Substitute Consent
Original 2010 Version
Because of the requirements of European Union law retention permission is not permitted where development requires an environmental impact assessment. The 2010 legislation provided for a substitute consent procedure which would apply in exceptional circumstances.
Leave was required from an Bord Pleanala in order to make an application for substitute consent. The Board may grant leave if it decides there were exceptional circumstances which make it appropriate to allow the chance to regularise the development pursuant to a substitute consent.
An Bord Pleanala was to have regard to the following in considering whether there are exceptional circumstances
- Whether regularisation of the development concerned would circumvent the purpose and objectives of the EIA Directive or the Habitats Directive.
- 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 EIA 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.
- Whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development.
- Such other matters as the board considers relevant.
The 2010 legislation provides for appropriate assessment in relation to land use plans. This arises under EU directive. Land use plan includes the development plan local area action plan a variation of the development plan a planning scheme in a strategic development zone regional planning guidelines
Requirement
The purpose of the 2022 Act is to amend the Planning and Development Act 2000 (the Act) at Part XA to streamline substitute consent procedures for applications to regularise existing developments requiring retrospective Environmental Impact Assessment (EIA) or Appropriate Assessment (AA), to provide for a single-stage application process, including by the deletion of the initial leave to appeal stage.
An Bord Pleanála was required to screen an application for retention permission for EIA and AA, and refuse to consider applications for retention of unauthorised development where either EIA or AA are screened in.
The 2022 Act follows on from prior, interim amendments to the substitute consent process which was introduced in response to the Supreme Court judgement issued on 1 July 2020 in the “Ballysax/ McQuaid” cases – three joined appeal cases relating to two quarries (An Taisce v An Bord Pleanála, An Taisce v An Bord Pleanála, and Sweetman v An Bord Pleanála).
Retention Permission Restricted
The Principal Act formerly precluded planning authorities from considering an application for retention in respect of an existing unauthorised development where, had a planning application been made for that development before it commenced,
- an Environmental Impact Assessment (EIA),
- a determination as to whether for EIA is required, or
- an Appropriate Assessment (AA), would have been required
to be carried out in respect of that application.
The 2022 Act extends the prohibition on consideration of a retention application for unauthorised development required to be subject to an EIA/AA to include the Board in the case of an application made to it or an appeal of decision by a planning authority to a grant of retention.
Where considering EIA/AA requirements of existing development seeking retention, planning authorities/the Board should consider whether EIA/AA was or is required in respect of the development.
Consideration EIA & AA
Formerly, planning authorities were only obliged to consider EIA/AA requirements that would have applied had a prior application been made before the development commenced. The 2022 Act requires the planning authority/Board to consider both past and present EIA or AA requirements applicable to the development, extending the current obligation that only the EIA/AA position at the time the development took place (which may be disputed or unclear) must be considered.
The planning authority is required to consider both whether a mandatory above threshold EIA is required and to make a screening determination in the case of sub-threshold EIA development. Formerly the Act precluded the consideration of retention applications for developments that would have required a determination as to whether an EIA is required to be carried out (i.e. screening of sub-threshold EIA development.
Where the Board refuses to consider an application on appeal due to EIA/AA being required, the application to retain unauthorised development shall be deemed to be withdrawn.
2022 Substitute Consent
The 2022 Act allows a simultaneous application provisions for future development consent assessed concurrently by the Board with any substitute consent application for all types of development (not just quarries for future quarrying as was previously the case).
Such applications for future development will not be decided until the substitute consent application (including consideration of exceptionality) has been decided, and the Board will be required to decide upon the application for future development at the same time or as soon as possible after a decision on the application for substitute consent.
The 2022 Act in the context of substitute consent defined “exceptional circumstances”. It lists the criteria to which the Board must have regard to in considering whether exceptional circumstances exist. Formerly the consideration of exceptional circumstances occured both at the leave to apply for substitute consent stage and at the substitute consent decision stage.
Single Stage
The leave stage was repealed in its entirety while the exceptionality criteria apply to the substantive stage. There is a provision for “exceptional circumstances” in the context of the Board being required to make an EIA screening determination within 8 weeks except where it appears to the Board that it would not be possible or appropriate, because of the exceptional circumstances of the development (including in relation to the nature, complexity, location or size of such development) to do so.
The concept of “exceptional circumstances” at should be interpreted having regard to Article 4(6) of the EIA Directive and should not be construed in accordance to the exceptionality criteria for substitute consent
There is to be pre-application consultations with the Board on proposed substitute consent applications. Any person who has carried out development (or the owner or occupier of the land) may apply to the Board for substitute consent in respect of development carried out where an EIA or AA, or both, was or is required and where the applicant considers exceptional circumstances exist.
Either or both a remedial EIA report (EIAR) or remedial Natura Impact Statement (NIS) must accompany an application for substitute consent (including an NIS or EIAR in respect of any permitted development not yet carried out).
There is no need to apply for leave for substitute consent before entering the process.
Process
There is a period of 10 weeks for the Planning Authority to submit its report to the Board shall run from the date of receipt of additional documents if received.
