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

I move: "That the Bill be now read a Second Time."

I am grateful for the opportunity to introduce this Bill and thank Members for facilitating the passage of this important substitute consent legislation through the Houses in advance of the summer recess. The purpose of the Bill is to amend the Planning and Development Act 2000, as relating to substitute consent procedures. Substitute consent is a process that concerns applications seeking to regularise existing developments requiring retrospective environmental impact assessment or appropriate assessment in exceptional circumstances. This Bill seeks to streamline the process and provide for a single-stage application process and it achieves this by the deletion of the initial leave to appeal stage.

The amendments in the Bill follow prior amendments introduced by sections 6, 7 and 8 of the Planning and Development, and Residential Tenancies, Act 2020, enacted on 19 December 2020. That legislation was introduced as an initial interim response to the Supreme Court judgment issued on 1 July 2020 in the Ballysax-McQuaid cases, three joined appeal cases relating to two quarries.

The 2020 Act's amendments ensured that the findings of the judgment were addressed and that the issue of the exceptional circumstances in each substitute consent application case would be considered not only at the initial leave to apply stage, but also at the substantive application stage, where full public participation is involved. In deciding on exceptional circumstances, the board must consider a number of prescribed matters including whether regularisation of the development concerned would circumvent the environmental impact assessment, EIA, or habitats directives and whether the applicant could reasonably have been of the belief that the development was not unauthorised.

I should have said at the start that the Chairman of the Oireachtas joint committee, Deputy Matthews, has been in contact with my office. To let both Members who are present, Deputies Ó Broin and Cian O'Callaghan, know, there will a briefing at official level arranged for Monday, in advance of Committee Stage. The Deputies will be contacted with regard to the specific time.

The 2020 Act's amendments effectively rendered redundant the initial leave to apply stage, which did not involve public participation. In the present Bill's proposed deletion of the redundant leave to apply stage, it has ensured that the 2000 Act retains all of the established the criteria that the board, as the competent authority, is required to consider when determining whether exceptional circumstances exist in substitute consent applications on a case-by-case basis.

Related amendments are proposed to section 34(12) of the 2000 Act to clarify provisions for planning authorities and the board to screen applications for retention permission for EIA and appropriate assessment, AA, and to refuse to consider applications for retention of unauthorised developments where either EIA or AA are screened in, in which case the applicant can only consider the substitute consent process.

Amendments are also proposed to extend section 37L of the Planning and Development Act, which currently allows simultaneous applications for any future development to An Bord Pleanála and applications for substitute consent for certain quarries only. The proposed amendment to section 37L will allow for simultaneous applications to be made in respect of all types of developments. This amendment is to encourage the regularisation and remediation of unauthorised developments, as well as allowing an integrated assessment by the board of such related proposals, which will also be of benefit to the understanding of the public.

Some concerns were expressed in the Seanad with regard to the extension of such applications for future-facing development beyond certain quarries. I am keen for these concerns to be addressed in this House as they were in the Seanad. At the outset, it is important to note that it is a material consideration of An Bord Pleanála in considering whether exceptional circumstances exist in a substitute consent proposal, without which the substitute consent application must be refused, whether the applicant had or could reasonably have had a belief that the development was not unauthorised. There is also the additional material consideration of whether the applicant has complied with previous planning permissions granted or has previously carried out unauthorised development. In other words, the risk of exceptional circumstances not being deemed to exist and an existing development therefore being refused substitute consent is apparent if applicants cannot adequately demonstrate their bona fides that they could reasonably have had a belief that their development was not unauthorised.

Any perceived benefits to section 37L future-facing applications in being able to apply directly to the board rather than having to separately apply to the relevant planning authority first will be significantly outweighed by the inherent vulnerabilities and significant potential financial exposure if the related substitute consent application is refused. In such cases, the relevant planning authority will be statutorily obliged to initiate enforcement proceedings against the unauthorised development seeking remediation of the site. Furthermore, the future-facing planning application on the same site or an adjoining site may also be refused as a result of, for example, it relying on any element of the refused substitute consent proposal. In other words, the legislative provision to allow parallel substitute consent and planning applications is not in any way developer-friendly in focus or scope in light of the significant constraints and vulnerabilities for any developer attaching to progressing a substitute consent proposal. I also note the benefits to the public of allowing a parallel holistic assessment of two related proposals on the same site or adjoining sites to take place at the same time.

