Simon Coveney (Cork South Central, Fine Gael) | Oireachtas source

As this is quite a technical area, I will refer to my notes.

Amendments Nos. 90 to 93, inclusive, and amendment No. 97, tabled by Deputy Eoin Ó Broin, all pertain to new environmental impact assessment, EIA, screening provisions under the new sections 176A, 176B and 176C of the principal Act, as inserted by section 26 of the Planning and Development (Housing) and Residential Tenancies Act 2016. I am opposing amendment No. 90. Section 1A of the Planning and Development Act 2000 contains a table listing the EU directives which are given effect in full or in part, where appropriate, by the Act. Amendment No. 90 proposes to include references to two directives, Directive 2011/92/EU and the directive of 2014 which amended it. I am opposing the amendment on two grounds. First, the environmental impact assessment directive is already included in the table in section 1A. Section 2 of the 2000 Act provides that the environmental impact assessment directive means Directive No. 2011 of the European Parliament and the Council of December 2011 on the assessment of the effects of certain public and private projects on the environment. Therefore, amendment No. 90 is unnecessary. Second, it is premature to include a reference to the new 2014 EIA directive, as it has not yet been transposed into national law. On this basis, I am obliged to oppose the amendment.

Amendment No. 91 proposes a number of amendments to section 176A of the Planning and Development Act 2000 and the Planning and Development (Housing) and Residential Tenancies Act 2016. Paragraph (a) of the amendment proposes to substitute the existing paragraph (e) of section 176A(3) of the 2000 Act, as amended, with a new paragraph (e) to indicate that the Minister shall, by regulations, prescribe the information without specific reference to information required under the EIA directive, as amended, which should be included in the application for EIA screening. It is premature to include a reference to the new directive at this time as the 2014 directive which includes details of information required to be submitted for EIA screening purposes in annex 11(a) has not yet been transposed into national law. It is premature to list the directive in section 1(a) at this time.

The provisions in paragraphs (b) and (c) of amendment No. 91 appear to have the purpose of including mandatory public participation in the EIA screening process to be carried out by both planning authorities and the board. I am opposed to these provisions because public participation for screening purposes is not a requirement of the EIA directive, either in the 2011 version or the 2014 amended directive. There is already provision for public participation in processing substantive applications for development consent. Instead, the EIA directives of 2011 and 2014 require that a screening determination be made available to the public. This is provided for in sections 176B(5) and 176C(9) of the 2000 Act, as amended. In this connection, I do not see the point of having separate public participation processes for the intermediary stages of the planning process that precede the substantive planning application and environmental assessment processes.

I accept the principle of the provision contained in paragraph (d) of amendment No. 91 which provides that the fee for an EIA screening application shall not be returned to the applicant where the planning authority rejects the application on the basis that it is incomplete in material detail. The material or documentation to be included in an application is set out in subsection (3) of section 176A of the 2000 Act, as amended, and further material for inclusion in the application may also be prescribed. It will be absolutely clear to the applicant what is required in an application. There is no reason the applicant should be refunded the application fee if relevant material is omitted. We will try to accommodate this through a change on Report Stage. It is a fair proposal. However, as this element forms part of amendment No. 91, other elements of which I oppose, I cannot accept it at this time. In accordance with established practice, I ask the Deputy to withdraw amendment No. 91 on the basis that I will examine the legal and drafting aspects of the fee-related amendment proposed and will table an appropriate wording on Report Stage.

These are technical and detailed amendments and I want to deal with them properly. I oppose amendment No. 92 for the same reasons I oppose amendment No. 91. Paragraph (a) of amendment No. 91 provides for public participation in the EIA screening process to be carried out by both planning authorities and the board. As signalled, this is not a requirement of the EIA directive.

I oppose amendment No. 93, as drafted, as it appears to provide that a person can appeal a determination made by the board in a review of an EIA screening decision prior to its determination by the board. I cannot see how a determination can be judicially reviewed before it has been made. The wording of the amendment, as drafted, would also undermine the established eight-week rule in initiating judicial reviews of decisions made by An Bord Pleanála as provided for in section 50 of the Planning Act. As I read it, the wording of the amendment would allow an EIA screening determination to be judicially reviewed, possibly months or even years after the screening determination, when the application for permission for development which had relied on the said screening determination was determined. Perhaps we might talk about the wording as there seems to be a genuine concern. However, I accept the thrust of a specific aspect of amendment No. 93 on the basis that the wording of section 176C(9) of the 2000 Act, as amended, on the board's public notice of its review of the EIA screening determination needs to be tightened to ensure all documents relevant to an EIA screening determination should be available on the board's website, in addition to being made available on the website of the relevant planning authority. In accordance with established practice, I ask the Deputy to withdraw amendment No. 93 on the basis that I will examine its drafting aspects.

