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

I cannot accept this proposed amendment as section 177D is being repealed, as per section 21 of the Bill, and the exceptional circumstance criteria from section 177D(2) are being moved wholesale to section 177K, to a new subsection, section 177K(1J), as inserted by section 16 of this Bill.

It is important to note that all of the text of the exceptional circumstance criteria previously contained in section 177D(2) will be retained in their new location in section 177K of the principal Act. In this regard, the proposed amendment is superfluous as section 177K, which is the successor to section 177D(2), already requires that in considering whether exceptional circumstances exist the board shall have regard to specified matters including, in section 177K(1J)(a), whether regularisation of the development concerned would circumvent the purpose and objectives of the environmental impact assessment directive or the habitats directive.

Other criteria in section 177K(1J), which have been carried over verbatim from section 177D(2), which is to be repealed, include: that the board shall have regard to whether the applicant had or could reasonably have had a belief that the development was not unauthorised; whether the ability to carry out an assessment of the environmental impacts of the development for the purpose of an environmental impact assessment or an appropriate assessment and to provide for public participation in such an assessment has been substantially impaired; the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development; the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated; and whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development.

As the Senators will be aware, these criteria were developed on the basis of legal advice from the Office of Attorney General, following consultation with the European Commission in 2010 and following the European Court of Justice, ECJ, Derrybrien case relating to the scope and interpretation of the environmental impact assessment directive.

Having received significant legal advice from the Office of the Attorney General in drafting this Bill, I am satisfied that the criteria in section 177K(1J) meet the requirements of the ECJ Derrybrien judgment as well as other ECJ and Irish national court judgments since then, including the Supreme Court judgment of July 2020 on quarries and substitute consent, which it should be recalled was the genesis for the initial amendment of the present substitute consent provisions in December 2020, by way of the Planning and Development, and Residential Tenancies, Act 2020, which introduced the consideration of the exceptional criteria in the main substitute consent stage. For all the reasons just discussed, I must oppose amendment No. 12.