The amendments proposed by Government by way of this Bill are intended to act in exceptional circumstances to bring developments that have been determined to be operating outside of environmental planning law back into the planning framework irrespective of the commercial value of the site. In the very rare cases where substitute consent is being sought, this is done after a bona fide mistake has been realised by a developer. However, it should be noted that, if the substitute consent application is refused, the future development proposal must also be refused.

I also wish to inform the House of my intention to introduce Government amendments as the Bill makes its way through the legislative process on Committee Stage. These amendments relate not only to planning legislation, but to other legislation that is within the remit of my Department. It may be of note that four of the six proposed groups of Committee Stage amendments were previously flagged during the Second Stage debate on this Bill in the Seanad. These comprise amendments to the ministerial directions provision contained within section 31 and related sections of the Planning and Development Act, amendments relating to flexibility in planning provisions and judicial review provisions in the Planning and Development Act and amendments to the provisions of the Valuation Act 2001. I will now outline the intended purpose of each of the six groups of amendments I propose to move on Committee Stage, which also include amendments to include provisions on short-term letting in the Planning and Development Act and to make technical amendments to the Maritime Area Planning Act 2021. As I said earlier on, at the request of the Oireachtas joint committee and its Chairman, Deputy Matthews, my officials will brief Deputies in detail on these matters in advance of Committee Stage on Monday.

With regard to short-term lettings, it is further proposed to table amendments on Committee Stage in the Dáil with the aim of strengthening the pre-existing regulatory controls in this area. The detailed operational arrangements and other related ancillary provisions in respect of the certification requirement will be provided for in supplementary regulations which it is intended to make by the end of July, contingent on the enactment of this Bill. These amendments are being proposed in the context of the ongoing accommodation shortage in the private rental sector, particularly in the areas of highest housing demand, specifically the rent pressure zones, with associated knock-on implications for rental prices in these areas. These pressures have been further exacerbated by the recent arrival into the State of large numbers of people fleeing Ukraine who are in need of medium to long-term accommodation, which is likely to continue into the future.

On ministerial directions, I propose to table technical amendments consequent on the establishment of the Office of the Planning Regulator in 2019 and on foot of advice received from the Attorney General. These amendments will ensure that the legislative procedures of section 31 of the Planning and Development Act, including, but not limited to, sections 31AM and 31AN, which relate to development plans and variations, and sections 31AO and 31AP, which relate to local area plans and the relationship between them, are improved. This will be achieved by providing greater clarity in the consistency of procedures and of language to address matters such as correct cross-referencing and notifications for both the draft direction stage and the final direction stage. Amendments are proposed to provide for a timeframe for the office to recommend that a Minister issue a direction. Amendments are also proposed to introduce a new section to set out the process for the Minister to issue a final direction. The intent of these amendments is to clarify this process at final direction stage and to set out a timeline allowing for the inclusion of strategic environmental assessment and appropriate assessment, where appropriate. A further amendment has been provided to set out the procedure involved if the Minister does not agree with the recommendations of the office. This is currently set out at draft direction stage and we therefore believe it is appropriate for this process to be reflected at proposed final direction stage.

The purpose of amendments on flexibility in planning applications is to address a High Court decision from last summer relating to the concept of a design envelope approach in planning applications. Prior to this judgment, while not specifically provided for in legislation, the design envelope approach had been an accepted feature of the Irish planning system and had been successfully applied up to this time. The approach proposed in the legislative amendments involves a pre-application process in which prospective applicants who wish to avail of flexibility in their application request a meeting with the planning authority or An Bord Pleanála in respect of a development of a strategic nature in advance of submitting the planning application.

The meeting request will outline the flexibilities sought and the justifications for same. The planning authority or the board shall determine whether it is satisfied that it is appropriate that the application for permission be made and decided before the prospective applicant has confirmed the specific option and-or the details outlined in the meeting request. Where it is so satisfied, it shall issue an opinion in this respect. The planning authority shall issue a notification where it is not satisfied. The prospective applicant can then submit the opinion with a subsequent planning application and the information requirements for the planning application will be read in accordance with the opinion issued.

