This grouping, group 2, deals with three Government amendments passed by the Dáil, which I must read into the record here. There is an Opposition amendment within the grouping from Senator Warfield, namely, amendment No. 1.
The Planning and Development Act 2000 and regulations were amended following a 2008 decision by the Court of Justice for the European Union, CJEU, in the case C-215/06, known as the Derrybrien wind farm case. This CJEU case necessitated a ban on granting retention planning permission for developments requiring environmental impact assessment, EIA, except in exceptional circumstances, to avoid the circumventing of any environmental assessment obligations under the EIA directive. In this context, Part XA of the Planning and Development Act came into operation with effect from 21 September 2011, providing for a procedure known as substitute consent, that is, a process for the regularisation of certain developments in exceptional circumstances, which had not undergone the necessary environmental assessments, by allowing such developments to undergo a retrospective EIA or appropriate assessment under the habitats directive, to address any environmental effects of the development. Substitute consent is generally a two-stage process requiring either a direction to apply from a planning authority, or a first stage leave to apply for substitute consent from An Bord Pleanála followed by the making of a second stage application for substitute consent to the board.
Leave to apply to the board for substitute consent is set out in sections 177C and 177D of the Planning and Development Act and can be sought on the basis of two distinct grounds, the first requiring that the board must consider whether an existing planning permission is legally defective in some way, for example, by virtue of being judged so by a court by reason of omission or error in the environmental impact assessment report or Natura impact statement, or both, or any error of fact, law or procedure. The second ground requires the board to consider whether exceptional circumstances exist such that the board considers it appropriate to permit the opportunity for regularisation by allowing a substitute consent application to be made. Where the board is satisfied that either of those grounds exists, it directs the applicant to submit an application for substitute consent.
The existing criteria for the board’s consideration of exceptional circumstances are outlined in section 177D(2) of the Planning and Development Act and include: whether regularisation would circumvent the environmental impact assessment directive or the habitats directive; whether the applicant reasonably could have believed that the development was authorised; whether the ability to carry out an environmental assessment of the development impacts, and public participation in such an assessment has been substantially impaired; the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development; the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated; whether the applicant has complied with previous planning permission granted or has previously carried out unauthorised development; and such other matters as the board considers relevant.
In order to the comply with the findings of the Supreme Court judgment of 1 July 2020, it is necessary to amend the substitute consent provisions at Part XA of the Act of 2000 to provide, first, that exceptional circumstances must be considered by the board in the substantive or second stage application for substitute consent at section 177K of the Planning and Development Act, and second, that public participation is facilitated, where required, with respect to the consideration of exceptional circumstances, as well as on the wider application. Specifically, amendments are required to ensure that any new applications for substitute consent must demonstrate exceptional circumstances and, in turn, the board must be satisfied that such circumstances exist while also complying with the existing public participation requirements of sections 177K and 177H of the Planning and Development Act and as prescribed by regulations under section 177N. In the case of existing applications pending before the board, the exceptionality test is similarly applied in respect of any grant or refusal, while also ensuring that a further round of public consultation is facilitated in respect of these applications on hand to ensure the public is given the opportunity to comment on the existence of exceptional circumstances or not, as may be the case.
In this context, amendment No. 10 inserts a new section 6 into the Bill to amend section 177E of the Planning and Development Act concerning the content of applications for substitute consent. This amendment enables an applicant for substitute consent to submit with his or her application any other documents that the applicant considers would be of assistance to the board in making a decision in relation to his or her application. This is to allow the applicant the opportunity to furnish material to support his or her case with regard to exceptionality circumstances, which previously would only have been required at the leave stage of the process.
Amendment No. 11 puts a new section 7 into the Bill to amend section 177H(1) of the Planning and Development Act, which currently provides that 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, to clarify that this includes submissions or observations regarding the existence or absence of exceptional circumstances justifying a grant of substitute consent.
Amendment No. 12 inserts a new section 8 into the Bill to amend section 177K(1) of the Planning and Development Act to provide that the board may, subject to new restrictions set out at subsection (1A), grant or refuse an application for substitute consent. These new restrictions on the board’s decision-making powers in respect of substitute consent applications under the new subsection (1A) are that the board is both precluded from granting substitute consent where it is not satisfied that exceptional circumstances justifying a grant exist, and that when making its decision, the board is not bound or permitted to take account of, or have regard to, any decision it made at a previous leave stage as to the existence of exceptional circumstances. The exceptionality test at section 177D(2) which I previously outlined will apply for the purposes of this consideration. Furthermore, a member, including the chairperson of the board, will now be precluded from being involved in a decision to grant substitute consent where he or she had been involved in the decision on a previous leave stage in respect of that development.
New subsection (1B) provides that the restrictions set out in subsection (1A) apply to both new applications for substitute consent made to the board and, importantly, existing applications on hand in the board pending decision. New subsection (1C) concerns the submission of further information to the board by the applicant in respect of applications for substitute consent on hand upon commencement of these new requirements in Part XA of the Planning and Development Act. Paragraph (a) requires the board to invite the applicant to submit information to the board, within a specified period, that he or she considers relevant for the purposes of the board satisfying itself as to the existence of exceptional circumstances. The making of this invitation by the board is mandatory but the applicant is not obliged to provide such information where he or she does not deem it necessary. In contrast, paragraph (b) gives the board discretion to make a request of further information from the applicant concerning the existence of exceptional circumstances, notwithstanding that further information may have been previously requested. Under paragraph (c) where the applicant fails to comply with such a request, the application shall be deemed to be withdrawn.
