Mr. Eamonn Kelly:

I thank the Chairman and the members of the committee for affording me the opportunity to brief you on the proposed Planning and Development (Amendment) (No. 2) Bill 2021. My name is Eamonn Kelly and I am a principal officer in the EU and international planning regulation section in the planning division of the Department of Housing, Local Government and Heritage. I am joined today by colleagues from my section - Mary Brady, assistant principal, and Aisling Holohan, administrative officer, who are also connecting remotely to this session.

The proposed amendments, as set out in the general scheme, concern the substitute consent regime at Part XA of the Planning and Development Act 2000. This part of the Act relates to the procedures for applications to regularise, where appropriate, existing development requiring retrospective environmental impact assessment, EIA, or appropriate assessment, AA.

The objective of the general scheme for the 2021 Bill is essentially to streamline the substitute consent procedure in the planning system. Streamlining of the substitute consent regime is required to increase the efficiency and utility of the process in order to safeguard confidence in the Irish planning system by eliminating a surplus step in the substitute consent process and moreover to ensure that the system is fully in compliance with EU environmental requirements and recent court judgments. In this context, it is proposed to provide for a single-stage application process under the remit of An Bord Pleanála. This would replace the current two-stage process, which requires leave from the board or a direction from a planning authority in order to apply for substitute consent and follows with the substantive substitute consent application. It is also proposed to amend section 37L of the Planning Act. This is a related amendment that currently allows simultaneous applications to be made for certain quarry developments for both future development and substitute consent to An Bord Pleanála at the same. The amendments we are proposing will ensure that simultaneous applications will be open to all types of development, not just quarries. Finally, amendments are also proposed to section 34(12) of the Planning Act to require planning authorities and An Bord Pleanála to screen an application or an appeal for retention permission for EIA and AA as appropriate and to refuse to consider applications for retention of unauthorised development where either an EIA or AA was or is required for such development.

These amendments supplement the amendments introduced in December 2020 under the Planning and Development, and Residential Tenancies, Act 2020. The December 2020 amendments obliged An Bord Pleanála to consider whether exceptional circumstances exist at the substantive substitute consent application stage in order to justify a grant of substitute consent, which ensures that this consideration of exceptional circumstances is subject to full public participation at the substantive application stage. Prior to the December 2020 legislation, exceptional circumstances had only been considered at the initial application for leave stage, which stage does not provide for public participation.

I will provide the background to the substitute consent process generally. The European Union’s EIA directive requires that projects likely to have significant environmental effects must undergo an EIA before development consent is given. In 2008, the Court of Justice of the European Union, CJEU, in case C-215/06 found that Ireland's planning provisions that facilitated retention permission applications for existing developments where such developments also required an EIA was contrary to EU law. Accordingly, section 34(12) of the Planning Act was amended in 2011 so that planning authorities cannot accept applications for retention of unauthorised development where, had an application been made before development had commenced, it would have required an EIA, an EIA screening determination or an AA. Rather, such applications would go into the substitute consent process instead.

The CJEU judgment at the same time did recognise that EU law does not preclude regularisation of unauthorised EIA developments in exceptional circumstances provided that this does not facilitate the circumvention or evasion of EU environmental obligations. In this context, the "substitute consent" facility under Part XA of the Planning Act was introduced and became effective in September 2011.

Substitute consent procedures under Part XA of the Act allow for the regularisation and the undertaking of retrospective EIA or AA of development that has already been carried out. Substitute consent applications are determined by An Bord Pleanála for existing developments that required an EIA, EIA screening or an AA but where such assessments were not carried out.

In deciding "exceptional circumstances", the board must consider a number of matters prescribed at section 177D(2) of the Planning Act, including whether regularisation of the development concerned would circumvent the EIA directive or the habitats directive and whether the applicant could reasonably have had a belief that the development was not unauthorised.

There is currently no entitlement to make an application for substitute consent directly to the board. Rather, and as mentioned earlier, substitute consent is generally a two-stage process requiring either a direction issued by a planning authority or grant of leave by the board to apply to the board for substitute consent. Once that leave is granted, it is followed by the making of a substantive application for substitute consent to the board as the second stage. Generally, the first stage is the leave stage while the second stage is the actual substantive application. Both are made to An Bord Pleanála.

I will now move to the 2020 amendments to substitute consent process, which arose from a Supreme Court judgment. The Supreme Court judgment of 1 July 2020 in the Ballysax/McQuaid judicial review cases found that certain provisions of the substitute consent system were inconsistent with the EIA directive in terms of the lack of an exceptionality criteria in the "defective permission" ground for leave under sections 177C(2)(a) and 177D(1)(a) of the Act. The lack of public participation at the leave stage generally was found to be inconsistent with the EIA directive. "Exceptionality circumstances" were considered at that time as part of leave application stage under sections 177D(1) and 177D(2), which did not provide for public participation and which was not revisited at the later application stage, which did provide for public participation.

