Mr. Eamonn Kelly:

I thank Senator for her questions. I will begin by finishing my response to Deputy Ó Broin's question in terms of how exceptionality is considered. It is set out in the existing provisions at section 177D(2), which states that in considering whether exceptional circumstances exist, the board shall have regard to (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, which goes to the intent of the applicant; (c) whether the ability to carry out an assessment of the environmental aspects 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; and (g) such matters as the board considers relevant. Those considerations have been in existence since this legislation was first introduced in 2011 and they will continue in operation.

I have had a look back at my notes and I think I may have given an incorrect response earlier in regard to Deputy Ó Broin's question on public participation. There is no public participation in the first stage. The key change is the introduction of the exceptionality at the second stage where there is public participation. It is important to make that clear.

On engagement with the Commission, we have been engaging with it on these changes. It is important to note that European law is implemented at national level. This change is further to a Supreme Court case and not a European Court of Justice case. This is about the Irish national Supreme Court judgment and that court's interpretation of this legislation. We are, through the Attorney General, responding to that judgment. We are very aware of where it arose from, namely, the original Derrybrien judgment. I am not sure if I have answered the Deputy's question. We are very aware of the genesis of this process. There have been numerous engagements with the Attorney General on this particular point.

Senator Moynihan asked if the substitute consent will be online. The answer is "Yes". It is addressed in one of the amendments we have proposed but I do not think it is referenced in the draft we sent last week. It is with the Office of the Parliamentary Counsel. In the version that comes through to the Dáil there will be a proposal to mandate that these proposals be available online in addition to being available at the offices of An Bord Pleanála. I think I have answered most of the questions. With regard to the substitute consent element, I will pass over to my colleague, Mr. Lemass to respond further if Senator Moynihan is satisfied that I have answered all of her questions.