Eugene Murphy (Fianna Fail) | Oireachtas source

The Minister of State is welcome to the House. I compliment Senator Clonan. I was not here the other day, but it was nice to hear him say a few words on this debate and I am sure he will make many valuable contributions to the House in his time here.

Naturally, Fianna Fáil welcomes this Bill which concerns the substitute consent regime of Part XA of the Planning and Development Act 2000. The Bill's purpose, as the Minister of State pointed out, is essentially to streamline the substitute consent procedure in the planning system. Streamlining of the substitute consent regime is required to increase the efficiency and utility of the process in order to safeguard confidence in the Irish planning system by eliminating a surplus step in the substitute consent process. We all believe that to be important. It will also ensure that the system is fully in compliance with EU environmental requirements and recent court judgments. In this context, it is proposed to provide for a single-stage application process under the remit of An Bord Pleanála. This would replace the current two-stage process.

It is also proposed to amend section 37L of the planning Act, as the Minister of State mentioned, which currently allows simultaneous applications to be made for certain quarry developments for both future development and substitute consent to An Bord Pleanála at the same time, so that simultaneous applications will be open to all types of development.

Amendments are proposed, as referred, to section 34(12) of the Act, to require planning authorities and An Bord Pleanála to screen an application or an appeal for retention permission for an environmental impact assessment, EIA, or appropriate assessment, AA, and to refuse to consider applications for retention of unauthorised development where either an EIA or AA are screened in.

The amendments to the Bill supplement the amendments introduced in December 2020 under the Planning and Development, and Residential Tenancies, Act 2020. The amendments of December 2020 obliged the board to consider whether exceptional circumstances exist at the substantive substitute consent application stage in order to justify a grant of substitute consent, which ensures that this consideration of exceptional circumstances is subject to full public participation at the substantive application stage. Previously, exceptional circumstances had only been considered at the initial application for leave stage, which stage does not provide for public participation. The European Union’s EIA directive requires that projects likely to have significant environmental effects must undergo an EIA before development consent is given. In 2008, the Court of Justice of the European Union, CJEU, in case C-215/06 found that Ireland's planning provisions that facilitated retention permission applications for existing developments, in other words, retrospective applications for consent, where such developments also required an EIA was contrary to EU law. Accordingly, section 34(12) of the planning Act was amended in 2011 so that planning authorities cannot accept applications for retention of unauthorised development where, had an application been made before development had commenced, it would have required an EIA, an EIA screening determination or an appropriate assessment.

The CJEU judgment at the same time did recognise that EU law does not preclude regularisation of unauthorised EIA developments in exceptional circumstances provided that this does not facilitate the circumvention or evasion of EU environmental obligations. In this context, the "substitute consent" facility under Part XA of the planning Act was introduced and became effective in September 2011.

Substitute consent procedures under Part XA of the Act allow for the regularisation and the undertaking of retrospective EIA or AA of development that has already been carried out. Substitute consent applications are determined by An Bord Pleanála for existing developments that required an EIA, EIA screening or an AA but where such assessments were not carried out.

In deciding "exceptional circumstances", the board must consider a number of matters prescribed at section 177D(2) of the planning Act, 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.

There is currently no entitlement to make an application for substitute consent directly to the board.Substitute consent is generally a two-stage process requiring either a direction issued by a planning authority or grant of leave by the board to apply to the board for substitute consent at a first stage, followed by the making of a substantive application for substitute consent to the board at the second stage.

The Minister of State has dealt adequately with the amendments and the court judgments. I will not continue on with that because it would only be repetition. I join the previous two speakers and the Minster of State in saying we all wish for more houses to become available as quickly as possible. It is in everybody's interest. Even if we disagree on various aspects of the housing plan that is going forward, everybody's heart is in the right place and everybody wants us to have more housing available so that people can at least have a roof over their heads. Many young people are saying that if we cannot do something about the housing situation, they do not have much of a future.