As a consequence of that, Part XA of the Act was amended by emergency legislation that was effective from 19 December 2020, namely, the Planning and Development (Amendment) and Residential Tenancies Act 2020, to immediately address the terms of the Supreme Court judgment. The amendments mean that the board must now be satisfied in the second stage substantive application for substitute consent that exceptional circumstances exist in order to justify a grant of substitute consent. Since the legislation was commenced in December 2020, the consideration of exceptional circumstances has been, therefore, subject to full public participation as it is considered at the substantive stage. In other words, the consideration of exceptionality takes place at the second stage, when members of the public have an opportunity to comment.

The 2020 Act amendments also contained transitional provisions that required an additional round of public consultation in cases where an application for substitute consent was pending before the Board at the time the 2020 Act was commenced. This transitional provision aimed to ensure that second stage applications for substitute consent that had already been submitted but not decided by the board were subject to the consideration of exceptional circumstances in order to give the developer the opportunity to provide any further information on exceptionality and, importantly, to facilitate the public and interested bodies making further submissions on exceptionality in the substitute consent application stage, including specifically on whether exceptional circumstances existed or not.

However, notwithstanding the 2020 amendments which addressed the terms of the July 2020 Supreme Court judgment, the substitute consent process itself now contains an initial stage, the application for leave stage, which is effectively surplus and does not provide for public participation. The amendments before the committee seek to streamline the substitute consent process in order to remove this surplus step, thereby making the process easier to understand for the public and participants alike.

The main provisions of the general scheme are as follows. The first two heads are standard heads that will be converted into sections in the Act and relate to the Short Title, citations and definitions in the Bill. Head 3 sets out amendments to section 34(12) of the Planning and Development Act 2000, which currently precludes planning authorities from accepting a retention application for existing unauthorised development in cases where, had a planning application been made before it commenced, an environmental impact assessment, EIA, or an EIA determination or an appropriate assessment, AA, would have been required in respect of that application. The proposed amendments at this provision will also apply this provision to the board. Effectively, on legal advice we are correcting an issue that was spotted in the legislation. The proposed amendments will also apply these provisions to the board in the case of any appeal and will require planning authorities and the board to also consider whether an EIA and an AA was or is required for the development and to delete section 34(12)(b) in order to allow for planning authorities and the board to carry out a screening for EIA to determine whether a retention application can be accepted. In other words, the advice we received was that the provision in question contained an anomaly such that not only if the particular development required an EIA, but even if it required screening for an EIA, i might be obliged to go for substitute consent. We have clarified that. Rather than having an anomaly whereby it might go to substitute consent before any screening is carried out, we are now obliging the local authorities or An Bord Pleanála to carry out the screening to see whether an EIA or an AA is required.

Head 4 proposes to amend section 37L of the planning Act, which provides for simultaneous applications for future development for certain quarries at the same time as substitute consent applications. Currently, only certain quarries defined in the planning Act under section 261A can avail of simultaneous applications which are limited to future quarrying. It is proposed to extend the facility for simultaneous applications for future planning applications to any development being determined as part of a substitute consent application to An Bord Pleanála. Prospective planning applications will not be decided by the board until the related substitute consent application has been decided.

Heads 5 to 18 propose related amendments to Part XA of the Act to streamline substitute consent procedures. Most of these involve the deletion of references to the first stage. At present, there is no entitlement to make an application directly to the board for substitute consent. Substitute consent is a two-stage process requiring either a direction to apply to the board issued by a planning authority or a grant by the board for leave to apply for substitute consent, followed by the making of a substantive application for substitute consent to the board. Heads 5 to 18 instead provide for a single-stage application process for all development types, which will allow a person to apply directly for substitute consent under section 177E of the Act, thereby obviating the need for an initial first stage application for leave to apply for substitute consent or otherwise. In this context, it should be borne in mind that the initial first stage did not provide for public participation.

These amendments include the repeal of sections 177B, 177C and 177D of the planning Act to facilitate the single-stage process, under which a direction from a planning authority under Section 177B or leave from the board under Section 177D to apply for substitute consent is no longer required. All matters, including the question of exceptional circumstances, are considered as part of the single-stage substantive application process under section 177K. A defect in a planning permission, such as an error of law, will remain a valid consideration for the purposes of assessment of exceptional circumstances under section 177K, the criteria of which have been copied from the repealed section 177D.

It is proposed to amend section 177E to allow pre-application consultations with the board on proposed substitute consent applications and to enable any person who has carried out development to apply to the board for substitute consent in respect of development carried out where an EIA or an AA or both was or is required and where that person considers exceptional circumstances exist. Section 177E will also be amended to require that either or both a remedial EIA report or a remedial natura impact statement must accompany an application for substitute consent. That includes a natura impact statement or an environmental impact assessment report in respect of any permitted development not yet carried out.

Finally, it is proposed to amend section 177K to restate the exceptionality criteria at this section following the repeal of section 177D. As explained previously, the emergency 2020 amendments to the substitute consent process already require the board to be satisfied that exceptional circumstances exist in order to justify a grant of substitute consent. The exceptional criteria that the board must consider are being moved from section 177D into the substantive application stage at section 177K(1J) accordingly. Other amendments as set out in the scheme are consequential to the repeal of sections 177B and 177C.

I again thank the Chairman and members for facilitating this briefing. I look forward to what I know will be an engaging discussion with the committee and I will endeavour to answer any further questions committee members may have.