C(1),
(b) 6 weeks after receipt of additional information from the applicant under section 177C(3)(b), or
(c) 6 weeks after receipt of information from the planning authority under section 177C(5),
whichever is the later.
(6) The Board shall give notice in writing to the applicant of its decision on the application for leave to apply for substitute consent and of the reasons therefor.
(7) Where the Board decides to grant leave to apply for substitute consent, the notice under subsection (6) shall also contain a direction—
(a) to apply for substitute consent not later than 12 weeks after the giving of the notice, and
(b) to furnish with the application a remedial environmental impact statement or a remedial Natura impact statement, or both of those statements as the Board considers appropriate.
(8) The Board shall give a copy of the notice of its decision under subsection (6) and direction under subsection (7) to the planning authority for the administrative area in which the development the subject of the application for leave to apply for substitute consent is situated and details of the decision and direction shall be entered by the authority in the register.
Application for substitute consent.
177E.—(1) An application for substitute consent shall be made to the Board.
(2) An application to the Board for substitute consent shall—
(a) be made pursuant to a notice given under section 177B or 261A or a decision to grant leave to apply for substitute consent under section 177D,
(b) state the name of the person making the application, or if applicable, of the person acting on his or her behalf,
(c) in accordance with a direction of the planning authority under section 177B(2), shall be accompanied by a remedial environmental impact statement or remedial Natura impact statement or both of those statements, as the case may be,
(d) in accordance with a direction of the Board under section 177D(7), shall be accompanied by a remedial environmental impact statement or remedial Natura impact statement or both of those statements, as the case may be,
(e) be accompanied by the fee payable in accordance with section 177M,
(f) comply with any requirements prescribed under section 177N, and
(g) be received by the Board within the period specified in section 177B, 177D or 261A, as appropriate.
(3) An application for substitute consent which does not comply with the requirements of subsection (2) shall be invalid.
(4) The Board may at its own discretion, on request extend the period specified in section 177B, 177D or 261A, for the making of an application for substitute consent, by such further period as it considers appropriate.
(5) As soon as may be after receipt of an application for substitute consent under this section, which is not invalid, the Board shall send a copy of the application and all associated documentation, including the remedial environmental impact statement, or the remedial Natura impact statement, or both of those statements, as the case may be, to the planning authority for the area in which the development the subject of the application is situated and such documentation shall be placed on the register.
Remedial environmental impact statement.
177F.—(1) A remedial environmental impact statement shall contain the following:
(a) having regard to Article 3 of the Environmental Impact Assessment Directive, a statement of the significant effects, if any, on the environment, which have occurred or which are occurring or which can reasonably be expected to occur because the development the subject of the application for substitute consent was carried out;
(b) details of—
(i) any appropriate remedial measures undertaken or proposed to be undertaken by the applicant for substitute consent to remedy any significant adverse effects on the environment;
(ii) the period of time within which any proposed remedial measures shall be carried out by or on behalf of the applicant;
(c) such information as may be prescribed under section 177N.
(2) (a) Before an applicant makes an application for substitute consent, he or she may request the Board to give to him or her an opinion in writing prepared by the Board on the information required to be contained in the remedial environmental impact statement in relation to the development the subject of the application and the Board shall, as soon as may be, comply with that request.
(b) An applicant shall, in connection with a request under paragraph (a), forward to the Board sufficient information in relation to the development the subject of the application for substitute consent to enable the Board to comply with that request, and shall forward any additional information requested by the Board.
(c) The provision of an opinion under this subsection shall not prejudice the performance by the Board of any of its functions under this Act or regulations under this Act and cannot be relied upon in the application for substitute consent or in any legal proceedings.
(d) Where an applicant has made a request under paragraph (a) the Board may consent in writing to an extension, for a specified period, of the period for making the application for substitute consent.
Remedial Natura impact statement.
177G.—(1) A remedial Natura impact statement shall contain the following:
(a) having regard to Article 6 of the Habitats Directive, a statement of the significant effects, if any, on the relevant European site which have occurred or which are occurring or which can reasonably be expected to occur because the development the subject of the application for substitute consent was carried out;
(b) details of—
(i) any appropriate remedial or mitigation measures undertaken or proposed to be undertaken by the applicant for substitute consent to remedy or mitigate any significant effects on the environment or on the European site;
(ii) the period of time within which any such proposed remedial or mitigation measures shall be carried out by or on behalf of the applicant;
(c) such information as may be prescribed under section 177N;
(d) and may have appended to it, where relevant, and where the applicant may wish to rely upon same:
(i) a statement of imperative reasons of overriding public interest;
(ii) any compensatory measures being proposed by the applicant.
Submissions or observations by person other than the applicant for substitute consent or planning authority.
177H.—(1) Any person other than the applicant for substitute consent or a planning authority may make submissions or observations in writing to the Board in relation to an application for substitute consent.
(2) Submissions or observations that are made under this section shall not be considered by the Board if the person who submits them has not complied with any relevant requirements prescribed by regulations under section 177N.
(3) Subsection (2) shall not apply in relation to submissions or observations made by a Member State or another state which is a party to the Transboundary Convention, arising from consultation in accordance with the Environmental Impact Assessment Directive or the Transboundary Convention, as the case may be, in relation to the effects on the environment of the development to which an application for substitute consent relates.
Report of planning authority.
177I.—(1) No later than 10 weeks after receipt, under section 177E(5), by a planning authority of a copy of an application for substitute consent and a remedial environmental impact statement or a remedial Natura impact statement or both of those statements, as the case may be, a planning authority shall submit a report to the Board and the Board shall consider the report.
(2) The report referred to in subsection (1) shall include the following:
(a) information relating to development (including development other than the development which is the subject of the application for consent) carried out on the site where the development the subject of the application for consent is situated, and any application for permission made in relation to the site and the outcome of the application;
(b) information relating to any warning letter, enforcement notice or proceedings relating to offences under this Act that relate to the applicant for substitute consent;
(c) information regarding the relevant provisions of the development plan and any local area plan as they affect the area of the site and the type of development concerned;
(d) any information that the authority may have concerning—
(i) current, anticipated or previous significant effects on the environment, having regard to Article 3 of the Environmental Impact Assessment Directive, or on a European site, having regard to Article 6 of the Habitats Directive, associated with the development or the site where the development took place and, if relevant, the area surrounding or near the development or site, or
(ii) any remedial measures recommended or undertaken;
(e) the opinion, including reasons therefor, of the manager as to—
(i) whether or not substitute consent should be granted for the development, and
(ii) the conditions, if any, that should be attached to any grant of substitute consent.
Draft direction and direction to cease activity or operations.
177J.—(1) Where the Board has received an application for substitute consent made in accordance with section 177E and is considering that application, it may give a draft direction in writing to the person who made the application requiring the person to cease within the period specified in the draft direction, all or part of his or her activity or operations on or at the site of the development the subject of the application, where the Board forms the opinion that the continuation of all or part of the activity or operations is likely to cause significant adverse effects on the environment or adverse effects on the integrity of a European site.