The exceptionality criteria, which the Board must have regard to in being satisfied whether exceptional circumstances exist in order to justify a grant of substitute consent,are restated and apply at the substantive application stage.
The Board may request a remedial EIAR, an EIAR, a remedial NIS or an NIS if required (if one was not submitted).
No AA EIS Exemption
An application in respect of the following development shall be deemed not to have required, and not to require, a determination as to whether an environmental impact assessment is required
- development within the curtilage of a dwelling house, for any purpose incidental to the enjoyment of the dwelling house as a dwelling house;
- modifications to the exterior of a building
If an application for permission had been made in respect of the following development before it was commenced, the application shall be deemed not to have required EIS / AA:
- development within the curtilage of a dwelling house, for any purpose incidental to the enjoyment of the dwelling house as a dwelling house;
- modifications to the exterior of a building.
Where a planning authority refuses to consider an application for permission above it shall return the application to the applicant, together with any fee received from the applicant in respect of the application, and shall give reasons for its decision to the applicant.
No Retention
A planning authority shall refuse to consider an application to retain unauthorised development of land where it decides that either or both of the following was required or is required in respect of the development:
- an environmental impact assessment;
- an appropriate assessment.
A planning authority shall refuse to consider an application to retain unauthorised development of land where the authority decides that if an application for permission had been made in respect of the development concerned before it was commenced the application would have required that one or more than one of the following was carried out
- an environmental impact assessment,
- a determination as to whether an environmental impact assessment is required,
- an appropriate assessment
Where the Board refuses to consider an application on appeal—
- it shall give the reasons for the refusal to the person who made the appeal,
- the application on appeal shall be deemed to have been withdrawn by the applicant for permission, and
- the refusal shall operate to annul the decision of the planning authority as from the time when that decision was given.”.
Pre-Act Applications
Where a person applied for leave to apply for substitute consent before the legislation , but a decision on the application for leave was not made before that date, the applicant shall be deemed to have withdrawn his or her application for leave to apply for substitute consent and the Board shall return to the applicant any fee received from the applicant in respect of the application.
An application for substitute consent made before the date of the coming into operation of the 2022 Act , or made on or after that date pursuant to leave to apply for substitute consent granted before that date, shall on and after that date be considered in accordance with the Principal Act as if those sections had not come into operation.
Where prior to the date of the coming into operation of the Planning and Development, Maritime and Valuation (Amendment) Act 2022. an application for substitute consent has been made under section 177E, but no decision has been made by the Board in respect of that application prior to or on that date, an application for permission may be made, within 6 months of that date.,
An application may not be made under Planning and Development, Maritime and Valuation (Amendment) Act 2022., where a decision has been made by the Board in respect of the application for substitute consent, prior to or on the date of it coming into operation.
Where—the 2022 Act applies, and the applicant for substitute consent informs the Board by notice in writing prior to it making its decision in respect of the application for substitute consent, , that he or she intends to submit an application for permission the substituted provision the Board shall, = not make its decision on the first application prior to—
- the date that is 6 months after the date of the coming into operation of the Act,
- the date the second application is received by the Board, or
- the date the applicant for substitute consent informs the Board by notice in writing that he or she no longer intends to submit a second application,
whichever is the earlier.
Decision of ABP
The following additional provisions apply to a decision of the Board
- where a decision to impose a condition (being an environmental condition which arises from the consideration of an environmental impact assessment report) is materially different, in relation to the terms of the condition, from a recommendation in a report of a person assigned to report on the application for permission on behalf of the Board, the main reasons for not accepting or for varying the recommendation in relation to such condition,
- in relation to the grant or refusal of any permission, subject to or without conditions, that the Board is satisfied, where an environmental impact assessment was carried out, that the reasoned conclusion on the significant effects on the environment of the development was up to date at the time of the taking of the decision,
- in summary form, the results of the consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and how those results have been incorporated into the decision or otherwise addressed,
Application
An application for substitute consent may be made by—
- a person who has carried out the development
- the owner or occupier of the land on which the development has been carried out.
The Board shall only consider an application for substitute consent in respect of development of land where—
- the Board is satisfied that an environmental impact assessment was required or is required for the development,
- the Board is satisfied that an appropriate assessment was required or is required for the development, or
- the Board is satisfied that both of the assessments were required or are required for the development.
Where the Board receives an application which is accompanied by a remedial environmental impact assessment report and the application is not, under this Act or any regulations made under it, invalid or withdrawn, the Board shall be deemed to be satisfied that an environmental impact assessment is required and was required and the Board shall consider the application.
