Alice-Mary Higgins (Independent) | Oireachtas source

Section 18 amends section 177M of the principal Act to reflect the repeal of section 117D, which relates to application for leave, amends the reference to section 261A and channels applications to 177E, which has been amended. A key element in this section is the deletion of the phrase "in a case where it granted leave to apply for substitute consent on the grounds that exceptional circumstances exist, or in a case where the application is made in compliance with a direction to apply for substitute consent under section 261A".

Subsection (2) more broadly provides:

Where the Board grants an application for substitute consent under section 177K in a case where it granted leave to apply for substitute consent on the grounds that exceptional circumstances exist, or in a case where the application is made in compliance with a direction to apply for substitute consent ... it may determine that a sum or sums is or are required to be paid in order to defray some or all of the costs incurred by the Board or the planning authority during the course of consideration of the application...

This is again the core issue. I do not believe the case has been properly, clearly or strongly made. This is not the issue of whether there should be a mechanism for substitute consent. It is fine there would be a mechanism but the issue is what the mechanism is. This is another place where we are moving away from the situation whereby there is scrutiny by the court of whether the exceptional circumstances test has been met, that is, if somebody is seeking legal leave to apply for substitute consent that he or she would first have met a standard in terms of exceptional circumstances and been allowed to seek substitute consent on that basis. It also relates to the removal of the power of local authorities to direct a developer or the owner of a development to apply for substitute consent.Again, it has not really been clear to me what the situation is if there are developers who do not wish to seek substitute consent when local authorities can no longer request that they regularise their position. That has been removed by this legislation. Also removed are provisions that would have allowed for the costs of evaluation. Maybe sums would have been contributed.