(2) The draft direction referred to in subsection (1) shall inform the applicant of the Board's reasons for its opinion that the continuation of all or part of the activity or operations is likely to cause significant adverse effects on the environment or adverse effects on the integrity of a European site.
(3) The person to whom the draft direction is given may make a submission or observation to the Board in relation to the draft direction within 2 weeks of receipt of the draft direction.
(4) The Board shall consider any submission or observation submitted to it under subsection (3) and may do one of the following:
(a) give a direction to the applicant for substitute consent confirming the draft direction;
(b) give a direction to the applicant varying the draft direction;
(c) withdraw the draft direction.
(5) A person who fails to comply with a direction given by the Board under subsection (4), within the time specified in the direction shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding €5,000, or to imprisonment for a term not exceeding 6 months, or to both, or
(b) on conviction on indictment, to a fine not exceeding €12,600,000 or to imprisonment for a term not exceeding 2 years, or to both.
(6) Where a person is convicted of an offence referred to in subsection (5) and there is a continuation by him or her of the offence after his or her conviction, he or she shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable—
(a) on summary conviction, to a fine not exceeding €500 for each day on which the offence is so continued or to imprisonment for a term not exceeding 6 months, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 6 months, or
(b) on conviction on indictment, to a fine not exceeding €12,600 for each day on which the offence is so continued, or to imprisonment for a term not exceeding 2 years, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 2 years.
Decision of Board.
177K.—(1) Where an application is made to the Board for substitute consent in accordance with relevant provisions of the Act and any regulations made thereunder the Board may decide to grant the substitute consent, subject to or without conditions, or to refuse it.
(2) When making its decision in relation to an application for substitute consent, the Board shall consider the proper planning and sustainable development of the area, regard being had to the following matters:
(a) the provisions of the development plan or any local area plan for the area;
(b) the provisions of any special amenity area order relating to the area;
(c) the remedial environmental impact statement, or remedial Natura impact statement, or both of those statements, as the case may be, submitted with the application;
(d) the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned was carried out;
(e) the report and the opinion of the planning authority under section 177I;
(f) any submissions or observations made in accordance with regulations made under section 177N;
(g) any report or recommendation prepared in relation to the application by or on behalf of the Board, including the report of the person conducting any oral hearing on behalf of the Board;
(h) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact;
(i) conditions that may be imposed in relation to a grant of permission under section 34(4);
(j) the matters referred to in section 143;
(k) the views of a Member State where the Member State is notified in accordance with regulations under this Act;
(l) any relevant provisions of this Act and regulations made thereunder.
(3) The conditions referred to in subsection (1) may include—
(a) one or more than one condition referred to in section 34(4),
(b) a condition or conditions relating to remediation of all or part of the site on which the development the subject of the grant of substitute consent is situated,
(c) a condition or conditions requiring a financial contribution in accordance with section 48 of the Act.
(4) The Board shall send a notification of its decision under subsection (1) to the applicant, and such notification shall state—
(a) the main reasons for and considerations on which the decision is made, and
(b) where conditions are imposed in relation to the grant of substitute consent the main reasons for the imposition of any such conditions.
(5) The Board shall also send a copy of its decision under subsection (1) to the planning authority in whose area the development the subject of the application for substitute consent is situated and to any person who made submissions or observations in relation to the application.
Direction by Board to cease activity or operations or take remedial measures.
177L.—(1) Where the Board refuses an application for leave to apply for substitute consent under section 177D, or refuses to grant substitute consent under section 177K, it may give a draft direction in writing to the applicant concerned requiring him or her—
(a) to cease within the period specified in the draft direction, all or part of his or her activity or operations on or at the site of the development the subject of the application, where the Board forms the opinion that the continuation of all or part of the activity or operations is likely to cause significant adverse effects on the environment or adverse effects on the integrity of a European site, or
(b) to take such remedial measures, within the period specified in the draft direction, as the Board considers are necessary for either or both of the following:
(i) to restore the site on or at which the development referred to in the application is situated, to a safe and environmentally sustainable condition;
(ii) to avoid, in a European site the deterioration of natural habitats and the habitats of species or the disturbance of the species for which the site has been designated, insofar as such disturbance could be significant in relation to the objectives of the Habitats Directive.
(2) A draft direction referred to in subsection (1) shall give the reasons the Board considers that the specified measures are necessary and shall inform the person to whom the direction is sent that he or she may make submissions or observations to the Board in relation to the notice within 4 weeks of the date of the notice.
(3) Where the Board gives a draft direction to a person under subsection (1) it shall at the same time send a copy of the direction to the relevant planning authority and shall inform the planning authority that it may make submissions or observations to the Board in relation to the direction within 4 weeks of the date of the notice.
(4) In relation to the remedial measures that may be specified a draft direction issued under subsection (1) shall direct the person to whom the direction is given—
(a) to take the remedial measures specified in the draft direction,
(b) to keep records of the remedial measures being carried out in accordance with the draft direction,
(c) to carry out the remedial measures in such order, specified in the draft direction, as the Board considers appropriate,
(d) to comply with any requirements relating to monitoring and inspection of the remedial measures specified in the draft direction,
(e) to carry out the remedial measures within the period of time specified in the draft direction.
(5) The Board shall consider any submissions or observations in relation to the draft direction made to it, within 4 weeks of the date of the draft direction by the person to whom the direction was issued or the relevant planning authority and shall, as soon as may be—
(a) issue a direction to the applicant confirming the draft direction, or
(b) issue a direction to the applicant varying the draft direction, or
(c) withdraw the draft direction,
and shall send a copy of the direction to the relevant planning authority, or inform the authority of its decision to withdraw the draft direction, as the case may be.
(6) A person who fails to comply with a direction issued by the Board under subsection (4) within the period specified in the direction shall be guilty of an offence and shall be liable—
(a) on summary conviction, to a fine not exceeding €5,000, or to imprisonment for a term not exceeding 6 months, or to both, or
(b) on conviction on indictment, to a fine not exceeding €12,600,000 or to imprisonment for a term not exceeding 2 years.
(7) Where a person is convicted of an offence referred to in subsection (6) and there is a continuation by him or her of the offence after his or her conviction, he or she shall be guilty of a further offence on every day on which the contravention continues and for each such offence shall be liable—
(a) on summary conviction, to a fine not exceeding €500 for each day on which the offence is so continued or to imprisonment for a term not exceeding 6 months, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 6 months, or
(b) on conviction on indictment, to a fine not exceeding €12,600 for each day on which the offence is so continued, or to imprisonment for a term not exceeding 2 years, or to both, provided that if a person is convicted in the same proceedings of 2 or more such further offences the aggregate term of imprisonment to which he or she shall be liable shall not exceed 2 years.
(8) Insofar as a direction is issued requiring the taking of remedial measures in respect of a quarry, or peat extraction, such remedial measures may be required in relation to development that occurred at any time, but not more than 7 years prior to the date of the coming into operation of this section.
