The Oireachtas housing committee has accused the Government of rushing through “highly complex legislation” including new arrangements for “substitute consent” – a form of planning retention for large-scale developments.
The legislation is being introduced in the wake of the Derrybrien wind farm case brought by European Commission against the State, and a subsequent Supreme Court decision last July which ruled current provision for substitute consent was invalid under EU environmental law.
The committee was told fines are likely to total €15 million ultimately, and the matter is unlikely to be resolved until mid-2021.
Sinn Féin housing spokesman Eoin Ó Broin warned that rushed-through amendments relating to substitute consent provisions in the Planning and Development Acts was undermining their efforts to scrutinise the legislation in the public interest, and to ensure it did not have unintended consequences.
“The lesson of the Derrybrien case is if proper scrutiny had been introduced when the original legislation was being passed by this House, we wouldn’t have paid possibly €10 million in fines so far,” he added.
It was unacceptable, he said, that committee members have to submit amendments on highly technical details within such a short period with the prospect that the Bill would complete all stages by next week.
This may also serve as a warning on two other significant pieces of legislation going through the Oireachtas, Mr Ó Broin added; the Water Extraction Bill and the Marine Planning Development Bill, because concerns had already been highlighted of “potential non compliance” with EU Environmental Assessment and Water Framework Directives. There was a risk of taxpayers having to pay millions more in fines, “so the stakes are incredibly high”.
The Seanad recently passed amendments to the Planning and Development Bill 2020 and Residential Tenancies Acts, including measures to allow statutory planning deadlines to be extended and public consultation meetings to be held online – if needed during pandemic restrictions.
The new arrangements for “substitute consent” were added last week and put before the committee. This is to comply with the Supreme Court findings, the committee was told.
It was considered necessary to include an “exceptional circumstances” test in instances of substitute consent and to provide for additional public participation, said Eamonn Kelly, principal in the EU and international planning regulation section of the Department of Housing and Local Government.
The Bill, he added, “is also a matter of urgency for the planning system . . . which needs to have measures in place as soon as possible that are legally compliant with the [EU] EIA directive, to facilitate applications to seek to regularise the planning status of large scale developments [subject to Environmental Impact Assessment] in exceptional circumstances, if required”.
Derrybrien wind farm in Co Galway was built in 2003 without an EIA as Irish planning law did not require that EU standards apply. A landslide during construction caused extensive environmental damage, resulting in the commission taking Ireland to court in 2008 – it ordered a retrospective EIA, but this was not carried out.
The State is paying fines of €15,000 per day to the European Commission, Mr Kelly confirmed. It has already paid a lump sum of €5 million after the judgment in November 2019 and a further €2.745 million in daily fines relating to the following six-month period.
Mr Kelly said resolving the case was of the highest priority. The department, after the Supreme Court decision, immediately engaged with the Attorney General, who recently decided primary legislation rather than a statutory instrument was the best course.
The ESB sought substitute consent in August and An Bord Pleanála indicated a decision was due in January, but because of the new public participation requirement, it could be the middle of 2020, he said.
Asked if fines might total up to €20 million, Mr Kelly replied “€15 million, perhaps”.
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