I propose to take Questions Nos. 493 and 494 together.
Consequent on ECJ case C-215-06, section 23 of the Planning and Development (Amendment) Act 2010 amended section 34 of the Planning and Development Act 2000 to provide that an application for permission for retention of unauthorised development may not be accepted by a planning authority in respect of development which should have been subjected to environmental impact assessment or appropriate assessment.
Under Part XA of the 2000 Act, also inserted by the 2010 Act, an application for substitute consent , which is in effect an application for retention permission, in respect of such development is permitted in very limited circumstances.
An application for substitute consent may be made in a case where 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 authorising the development in question was in breach of law, invalid or otherwise defective in a material respect because 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 procedural error.
An application for substitute consent may also be made where exceptional circumstances exist such that An Bord Pleanála considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.
In considering whether exceptional circumstances exist the Board is required to have regard to a number of 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.
The number of applications made to the Board for substitute consent since the commencement of the above provisions in September 2011 is of the order of 130, of which 38 have been decided, 29 granted and 9 refused.
The public consultation requirements in relation to substitute consent applications are similar to those applying to ordinary planning applications and are set out in Part 19 of the Planning and Development Regulations 2001, as amended.
