Darragh O'Brien (Dublin Fingal, Fianna Fail) | Oireachtas source

I will try to deal with this. Deputy O'Callaghan has just spoken about his amendment. Several amendments, namely Nos. 99 to 103, inclusive, are related. They all relate to the inadmissibility of declarations. They cannot be accepted as they seek to deem the relevant declarations as "conclusive evidence", which cannot be pre-emptively done in the legislation as the facts of the case will have to be considered by the courts in each case to allow all sides proper due course.

The rationale for allowing a section 5 declaration to be taken into account in the exercise of discretion by a court in the context of determining a planning injunction, notwithstanding that it is not binding on the matters it addresses, is that this allows a developer to show a bona fide belief that an activity was either not development or exempt, and an opponent of a development to establish that the developer was aware of the fact that the activity was development and not exempt, both of which are matters that the court can take into account in the multifactorial process of exercising discretion and formulating an order. Similarly, the existence or otherwise of a declaration is properly taken into account in determining sentencing on foot of a prosecution, whether it be a mitigating factor or an aggravating factor.

Currently, all declaration requests are made directly to the relevant planning authority, with a right to refer the matter to the board, as we all know. This remains unchanged in the Bill, with the exemption of some declarations concerning works, etc., located wholly or partly in the outer maritime area. That is not particularly relevant.