Where the Board receives an application which is accompanied by a remedial Natura impact statement), and the application is not, under this Act or any regulations made under it, invalid or withdrawn, the Board shall be deemed to be satisfied that an appropriate assessment is required and was required and the Board shall consider the application.”,
Application Requirements
An application for substitute consent shall—
- state the name of the person making the application,
- be accompanied by a remedial environmental impact assessment report or remedial Natura impact statement, or both,
- be accompanied by the fee payable in accordance
- comply with any requirements prescribed and
- be accompanied by any other document that the applicant considers would be of assistance to the Board in making a decision in relation to his or her application.”,
Where an application for substitute consent is made in respect of development of land for which planning permission has been granted, that application may be made in relation to—
- that part of the development permitted under the permission that has been carried out at the time of the application, or
- that part of the development referred to and all or part of the development permitted under the permission that has not been carried out at the time of the application.”,
Remedial Statements
The applicant shall, in relation to that part of the development that has not been carried out at the time of the application, furnish one or both of the following to the Board with his or her application:
- where a remedial environmental impact assessment report has been furnished with the application, an environmental impact assessment report;
- where a remedial Natura impact statement has been furnished with the application, a Natura impact statement.”,
Where the Board considers that a remedial Natura impact statement does not comply with specified requirements, the Board shall require the applicant for substitute consent to furnish, within a specified period, such further information as it considers necessary for the statement to so comply.
Where further information required by the Board is not furnished to it by the applicant within the period specified under that subsection, or within any further period as may be specified by the Board, the application shall be deemed to have been withdrawn by the applicant.”,
Where a remedial environmental impact assessment report, remedial Natura impact statement, environmental impact assessment report or Natura impact statement is received by the Board in response to a requirement the Board shall, as soon as may be after its receipt, send the report or statement, as the case may be, to the planning authority which shall place the report or statement on the register.”.
A person may request the Board to give him or her an opinion in relation to a development
before he or she makes an application for substitute consent in respect of the development, or after he or she has made such an application, where required by the Board to submit a remedial environmental impact assessment report.”,
Exceptional Circumstances
In considering whether exceptional circumstances exist the Board shall have regard to the following matters:
- whether regularisation of the development concerned would circumvent the purpose and objectives of the Environmental Impact Assessment Directive or the Habitats Directive;
- 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;
- whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development;
- such other matters as the Board considers relevant.,
ABP Required Remediations
Where the applicant submitted a remedial Natura impact statement, but did not submit a remedial environmental impact assessment report , and the Board determines that an environmental impact assessment was required or is required, the Board shall require the applicant to submit such a report within a specified period.
Where the applicant submitted a remedial environmental impact assessment report but did not submit a remedial Natura impact statement, and the Board determines that an appropriate assessment was required or is required, the Board shall require the applicant to submit such a statement within a specified period.
Where a remedial environmental impact assessment report or remedial Natura impact statement, as the case may be, was not submitted with an application but is subsequently required, the Board shall, in relation to the part of the development that has not been carried out at the time of the application, require the applicant to submit an environmental impact assessment report or a Natura impact statement, as the case may be, within a specified period.
Where the Board requires the applicant to submit within a specified period a report, a statement, or a report or statement, and the report or statement is not submitted to it within that period, or within any further period that the Board may specify, the application shall be deemed to have been withdrawn by the applicant.,
Approval
Where the Board approves development on foot of an application accompanied by an opinion issued by the Board it shall attach a condition in respect of any detail of the development that was not confirmed at the time of the application requiring—
- the actual detail to fall within specified options or parameters or a combination of options and parameters, and
- the applicant to notify the planning authority in whose functional area or areas the development is situated in writing, by such date prior to the commencement of the development, or prior to the commencement of the part of the development to which the detail relates, as the Minister may prescribe, of the actual detail of the development.”,
Where the Board approves development on foot of an application accompanied by an opinion issued by the Board – it shall attach a condition in respect of any detail of the development that was not confirmed at the time of the application requiring—
- the actual detail to fall within specified options or parameters or a combination of options and parameters, and
- the applicant to notify the planning authority in whose functional area or areas the development is situated, in writing, by such date prior to the commencement of the development, or prior to the commencement of the part of the development to which the detail relates, as the Minister may prescribe, of the actual detail of the development.”.
Application for opinion
The Board may, at its own discretion and at the request of a person who intends to make an application for substitute consent, enter into consultations in respect of the application with that person before he or she makes the application.
A person who proposes to apply for approval may request a meeting with the Board as part of consultations. The request shall be in writing, be accompanied by the appropriate fee and include—
- the name and address of the prospective applicant,
- a site location map sufficient to identify the land on which the proposed development would be situated,
- a brief description of the nature and purpose of the proposed development and of its possible effects on the environment,
- a draft layout plan of the proposed development,
- a description of—i) the details, or groups of details, of the proposed development that, owing to the circumstances set out in subparagraph (ii), are unlikely to be confirmed at the time of the proposed application, and the circumstances relating to the proposed development, including such circumstances as the Minister may prescribe in relation to any class or description of development for the purposes of this subparagraph, that indicate that it is appropriate that the proposed application be made and decided before the prospective applicant has confirmed the details referred to i including, in particular, whether the prospective applicant may be able to avail of technology available after making the proposed application that is more effective or more efficient than that available at the time of the application,=
- an undertaking to provide with the proposed application, either—
-
- two or more options, in respect of each detail or group of details referred to in, containing information on the basis of which the proposed application may be made and decided,
- parameters within which each detail will fall and on the basis of which the proposed application may be made and decided, or
- a combination
- such other information, drawings or representations as the prospective applicant may wish to provide or make available, and
- such other information as may be prescribed.