Alice-Mary Higgins (Independent) | Oireachtas source

This section has to do with the definition of "exceptional circumstances". My amendment suggesting definitions has not been successful. Ahead of Report Stage, I urge the Government to define the term further or to recognise the points I have raised. In European Court of Justice rulings, exceptional circumstances were clearly intended to exclude anything that could create an incentive, reward, encouragement or new practice as regards planning. Exceptional circumstances are meant to be rare.

This legislation has not been justified. We already have mechanisms for substitute consent in exceptional circumstances, but the Bill makes it easier for developers to access the process for seeking substitute consent, as all the power to initiate it will go to them. It will no longer be something that, for example, local authorities can initiate. There will also be rewards for those who have failed to apply planning processes properly, in that a developer who has not applied for planning permission for a development in the proper way and consequently needs to seek substitute consent will be allowed to attach a new application for a brand new development, not only on that site, but on adjoining sites without having to go through the original process or without the adjoining sites being materially linked to the development for which the substitute consent is being sought. A brand new development of a different kind on an adjoining site will be able to go straight to An Bord Pleanála, effectively skipping planning processes at local authority level. By contrast, someone developing a site who has previously had a development that did not have proper consents will have to go through a longer process than those who are seeking substitute consent. By this I mean that the process for a new development by a developer who did not get proper consent at the time and now needs substitute consent is shorter than that for a developer starting from scratch on a site. This is perverse incentive. In a series of bad dissections of our planning system, this might be the moment where we jump the shark into something that is so ludicrous that we are directly rewarding those who have breached practices. This provision is at high risk of not meeting the requirements set out in the European Court of Justice ruling, which made it explicitly clear that there should be nothing that creates any kind of encouragement of these practices.I have sought to bring amendments on this, which I will discuss here if I have the opportunity, but will also bring more on Report Stage. We should be monitoring to ensure these cases do become exceptional. What will be exceptional? Would that be one, two or three decisions a year? Could it be 20 decisions by An Bord Pleanála? If more applications go through this route than previously or there is an increase in people attaching their planning applications alongside other applications for substitute consent, that would be a new trend rather than exceptional circumstances.

This is not in line with EU law. It is not in line with the rulings. It is a massive overreach. The fact that this is being done right now, and that we would make An Bord Pleanála the first point of arbitration for planning decisions from applicants who, by the very nature of it, have failed to apply proper processes in the past, at a time when An Bord Pleanála is under examination due to a number of its practices, is incredible. It is not only bad legislation but a very bad time to bring this bad legislation through.