Fees and costs arising on an application for substitute consent.
177M.—(1) The fee payable to the Board in respect of an application for substitute consent shall be the same as the fee that would be payable to the planning authority under the permission regulations if the applicant were making an application for permission for the development under section 34(1) rather than an application for substitute consent.
(2) Where the Board grants an application for substitute consent under section 177K in a case where it granted leave to apply for substitute consent on the grounds that exceptional circumstances existed, it may determine that a sum or sums is required to be paid in order to defray some or all of the costs incurred by the Board or the planning authority during the course of consideration of the application and may direct the applicant to pay the sum or sums to the Board or the planning authority or both, as the case may be.
(3) A reference to costs in subsection (2) shall be construed as a reference to such costs as the Board in its absolute discretion considers to be reasonable costs, but does not include a reference to so much of the costs there referred to as have been recovered by the Board by way of a fee charged under section 144.
(4) Where the Board directs an applicant to pay an additional sum to it or the planning authority under subsection (2), it shall at the same time as notifying the applicant of its decision under section 177D(6), give to the applicant a notice requiring the payment of that sum by the applicant and shall, if appropriate, give a copy of the notice to the planning authority for the area in which the development the subject of the application is situated.
(5) An applicant who receives a notification in relation to costs under subsection (2) may, within 2 weeks of the date of such notice, make submissions or observations to the Board in relation to the sum so notified.
(6) The Board shall consider the submissions or observations made to it under subsection (5) and shall, as soon as may be, decide to confirm, vary or withdraw the notice under subsection (2) and shall give notice to the applicant of the Board's decision and the reasons therefore and shall give a copy of its decision to the relevant planning authority.
(7) Where an applicant for substitute consent fails to pay a sum in respect of costs in accordance with a direction under subsection (2), the Board or the planning authority as may be appropriate may recover the sum as a simple contract debt in any court of competent jurisdiction.
Regulations.
177N.—(1) The Minister shall by regulations make provision for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of this Part.
(2) Without prejudice to the generality of subsection (1) regulations under this section may provide for the following matters:
(a) regarding the making of an application for leave to apply for substitute consent or for substitute consent;
(b) requiring the submission of information in respect of an application referred to at paragraph (a);
(c) requiring an applicant to publish a specified notice or notices relating to an application referred to at paragraph (a);
(d) requiring an applicant for leave to apply for substitute consent or substitute consent to submit any further information or evidence with respect to his or her application (including any information as to any estate or interest in or right over land);
(e) requiring the Board to notify prescribed authorities regarding applications for substitute consent and to give to them such documents, particulars, plans or other information in respect thereof as may be prescribed;
(f) requiring the Board, in the case of applications for substitute consent where the development the subject of the application is likely to have had or likely to have significant effects on the environment of a Member State of the European Union or a state that is a party to the Transboundary Convention to notify that state;
(g) the making available for inspection at the offices of the Board or the relevant planning authority, by members of the public, of any specified documents, particulars, plans or other information with respect to applications for substitute consent;
(h) the making of submissions or observations to the Board in relation to applications for substitute consent;
(i) the information to be contained in a remedial environmental impact statement;
(j) the information to be contained in a remedial Natura impact statement;
(k) requiring the Board to furnish to the Minister and to any other specified persons any specified information with respect to applications for leave to apply for substitute consent or applications for substitute consent and the manner in which they have been dealt with;
(l) requiring the Board to publish or give notice of the Board’s decisions in respect of applications for substitute consent, including the giving of notice thereof to prescribed bodies and to persons who made submissions or observations in the prescribed manner.
Enforcement.
177O.—(1) A grant of substitute consent shall have effect as if it were a permission granted under section 34 of the Act and where a development has been or is being carried out in compliance with a substitute consent or any condition to which the consent is subject it shall be deemed to be authorised development.
(2) Where a development has not been or is not being carried out in compliance with a grant of substitute consent or any condition to which the substitute consent is subject it shall, notwithstanding any other provision in this Act, be unauthorised development.
(3) Where a person is required by a planning authority, under section 177B or section 261A, to make an application for substitute consent for a development and he or she—
(a) fails to make such an application in accordance with relevant provisions of this Part and regulations made under section 177N, or
(b) fails, having made an application, to furnish additional information as required under relevant provisions in this Part or in regulations made under section 177N,
the Board shall inform the planning authority for the area in which the development is situated of that fact and the development shall, notwithstanding any other provision in this Act, be unauthorised development.
(4) Where a planning authority is informed by the Board that paragraph (a) or (b) as appropriate, of subsection (3) apply to an application, the planning authority shall, as soon as may be, issue an enforcement notice under Section 154 of this Act requiring the cessation of activity and the taking of such steps as the planning authority considers appropriate.
(5) Where an application or for substitute consent for a development is refused by the Board under section 177K the development shall, notwithstanding any other provision in this Act, be deemed to be unauthorised development and the relevant planning authority shall, as soon as may be after receipt of a copy of the relevant decision from the Board, issue an enforcement notice under Section 154 of this Act requiring the cessation of activity and the taking of such steps as the planning authority considers appropriate.
(6) Where the Board has issued a direction to cease activity or operations and/or to take remedial measures under section 177L and the applicant has failed to comply with such a direction the relevant planning authority shall as soon as may be after receipt of a copy of the Board's direction issue an enforcement notice under Section 154 requiring compliance with the Board's directions and the taking of any additional steps as the planning authority considers appropriate.
Supplementary provisions relating to an application for substitute consent.
177P.—(1) Section 126 shall apply in relation to the duty of the Board to dispose of applications for substitute consent as it applies to the duty of the Board to dispose of appeals and referrals subject to the modification that references in that section to appeals and referrals shall be to applications for substitute consent and subject to any other necessary modifications.
(2) Section 130 (other than subsection (3)(b), (c) or (d)) shall apply in relation to making submissions or observations by any person other than the applicant for substitute consent or the relevant planning authority as it does to the making of submissions or observations by any person other than a party subject to the following and any other necessary modifications:
(a) references in that section to a party shall be construed as references to the applicant for substitute consent or the relevant planning authority, and
(b) references in that section to an environmental impact assessment shall be construed as references to a remedial environmental impact statement or a remedial Natura impact statement, or both such statements, as the case may be.
(3) Section 131 shall apply in relation to the Board requesting submissions or observations in relation to an application for substitute consent as it does in relation to an appeal or referral subject to the following and any other necessary modifications:
(a) references in that section to party to the appeal or referral shall be construed as references to applicant for substitute consent or the relevant planning authority, and
(b) references in that section to an appeal or referral shall be construed as references to an application for substitute consent.
(4) Section 132 shall apply in relation to the Board requiring a document, particulars or other information that it considers necessary to enable it to determine an application for substitute consent as it does in relation to requiring a document, particulars or other information as it considers necessary to enable it to determine an appeal or referral subject to the following and any other necessary modifications:
(a) references in that section to party shall be construed as references to applicant for substitute consent or the relevant planning authority, and
(b) references in that section to an appeal or referral shall be construed as references to an application for substitute consent.
