Mr. Eamonn Kelly:

I am happy to answer that. The Chairman, Deputy Matthews, had the same questions, or perhaps it was another Deputy. Effectively, the exceptionality circumstance and the criteria that have to be considered were devised between the Government and the European Commission, with the input of the Attorney General, about ten years ago. They have been through a number of court cases, including the significant challenge to the substitute consent process in the Supreme Court, and there were no specific challenges to the exceptionality criteria. They remain as is. To be brutally honest, we would be loath to change them. We have any amount of legal advice to say that it fully complies. I can go through them one by one, if the Deputy wishes, but they meet all those criteria. To be absolutely clear, we are not going to change them. We believe that they are robust, and they have been through a number of court cases. We believe they meet the requirements - it was originally the Derrybrien case - as agreed with the Commission. We do not want to change them because we think they comply. We are also comfortable, as they have been through a number of court cases, including through the Supreme Court, and there were no queries, issues or grounds raised against those criteria.

If the Deputy looks at section 177D(2), it provides that in considering whether exceptional circumstances exist the board shall, not may, have regard to the following matters: whether regularisation of the development concerned would circumvent the purpose and objective of the EI directive, which the Deputy mentioned, and "whether the applicant had or could reasonably have had a belief that the development was not unauthorised". That goes to the intentions of the developer and that can be examined by the board as to whether there is an intent to avoid, and whether the developers had knowledge in advance that they were doing something wrong. The third criterion is "whether the ability to carry out an assessment of the environmental impacts 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". That is another thing to look at. The fourth criterion is "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 fifth criterion is "the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated". The sixth is "whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development". If anything, that goes possibly even further than the EI directive because it very much relates to what actions the developer has carried out nearby or elsewhere. The last criterion is "such other matters as the Board considers relevant" in that particular case.

We have received an amount of legal advice on this. Given the fact that it has already been before the Supreme Court, we are as confident as we can be that it complies with the requirements of the Derrybrien judgment.