Peter Burke (Longford-Westmeath, Fine Gael) | Oireachtas source

I congratulate our new Member, Senator Tom Clonan. I wish him the very best of luck as he takes his seat. It is a great achievement for him and his family.

I am grateful for the opportunity to introduce the Planning and Development (Amendment) (No. 2) Bill 2022. I thank Senators for facilitating the passage of this important substitute consent legislation through the House. The purpose of this Bill is to amend the Planning and Development Act 2000 at Part X(a) relating to substitute consent procedures. Substitute consent is a process that concerns applications seeking to regularise existing developments requiring retrospective environmental impact assessment, EIA, or appropriate assessment, AA, in exceptional circumstances. The Bill seeks to streamline the process to provide for a single-stage application process and achieves this by the deletion of the initial leave to apply stage.

The amendments in the present Bill follow on from prior amendments to the substitute consent process introduced by sections 6, 7 and 8 of the Planning and Development Act and the Residential Tenancies Act 2020, No. 27 of 2020, as enacted on 19 December 2020. This 2020 legislation was introduced as an initial interim response to the Supreme Court judgment issued on 1 July 2020 in the Ballysax v. McQuaid cases, which were three joint appeal cases relating to two quarries, namely, An Taisce v. An Bord Pleanála, An Taisce v. An Bord Pleanála and Sweetman v. An Bord Pleanála. The 2020 Act amendments ensured that the findings of the judgment were addressed and the issue of exceptional circumstances in each substitute consent application case would be considered not only in the initial leave-to-apply stage but also at the substantive application stage, which involves full public participation. In deciding exceptional circumstances, the board must consider a number of prescribed matters, 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. The 2020 Act amendments, in effect, render the initial leave-to-apply stage, which did not include public participation, redundant. This Bill's proposed deletion of the redundant leave-to-apply stage has ensured that the 2000 Act has retained all of the established criteria that the board as a 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 also proposed to section 34(12) of the 2000 Act to clarify provisions allowing planning authorities and the board to screen an application for retention permission for EIA and 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 37(l) of the planning Act, which currently allows simultaneous applications for any future development to An Bord Pleanála, along with substitute consent applications for certain quarries. The present amendment to section 37(l) will allow for simultaneous applications being made in respect of all types of developments. This amendment seeks 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 for the understanding of the public. However, it should be noted that if the substitute consent application is refused, the future development proposal must also be refused.In addition to my comments on the Planning and Development (Amendment) (No. 2) Bill 2022, I wish to inform the House that I intend to introduce further Government amendments as the Bill makes it way through the legislative process on Committee Stage. These amendments relate not only to the planning legislation but to other legislation under the remit of my Department. I will, therefore, outline the position on each of these amendments, with the first three amendments relating to the planning Act.

The first amendment relates to ministerial directions regarding statutory plans and related provisions. Technical amendments to section 31 of the Planning and Development Act 2000, as amended, relating to ministerial directions regarding statutory plans and related provisions are being examined by my Department to address inconsistencies and to ensure the effective operation of the section 31 process as it applies to statutory plans made, amended or varied by planning authorities and regional assemblies under the Act.

The second amendment relates to flexibility in regard to planning applications. This amendment would provide that planning applications may include a limited number of design options, where such details or specifications are unknown or cannot be confirmed at the time of the application. The amendment is intended to provide clarity on foot of a recent High Court judgment in a planning-related judicial review case and to ensure that a certain degree of flexibility at planning application stage can be maintained, with appropriate safeguards for the public consultation phase and environmental assessment to ensure that sufficient clarity is provided for the planning authority and stakeholders. My Department is working with the Office of the Attorney General with regard to progressing this Committee Stage amendment.

The third amendment relates to judicial review. The previous Government approved a general scheme of a Bill which included some amendments to the judicial review process. The programme for Government refers to this in tandem with the establishment of the planning and environmental law court, which will be a division of the High Court. A working group, led by the Department of Justice, is leading on the court establishment issue. While public consultation advanced on the Bill, it has not yet been subject to pre-legislative scrutiny. The review of the planning Act, being led by the Attorney General, has a specific work stream on judicial review. At this stage, it is envisaged that substantive changes would advance through that process. However, in the interim the Minister is considering whether some straightforward elements of the planning and development (judicial review) Bill could be incorporated as amendments to this Bill as it progresses through the Oireachtas. This would include aspects such as ensuring that all administrative reviews or appeals processes should be exhausted before a referral to the courts. This would be in line with the reference to this process within the environmental impact assessment directive.

The following proposed Committee Stage amendments relate to legislation other than the planning Act. I propose to bring forward amendments to the Affordable Housing Act 2021 relating to affordable purchase scheme. Part 2 of the Act provides for the establishment of a local authority-led affordable purchase scheme. It contains a provision where the local authority equity interest in the home it makes available is registerable as a burden in the Land Registry portfolio. A technical amendment will now be made to register this interest as an inhibition rather than a burden.

Part 4 of the Affordable Housing Act 2021 provides the basis for the first home affordable purchase shared equity scheme, which will be available nationwide. The scheme, which is intended will be introduced from the end of quarter 2, will support first-time buyers on moderate incomes in purchasing new-build homes in private developments by means of an equity share model. It is proposed to make a technical amendment to Part 4, inserting a new section 41A. On the advice of the Attorney General, it is considered necessary and prudent to bring forward an amendment to provide a clear and explicit legal basis for the registration and removal of a beneficial interest. This will be in the form of an inhibition in the same manner as the local authority affordable purchase scheme under Part 2.

I will also bring forward amendments to the residential tenancies and valuation ActsThese proposed amendments are to section 14 of the Residential Tenancies and Valuation Act 2020 and section 21 of the Valuation Act 2001, with possible consequential amendments to sections 23 and 60 of the 2001 Act as they relate to the national revaluation programme. The proposed amendments are intended to facilitate the Commissioner of Valuation to postpone the roll-out of the revaluation of rateable properties as a result of the effects of Covid-19 restrictions during 2020 and 2021. This decision will require amending legislation to allow for existing valuation orders to be wound up and new valuation orders to be made for rating authorities.

The Minister is also considering legal advices regarding the necessity for technical amendments to the Foreshore Act 1933 to deal with the potential issues arising with the assessment of applications as prescribed under the Act, which technical amendments brought forward by way of Committee Stage amendments to this Bill.

The Bill, as initiated, is needed to streamline the important substitute consent procedures for applications to regularise existing developments requiring retrospective environmental impact assessment or appropriate assessment. Public consultation is a critical component of planning legislation. My Department committed to the Oireachtas joint committee in the pre-legislative scrutiny process to 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, namely, the Planning and Development Regulations 2001, as amended. 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 hearing Senators' views on the legislation.

I commend the Bill to the House.