Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 7:

In page 8, line 4, after “shall” to insert “be subject to the criteria set out in section 177D(2) and”.

The amendment seeks to add a new caveat to the definition of "exceptional circumstance" being inserted into section 177A of the principal Act. The caveat is that the exceptional circumstances should be subject to the criteria set out in section 177D(1B)(2), which outlines that in considering whether exceptional circumstances exist, the board should have regard to whether regularisation of the development would circumvent the purpose and objectives of the EIA or the habitats directive; and whether the applicant had or could reasonably have had a belief that the development was not unauthorised. This would be important in situations where persons may have multiple applications. The board should further have regard to whether the ability to carry out an assessment of the environmental impacts of the development for the purposes of the EIA or appropriate assessment, and to provide for public participation have been substantially impaired, the actual or likely significant effect on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development, and the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated. Again, it goes back to the question of what comes next, even in a situation of refusal. The board shall further have regard to whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development. That is absolutely crucial so that we do not have a situation whereby if someone carries out one unauthorised development, they get substitute consent and an additional planning permission thrown on the side and can then do it again. The board shall also have regard to such other matters as it may consider relevant.

I also note that the question of exceptional circumstances in the Bill has not been subject to public consultation, unless I am unaware of a public consultation.This comes under the remit of environmental decision making because the issuing of substitute consent and the decision about how to proceed in a situation where proper environmental screening was not conducted is a decision with environmental implications so, again, the definition of exceptional circumstances should itself have been subject to public scrutiny and debate. Could the Minister indicate what steps have been taken to determine whether the definition of exceptionality proposed in the legislation complies with the definition envisaged in the ECJ ruling? I strongly believe there are concerns relating to that provision of the ECJ ruling that there should not be the creation of an encouragement or incentive to developers through the provisions of this Bill. I would like to ask the Minister how that is part of the ruling on exceptionality, how that is being addressed and what remedial steps might be taken if it does emerge that there is an encouragement effect. This comes back to the question of monitoring the impact.

Amendment No. 8 would also seek to insert a caveat into section 12 that would provide that while exceptional circumstances should other than in section 177K(2A)(b) be construed in accordance with section 177K(1J), the definition should also reflect the obligation to ensure there is no creation of a precedent or incentivisation with regard to applying for leave to substitute consent with exceptional circumstances. Again, this is trying to ensure that those paragraphs of the ECJ ruling that made it explicitly clear that should be nothing that encourages or incentivises developers in any way are applied. This is not about being against developers. I am all for developers going through the normal routes and putting forward developments. We all want different developments to happen. The amendment is about ensuring that there is nothing that would incentivise or encourage developers to go this route or that could be construed as in any directly or indirectly incentivising or rewarding unlawful development. Again, I am asking that this be made explicit in the Bill.