Amendment No. 97 relates to section 7 of the Planning and Development (Housing and Residential Tenancies) Act 2016, which sets out the provisions and timelines whereby a prospective applicant may, following a consultation meeting, request the board to determine within eight weeks if the proposed strategic housing development will require an EIA or an AA and, if so, the prospective applicant may also request the board to give an opinion within 16 weeks as to what should be contained in the environmental impact statement, EIS, and-or the Natura impact statement, NIS. Deputy O'Broin's amendment, first, proposes to make the board's determination and opinion subject to public consultation. The process under section 7(1)(a) is essentially a screening process, that is, the board on request confirms if an EIA or an AA is required for the proposed development and, if so, what the EIS and-or the NIS should contain. It is not a consent process. There is no requirement in the EIA directive for public participation in such a screening process and it is not necessary. Public participation is provided, however, at a later stage when the planning application for the proposed strategic housing development is made to be accompanied by the EIS or the NIS, if required. The EIA directive, both in 2011 and in 2014, requires that a screening determination should be made available to the public and should be in compliance with section 7(2)(c) of the 2016 Act by requiring that a copy of the determination should be placed and kept with the documents relating to the planning application concerned, which will be made available to the public.

Second, the amendment also proposes that this screening process under section 7 should take place in accordance with sections 176A, 176B and 176C of the principal Act. Section 26 of the Planning and Development (Housing and Residential Tenancies) Act 2016 amended the principal Act by inserting these three new sections to provide for new arrangements in respect of EIA screening. These are stand-alone provisions for EIA screening, in addition to the provision for such screening in respect of strategic housing developments as provided for in the Act. Section 7 of the 2016 Act, as it currently stands, contains essential provisions relating to requests for EIA and AA screening within appropriate timeframes in respect of the strategic housing developments provisions. In that context, I cannot accept the amendment.

Amendments Nos. 94 and 95 relate to the extension of the duration of planning permissions under section 42 of the 2000 planning Act. During the passage of the Planning and Development (Housing and Residential Tenancies) Act 2016 before Christmas, I proposed a number of amendments to the section 42 provisions, which were approved by the Oireachtas at the time. Notably, one of the amendments inserted a new provision whereby developments that require an EIA or an AA at the time of the original permission will not qualify for an extension of duration of the permission. This will apply to both developments where substantial work has been completed and developments where work has not commenced. The condition is necessary to avoid an extension of time being granted for developments where, for whatever reason, an EIA or AA was required at the time of the original permission but is now out of date. However, amendment No. 94 seeks to go even further and require that an application for an extension of duration may be granted only where the planning authority undertakes an EIA or AA screening and determines that neither assessment is required. This goes beyond what is required in these circumstances and what was approved by the Oireachtas a few months ago. However, I am prepared to reflect on the Deputy's comments bearing in mind that due to the often complex nature of EIA and AA requirements, it may require legal advice and further consideration and I will examine that.

Amendment No. 94 seeks to provide that an application for an extension of duration of the planning permission will be treated as a new EIA screening application similar to section 176A, as introduced by Planning and Development (Housing and Residential Tenancies) Act 2016. However, unlike both sections 42 and 176A, the amendment also seeks public notice and public participation in such EIA screening applications, which is not required by the directive. The amendment further seeks an appeal referral mechanism to the board in respect of screening where there is currently none. I oppose the amendment as it would virtually negate the long established administrative purpose of extensions of duration, which is to allow a limited period of additional time to complete existing permissions which have been slowed down by unforeseen, mostly economic, circumstances in accordance with the terms of the original permission. In other words, the proposed introduction of public participation as part of an EIA and AA screening process together with appeals and referrals to An Bord Pleanála for applications for extensions of duration would impose an administrative burden on a process which has been adjudicated through the planning process to the extent that the extension of duration application would be more akin to a brand new planning application.

Having broad public consultation as part of a screening process is not required under the directive but it would potentially significantly delay the process. I do not propose to accept the amendments. I will, however, examine the legal issues in more detail before Report Stage and revert to the Deputy.