Steven Matthews (Wicklow, Green Party) | Oireachtas source

On the matter of An Bord Pleanála, I accept that in general people interpret planning conditions. That is why we end up with court cases much of the time, which is fine. In 2018, an application was made under section 146 to amend condition No. 3 relating to these origin destination passengers, as they were referred to. The response from Fingal County Council – I think the application was made to Fingal – was that this was a material change and material changes cannot be granted under section 146. The section is generally used for small, clerical and technical changes. That is the point at which the counting of passengers or exceeding the passenger cap is first considered a material change. A material change cannot be exempted development.

Section 5 provides for an opportunity to seek a declaration that something is exempted development or constitutes development. In 2019, the DAA sent a section 5 declaration to Fingal County Council outlining its concerns and asking whether the increase in passenger numbers was exempted or constituted development. Fingal County Council referred the matter to An Bord Pleanála, which ruled on it. I asked Mr. Jacobs earlier whether An Bord Pleanála had ruled on it. It has made a ruling but not on that question. It stated that the board was not satisfied that any of the questions came within the scope of section 5. Those were the questions the DAA put and they were not in the scope of section 5. The inspector’s report, which I am sure Mr. Jacobs has read given that anybody who submits an appeal into An Bord Pleanála will want to read the inspector's report, stated:

... the use of the ‘airport’ by up to 3 million connecting passengers in excess of 32 million passengers per annum (mppa), if those connecting passengers are facilitated by the Pier 4 ... transfer facility and the combined capacity of the facility together with Terminal 2 as permitted and Terminal 1 would exceed 32 mppa, [it would contravene] condition no. 3 [of the previously granted permission] and therefore is not exempted development.

That is in the inspector’s report. The DAA’s section 146 application came back as it was a material change. Mr. Jacobs or anybody in planning would interpret that as requiring planning permission. Although the board felt the questions regarding the section 5 declaration were not of a standard it could rule on, the inspector came to that conclusion.

All through the planning process, the DAA has had a strong indication from the planning system, Fingal County Council and observers in the area that it is not complying with its planning conditions. I wanted to put that on the record and clarify, as regards what Mr. Jacobs said earlier, that An Bord Pleanála had never ruled on that.