(5) Section 133 shall apply in relation to the Board determining or dismissing an application for substitute consent as it applies in relation to the Board determining or dismissing an appeal or referral subject to the modification that references in that section to appeal or referral shall be construed as reference to an application for substitute consent and subject to any other necessary modifications.
(6) Section 135 shall apply in relation to the holding of an oral hearing of an application for substitute consent as it applies in relation to an oral hearing of an appeal, referral or application subject to the modification that references in that section to an appeal, referral or application shall be construed as references to an application for substitute consent and any other necessary modifications.
Oral hearings of applications for substitute consent.
177Q.—(1) Where the Board considers it necessary or expedient for the purposes of making a determination in respect of an application for substitute consent it may, in its absolute discretion, hold an oral hearing and shall, in addition to any other requirements under this Act or other enactment, as appropriate, consider the report and any recommendations of the person holding the oral hearing before making its determination.
(2) (a) An applicant for substitute consent, a planning authority or a person who makes submissions or observations under section 130 (as modified by section 177P(2)) in relation to the application for substitute consent may request an oral hearing of the application.
(b) (i) A request for an oral hearing of an application shall be made in writing to the Board and shall be accompanied by such fee (if any) as may be payable in respect of the request in accordance with section 144.
(ii) A request for an oral hearing of an application for substitute consent which is not accompanied by such fee (if any) as may be payable in respect of the request shall not be considered by the Board.
(c) A request by an applicant for substitute consent, a planning authority, or by a person who makes a submission or observation in relation to the application, for an oral hearing of the application, shall be made within the period specified in regulations under section 177N and any such request received by the Board after the expiration of that period shall not be considered by the Board.
(3) Where the Board is requested to hold an oral hearing of an application for substitute consent and decides to determine the application without an oral hearing, the Board shall serve notice of its decision on—
(a) the person who requested the hearing,
(b) the relevant planning authority, and
(c) on each person who has made submissions or observations to the Board in relation to the application (other than the person making the request under subsection 2(a)).
(4) (a) A request for an oral hearing may be withdrawn at any time.
(b) Where, following a withdrawal of a request for an oral hearing under paragraph (a), the application for substitute consent falls to be determined without an oral hearing, the Board shall give notice to the applicant for substitute consent, the planning authority and to each person who has made submissions or observations to the Board in relation to the application.
PART XAB
Appropriate Assessment
Interpretation.
177R.—(1) In this Part—
‘appropriate assessment' shall be construed in accordance with section 177V;
‘candidate site of community importance' means—
(a) a site—
(i) in relation to which the Minister has given notice pursuant to regulations under the European Communities Act 1972 that he or she considers the site may be eligible for identification as a site of Community importance pursuant to Article 4, paragraph 1 of the Habitats Directive, which notice may be amended in accordance with such regulations under the European Communities Act 1972,
(ii) that is included in a list transmitted to the Commission in accordance with Article 4, paragraph 1 of the Habitats Directive, or
(iii) that is added in accordance with Article 5 of the Habitats Directive, to the list transmitted to the European Commission pursuant to Article 4, paragraph 1 of the Habitats Directive,
but only until the adoption in respect of the site of a decision by the European Commission under Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive; or
(b) a site—
(i) which is subject to a consultation procedure in accordance with Article 5(1) of the Habitats Directive, or
(ii) in relation to which a Council decision is pending in accordance with Article 5(3) of the Habitats Directive;
‘candidate special protection area' means a site in relation to which the Minister has given notice, pursuant to regulations under the European Communities Act 1972 that he or she considers the site may be eligible for identification as a site of Community importance pursuant to Article 4, paragraph 1 of the Habitats Directive, but only until the public notification of the making of a decision by the Minister to classify or not to classify such a site as a special protection area pursuant to Article 4 of the Birds Directive;
‘compensatory measures' shall be construed in accordance with section 177W(7) in relation to making Land use plans and in accordance with section 177AA(8) in relation to granting permission for proposed development;
‘consent for proposed development' shall be construed in accordance with section 177U(8);
‘competent authority' shall be construed in accordance with section 177S;
‘European site' means—
(a) a candidate site of Community importance,
(b) a site of Community importance,
(c) a special area of conservation,
(d) a candidate special protection area,
(e) a special protection area;
‘Land use plan' means—
(a) regional planning guidelines,
(b) a planning scheme in respect of all or any part of a strategic development zone,
(c) a development plan,
(d) a variation of a development plan, or
(e) a local area plan;
‘Natura 2000 network' has the meaning assigned to it by Article 3, paragraph 1 of the Habitats Directive;
‘Natura impact statement' shall be construed in accordance with section 177T;
‘Natura impact report' shall be construed in accordance with section 177T;
‘proposed development' means—
(a) a proposal to carry out one of the following:
(i) development to which Part III applies,
(ii) development that may be carried out under Part IX,
(iii) development by a local authority or a State authority under Part XI,
(iv) development on the foreshore under Part XV,
(v) development under section 43 of the Act of 2001,
(vi) development under section 51 of the Roads Act 1993;
and
(b) notwithstanding that the development has been carried out, development in relation to which an application for substitute consent is required under Part XA;
‘screening for appropriate assessment' shall be construed in accordance with section 177U;
‘site of community importance' means a site that has been included in the list of sites of Community importance as adopted by the Commission in accordance with the procedure laid down in Article 21 of the Habitats Directive;
‘special area of conservation' means a site that has been designated by the Minister as a special area of conservation pursuant to Article 4, paragraph 4 of the Habitats Directive;
‘special protection area' means an area classified by the Minister pursuant to Article 4, paragraph 1 or Article 4, paragraph 2 of the Birds Directive, as a special protection area;
‘Wildlife site' means—
(a) an area proposed as a natural heritage area and the subject of a notice made under section 16(1) of the Wildlife (Amendment) Act 2000,
(b) an area designated as or proposed to be designated as a natural heritage area by a natural heritage area order made under section 18 of the Wildlife (Amendment) Act 2000,
(c) a nature reserve established or proposed to be established under an establishment order made under section 15 (amended by section 26 of the Wildlife (Amendment) Act 2000) of the Wildlife Act 1976,
(d) a nature reserve recognised or proposed to be recognised under a recognition order made under section 16 (amended by section 27 of the Wildlife (Amendment) Act 2000) of the Wildlife Act 1976, or
(e) a refuge for fauna or flora designated or proposed to be designated under a designation order made under section 17 (amended by section 28 of the Wildlife (Amendment) Act 2000) of the Wildlife Act 1976.
(2) Subject to this Part, a word or expression that is used in this Part, and that is also used in the Habitats Directive or the Birds Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the Habitats directive or the Birds Directive, as the case may be.
Competent Authority.
