1. Changes in Planning Law Relating to Retention Planning Permission
MARY MORAN-LONG PhD BL

2. Why changes?
Case C215/06 – Commission v Ireland (Derrybrian wind farm case)
Ireland’s Planning Law allowed for unrestricted retention planning permission for any unauthorised development including that requiring an EIA/NIA
ECJ held Ireland in breach of Arts 1 and 2 of EIA Directive
Mary Moran-Long PhD BL

3. EIA DIRECTIVE
Directive 85/337/EEC (as amended), ‘EIA Directive’ requires that an Environmental Impact Assessment, EIA procedure be carried out before ‘development consent’ or planning permission may be granted in respect of certain projects.
Mary Moran-Long PhD BL

4. EIA DIRECTIVE
Article 1(1) - Directive shall apply to the assessment of the environmental effects “of those public and private projects which are likely to have significant effects on the environment”
Mary Moran-Long PhD BL

5. EIA DIRECTIVE
Article 2(1) of the Directive emphasizes the requirement for prior assessment of such projects:
“Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.”(emphasis added)
Mary Moran-Long PhD BL

6. EIA DIRECTIVE
Annex I
Projects likely to have significant effects on the environment - EIA is mandatory.
Annex II
Projects which might have significant effects on the environment, depending on the characteristics of the individual projects- Assessed as to whether EIA required.
Mary Moran-Long PhD BL

7. Planning and Development Regulations 2001
Transposes Annex I and II of EIA Directive
Schedule 5
Part 1 - EIA mandatory (Annex I)
Part 2 - projects that might have significant effects on the environment along with the thresholds for each. (Annex II) Require screening.
Mary Moran-Long PhD BL

8. Planning and Development Regulations 2001
Sub threshold development
Articles 92 and 103 of the P&D Regs. 2001:
Art Development set out in Schedule 5 which does not exceed a particular threshold i.e. quantity, area or other limit specified in the Schedule, e.g. industrial estate of 15 Ha.
Art 103 – If application for sub-threshold development received by planning authority without an EIS and it considers the development would be likely to have significant effects on the environment it must request in writing that the developer submits an EIS.
Mary Moran-Long PhD BL

9. Planning and Development Regulations 2001
Schedule 7 P&D Regs – criteria to be followed by Planning Authority to decide whether a development is likely to have significant environmental effects.
The criteria are categorised according to
1. Characteristics of proposed development;
2. Location of proposed development; and
3. Characteristics of potential impacts.
Mary Moran-Long PhD BL

10. Section 34(12) P&D Act 2000
‘’An application for development of land in accordance with the permission regulations may be made for the retention of unauthorised development and this section shall apply to such an application, subject to any necessary modifications.’ = Unrestricted retention planning permission available for all developments including those requiring EIA
Mary Moran-Long PhD BL

11. Commission v Ireland C215/06
Case 215/2006 Commission v Ireland (3 July 2008) (Derrybrian)
European Court of Justice criticized the unrestricted availability of retention planning permission for developments that should have been subject to an EIA.
The Court emphasized the requirement for prior assessment as set out in Article 2 of the EIA Directive.
The Court went on to say that whereas European law cannot preclude the regularization of unlawful operations, this should occur only in exceptional circumstances.
Mary Moran-Long PhD BL

12. Section 23(c) Planning and Development (Amendment) Act 2010
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: (a) an environmental impact assessment, (b) a determination as to whether an environmental impact assessment is required, or (c) an appropriate assessment.
Mary Moran-Long PhD BL

13. EFFECTS OF THE AMENDMENT
S34(12) as amended - A planning authority must now refuse to consider an application for retention planning permission for an EIA development
Subsection (a) includes development for which EIA is mandatory (Annex I and Schedule 5 Part 1)
Subsection (b)
Developments which are required to be screened as to whether an EIA is required (Annex II and Schedule 5 Part 2)
Sub-threshold developments (PA must assess using criteria in Schedule 7)
Extends to developments where if screened (before construction) would have led to the conclusion that an EIA was not required
Subsection (c) Assessments regarding Habitats Directive (Natura) NIA
Mary Moran-Long PhD BL

14. EFFECTS OF THE AMENDMENT
Enforcement
S154 P&D Act RPP not a remedy for EIA unauthorised development, UD.
Section 160 P&D Act Planning Injunction
Court can exercise discretion even where UD proved but swayed by public interest issue. Leen v Aer Rianta [2003] 4 IR 394 (pre dates the amendment)
May a Court now use discretion not to grant reliefs where unauthorised development that required EIA/NIA is proved? – Would such a decision have the same effect as a grant of retention planning permission?
Runs contrary to S34(12) as amended and Case C215/06 - would have effect of circumventing the purpose and objectives of the EIA Directive.
BUT Not yet tested!
Mary Moran-Long PhD BL

15. Substitute Consent-restricted alternative to RPP
Regularization of unlawful operations in exceptional circumstances – ECJ Case C- 215/06.
Section 57 of the Planning and Development (Amendment) Act 2010 inserts a new Part XA, into the 2000 Act.
Mary Moran-Long PhD BL

