Alice-Mary Higgins (Independent) | Oireachtas source

I will speak to the section. I wish to highlight certain issues in this regard. A major concern relates to section 5(a), which introduces a new subsection that would, in effect, allow a person applying for substitute consent in respect of the development of land that the person has undertaken without appropriate permissions to apply at the same time for a new and different development of the land. As the land is the substitute of an application for substitute consent, the person, in effect, is being allowed to apply for a new unrelated development on the site and, indeed, development of land adjoining the land in question. This is significant because what the Minister is doing through that paragraph is providing a fast-track for persons to send their applications for planning directly to An Bord Pleanála, bypassing the normal and proper planning processes. It acts as a reward. It is not simply that a development that was not given proper permission in the first place may be allowed to be retained, but that a person will be able to go directly to An Bord Pleanála in respect of new developments. This is significant and concerning because it absolutely guts the planning process.

It creates a direct conflict with previous rulings of the European court in respect of the idea that substitute consent should be exceptional. I refer to the ruling relating to a decision of the Irish High Court in a substitute of consent case. In the context of the limits on member states, paragraphs 57 and 58 of the ruling in case C-215/06, the Commission v. Ireland, which is the original Derrybrien case, state:

While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful ... such a possibility should be subject to the conditions that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.

A system of regularisation, such as that in force in Ireland [or the new one proposed here], ...[must not] have the effect of encouraging developers to forgo ascertaining whether intended projects satisfy the criteria.

It is clear that the Minister should not be encouraging or rewarding those who do not engage in proper processes. In effect, this paragraph rewards that practice. One would build something, apply for substitute consent and, along with that substitute consent, stick in what else one would like on that site and on an adjoining site. This is in a context where these signals are being sent direct to An Bord Pleanála. An Bord Pleanála is losing approximately 80% of the cases, and those cases, in terms of judicial reviews, relate to proper process. There are significant issues at the moment in respect of conflict of interest and review of the operation of the board. Through this paragraph, the Minister is stating there is a fast track and that a person who did something improperly in the past will now get to skip the normal application to a local authority, the normal processes in respect of public consultation and the other normal processes and simply go directly to An Bord Pleanála. That is the danger here. That directly conflicts with the rulings stating that there should not be any effect of encouraging developments. The paragraph creates a perverse incentive. That is extremely dangerous and would lead to poor-quality developments.It creates a very real danger that at the minimum there would be a perception of an inappropriate dynamic between An Bord Pleanála and developers whereby they are in conversations that others, such as local authorities and the public, are no longer part of. This is a serious concern.

Other parts of section 5 also raise issues. I am afraid I will have to dwell on many substantive points because they are in the section. Section 5(f) inserts a new provision into section 37L. This provides:

(a) subsection (5), as substituted by section 5 of the Planning and Development (Amendment) Act 2022, applies, and

(b) the applicant for substitute consent informs the Board by notice in writing prior to it making its decision in respect of the application for substitute consent, in this subsection referred to as the 'first application', that he or she intends to submit an application for permission under subsection (1), as substituted by that section 5, in this subsection referred to as the 'second application'

This would allow for prior consultation between the developer and the board. There is concern about the dynamic this creates. Prior to the process there can be a conversation between developers and An Bord Pleanála on what might happen. The reason this matters is because overall the thrust of the Bill is removing some of the mechanisms and safeguards. While the substitute consent route was imperfect, at least it had some element of balance.

Previously if people wanted substitute consent they would either apply for the right to seek substitute consent and be subject to some form of scrutiny, or a local authority would give notice that substitute consent should be sought for a development. Now the power is shifting incredibly heavily into the hands of the developers. The local authority, as we will come to in later sections, will no longer have the right to demand that people seek substitute consent. Instead it will be directly up to the developer to decide to seek substitute consent. The conversation will be solely between the developer and An Bord Pleanála. Developers will also get to have a conversation prior to the process when they can decide whether they want to seek substitute consent. If developers have a conversation with An Bord Pleanála and realise they might not get substitute consent in respect of a development there is no mechanism for the State or a local authority to insist that they apply. People can have a conversation to see whether they are likely to get substitute consent and then decide whether to go ahead. This goes against the dynamic of it being the exception rather than the rule. It goes against proper process. These are the mechanisms for the first and second applications.

I also seek to delete section 5(g). It relates to the question of quarries in particular. One of the concerns that I will raise again on Report Stage is the question of whether quarrying should be allowed to continue when a substitute consent application is under way. I will come back to quarries in more detail when I will have an opportunity to do so later. We know this is one of the forms of development that is happening. We do not want to create dynamics whereby while an application for substitute consent is under way people can intensify their extraction in a "last chance saloon" approach with no limits. Certainly there should not be continued activity in a development that does not have proper planning in a situation where substitute consent has not yet been granted.

I have other issues regarding section 5 that I want to highlight for Report Stage.I mentioned the continued extraction in quarrying. I should also note that the idea people would be able to apply for a new provision for quarrying on adjoining land at a time when initial quarrying has not been authorised is a real concern.

I oppose section 5 because it effectively gives developers with unlawful developments a key power. They can write to An Bord Pleanála to require it to delay deciding on an undecided application for substitute consent already before the board. This delay would be to allow the owner of an unlawful development to prepare an application for a new development to be considered alongside the substitute consent. The competent authority should be addressing these issues with speed and priority. The priority with an unlawful development should be to get it addressed immediately. The issue I have mentioned with regard to making new applications is a concern with regard to creating a bypass. It is also a concern because developers are being given powers to delay a decision in respect of substitute consent. This is a decision as to whether an unlawful development should continue, or unlawful extraction in the case of quarries, pending that developer making another application for a new development. Effectively, we are giving and transferring a significant amount of power to developers in this section. We are giving to developers who have committed unlawful developments powers that other developers do not have. People are getting a whole pile of powers that somebody else, who may be going through the proper process, applying in the normal way and doing everything right, will not have. This is wrong. It is straight-up wrong.

We in Ireland really have to get to grips with our planning. We have been told throughout that the problem is we have a planning process. The problem is we have not been applying the planning laws. We got pulled up in Europe on forestry because we did not apply the proper scrutiny. Then we had the forest appeals process and that was a problem so we gutted it. Again and again we try to remove blocks in the planning process rather than doing things right. Instead of pushing people and developers to do things right and, if anything, giving greater reward to those who apply the proper environmental standards, go through the proper processes, do things right and get things right from the beginning, we are constantly problem-solving for those who do things wrong. Then we have a situation where An Bord Pleanála gives them the permission they want. It is difficult and expensive to challenge a bad decision from An Bord Pleanála, but in the very few cases where people are able to challenge, the board loses many of them because it is shown not to have been doing the process right. It feels like this is yet another reward and yet another attempt to short-circuit proper process and give it retrospective imprimaturthrough legislation rather than investing in getting things right from the beginning.