Mr. Eamonn Kelly:

I will start with section 177D(2)(g) regarding the criteria for determining exceptionality, specifically "such other matters as the Board considers relevant". This is effectively a matter for the board. This provision allows the board to consider any matters it considers germane, in addition to the other criteria, each of which must also be considered.

The Deputy asked whether we received legal advice on this. The legal advice was first sought ten or 11 years ago when this legislation was first drafted. We have since gone back over it to seek the legal advice of the current Attorney General. That criterion is additional and does not weaken the other criteria that are to be assessed. It is to be used by the board on a case-by-case basis. I will not speculate on what additional issues might be considered but the key point is that the criteria that come before this one all comply with the EIA directive and the Derrybrien decision. To answer the Deputy's question, we have numerous pieces of legal advice, including recent advice on this drafting as part of the Supreme Court case last year and advice from years ago from files. The Attorneys General were very much involved in drafting the specific wording. The Deputy also asked whether the board can pick and mix criteria. The answer is "No." The board shall consider all of those criteria.

Enforcement is still a function of the local authority. An Bord Pleanála has powers within the substitute consent process because it assesses the application. It can, at that time, issue instructions to the developer to cease activities but, ultimately, the enforcement function remains with the local authority. The question of resourcing may be a question for another day, but it has been assessed by colleagues who have come before the committee. It is always something that needs to be looked at. If it is the case that there are additional resourcing issues, that will be addressed by my colleagues rather than by me as part of the management of this Bill. I appreciate that the issue is inherent. We have looked at it and at how enforcement interacts with this. Again, we are happy. We have received advice and our enforcement process, from the investigative powers of the local authorities right up to injunctions under section 160, is available for local authorities to use. We always encourage the local authorities to use their powers but how to carry out the enforcement process is still, ultimately, an independent decision for each local authority, once it complies with the process. I do not know if that answers the Deputy's questions but, in summary, we have consulted heavily with Attorneys General on this legislation.

If anything, it came from recent court cases. Its genesis, therefore, has effectively come from legal considerations.