16. Substitute Consent- Procedure
An Board Pleanala only deals with leave to apply for substitute consent and substitute consent applications
Applications for leave to apply with notice from planning authority
Applications for leave to apply without notice from planning authority
Leave granted – Apply for substitute consent
No appeals process
Oral hearing at discretion of Board
Mary Moran-Long PhD BL

17. Substitute Consent-Leave to Apply
With notice from planning authority
Permission was granted – found to be unlawful, invalid or defective in a material respect by final judgment of Court.
EIA/NIA was required for the development but was not provided or was inadequate.
Planning authority must issue notice to relevant person.
Notice must inform of judgment of Court; direct an application to Board for leave to apply for S C within 12 weeks of notice; EIS/NIS to accompany application and advise submissions/observations may be made within 4 weeks of notice.
Mary Moran-Long PhD BL

18. Substitute Consent-Leave to Apply
Whether submissions and observations made or not – planning authority must either confirm or withdraw the notice within 8 weeks of issue.
Planning authority can only withdraw the notice where a court has found that the permission was not unlawful, invalid or defective.
Planning authority must notify person of decision
If notice confirmed planning authority must direct the person to apply to the Board for substitute consent within 12 weeks of the notification.
A copy of the notice must be sent to the Board
Details of the planning authority’s decision must be entered into the planning register.
Mary Moran-Long PhD BL

19. Substitute Consent-Leave to Apply
Without notice from planning authority
A developer (or applicant on behalf of) can apply to the Board for leave to apply for SC regarding a development which required an EIA/NIA
and
the person considers the permission granted to be unlawful, invalid or defective either pursuant to a judgment or because of matters contained or omitted from the application for PP or that an EIA/NIA was inadequate;
- OR-
due to any error of law, fact or procedure ;
–OR-
The applicant claims exceptional circumstances exist that would permit the Board to regularise the development by substitute consent
Apply to Board for leave to apply for substitute consent.
Mary Moran-Long PhD BL

20. Substitute Consent-Leave to Apply
Application must be accompanied by all relevant documentation
the Board may request documents which must be provided within the specified time period – if not application deemed withdrawn
Board may request documents from PA which must be provided within 6 weeks
The Board can grant leave only where satisfied that the development required an EIA, permission was unlawful, invalid or defective in a material respect either by judgment or due to any matter contained or omitted in the application including omission of or inadequate EIA/NIA or through any error of law, fact or procedure OR
In exceptional circumstances
Mary Moran-Long PhD BL

21. Substitute Consent-Leave to Apply
In considering exceptional circumstances the Board must have regard for the following:
Whether regularisation would circumvent the purpose and objectives of the EIA directive and Habitats Directive
Whether the developer could have reasonably believed the development was not unauthorised
Whether the ability to carry out an EIA/NIA was substantially impaired
The actual or likely significant effects of the development
The extent to which they may be remedied
Whether the developer has complied with previous PP /other unauthorised development constructed by the developer (if any)
Any other relevant information
Mary Moran-Long PhD BL

22. Substitute Consent-Leave to Apply
Board must make its decision within 6 weeks of the application/receiving further information or receiving information from PA
Board must give reasons
If leave granted must direct that application for substitute consent is submitted within 12 weeks accompanied by a remedial EIA/NIA
Applicant may request an opinion of the Board regarding contents of the EIS/NIA
Mary Moran-Long PhD BL

23. Substitute Consent-Application
Application to Board must:
State name of applicant
Include a remedial EIA or NIA or both
Include the fee
Comply with any relevant Regulations made by the Minister
Submitted within 12 weeks of decision of Board to grant leave (Board has discretion to extend the time)
Application not compliant - invalid
Board may request further information
Valid application - copy sent to PA – entered into planning register.
Any person may make submissions/observations to the Board regarding the application
Mary Moran-Long PhD BL

24. Substitute Consent-Application
Planning authority must provide a report to the Board with 10 weeks of a copy of the application being received
The report must include:
Planning history of the development site
Any warning letters and enforcement notices served on the applicant
Relevant provisions of the Development Plan or LAP that affect the site
Any information regarding significant environmental impacts associated with the development and/or the site
Any remedial measures recommended or taken
The opinion of the County Manager as to whether substitute consent should be granted (with reasons)
Any conditions that should attach to a grant of substitute consent
Mary Moran-Long PhD BL

25. Substitute Consent Procedure
While considering application Board may issue draft direction to cease activity etc.
Board may refuse or grant consent with or without conditions
Board must consider the factors set out in section 177K(2) of the P&D Act 2000 as amended in making its decision
Board must notify the applicant of its decision giving reasons
Board must also notify the planning authority and any person who made submissions or observations regarding the application
No right of compensation in respect of circumstances set out under section 177K(6) of the Act
Mary Moran-Long PhD BL

26. Substitute Consent Procedure
Where Board refuses consent it may direct the applicant to undertake remedial works, restoration of lands etc. as set out in section 177L of the Act
Offences for non compliance with directions of Board
On summary charge up to €12,600 fine and/or 6 months imprisonment
On indictment up to €12.6 million fine and/or 2 years imprisonment.
Mary Moran-Long PhD BL

27. THANK YOU FOR LISTENING
THE END
THANK YOU FOR LISTENING