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

Section 10 is a procedural amendment relating to the flexibility opinion process for applications under section 34 of the principal Act. Large-scale residential development, LRD, applications come under section 34 of the Planning and Development Act, and a pre-application procedure is in place in respect of LRD applications. The section provides that a prospective LRD applicant seeking a meeting regarding flexibility may request that the existing LRD pre-application meeting also be held for that purpose. The aim of the amendment is to introduce efficiency into the system in order that where cases where flexibility is sought in regard to an LRD application, two separate pre-application processes will not be required.

The section is part of a group of amendments that provide for the principle of flexibility with regard to planning applications to be inserted into the planning Act. The planning flexibility amendments are required to address a High Court decision from last summer that disapplied the concept of flexibility in planning applications. Prior to the judgment, a degree of flexibility in planning applications was accepted as a feature of the planning system and was successfully applied up to this time in respect of all types of development. These amendments provide for a process whereby a prospective applicant who wishes to avail of flexibility in his or her planning application may request a pre-application meeting with the planning authority for applications under section 34 of the planning Act or the board in regard to development of a strategic nature or in an outer-maritime area from the perspective of receiving an opinion on whether it is appropriate an application for permission be made on a flexible basis, that is, on the basis of specific options or parameters.

An opinion will be granted only where the flexibility sought is deemed appropriate by the planning authority. As part of the planning application, the applicant will have to submit sufficient information to allow the planning authority or the board to assess the impacts of any type of development that falls within the flexibility sought. Where options are proposed, the specifications of these options will be known to the applicant and will have to be submitted as part of the planning application. Where parameters are proposed, the applicant will have to detail the maximum and minimum points of the parameters and provide sufficient information to allow the impacts of any development that falls within those parameters to be assessed. The information provided will have to be sufficient to enable the planning authority or the board to consider the application and carry out any environmental assessments required.

The principle of flexibility is acceptable from an environmental impact assessment, EIA, perspective. In 2020, the European Commission published guidance on wind energy developments and EU nature legislation, illustrating how an options- or parameters-based approach can be used in assessing environmental effects where some details of an application are unconfirmed. Furthermore, the Commission's plan published in May 2022 recommends renewable energy developers be allowed to avail of the most innovative technology available at the time of construction, so we are ahead of the game with regard to implementing this recommendation. Where the planning authority or the board subsequently grants flexible planning permission, conditions will be attached to the grant of permission clearly setting out the permitted options or parameters for any unconfirmed details and requiring the applicant to confirm the details of the development prior to the commencement, or the part of the development to which the flexibility relates. The primary legislative amendments will be supported by supplementary regulations that will provide that newspaper notices, site notices and weekly lists for any flexible application will all need to indicate the application relates to a flexible application. This will ensure greater transparency and public awareness in respect of flexible applications. Moreover, to facilitate meaningful public participation, such an application will have to be accompanied by an overview or a statement of flexibilities that highlights which details are unconfirmed and specifies the information being submitted in regard to those details.

The marine amendments have been provided to ensure a consistency of approach between nearshore applications submitted under section 34 of the planning Act, which are covered by the amendments to the onshore section 34 planning application process, and outer-maritime area applications submitted under section 291. These amendments have been prepared on the advice of, and in conjunction with, the Office of the Attorney General to form part of the overall response to address issues raised by the High Court judgment. These procedures will make the planning system more effective and efficient and result in better quality applications while, in general terms, they will be particularly important to renewable energy projects and the roll-out of wind energy development, especially in the maritime area, in light of the maritime area consent, MAC, applications coming down the line. As such, it is critical we bring forward these amendments at this time.

In general, planning permission legislation tries to avoid setting different requirements for different types of development, such as wind energy development. It would not be possible to prepare a complete list of every scenario where flexibility may be appropriate, given this can be specific. Prescribed flexibility in respect of certain types of development would indirectly remove flexibility for all other types of development. The applicant must set out the nature of the overall proposed development and identify the specific details that will be unconfirmed and the circumstances as to why it would be appropriate to make an application without confirming those details. The procedures, therefore, allow the relevant planning authority or the board to consider what is appropriate in a given circumstance. We have to respect the work of the professional local authority, planners and the board when it comes to making the recommendation on planning applications, taking into account all relevant considerations.

The High Court judgment relating to the wording in the planning regulations applies to all planning applications and, therefore, our fix equally applies to all types of applications. I do not foresee the provision being used on a widespread basis. Although I have made the process as simple and efficient as possible, the additional time, cost and environmental considerations involved will mean the process is utilised by prospective applicants in limited circumstances. It is important, however, that the process be available for those limited circumstances, wherever they may be. The proposals have come on foot of a High Court judgment. The Department received legal advice on the judgment and there is ongoing engagement with the Attorney General's office. The judgment did not rule out the possibility of a flexibility-type approach being used in the Irish planning context; it simply found the wording of the current regulations do not allow it. The purpose of the primary legislative amendments is to ensure a robust response to the judgment and to insert the principle of flexibility into primary legislation to underpin the supplementary regulations being developed.

A pre-application procedure, as proposed, is not incompatible with an EIA and the habitats directive. Furthermore, a planning application containing options or parameters is acceptable from an EIA perspective. In 2020, the European Commission published guidance on wind energy developments and EU nature legislation, illustrating how options or parameters can be used in assessing environmental effects where some details of the application are unconfirmed. These proposals relate to the pre-application stage, which is not part of the decision-making process, and no specific development proposal has been considered or consented to as part of the opinion process. Opinion does not confer any development rights and, therefore, the public participation requirements of the Aarhus Convention and the EIA directive do not apply to such procedures, given they are not part of the development-consenting authorisation process. The amendments provide that all pre-application records, including meeting requests and any supporting documentation, the record of the names of attendees at the meeting and the opinion, will be retained by the planning authority or the board and made available should any subsequent application be submitted.

To ensure greater transparency and public awareness in respect of flexible applications, the supplementary regulations will provide that newspaper notices, site notices and weekly lists for any flexible application will need to indicate the application relates to a flexible application.Further, to facilitate public consultation, the supplementary regulations will provide that a flexible application will be required to be accompanied by an overview or statement of flexibilities that highlights which details are unconfirmed and specifies the information being submitted in respect of those details.