177S.—(1) A competent authority, in performing the functions conferred on it by or under this Part, shall take appropriate steps to avoid in a European site the deterioration of natural habitats and the habitats of species as well as the disturbance of the species for which the site has been designated, insofar as such disturbance could be significant in relation to the objectives of the Habitats Directive.
(2) The competent authority in the State for the purposes of this Part and Articles 6 and 7 of the Habitats directive, shall be—
(a) in relation to draft regional planning guidelines, the regional authority for whose area the guidelines are made,
(b) in relation to a draft planning scheme in respect of all or any part of a strategic development zone, the planning authority (which term shall be construed in accordance with section 168(5)) in whose area the strategic development zone is situate, or, on appeal the Board, as the case may be,
(c) in relation to a draft development plan, the planning authority for whose area the development plan is made,
(d) in relation to a proposed variation of a development plan, the planning authority for whose area the variation of the development plan is made,
(e) in relation to a draft local area plan, the planning authority in whose area the local area plan concerned is situate,
(f) in relation to a proposed development (other than development referred to in paragraph (g) or (h)), the planning authority to whom an application for permission is made or on appeal the Board, as the case may be,
(g) in relation to proposed development that is strategic infrastructure development, the Board, or
(h) in relation to proposed local authority or State authority development requiring an environmental impact assessment or appropriate assessment, the Board.
Natura impact report and Natura impact statement.
177T.—(1) In this Part—
(a) A Natura impact report means a statement for the purposes of Article 6 of the Habitats Directive, of the implications of a Land use plan, on its own or in combination with other plans or projects, for one or more than one Natura 2000 site, in view of the conservation objectives of the site or sites.
(b) A Natura impact statement means a statement, for the purposes of Article 6 of the Habitats Directive, of the implications of a proposed development, on its own or in combination with other plans or projects, for one or more than one Natura 2000 site, in view of the conservation objectives of the site or sites.
(2) Without prejudice to the generality of subsection (1), a Natura impact report or a Natura impact statement, as the case may be, shall include a report of a scientific examination of evidence and data, carried out by competent persons to identify and classify any implications for one or more than one Natura 2000 site in view of the conservation objectives of the site or sites.
(3) The following bodies shall prepare a Natura impact report in relation to a draft Land use plan—
(a) as respects draft regional planning guidelines, the regional authority for whose area the draft plan is made,
(b) as respects a draft planning scheme in respect of all or any part of a strategic development zone, the planning authority (which term shall be construed in accordance with section 168(5)) for whose area the draft scheme is made,
(c) as respects a draft development plan or draft variation of a development plan, the planning authority for whose area the draft plan or variation is made, and
(d) as respects a draft local area plan, the planning authority in whose area the local area concerned is situate.
(4) The applicant for consent for proposed development may, or if directed in accordance with subsection (5) by a competent authority, shall furnish a Natura impact statement to the competent authority in relation to the proposed development.
(5) At any time following an application for consent for proposed development a competent authority may give a notice in writing to the applicant concerned, directing him or her to furnish a Natura impact statement and the applicant shall furnish the statement within the period specified in the notice.
(6) Unless the competent authority otherwise directs, where an applicant for consent for proposed development who, having been directed in accordance with subsection (5), fails to furnish a Natura impact statement within the period specified in the notice under that subsection, the application shall be deemed to be withdrawn.
(7) (a) Without prejudice to subsection (1) a Natura Impact Report or a Natura Impact Statement shall include all information prescribed by regulations under section 177AD.
(b) Where appropriate, a Natura Impact Report or a Natura Impact Statement shall include such other information or data as the competent authority considers necessary to enable it to ascertain if the draft Land use plan or proposed development will not affect the integrity of the site.
(c) Where appropriate a Natura Impact Report or a Natura Impact Statement shall include—
(i) the alternative solutions that have been considered and the reasons why they have not been adopted,
(ii) the imperative reasons of overriding public interest that are being relied upon to indicate that the Land use plan or proposed development should proceed notwithstanding that it may affect the integrity of a European site,
(iii) the compensatory measures that are being proposed.
Screening for appropriate assessment.
177U.—(1) A screening for appropriate assessment of a draft Land use plan or proposed development shall be carried out by the competent authority to assess, in view of best scientific knowledge, if that Land use plan or proposed development, individually or in combination with another plan or project is likely to have a significant effect on the European Site.
(2) A competent authority shall carry out a screening for appropriate assessment under subsection (1) before—
(a) a Land use plan is made including, where appropriate, before a decision on appeal in relation to a draft strategic development zone is made, or
(b) consent for a proposed development is given.
(3) In carrying out screening for appropriate assessment of a proposed development a planning authority may request such information from the applicant as it may consider necessary to enable it to carry out that screening, and may consult with such persons as it considers appropriate.
(4) The competent authority shall determine that an appropriate assessment of a draft Land use plan or a proposed development, as the case may be, is required if it cannot be excluded, on the basis of objective information, that the draft Land use plan or proposed development, individually or in combination with other plans or projects, will have a significant effect on a European site.
(5) The competent authority shall determine that an appropriate assessment of a draft Land use plan or a proposed development, as the case may be, is not required if it can be excluded, on the basis of objective information, that the draft Land use plan or proposed development, individually or in combination with other plans or projects, will have a significant effect on a European site.
(6) (a) Where, in relation to a proposed development, a competent authority makes a determination that an appropriate assessment is required, the competent authority shall give notice of the determination, including reasons for the determination of the competent authority, to the following—
(i) the applicant,
(ii) if appropriate, any person who made submissions or observations in relation to the application to the competent authority, or
(iii) if appropriate, any party to an appeal or referral.
(b) Where a competent authority has determined that an appropriate assessment is required in respect of a proposed development it may direct in the notice issued under paragraph (a) that a Natura Impact Statement is required.
(7) A competent authority shall make available for inspection—
(a) any determination that it makes in relation to a Land use plan under subsection (4) or (5) as the case may be, and reasons for that determination, and
(b) any determination that it makes in relation to a proposed development under subsection (6),
as soon as may be after the making of the determination by members of the public during office hours of the offices of the authority and shall also make the determination available in electronic form including by placing the documents on the authority's website.
(8) In this section consent for proposed development means, as appropriate—
(a) a grant of permission,
(b) a decision of the Board to grant permission on application or on appeal,
(c) consent for development under Part IX,
(d) consent for development by a local authority or a State authority under Part XI,
(e) consent for development on the foreshore under Part XV,
(f) consent for development under section 43 of the Act of 2001,
(g) consent for development under section 51 of the Roads Act 1993, or
(h) a substitute consent under Part XA.
(9) In deciding upon a declaration for the purposes of Section 5 of this Act a planning authority or the Board, as the case may be, shall where appropriate, conduct a screening for appropriate assessment in accordance with the provisions of this section.
Appropriate assessment.
177V.—(1) An appropriate assessment carried out under this Part shall include a determination by the competent authority under Article 6.3 of the Habitats Directive as to whether or not a draft Land use plan or proposed development would adversely affect the integrity of a European site and the assessment shall be carried out by competent authority before—
(a) the draft Land use plan is made including, where appropriate, before a decision on appeal in relation to a draft strategic development zone is made, or
(b) consent is given for the proposed development.
