A person that has an authorised development, which is authorised by way of a planning permission, does not require retention planning permission for that specific development. Retention permission is only required for unauthorised development, such as in circumstances where a development was, or is being, carried out without the required planning permission.
In cases where a development requiring environmental impact assessment (EIA), screening for EIA or Appropriate Assessment (AA) does not hold the requisite planning permission, and is therefore deemed unauthorised in this respect, a person can seek to regularise such a development by way of the substitute consent procedure as set out in Part XA of the Planning and Development Act 2000 (as amended).
The substitute consent procedure was inserted into the 2000 Act, following the Judgment of the European Court of Justice in Case C 215/06, which found that the provisions of the Planning and Development Act 2000 (the 2000 Act) which permitted applications for retention permission for existing developments requiring environmental impact assessment (EIA), were contrary to EU environmental law.
As a result of this Judgment, the 2000 Act was amended at section 34(12) to provide that planning authorities cannot accept applications for retention permission in respect of unauthorised development where that authority decides that if an application for permission had been made in respect of that development before it was commenced, it would have required a screening determination as to whether EIA was required, and/or EIA or Appropriate Assessment (AA) to be carried out.
The Judgment in Case C 215/06 did recognise that EU law does not preclude the regularisation of unauthorised developments requiring EIA in exceptional circumstances, provided that this does not facilitate the evasion of EU environmental obligations. In this context, Part XA, as inserted into the 2000 Act, sets out the procedure for applications for substitute consent, which is a form of retrospective development consent. The substitute consent process involves the preparation of a remedial environmental impact assessment report or a remedial Natura impact statement, or both as appropriate.
It is open to any individual who has not already been directed to do so by a planning authority, to consider seeking leave from An Bord Pleanála under section 177C of the 2000 Act to apply for substitute consent. Section 177D(2) of the 2000 Act sets out the matters to which the Board must have regard to in deciding to grant leave to apply for substitute consent, which includes that exceptional circumstances exist such that the Board considers it appropriate to allow the opportunity to regularise the development by way of substitute consent.