In the case of wind energy developments, this approach allows developers to apply for planning permission prior to procuring specific turbines and allows them to detail in the planning applications specific options for turbines or parameters within which the turbine dimension will fall. The applicant will have to submit sufficient information to allow the planning authority or the board to assess the impacts of any type of development that falls within the flexibility sought. For maximum flexibility, it is intended that the amendment would apply to the main land-based applications made under the Planning and Development Act 2000 with appropriate safeguards for the public consultation phase and the environmental assessment.

Judicial review challenges of planning decisions can cause considerable delays in the progression of development proposals, including projects of strategic national importance. To help address some procedural aspects relating to the conduct of judicial review challenges and improve the efficiency and effectiveness of the processes involved, a number of streamlining amendments are proposed to the judicial review provisions in sections 50 to 50B of the Planning and Development Act. These are primarily streamlining-type proposals aimed at improving the efficiency of the court processes in relation to judicial reviews of planning cases. It is intended that other more substantive reforms to the judicial review provisions in the Planning and Development Act will be addressed in the ongoing planning review being led by the Attorney General which is due to be finalised by the end of the current year.

The purpose of the proposed amendments to the Valuation Acts 2001 to 2020 is to enable the Commissioner of Valuation to defer the revaluation programme until 2023 and 2024 onwards, withdrawing the extant valuation orders for Reval 2021 and Dún Laoghaire-Rathdown. The need for these amendments arises as a consequence of restrictions imposed on businesses during 2020 and 2021 preventing the Valuation Office from inspecting properties. This takes account of the knock-on effect the pandemic had on the property market. As a result, the timing and roll-out of the revaluation programme between now and 2026 is affected.

It is proposed to amend Part 4 of the Maritime Area Planning Act 2021 relating to maritime area consents, MACs, as follows. The granting of a MAC will enable an applicant to occupy a part of the maritime area on the condition that planning permission will be secured. A MAC will set out conditions governing the relationship between the State and the holder in the period up to securing planning permission, and the construction and operation of structures for the lifetime of that maritime area consent, including financial returns to the State, indemnities, achievement of or adherence to key milestones, variation, assignment and decommissioning or reinstatement obligations. The proposed amendments, which are technical in nature, have been recommended and drafted by the Office of the Attorney General following a review of the conditions. Section 56 of the Maritime Area Planning Act 2021 is also proposed to be amended to allow for the appointment of a chief executive officer designate by the Minister ahead of the establishment of the Maritime Area Regulatory Authority, MARA.

Other amendments are required, including ones providing that the continental shelf may be treated as part of the State, a rehabilitation schedule to be attached to a MAC where it has been attached to a development permission to ensure consistency and amendments to provide for governing of the assignment of a MAC by the original holder to another person. New sections and amendments are included concerning provisions granted, licences and conditions attached, civil remedies, judicial review and enforcement and to provide for interest to be payable on money owing to MARA. The amendment of Part XXI of Planning and Development Act 2000 ensures that MARA is a prescribed body for the purposes of Part XXI of that Act.

In concluding the introduction of this Bill to the House, I confirm to Deputies that this Bill, as initiated, is needed to streamline the important substitute consent procedures for applications to regularise existing developments requiring retrospective environmental impact assessments, EIAs, or appropriate assessments, AAs, in exceptional circumstances. Public consultation is a critical component of planning legislation. My Department committed to the Joint Committee on Housing, Local Government and Heritage during the pre-legislative scrutiny process, and further to the Seanad, that we would extend the public consultation period for substitute consent applications from five to eight weeks. This detail is not included in the Bill, as details such as the minimum length of public consultation periods for planning applications are contained in secondary planning regulations. I will amend these regulations to introduce an eight-week consultation period for substitute consent applications later this year, at the same time as the commencement of the enacted Bill. I look forward to debating the Bill's provisions as it moves through the Houses. We will hold a detailed briefing with officials on Monday for members of the joint committee. I commend the Bill to the House.

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