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

First, with regard to the fines, my calculations are that, as of November of this year, they will be €16.1 million. We owed €10.5 million as of October last year and, as has been said, it is €2.7 million or €2.8 million every six months, so the total amount is €16.1 million. It would be good if that could be confirmed either at the meeting or afterwards because it is a considerable amount of money. Also, my understanding is, and I am not asking anybody to comment on an ongoing legal case but it is important that we have clarity, that the fines will stop not when substitute consent is granted but when full remediation of the environmental and community damage is dealt with. Perhaps it could be clarified if that is or is not the case. My understanding is that there are no other comparable fines affected by substitute consent, but the witnesses could inform the committee whether that is correct.

On the one-stage process, I strongly concur with both the Chairman and Deputy Cian O'Callaghan. Five weeks is nowhere near enough. On the one hand we are being told that this is like any other planning application, yet we were told earlier in the meeting that this is not like any other planning application. The reason it is going to the board for substitute consent is that, in the words of Mr. Kelly, it requires "detailed environmental considerations". If it is not like any other planning application because it needs such detailed environmental considerations, I do not see how five weeks can be adequate in any set of circumstances. I appreciate that some of these are small developments but many, particularly the list that Mr. Kelly gave us earlier, are not small or insignificant. I hope the committee makes a very strong recommendation to extend that period. That is not to delay the process. The better the level of public participation at the earlier stage, the better planning outcome there would be.

I refer to the exceptional circumstances. Again, this is quite technical. If one reads paragraph 57, which Deputy Cian O'Callaghan referred to, there are three explicit tests in it in terms of the consent not offering the "persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception". I do not see from anything that has been said how that is captured in section 177D. I am also particularly interested in section 177D(2)(g) "such other matters as the Board considers relevant". Perhaps Mr. Kelly could tell us what types of matters could be captured by that and whether that has also been subject to the advice of the Attorney General.

I will rattle out some questions with respect to some of the heads and if Mr. Kelly gets to answer them in this round or the following round, that would be great. In head 1, there is no reference to the commencement of the provisions. Is that normal or standard, and can he explain that? With regard to head 3, it seems strange that there is no specification of the screening determination and the criteria. That appears to be quite vague and ambiguous. Given that Mr. Kelly only mentions appropriate assessments and the EIA directive, could there be other aspects of EU law or assessment requirements and why are they not mentioned? Why is there not greater clarity about the basis upon which the screening determinations are being made? I have another concern about the same head. We obviously have a lack of Natura 2000 site designation. That has a direct relevance in terms of the screening determinations that fall under this head. How is the board to reconcile that with respect to the assessments?

I want to pick up on a point my two colleagues mentioned. I am very concerned that somebody who could have an application for substitute consent for an unauthorised, illegal and potentially environmentally damaging development could also now get access to a fast-track, forward-facing planning application. That makes no sense whatsoever. Substitute consent should be dealt with as substitute consent. If remediation is required through a remediation order, that should be provided. Only when all of that is resolved if somebody then wishes to expand the operation through a fresh application, the person should have to go through the normal course. I do not see why somebody who is clearly breaking the rules should be rewarded for that by giving the person access to a one-stage planning process, when many of those issues would be better dealt with by the local authorities in the first instance and then by way of appeal to the board.

Can Mr. Kelly explain the rationale for giving people access to what is essentially a fast-track planning process for future planning applications, separate to the substitute consent consideration and talk us through a few concrete examples? That would be very helpful.

One of the real issues in head 5, and one which speaks to Deputy O'Callaghan's concerns, is that where there are potential or clear conflicts between EU law and requirements and domestic law and practice, it seems we may be taking the side of domestic law, which could get us into further difficulties down the line with further EU legal challenges. With regard to head 6, as is always the case with these things, enforcement is key. Looking at Derrybrien, which is the longest-standing and most egregious case in this process, I do not see many signs of remediation and enforcement to the required extent. If that is the case and of course, we are being fined as a consequence, is Mr. Kelly satisfied the enforcement provisions are strong enough? Did he consider strengthening those to ensure that where people have remediation orders against them or other aspects, those actions would be enforced, as opposed to being left to linger with all of the negative consequences for communities, the environment, biodiversity and our natural habitat?