Ciarán Cuffe (Dún Laoghaire, Green Party)

I move amendment No. 32:

In page 42, line 46, to delete "authority."," and substitute the following:

"authority,",

and

(ii) by the substitution of the following for paragraph (f):

"(f) (i) Where a planning authority has failed to make a decision in relation to an application within the period specified in paragraph (a), (b), (c), (d) or (e) as appropriate (referred to in this paragraph as the 'first period') and becomes aware, whether through notification by the applicant or otherwise, that it has so failed, the authority shall proceed to make the decision notwithstanding that the first period has expired.

(ii) Where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant.

(iii) Where a planning authority fails to make a decision within a period of 12 weeks after the expiry of the first period a decision (referred to in this paragraph as the 'deemed decision') of the planning authority to grant the permission shall be regarded as having been given on the last day of that period of 12 weeks.

(iv) Any person, who has made submissions or observations in writing in relation to the planning application to the planning authority, may at any time within the period of 4 weeks after the expiry of the period of 12 weeks referred to in subparagraph (iii), appeal the deemed decision.

(v) Subparagraphs (i) to (iv) shall not apply where there is a requirement under Part X or Part XAB to carry out an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment, in respect of the development relating to which the authority has failed to make a decision.

(vi) Where the planning authority has failed to make a decision in relation to development where an environmental impact assessment, a determination whether an environmental impact assessment is required, or an appropriate assessment is required within the first period and becomes aware, whether through notification by the applicant or otherwise, that it has so failed—

(I) the authority shall proceed to make the decision notwithstanding that the first period has expired,

(II) where a planning authority fails to make a decision within the first period, it shall pay the appropriate sum to the applicant,

(III) provided that no notice under paragraph (b) or (c) was served on the applicant prior to the expiry of the first period, where a planning authority proceeds to make a decision under clause (I) in relation to an application, it may serve notice on the applicant, requiring the applicant to give to the authority further information or to produce evidence in respect of the application under paragraph (b) or (c), and paragraph (b) or (c) shall apply to such notice subject to any necessary modifications,

(IV) subject to service of a notice under paragraph (b) or (c) in accordance with clause (III), where a planning authority fails to make a decision before the expiry of the period of 12 weeks beginning on the day immediately after the day on which the first period expires, the authority shall, subject to clause (V), pay the appropriate sum to the applicant, and shall pay a further such sum to the applicant where it fails to make a decision before the expiry of each subsequent period of 12 weeks beginning immediately after the preceding 12 week period,

(V) not more than 5 payments of the appropriate sum shall be made by a planning authority to an applicant in respect of the failure by the authority to make a decision in relation to an application,

(VI) where a planning authority makes a decision in relation to an application more than one year after the expiration of the first period the authority, before making the decision—

(A) notwithstanding that notice has been previously published in relation to the application, shall require the applicant to publish additional such notice concerning the planning application in accordance with the permission regulations (and the planning authority shall refund the costs of so publishing to the applicant),

(B) notwithstanding that notice of the application has previously been given to prescribed bodies, shall give additional such notice in accordance with the permission regulations, and

(C) notwithstanding anything contained in paragraph (b) or (c), or that the authority has previously been given further information or evidence under those paragraphs may require the applicant to give to the authority further information or to produce evidence in respect of the application as the authority requires and paragraph (b) or (c), as appropriate, shall apply to such additional request subject to any necessary modifications, and the planning authority shall consider any submissions made in accordance with the Regulations following on such additional notices, or additional further information or evidence produced under this clause.

(vii) Any payment or refund due to be paid under this paragraph shall be paid as soon as may be and in any event not later than 4 weeks after it becomes due.

(viii) In this paragraph, 'appropriate sum' means a sum which is equal to the lesser amount of 3 times the prescribed fee paid by the applicant to the planning authority in respect of his or her application for permission or €10,000.".".

Currently, section 34(8)(f) provides that where a planning authority fails to make a decision on a planning application within the prescribed period, normally eight weeks from the date of lodgment, a decision to grant permission shall be regarded as having been given on the last day of the period, in other words a default permission. This provision is now considered undesirable and has been criticised by the High Court and by the Supreme Court. It means that if through administrative error a decision is not made on time, a wholly unsuitable form of development could be permitted, or even where the proposed development is acceptable in principle, no planning conditions may be attached.

Under the amended provision a default decision to grant permission will only be deemed to be given 12 weeks after the expiration of the time for deciding the application. It is considered most unlikely that a planning authority could continue to overlook an application for a further 12 weeks, as inquiries would be made by people who had made submissions, so in practice it is not expected that there will be default decisions to grant permission. In addition if it fails to decide the planning application within the statutory period, the planning authority must pay to the applicant a sum of three times the application fee, subject to a maximum of €10,000.

It is being provided that the default decision to grant permission will not apply to applications for development which require environmental impact assessment or appropriate assessment under the habitats directive. In such cases the following provisions will apply. Where the planning authority fails to meet its statutory deadline, it must still proceed to decide the application and, as well as the initial fine, the planning authority will be required to pay a further fine of three times the application fee, subject to a maximum of €10,000, for each further 12-week period in which the planning authority fails to decide the application, subject to an overall maximum of €50,000.

In the highly unlikely event of a year having passed without the planning authority making a decision on the planning application, the application will require to be advertised again at the expense of the planning authority and submissions invited from the public and prescribed bodies. The planning authority will also be permitted to seek further information in such a case.

It is self evident that this will concentrate the mind of the planning authority in question to decide on the application. The very few examples we have seen over the years of a decision failing to be made in time will disappear. This will ensure that decent decisions are made in proper time.

See this speech in context