(2) In carrying out an appropriate assessment under subsection (1) the competent authority shall take into account each of the following matters:
(a) the Natura impact report or Natura impact statement, as appropriate;
(b) any supplemental information furnished in relation to any such report or statement;
(c) if appropriate, any additional information sought by the authority and furnished by the applicant in relation to a Natura impact statement;
(d) any additional information furnished to the competent authority at its request in relation to a Natura impact report;
(e) any information or advice obtained by the competent authority;
(f) if appropriate, any written submissions or observations made to the competent authority in relation to the application for consent for proposed development;
(g) any other relevant information.
(3) Subject to the other provisions of this Act, a competent authority shall make a Land use plan or give consent for proposed development only after having determined that the Land use plan or proposed development shall not adversely affect the integrity of a European Site.
(4) Subject to the other provisions of this Act, consent for proposed development may be given in relation to a proposed development where a competent authority has made modifications or attached conditions to the consent where the authority is satisfied to do so having determined that the proposed development would not adversely affect the integrity of the European site if it is carried out in accordance with the consent and the modifications or conditions attaching thereto.
(5) A competent authority shall give notice of its determination in relation to a proposed development under subsection (3) or (4), to the applicant for consent for the proposed development, giving reasons for the determination.
(6) A competent authority shall make available for inspection—
(a) any determination that it makes in relation to a Land use plan under subsection (3) and provide reasons for that determination, and
(b) any notice given by the authority under subsection (5),
as soon as may be after the making of the determination or giving the notice, as appropriate, by members of the public during office hours of the offices of the authority and shall also make the determination or notice available in electronic form including by placing the documents on the authority's website.
Draft Land use plans and imperative reasons of overriding public interest.
177W.—(1) Where, notwithstanding a determination by a competent authority that a draft Land use plan or part thereof will adversely affect a European site, and in the absence of alternative solutions, a competent authority considers that a land use plan should nevertheless be made for imperative reasons of overriding public interest, the authority shall—
(a) determine if there are imperative reasons of overriding public interest that necessitate the making of the Land use plan,
(b) propose the compensatory measures that are necessary to ensure that the overall coherence of the Natura 2000 network is protected,
(c) prepare a statement of case that imperative reasons of overriding public interest exist and of the compensatory measures that are required, and
(d) forward the said statement of case together with the draft Land use plan and Natura impact report to the Minister.
(2) A statement referred to in subsection (1)(c) shall specify—
(a) the considerations that led to the assessment by the competent authority that the draft Land use plan would adversely affect the integrity of a European site,
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not proceeding with the draft Land use plan or part thereof),
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the draft land use plan,
(d) the compensatory measures that are being proposed as necessary to ensure the overall coherence of Natura 2000, including if appropriate, the provision of compensatory habitat.
(3) In relation to a European site that does not host a priority natural habitat type or priority species, the imperative reasons of overriding public interest may include those of a social or economic nature.
(4) In relation to a European site that hosts a priority natural habitat type or priority species, the only imperative reasons of overriding public interest that may be considered are those relating to—
(a) human health,
(b) public safety,
(c) beneficial consequences of primary importance to the environment, or
(d) subject to subsection (5), and having obtained an opinion from the European Commission, other imperative reasons of overriding public interest.
(5) In invoking imperative reasons of overriding public interest under subsection (4)(d) the competent authority shall advise the Minister why he or she should be satisfied to request an opinion from the European Commission.
(6) A competent authority shall make a statement of case referred to in subsection (1) available for inspection, as soon as may be after it is prepared and forwarded to the Minister as appropriate, by members of the public during office hours of the offices of the authority and shall also make the statement available in electronic form including by placing the documents on the authority's website.
(7) For the purposes of this section and section 177X or 177Y, ‘compensatory measures' are measures proposed or considered, as the case may be, by a competent authority in the first instance, and by the Minister, as the case may be, for the purposes of ensuring that the overall coherence of Natura 2000 is protected and may include the provision of compensatory habitats.
European site that does not host priority habitat or species and draft Land use plan.
177X.—(1) Where the Minister receives a statement of case under section 177W(1) relating to a European site that does not host a priority habitat type or priority species, he or she shall consider the statement and form an opinion—
(a) whether imperative reasons of overriding public interest apply,
(b) whether the compensatory measures proposed are in his view sufficient to ensure that the overall coherence of Natura 2000 is protected.
(2) The Minister shall inform the competent authority of his or her opinion and, subject to subsection (3), the relevant provisions of this Act concerning the making of the Land use plan and section 177Z the competent authority, having considered the opinion of the Minister under subsection (1) may determine as follows:
(a) to make the Land use plan or part thereof;
(b) to make the Land use plan or part thereof with modifications; or
(c) not to make the Land use plan.
(3) If the Minister forms the opinion that imperative reasons of public interest do not apply or that compensatory measures are not sufficient to ensure that the overall coherence of Natura 2000 is protected, he or she shall give notice thereof to the competent authority and the competent authority, subject to section 177Z, shall not make—
(a) that Land use plan, or
(b) that part of the Land use plan that has an adverse effect on the integrity of a European site.
(4) Where the competent authority makes a Land use plan under subsection (2)(a) or (b) it shall give notice thereof to the Minister including a statement of the following:
(a) the considerations that led to the assessment by the competent authority that the Land use plan would adversely affect the integrity of a European site;
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not proceeding with the Land use plan or part thereof);
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the land use plan;
(d) the compensatory measures that are being adopted as necessary to ensure the overall coherence of Natura 2000, including if appropriate, the provision of compensatory habitat.
(5) The Minister shall inform the Commission of the matters contained in a notice given to him or her under subsection (4).
(6) The competent authority shall make a notice given under subsection (4) available for inspection, as soon as may be after it is given, by members of the public during office hours of the offices of the authority and shall also make the notice available in electronic form including by placing the documents on the authority's website.
European site that hosts priority habitat type or species and draft Land use plan.
177Y.—(1) Where the Minister receives a statement of case under section 177W(1) relating to a European site that hosts a priority habitat type or species, he or she shall consider the statement and form an opinion—
(a) whether imperative reasons of overriding public interest apply,
(b) whether the compensatory measures proposed are sufficient to ensure that the overall coherence of Natura 2000 is protected, or
(c) where relevant, if he or she should seek an opinion from the Commission that imperative reasons of overriding public interest referred to in section 177W(4)(d) apply.
(2) Where the Minister seeks the opinion of the Commission under subsection (1)(c), he or she shall give notice thereof to the competent authority and no decision shall be made by the competent authority in relation to the Land use plan until the opinion of the Commission has been received by the Minister and the Minister has given notice of it to the competent authority.
