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

I will try to deal with a number of questions and comments that have been asked and made, recognising the fact we are dealing with section 5.We could have a very detailed debate on planning and the changes that the Government has made to make sure we have an efficient and effective planning system in our country.

I will address some of the points that have been made, particularly to section 5, and Senator Higgins's amendment to this, which would effectively delete the Government's proposal to allow simultaneous applications for all types of developments to be assessed - that speaks to the point made by Senator McDowell - by the board concurrently deciding with the substitute consent application in which case the legislation would revert to allowing simultaneous applications only for certain quarry developments to be assessed by the board concurrently with the substitute consent application. I believe that answers Senator McDowell's point.

The Government's proposal in the section is to expand the potential for simultaneous applications to all development types beyond the existing provisions that currently only apply to certain types of quarry developments. That is not an incentive and is considered reasonable. This is because it is envisaged that in the very rare circumstances indeed of substitute consent arising, it would most likely be sought when a developer who is proposing a new development that is not been either consented or indeed constructed in the normal way, discovers that to progress a new development on-site, a pre-existing unauthorised development needs to be regularised first. That is what this is about. In this regard, it is important to note that it is a material consideration of the board whether exceptional circumstances exist in a substitute consent proposal. Without this, incidentally, a substitute consent application must simply be refused. That is what will happen whether the applicant had or could reasonably have had a belief that the development was not unauthorised, as well as the additional material considerations as to whether the applicant has complied with previous planning permissions granted, or has previously carried out unauthorised development. The risk of exceptional circumstance not being deemed to exist and the application, therefore, being refused substitute consent is apparent if the applicant themselves cannot adequately demonstrate their own bona fides that they could have reasonably had a belief their development was not unauthorised.

It will also be misleading to the members of the public because we want a transparent planning system if an application for substitute consent was progressed, having been effectively triggered by a new development proposal on the same or on an adjoining site, and if the new development proposal was not available for consideration by the public at the same time but instead had to be considered in a separate planning application that can only be applied for years later, and which later application had to be considered by a planning authority instead of by the board who carried out the initial substitute consent assessment.

The ability to run substitute consent applications and related future-facing development applications at the same time will also be a benefit to the board's independent assessment process, as the parallel assessment approach will allow the board to be able to holistically assess proposals on the same or adjoining sites at the same time these proposals are inherently related to each other.

The Government's proposed amendments to section 37L of the principal Act will not change the fact that such applications for future development cannot be decided by the board until the substitute consent application, including, as I have mentioned, the consideration of whether the exceptional circumstance criteria are actually met, has been decided upon. The board will be required to decide upon the application for future development at the same time or as soon as possible after the decision on the application for substitute consent.

Any perceived benefits or incentives to a future-facing application of being able to apply directly to the board, instead of having to separately apply to the relevant planning authority first, will be outweighed by the inherent vulnerabilities and significant potential financial exposure if the related substitute consent application is actually refused. In such substitute consent cases that are refused, the relevant planning authority will be statutorily obliged to initiate enforcement proceedings against unauthorised developments to seek remediation of the site.

Furthermore, the future-facing planning application on the same or adjoining site may also be refused as a result of a refusal of substitute consent if, for example, it relies on any elements of the refused substitute consent proposal.In other words, the legislative proposal which expands the provision to allow parallel substitute consent on planning applications for developments other than quarries does not provide an incentive to developers to use the provision instead of normal future-facing planning applications, noting the significant constraints and vulnerabilities for the developer attached to progressing a substitute consent proposal. Seeking out substitute consent to facilitate a simultaneous future planning application directly to An Bord Pleanála would simply not be a rational or financially practical approach for developers to consider, as opposed to simply applying for a planning permission requiring an environmental impact assessment, EIA, or appropriate assessment, AA, in advance of the development being built in the normal way and given the expenditure of significant capital costs on a project and the resultant risks of a refusal of substitute consent that would arise.

As such, the Government considers the proposal in section 5, including the transitional provisions, to be eminently reasonable. I hope I have addressed a number of the points raised by Senator Higgins. I have answered Senator McDowell directly. This is an eminently sensible approach and does not provide an incentive in any way, shape or form.