Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

The following amendments relate to section 9 of the Bill regarding exempted development. I will be moving amendment No. 50, which is a minor amendment to a reference in section 9. Currently, the Bill refers to making exemptions for development that would, but for the repeal of subsection (1) of section 4 of the Act of 2000, be exempted development within the meaning of that Act. Limiting this provision to subsection (1) was incorrect as development was exempted throughout section 4 of the Act of 2000. This amendment corrects that error.

I will now address amendments Nos. 48, 58 and 59 tabled by Deputy McAuliffe; amendment No. 49 tabled by Deputy Flaherty; amendment No. 51 tabled by Deputies Ó Broin, Gould and Ó Snodaigh; amendments Nos. 52, 56 and 62 tabled by Deputy Matthews; and amendments Nos. 54, 57 and 63 tabled by Deputies O’Callaghan, Ó Broin, Gould and Ó Snodaigh.

Amendment No. 48 seeks to provide a list of matters that are exempted for the purpose of the Act. Amendment No. 51 seeks to provide that the use of Irish in the community shall be a consideration in providing exemptions for Gaeltacht areas. The exemptions will be set out in regulations and therefore I oppose amendment No. 48. As further exemptions are development-specific and rarely location-specific, I do not see the need for amendment No. 51.

Amendment No. 52 seeks to amend general matters which exempted development regulations can provide for under section 9(2), such as providing for development, change in use and subjecting exemptions to conditions by adding specific policy matters into the provision. It seeks to provide that exemptions may provide for the change in use of any building under ten storeys to residential use, escape windows and doors, and for the subdivision of a dwelling. It is not appropriate to include these matters outlining specific types of exemptions which may be provided as it would call into question whether exemptions could be made for any other type of development not listed. Furthermore, the policy behind these proposals has not yet been teased out. Exemptions from the requirement to obtain planning permission in respect of specific forms of development are provided for when they are considered to be consistent with proper planning and sustainable development. Exemptions relate to types of development which would normally be granted planning permission and can be appropriately limited by way of conditions to the exemptions. I am satisfied that the regulation-making powers are sufficient and therefore I cannot accept amendment No. 52.

Amendment No. 54 seeks to amend section 9(3), which provides that the development shall not be exempted where an EIA or AA is required. The proposed amendment seeks to include that development is not exempt where “the activity may have a significant impact on the environment”. This is unnecessary as such developments would require either an EIA or if they were not a type of development subject to EIA, would be captured by the fact that the Minister, under section 9(1), may only make regulations where he or she is of the opinion that, by reason of the size, nature or limited effect on its surroundings of development, the carrying out of such development would not offend against principles of proper planning and sustainable development or maritime spatial planning. These limitations are adequate and clear and therefore I cannot accept amendment No. 54.

Amendments Nos. 56 and 62 seek to add new subsections to section 9, which, if I understand them correctly, provide that exemptions do not apply to unauthorised development and, in making exempted development regulations, any unauthorised development which has had a significant impact on the environment shall not be exempted. These provisions are unnecessary. Any exempted development regulations brought in would be forward-looking. Exemptions are not retrospective. If unauthorised development is carried out and such development becomes a type of exempted development after it is carried out, it does not make past development authorised. The test as to whether a development carried out is authorised is based on the law that is in place at the time the works were carried out. I therefore cannot accept amendment No. 56 or 62 as it would bring the principle of exemptions not having retrospective effect into question.

Amendment No. 57 seeks to add a new paragraph into section 9(5), which currently allows the Minister to exempt EIA- or AA-type development if it is subject to authorisation under another enactment and an EIA or AA is required as part of that authorisation. The amendment seeks to provide that in cases where development is authorised under another enactment and EIA or AA is not required under it but the activity may have a significant impact on the environment, it may be exempted only if public participation has been provided for prior to the authorisation or permitting of the activity. This provision is not appropriate as the authorisation under other enactments would not necessarily be within my control. Examples of developments currently exempt under this provision include works in a drainage scheme and works subject to forestry licences. I cannot say whether it is necessary for public participation to take place in authorisations under other enactments. To include such a provision would mean that these sorts of developments cannot be exempted if public consultation does not take place. I therefore cannot accept amendment No. 57.

Amendments Nos. 58 and 59 seek to amend section 9(6), which provided that the Minister may consult a State authority where proposed exempted development regulations would likely affect the performance of their functions. This amendment seeks to include a reference to "statutory undertakers". The intent of the proposed amendments with regard to ensuring that statutory undertakers are consulted is understood. I ask the Deputy to withdraw this amendment at this time to allow me to consider further and for my officials to consult the Office of the Attorney General.

If appropriate, I will then bring an amendment forward on Report Stage to deal with this matter. On that basis, I must reject amendments Nos. 58 and 59.

Amendment No. 49 seeks to amend section 9(1) by adding a similar reference to consultation with statutory undertakers; however, it would be unnecessary if an amendment is made to section 9(6). Therefore, I cannot accept amendment No. 49.

Amendment No. 63 proposes to add a new subsection to section 9 to provide that, where the Minister is making exempted development regulations that relate to matters of interest to prescribed bodies, he shall consult with them, give them an opportunity to comment on the proposed regulations and have regard to their input. The Bill already provides for consultation with state authorities and amendments Nos. 58 and 59, which I have indicated I wish to consider further, would provide for consultation with statutory undertakers. In that regard, I cannot accept amendment No. 63.