Damien English (Meath West, Fine Gael) | Oireachtas source

-----but he is not. Trying to say he is not here so he will not be associated with it is a bit silly because he is very much associated with it and very much on the record and very public about all issues when it comes to planning and housing. Sometimes it would be better if he was not, but he very clearly is, so do not try to say he is dodging any issues. That would be the wrong approach and Deputies know it is not true because it is not something he does, and we will leave it at that.

Amendments Nos. 1, 78 and 82 to 85, inclusive, which generally relate to environmental impact assessments have been grouped together for discussion. There is an issue with amendment No. 81, which we will deal with later. I will address the Opposition amendments in this grouping and then the Government amendments.

Amendment No. 1 proposes to introduce a requirement that within six months following the passing of this Act, the Minister shall lay a report before the Houses of the Oireachtas regarding the Government's compliance with the environmental impact assessment directive and the Aarhus Convention. While on the face of it this amendment may seem to have merit, we must oppose it on a number of grounds. The Aarhus Convention does not have direct application in Ireland. Rather, it is implemented at EU level by a number of EU directives, namely, EU Directive 2003/35/EC on public participation and access to justice in certain environmental matters, and EU Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, commonly referred to as the EIA directive. Directive 2014152/EU, the 2014 EIA directive, amends the 2011 directive. Therefore, it is not appropriate to include a direct reference to the Aarhus Convention in primary legislation.

These EU directives have been transposed into Irish legislation and are fully reflected not only in the planning code, but also in other relevant non-planning related legislative codes, which fall under the responsibility of other Ministers and Departments. Therefore, it would not be appropriate for one Minister to report on matters that are within the remit of a number of other Ministers. We oppose the amendment as I believe it is unnecessary to provide for it in primary legislation. Like all ministerial office holders, those at the Department are answerable to both Houses of the Oireachtas for policy and legislative matters that come under our remit. There are existing processes in place to facilitate this and we see no need to provide for it in primary legislation.

Amendment No. 78 proposes to amend section 34 of the principal Act by the insertion of a new subsection 12AA to introduce an EIA screening mechanism in the consideration of an application for retention permission. Section 34 of the Act provides for the making of an application to a planning authority for permission for development consent, and that permission may be granted with or without conditions or may be refused as it contains other related provisions. While section 34 already provides that an application may be made to a planning authority for permission to retain an unauthorised development, it does place a particular restriction on a planning authority when considering such an application. In this regard, section 34(12) states that if the application for permission for the development was made before it was commenced, and where the application would have required an EIA, a determination as to whether an EIA was required, or an appropriate assessment, then the authority must refuse to consider the application. Where the authority refuses to consider an application in these circumstances, it is then open to the applicant to pursue the matter under the existing procedures for substitute consent under Part XA of the principal Act, in which case an application must be made to An Bord Pleanála seeking leave to apply for substitute consent in the first instance.

Conversely, if the authority decides with regard to a particular application for retention permission that an EIA, a determination as to whether an EIA was required, or an appropriate assessment would not have been required if the application had been made prior to commencement, then it may consider the application for retention of unauthorised development. As the planning code already provides a robust mechanism for considering an application for retention permission, either under section 34 or Part XA as may be appropriate, we consider the amendment proposed is not necessary.

I understand the background to what Sinn Féin has proposed and we will look at this again with regard to what the Deputy said earlier. I know he has been in discussion with the officials. We will look at it and go through it, and we can deal with it in the Seanad. We are open to examining the substitute consent provisions under exceptional circumstances. I know what the Deputy is trying to bring forward, and if he is happy enough to do so we will deal with it in the Seanad. He has indicated he probably is and that is fair enough.

Amendment No. 82, also tabled by Deputy Ó Broin, proposes a number of amendments to the extension of the duration of planning permission under section 42 of the planning Act 2000. These were also discussed on Committee Stage last month. During the passage of the Planning and Development (Housing) and Residential Tenancies Act 2016 just before Christmas, the Minister, Deputy Coveney, proposed a number of amendments to section 42 provisions, which were approved by the Oireachtas at that time. Notably, one of the amendments inserted a new provision that any developments that require an EIA or appropriate assessment at the time of the original permission will not qualify for an extension of duration to the planning permission. This will apply on developments where substantial work has been completed and developments where work has not commenced. The condition is necessary to avoid an extension of time being granted for developments where, for whatever reason, an EIA or appropriate assessment was required at the time the original permission. However, the first three elements of amendment No. 82 propose to go further than this, and have the collective effect of requiring that an application for either first or second extension of the permission may be granted only where the planning authority undertakes an EIA or appropriate assessment screening and determines that neither such assessment is required. We consider this goes beyond what is required in these circumstances and what was approved by the Oireachtas only a few months ago.

The last element of amendment No. 82 proposes to delete section 42(8) as inserted by the 2016 Act. This subsection provides that the duration of a planning permission for a strategic housing development may be extended only where substantial works have been carried out during the period of the original permission.

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