Seanad debates

Tuesday, 21 June 2022

Planning and Development (Amendment) (No. 2) Bill 2022: Committee Stage (Resumed)

 

12:00 pm

Photo of Alice-Mary HigginsAlice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 12:

In page 13, between lines 31 and 32, to insert the following: "Threshold for substitute consent

21. The provisions of this Act including the right to apply for substitute consent shall not be applicable in respect of projects which have an estimated commercial value of greater than €5,480,000.".

Amendment No. 12 would insert a new section into the legislation that would state: "The provisions of this Act including the right to apply for substitute consent shall not be applicable in respect of projects which have an estimated commercial value of greater than €5,480,000." This is the same threshold as in the 2014 EU directive. I picked it as the threshold the EU has set for what are considered to be "major works". Irrespective of whether the Minister of States wants to accept the amendment, I have used this threshold because it is recognised within the EU as the one pertaining to a project of great significance, a project with a value of over €5 million.I am open to other thresholds that might be inserted.

I might reserve the right to bring forward more amendments on this on Report Stage given the very substantial benefit that may accrue to a developer in respect of the measures in the Bill. Given that developers can avail of the approach that it is easier to look for forgiveness afterwards than permission at the time, it is important that the stakes are quite high. We should not have projects worth €5 million, €4 million or even €3 million that can get under way and simply absorb whatever fines, other measures or legal processes around applying for consent after the fact, and not have that be significant. If a project is worth a significant amount of money, we know there are those who can simply absorb the costs of substitute consent after the fact. As I have mentioned, I am extremely concerned the Bill creates perverse incentives and is in danger of being out of tune with the EU ruling which made it extremely clear there should be nothing that would serve to encourage development without proper planning standards or permissions or in any way reward those kinds of practice. However, as we have discussed, the provisions of the Bill allow not only for people to seek substitute consent, which was already in place, but for a developer to have a meeting with An Bord Pleanála to decide whether he or she wants to seek substitute consent. A developer is, therefore, not taking a risk or a gamble given he or she can have a meeting.

We need to bear in mind that the power of others, such as local authorities, to make a developer seek consent and go through the process have been removed. Therefore, all of the power is in the hands of a developer. The developer decides if he or she wants to seek substitute consent, based on a meeting with no risk, and can then seek that. If a developer seeks substitute consent, not having obtained the proper permissions or engaged in proper environmental scrutiny at the time of the application, he or she is rewarded by being allowed to attach to the process other developments on other sites that may not be related developments but rather are new and different developments. Such developments may not be on the same site but rather on adjoining sites.

The person seeking substitute consent for something he or she did in the past may want to do remedial work to address that. That is not solely what developers are seeking. Somebody could put in a massive application for anything on an adjoining site and bypass the usual process through local authorities by going straight to An Bord Pleanála. That means the developer who has a previous record of non-delivery in terms of environmental standards is, in fact, in respect of a new development on a new site, in a better position than somebody else who has followed the rules and is applying for planning permission on a site.

They also deal with applications for substitute consent, but they already had to do that. The fact is developers like that will be a lot better off and incentivised to engage in such practices after the passage of the Bill than they were before. That is why putting a threshold on this is important. If the Minister of State will not put a threshold on the original development because of the cost of breaking that down and all of the other issues that were discussed, the Government should, at an absolute minimum, be open to putting a threshold on the value of a new development that may be fast-tracked through the legislation.

The owner of a quarry may not have carried out an impact environmental impact investment and everything else. He or she may have an adjoining site and be able to submit an application for a €5 million development on that and tag that into regularising the quarry. A developer on small development that did not seek substitute consent would be able, on a neighbouring site, to fast-track a project worth more than €5 million. That is wrong.It is a massive overreach. It is a gift. The Minister of State should bear in mind that this is not a matter of just housing development. This is not constrained, but can be for whatever one may want to put in. As a minimum, if the Minister of State will not accept this amendment which seeks to put a €5 million threshold on development, he might be able to put another threshold in place or he might be able to put a threshold on the value of the additional developments that get tagged along with the application for substitute consent.

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