(3) If the Minister forms the opinion that imperative reasons of public interest do not apply or that compensatory measures are not sufficient to ensure that the overall coherence of Natura 2000 is protected, he or she shall give notice thereof to the competent authority and the competent authority, subject to Section 177Z, shall not make—
(a) that Land use plan, or
(b) that part of the Land use plan that has an adverse effect on the integrity of a European site.
(4) The Minister shall inform the competent authority of his or her opinion, and of the opinion of the Commission where that opinion has been sought under subsection (1)(c) and received, and, subject to subsection (3), the relevant provisions of this Act concerning the making of the Land use plan and Section 177Z, the competent authority, having considered the opinion of the Minister and, if applicable, the opinion of the Commission, may decide as follows:
(a) to make the Land use plan or part thereof;
(b) to make the Land use plan or part thereof with modifications; or
(c) not to make the Land use plan.
(5) Where the competent authority makes a Land use plan under subsection (4)(a) or (b) it shall give notice thereof to the Minister including a statement of the following:
(a) the considerations that led to the assessment by the competent authority that the Land use plan would adversely affect the integrity of a European site;
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not proceeding with the Land use plan or part thereof);
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the land use plan;
(d) the compensatory measures that are being adopted as necessary to ensure the overall coherence of Natura 2000, including if appropriate, the provision of compensatory habitat.
(6) The Minister shall inform the Commission of the matters contained in a notice given to him or her under subsection (5).
(7) The competent authority shall make a notice given under subsection (5) available for inspection, as soon as may be after it is given, by members of the public during office hours of the offices of the authority and may also make the notice available in electronic form including by placing the documents on the authority's website.
Making of Land use plans or part thereof.
177Z.—(1) Having received the opinion of the Minister under section 177X(3) or section 177Y(4), where a competent authority is satisfied that a draft Land use plan may be made without the part of the draft Land use plan in relation to which the Minister has formed an opinion that imperative reasons of public interests do not exist or that compensatory measures are insufficient, then the competent authority may make that Land use plan having amended the part thereof or omitted the part therefrom in relation to which the Minister has formed that opinion.
(2) Subject to the provisions of this Act, where a proposed part of a draft Land use plan is amended or omitted from the plan, its amendment or omission shall not affect the validity of the remainder of the Land use plan where it is made with the part so amended or without the proposed part so omitted.
(3) Notwithstanding that a statement of case referred to in section 177W(1) regarding any part of a draft Land use plan has been submitted to the Minister under that section, the competent authority may proceed to make the plan other than the part thereof so submitted.
(4) Notwithstanding the requirements of this Act, any delay incurred in the making of a draft Land use plan or part thereof arising from compliance with this Part shall not invalidate the plan or part thereof.
Proposed development and imperative reasons of overriding public interest.
177AA.—(1) Where, notwithstanding a determination by a competent authority that a proposed development will adversely affect a European site, and in the absence of alternative solutions, a competent authority considers that consent should nevertheless be given for the proposed development for imperative reasons of overriding public interest, the authority shall—
(a) determine if there are imperative reasons of overriding public interest that necessitate the giving of consent for the proposed development,
(b) propose the compensatory measures that are necessary to ensure that the overall coherence of the Natura 2000 network is protected,
(c) prepare a statement of case that imperative reasons of overriding public interest exist and of the compensatory measures that are required,
(d) forward the said statement to the Minister together with a copy of the planning application and Natura impact statement.
(2) A statement of case referred to in subsection (1)(d) shall specify—
(a) the considerations that led to the assessment by the competent authority that the proposed development would adversely affect the integrity of a European site,
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not giving consent for the proposed development),
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the proposed development,
(d) compensatory measures that are being proposed as necessary to ensure the overall coherence of Natura 2000 including, if appropriate, the provision of compensatory habitat and the conditions to which any consent for proposed development shall be subject requiring that the compensatory measures are carried out.
(3) In relation to a European site that does not host a priority natural habitat type or priority species, the imperative reasons of overriding public interest may include those of a social or economic nature.
(4) In relation to a European site that hosts a priority natural habitat type or priority species, the only imperative reasons of overriding public interest that may be considered are those relating to—
(a) human health,
(b) public safety,
(c) beneficial consequences of primary importance to the environment, or
(d) subject to subsection (7), having obtained an opinion from the European Commission other imperative reasons of overriding public interest.
(5) A competent authority shall furnish a copy of the statement of case referred to in subsection (1) to an applicant for consent for proposed development.
(6) A competent authority shall make a statement of case referred to in subsection (1) available for inspection, as soon as may be after it is prepared and forwarded to the Minister as appropriate, by members of the public during office hours of the offices of the authority and may also make the statement available in electronic form including by placing the documents on the authority's website.
(7) In invoking imperative reasons of overriding public interest under subsection (4)(d) the competent authority shall advise the Minister why he or she should be satisfied to request an opinion from the European Commission.
(8) In this section and in sections 177AB and 177AC ‘compensatory measures' are measures proposed in the first instance by the applicant and then by a competent authority or the Minister, as the case may be, for the purposes of ensuring that the overall coherence of Natura 2000 is protected and such measures may include the provision of compensatory habitat.
(9) For the purposes of this section and sections 177AB and 177AC a competent authority may attach a condition to a grant of consent for proposed development relating to compensatory measures that the authority or the Minister may require which may include a condition requiring the making of contributions to finance the provision of compensatory measures and any such condition shall have effect as if it was attached to the grant of consent for proposed development, pursuant to the relevant provisions of this Act, that apply to such a grant of consent.
European site that does not host priority habitat type or species.
177AB.—(1) Where the Minister receives a statement of case under section 177AA(1) relating to a European site that does not host a priority habitat type or priority species, he or she shall consider the statement of case and form an opinion on whether the compensatory measures and conditions referred to in section 177AA(2)(d) are sufficient to ensure that the overall coherence of Natura 2000 is protected.
(2) If the Minister forms the opinion that compensatory measures are not sufficient to ensure that the overall coherence of Natura 2000 is protected, he or she shall give notice accordingly to the competent authority and the competent authority shall not grant consent to the proposed development.
(3) The Minister shall inform the competent authority of his or her opinion and the competent authority, having considered the opinion of the Minister under subsection (1), notwithstanding the determination that a proposed development will adversely affect the integrity of the European site concerned may determine, subject to subsection (4) and other provisions of this Act—
(a) that consent for the proposed development may be granted,
(b) that consent for the proposed development may be granted subject to conditions requiring that any necessary compensatory measures are carried out, or
(c) not to give consent to the proposed development.
(4) Where the competent authority makes a determination under subsection (3)(a) or (b) that consent may be granted shall give notice thereof to the Minister including a statement of the following:
(a) the considerations that led to the assessment by the competent authority that the proposed development would adversely affect the integrity of a European site;
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not proceeding with the Land use plan or part thereof);
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the proposed development;
(d) the compensatory measures that are being adopted as necessary to ensure the overall coherence of Natura 2000, including if appropriate, the provision of compensatory habitat.
(5) The Minister shall inform the Commission of the matters contained in a notice given to him or her under subsection (4).
