Eoin Ó Broin (Dublin Mid West, Sinn Fein) | Oireachtas source

I thank Mr. Kelly and Mr. Lemass for their presentations. This is the fifth year in a row in which, in the final two weeks before the summer recess, very substantial planning and residential tenancies amendment legislation has been dropped into existing Bills that are before the Dáil. There are several problems with that. None of the points I will make are a criticism of either of the officials who are present. They are experiencing these problems in as acute a way as members of the committee are experiencing them. These are incredibly technical matters. The job of the committee is meant to be to scrutinise this legislation in the public interest to make sure it does what the witnesses are telling us it does and that it does not have unintended consequences.

The lesson of the Derrybrien case is that if proper scrutiny had been introduced when the original legislation was being passed by this House, we would not have paid possibly €10 million in fines so far. I will come to it in questions, but I expect that the fines will reach many multiples of that figure by the time the matter is resolved. In my view, it is really unacceptable for members of the committee to be given very detailed technical amendments. I have been told in an email that I have just received that we must submit our amendments to this Bill on Thursday of this week, and we are going to be asked to complete all Stages of the Bill - Second and Subsequent Stages - in a single day, on Wednesday of next week, which means that the guillotine procedure will be used and we will have a very small amount of time available to us. We have been denied the opportunity to carry out pre-legislative scrutiny or even time to inform ourselves by engaging with others, so I want to state my extreme dissatisfaction at this situation.

This may also be a lesson to us in respect of two Bills that we are currently considering, namely, the water environment (abstractions) Bill 2020 and the marine planning and development management Bill 2020, because with both of those Bills, sectoral opinion have raised significant concerns about potential non-compliance with the Environmental Impact Assessment Directive and the Water Framework Directive itself, and the issues are very similar to those we are dealing with here - public participation and compliance. We are being asked to assist in fixing a problem and we are being given a tiny amount of time to do it. If we make a mess of this, millions more euro of taxpayers' money will be paid out in fines on this or future cases, so the stakes are exceptionally high. My specific questions relate to substitute consent because my colleague, Deputy Gould, will deal with the other sections of the Bill.

I ask the witnesses to provide greater clarity as to why the Attorney General only suggested at the last moment that this needed to be done by way of primary legislation and not through a statutory instrument. Was the Attorney General consulted earlier, and was there originally Attorney General support for a statutory instrument and what changed? If we pass this Bill in the next two weeks, can the witnesses tell us when will the board be expected to make a decision on the Derrybrien case, and what is the anticipated total amount of fines that will be incurred by the State between last October when the fines kicked in at €15,000 per day, and when a decision is made? Can they tell us how many other substitute consent applications are currently in the process and will be affected by this? Also, what happens with the substitute consent applications that were approved under the old regime? Are they now open to legal challenge or in any way undermined because of the Supreme Court judgment?

I want to be very clear on the issue of public consultation. If this Bill is passed, does that mean that for all of the current pending substitute consent applications with the board, there will now be a new round of public consultation in all of those, and will all documentation and information that has been submitted, whether in public or private session today to the board, be available in respect of them?

I am still trying to understand the exceptionality test, therefore, I ask the witnesses to explain that to me in plain English. Is it now that there is public participation in the first phase, and will public participation continue in the second phase in the exceptionality test? I ask the witnesses to talk us through that in more detail.