Peter Burke (Longford-Westmeath, Fine Gael) | Oireachtas source

I thank Senator Black for her contribution. In accordance with groupings of amendments proposed in the Seanad, I will address Opposition amendments Nos. 4 and 8 together, as they both seek to amend section 5 of the Planning and Development Act (Amendment) (No. 2) Bill 2022 by requiring section 37L applications to have a related purpose to the substitute consent application development.

Proposed amendment No. 4 concerns the insertion of "for a related purpose" after the word "land" in new paragraph (a) of section 37L(1), as inserted by paragraph (a) of section 5 of the Bill.

Amendment No. 8 concerns the substitution of the phrase "must be related to" for "it is not required to be the same as" or "of the same description as" in the amendment to 37L(3), as inserted by section 5(c) of the Bill. I cannot accept the Senator’s proposed opposition to this section, which concerns simultaneous application for future development under section 37L of the principal Act.

As previously set out in my response to Opposition amendments, this amendment to the principal Act widens the type of development availability for any future development consent assessed. This means that the applicant is not restricted to application related only to the same type of development as a substitute consent application but can seek to change the use of the land to suit development needs.

The proposed amendment to section 37L will also allow the potential for an integrated approach to assessment by An Bord Pleanála for such related development proposals on the same or adjoining sites, but it will also be of benefit for the understanding of the public, as assessments will be held at similar times and by the same authority rather than by separate authorities.

In the very rare cases where substitute consent is sought, it is sought after a bona fide mistake by the developer has been realised, often following a court judgment that has revised the common legal understanding of whether a development or class of developments were a breach of the law whereby a developer thereafter seeks to formally correct the mistake and where the developer is also exposed to significant negative risk of mandatory enforcement and remediation of the site if substitute consent is refused.

In this regard, it is important to note that it is material consideration for An Bord Pleanála in considering whether exceptional circumstances exist in the substitute consent proposal; whether the applicant had or could reasonably have had a belief that the development was not unauthorised, as well as the additional material consideration of whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development. In other words, the risk of exceptional circumstances not being deemed to exist and therefore being refused substitute consent is apparent if the applicant cannot adequately demonstrate his or her bona fides that he or she could reasonably have had a belief that the development was not unauthorised.Any perceived benefit to future-facing applications of being able to apply directly to the board instead of having to apply separately to the relative planning authority first will be significantly outweighed by the inherent vulnerabilities and significant potential financial exposure if the related substitute consent application is refused. In such cases, the relevant planning authority will be statutorily obliged to initiate enforcement proceedings against the unauthorised development to seek remediation of the site. Furthermore, the future-facing planning application on the same or adjoining site may also be refused if, for example, it relies on any element of the refused substitute consent proposal. In other words, the legislative proposal to allow parallel substitute consent and planning applications is not unnecessarily developer friendly in scope, noting the significant constraints and vulnerabilities for the developer attached to progressing a substitute consent proposal as well as the application's benefits to the public in allowing an holistic assessment of two related proposals on the same or adjoining sites.

Having regard to the above, the Government's proposed amendments to section 37L are considered to be reasonable. As such, I must oppose amendments Nos. 4 and 8.