Ms Rachel Minch:

There are a few points around there. The section 5 declaration, and Mr. Flynn also mentioned it, which is now section 8, is an area we want to look at. At present it is open to any member of the public to ascertain whether something is development and whether it is exempt for development. Usefully, the provision also clarifies that under the new section 8 you can also find out whether something is in the scope of a permission. But it is proposed to remove the ability of a third party to seek that reference. There is concern around the fact that this relatively inexpensive tool could be removed from third parties. We are looking at it having certain mitigating introductions in the sense that a third party which wants to bring enforcement proceedings that any declaration that the developer, in colloquial terms, has obtained saying it is exempted development and is not admissible in proceedings. It is an area where the lack of explanatory memorandum is proving challenging because we do not understand what it is getting at. We are surmising. There have been some cases around collateral attack and we have been trying to address some of those points but it is an area that will benefit from further review.

On first review, the retrospective consent provisions are raising questions around their scope. We currently have a substitute consent process. The way the definition of retrospective consent is drafted would appear to indicate that applications for retention for development that even just needed an appropriate assessment screening under the habitats directive are going to be put through this quite exceptional route directly to the board where you need to show exceptional circumstances to get permission and that there might be directions to cease activity. In theory, all developments need some form of appropriate assessment, AA, screening. There could be drafting issues. You could find that all these developments would have to go through this particular route. That is another area that we have been looking at as well. Also, the material contravention, noting some ongoing drafting issues that exist in the current legislation.