Alice-Mary Higgins (Independent) | Oireachtas source

I disagree. This provision does provide an incentive because the disincentive in the legislation is the requirement to seek substitute consent but that applies in any event. If I have a site I want to build on and I have built something on it for which I do not have permission, there is then the question of seeking substitute consent.

What is very interesting is that this reveals the idea, another flaw in the Bill, that basically the decision on whether to apply for substitute consent becomes a discretionary one on the part of the developer. As the Minister said, if I had a site on which I wished to build or an adjoining site to an existing site, at the moment, if I was applying through the normal process for planning permission, the local authority could require me to first seek substitute consent as part of a process. It should not be the case that it is only when someone goes directly to An Bord Pleanála - this is a problem the Bill is setting up - where developers decide whether to apply for substitute consent, they can then attach a brand-new development to it, thereby skipping a major stage in the planning process, namely, the local authorities. That is a big prize.

The alternative, as currently exists, is that someone thinking of building on an unlawful development must first seek permission or substitute consent for the work that has been done or a local authority will require that person to seek substitute consent. All of the risks associated with applying for substitute consent already apply under the current system and they are rightly dealt with prior to a person going ahead with a new application to build something entirely new, bearing in mind that it is not just on the site in question but on an adjoining site.

The proposal therefore provides for a better and more incentivised situation than having someone simply apply to seek substitute consent and then go through the planning process in the normal way. This is a fast track and there is no way to describe it as anything other than that. The developer can go directly to An Bord Pleanála and skip the local authority stage, for example, if they wanted to start digging in a quarry and had effectively done something requiring an earlier consent.

This does not necessarily apply to related development but any other future-facing development someone may seek to have on a site. There is no level at which that is not a reward. If I have an application for something on a site and I do not have an unlawful development on that site, I will go through the full planning process, whereas someone who has an unlawful development can jump straight to An Bord Pleanála. That is what is happening.That person would deal with the substitute consent application and the fact he or she had an unlawful development and then get in the queue behind somebody who does not have an unlawful development and is simply making an application. In the current situation, people with an unlawful development rightly have some paperwork to sort out before putting in a planning application and are behind people in the queue who are lawful in their actions. With this Bill, they are ahead. That is directly in contravention of the ruling and the definition which said developers should not be encouraged in this way and such a dynamic and incentive should not be created.

The Minister talks about high-stakes gambling. He is creating a danger with the determination where a desirable future development is considered alongside the substitute consent from An Bord Pleanála. There will be pressure, and unless substitute consent is given for the wrong thing, then a good proposal on an adjoining site will be bundled together with it. A dynamic is created. The Minister talked about the stakes being raised for the developer. The stakes will actually be raised for the planning system. If An Bord Pleanála decides a development is unlawful and does not give it retrospective permission, then it is jeopardising this new future project on the site next door. This is a wrongful shift in the power dynamics, scrutiny and planning in Ireland. There have been many such shifts but this is possibly the most egregious yet.