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

I will respond to both amendments. We had a long discussion around section 5 and I reject any notion that there is an incentivisation within this. What we are doing is bringing forward a process for either regularisation through a proper transparent process or if that fails, enforcement. That is what it would lead to. Amendment No. 7 seeks to amend section 12 of the Bill by inserting a reference in the definition of exceptional circumstances to the criteria set out in section 177D(2) of the principal Act.

I cannot accept the proposed amendment given that section 177D is being repealed as section 21 of the Bill and the exceptional circumstances criteria from the section the Senator is trying to amend - section 177D(2) - are being moved wholesale to section 177K to a new subsection (1J) as inserted by section 16 of the Bill. It is important to note that all of the text relating to exceptional circumstances criteria previously contained in the section the Senator is attempting to amend, which is section 177D(2), will be retained in a new location - section 177K.

The definition of exceptional circumstances in section 177A of the principal Act has been amended by section 12 of this Bill on technical drafting grounds to clarify that there is a separate unrelated use of the phrase "exceptional circumstances" in section 177K(2A)(b) that was introduced by the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 relating to a decision by the board as to whether an environmental impact assessment was required as opposed to relating to the criteria applied by the board under section 177K(1A)(a) whether substitute consent can be granted or not. The technical clarification is considered to be both necessary and reasonable.

In amendment No. 8, the Senator seeks to amend section 12 of the Bill by inserting a reference in the definition of exceptional circumstances to a requirement to "also reflect the obligation to ensure that there is no creation of a precedent or incentivisation". Again, I cannot accept the proposed amendment as the insertion of "creation of a precedent or incentivisation" is superfluous in that every single substitute consent application case that comes before the board would be considered on its own merits with regard to the exceptionality criteria that were formerly located in section 177D and that are now moved to section 177K. It is important that this is understood because as no two development proposals are identical, no precedent can be set by the board in its decisions that would have to be followed by the board in future consent applications. I cannot accept the proposed amendment as the insertion of a reference to incentivisation is also superfluous. I have previously set out on amendment No. 2 that the legislative proposal to allow parallel substitute consent and planning applications does not in any way, shape or form provide an incentive to developers to use substitute consent application provision instead of normal future-facing planning applications noting the significant constraints and vulnerabilities that there would be for any developer that will be attached to progressing a substitute consent proposal, including potential liability to planning enforcement if the substitute application is refused, which would require the demolition of any unauthorised development and the remediation of the site fully and rightly at a cost to the developer.