New subsection 1D facilitates additional public consultation in respect of applicants for substitute consent on hand in the board, which will now include consideration of exceptional circumstance. In this regard, notwithstanding that any or all of these things may have been done in respect of the application for substitute consent previously, the board must require the applicant to publish an additional newspaper notice, including advertising any additional information submitted under subsection 1C. The board must also make the application for substitute consent, including any additional information submitted, available for inspection at its offices and online on its website. It must also give notice of the application, including any further information to the prescribed bodies required to be notified of such applications. It must, furthermore, give a copy of any further information received in accordance with subsection 1C to the relevant planning authority. The planning authority will have previously been given a copy of the application itself upon receipt by the board, and request the planning authority to consider that information, as part of its report, be submitted under section 177I on the application, including the relevant environmental reports, which shall include amending that report, where required. The planning authority is given an additional five weeks to do so. The board must require the applicant to give additional site notices of the application, copies of which must be submitted to the board.
New subsection 1E requires an applicant to comply with any requirement of the board under subsection 1D. Similarly, new sections 1F and 1G places an obligation on the relevant planning authority to comply with any request of the board, and to enter details of any further information it receives from the board into the planning register.
Subsection 1H requires that the board must consider submissions or observations made, including any made arising from the further round of public consultation, facilitated under subsection 1D, in making its decision, which it only may do after it is carried out the public consultation steps in subsection 1 D, and where the applicant and planning authority concerned have complied with any requests. Under subsection 1I the board is given discretion to extend the timeframe within which a planning authority is required to submit its report and application.
I have dealt with amendments Nos. 10 to 12, inclusive, which were the Government amendments that were made in the Dáil yesterday evening. In this grouping is also Opposition amendment No. 1 that was tabled by Senators Warfield, Ó Donnghaile, Gavan and Boylan. I shall, if I could, respond to the amendment as part of this grouping.
Amendment No. 1 to section 8 of the Bill, as passed by the Dáil, and jointly tabled by the Senators that I have mentioned, seeks to insert provisions into section 177K(1)(d), which would require the board, in the case of applications pending before the board upon such commencement, to make available online all information considered by the board, in making a decision, to grant or refuse leave to apply for substitute consent.
Under section 177D, all information considered by a planning authority, under section 177B or section 261A(3), at the notice stage giving rise to a direction to the applicant to make the application for substitute consent, any information received from the local authority, under section 177K(1)(d)(e), and any public consultation shall not commence until the information referred to in this subsection is available online. The consultation period, provided for the public and prescribed bodies, shall not be less than eight weeks.
I cannot accept this amendment as the new subsection 177K(1)(d) sufficiently provides for the making available online, and at the offices of the board, any information relevant to a decision being made under this section in respect of applications pending before the board upon such commencement. In addition, supplementary and consequential amendments to the Planning and Development Act 2001 will be introduced concurrently with the commencement of these amendments to Part XA to set out in finer detail of this further round of public consultation to facilitate the consideration of exceptionality of substitute consent applications already on hand in the board. This will largely mirror the existing public consultation provisions set out in Part 19 of those regulations with some modification. In this context, it is my intention that the public will be given five weeks to make submissions or observations concerning the application for substitute consent, including their opinion as to whether exceptional circumstances exist or not, and that those who have previously made submissions and observations on the application, when it was originally made, will be notified by the board. As I have previously set out, the board is required under section 1H to consider these further submissions and observations before granting or refusing substitute consent. Having regard to new section 1A, it is precluded from granting substitute consent where it is not satisfied that exceptional circumstances exist.
Furthermore, such an amendment, as tabled by the Senators, would run contrary to the insertion of subsection 1A in section 177K. Section 177K(1)(a) specifically precludes the board from granting substitute consent unless it is satisfied that exceptional circumstances exist that would justify the grant of such consent. Also, when making its decision, the board will not be bound by or permitted to take account of, or have regard to, any decision it made at a previous leave stage, under section 177D, as to the existence of exceptional circumstance.
Subsection 1AC will also preclude a member, including the chairperson of the board, from being involved in a decision to grant substitute consent where he or she has been involved in the decision on a previous leave stage, under section 177D, in respect of that development.
In respect of the report submitted by a planning authority to the board, pursuant to section 177K(1)(d)(e), and in accordance with section 177I, updates to reports made by local authorities, under section 177K(1)(d)(e), are not made available to the public as part of the public notice and the consultation process under 1D. Such reports comprise opinions of a consultative body, which body is not in itself a decision-maker in the process. The decision-maker being the board. This is a standard procedure throughout the planning system whereby consultative bodies are invited to provide their views, alongside the views of the public, for consideration by the decision-maker, which obviously in this case is the board. Such reports, alongside the submissions of the public form part of the deliberative process whereby the decision-maker takes account of all of these opinions and concerns.