(6) The competent authority shall give a copy of—
(a) notice under subsection (2) of the forming of the opinion of the Minister,
(b) the determination of the competent authority under subsection (3) together with reasons therefor,
(c) the notice under subsection (4) from the competent authority to the Minister,
to the following persons:
(i) the applicant;
(ii) if appropriate, any person who made submissions or observations in relation to the application to the competent authority, or
(iii) if appropriate, any party to an appeal or referral.
(7) The competent authority shall make copies of the notice given under subsection (2) or (4) or a determination under subsection (3) available for inspection, as soon as may be after it is given, by members of the public during office hours of the offices of the authority and shall also make the copies available in electronic form including by placing the documents on the authority's website.
European site that hosts priority habitat type or species.
177AC.—(1) Where the Minister receives a statement of case under section 177AA(1) relating to a European site that hosts a priority habitat type or species, the Minister shall consider the statement and form an opinion—
(a) whether the compensatory measures and conditions referred to in section 177AA(2)(d) are sufficient to ensure the overall coherence of Natura 2000 is protected,
(b) where relevant, if he or she should seek an opinion from the Commission that other imperative reasons of overriding public interest referred to in section 177AA(4)(d) apply.
(2) Where the Minister seeks the opinion of the Commission under subsection (1)(b), he or she shall give notice thereof to the competent authority and no decision shall be made by the competent authority in relation to the proposed development until the opinion of the Commission has been received by the Minister and the Minister has given notice of it to the competent authority.
(3) If the Minister forms the opinion that imperative reasons of overriding public interest do not apply or that compensatory measures are not sufficient to ensure that the overall coherence of Natura 2000 is protected he or she shall give notice thereof to the competent authority and the competent authority shall not grant consent for the proposed development.
(4) The Minister shall inform the competent authority of his or her opinion, and of the opinion of the Commission where such opinion has been sought and received under subsection (1)(b), and subject to subsection (3) and the competent authority, having considered the opinion of the Minister under subsection (1), notwithstanding the determination that a proposed development will adversely affect the integrity of the European site concerned may determine, subject to subsection (3) and other provisions of this Act—
(a) that consent for the proposed development may be granted,
(b) that consent for the proposed development may be granted subject to conditions requiring that any necessary compensatory measures are carried out, or
(c) not to give consent to the proposed development.
(5) Where the competent authority grants consent under subsection (4)(a) or (4)(b) it shall give notice thereof to the Minister including a statement of the following:
(a) the considerations that led to the assessment by the competent authority that the proposed development would adversely affect the integrity of a European site;
(b) the reasons for the forming of the view by the competent authority that there are no alternative solutions (including the option of not proceeding with the Land use plan or part thereof);
(c) the reasons for the forming of the view by the competent authority that imperative reasons of overriding public interest apply to the proposed development;
(d) the compensatory measures that are being adopted as necessary to ensure the overall coherence of Natura 2000, including if appropriate, the provision of compensatory habitat.
(6) The Minister shall inform the Commission of the matters contained in a notice given to him or her under subsection (5).
(7) The competent authority shall give a copy of—
(a) notice under subsection (2) of the forming of the opinion of the Minister,
(b) the determination of the competent authority under subsection (3) together with reasons therefor,
(c) the notice under subsection (4) from the competent authority to the Minister,
to the following persons:
(i) the applicant;
(ii) if appropriate, any person who made submissions or observations in relation to the application to the competent authority, or
(iii) if appropriate, any party to an appeal or referral.
(8) The competent authority shall make copies of the notice given under subsection (2) or (4) or a determination under subsection (3) available for inspection, as soon as may be after it is given, by members of the public during office hours of the offices of the authority and shall also make the copies available in electronic form including by placing the documents on the authority's website.
Regulations
177AD.—(1) The Minister may by regulations make provision for such matters of procedure and administration as appear to the Minister to be necessary or expedient for any matter referred to in this Part as prescribed or to be prescribed.
(2) Without prejudice to the generality of the forgoing, the Minister may make regulations, for the purpose of this Part, to give effect to a provision of the Treaty on the European Union, or a legislative act adopted by an institution of the European Union, including the Habitats and Birds Directives.
(3) Without prejudice to the generality of subsection (1) or (2), regulations under this subsection may—
(a) contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations,
(b) contain provisions repealing, amending or applying, with or without modification, other law, exclusive of the European Communities Act 1972 and the European Communities Act 2007,
(c) make provision for—
(i) compensatory measures including relating to provision of compensatory habitat, conditions that may be attached to a consent for proposed development, financial contributions, or bonds required in relation to compensatory measures, implementation, management, and supervision of implementation of compensatory measures,
(ii) generally conditions that may be attached to a consent for proposed development, including in relation to protection of species or habitats of species,
(iii) consultation between an applicant for consent for proposed development and a competent authority for any purpose under this Part,
(iv) consultation between a competent authority and the Minister for any purpose required under this Part,
(v) in relation to proposed development or classes of development, in addition to matters provided by or under this Act in relation to an application for consent for proposed development, the submission of a Natura impact statement with an application for consent,
(vi) information or classes of information to be contained in a Natura impact statement or a Natura impact report,
(vii) qualifications of persons or classes of persons who shall furnish information referred to in subparagraph (vi),
(viii) information or classes of information to be contained in notices published under this Part,
(ix) persons or classes of persons to be notified that an appropriate assessment or a screening appropriate assessment is to be carried out,
(x) persons or classes of persons to be notified of the outcome of an appropriate assessment or a screening for appropriate assessment,
(xi) records, or classes of records to be retained and the periods for which they should be retained by a competent authority in relation to appropriate assessment of Land use plans.".".
This is a substantial part of the legislation. This new section provides for a substitute consent process to allow for retrospective planning permission for development carried out in contravention of the EIA or habitats directives, where exceptional circumstances exist, and where there was no prima facie attempt to evade the requirements of the directives.
Only An Bord Pleanála will be authorised to grant a substitute consent in such exceptional cases. Such circumstances might include an inadvertent straying beyond the terms of a planning permission or a court finding to the effect that a planning permission or an EIA was defective. In its judgment of 3 July 2008 in case C21506 the European Court of Justice found that while Irish planning legislation on retention permission was not fully in compliance with the EIA directive, Ireland could provide for the regularisation of unauthorised development covered by that directive in exceptional circumstances. The judgment has the same effect in terms of the habitats directive, and we have therefore made provision for the regularisation of unauthorised development in contravention of the habitats directive, also.
The ECJ also found that the EIA for the Derrybrien wind farm in County Galway, the scene of a major landslide in 2003, was deficient. An application for substitute consent will be made to An Bord Pleanála in exceptional cases whether either a planning authority directs a developer to apply in order to regularise a defective planning permission where either the ECJ, as in the case of the Derrybrien wind farm, for example, or an Irish court may have determined that the original development consent which involved or should have involved an EIA, was defective on procedural grounds or a developer seeks to regularise planning permission and EIA requirements voluntarily.
