Planning and Development Act 2000

F833[Decision of Board on whether to grant leave to apply for substitute consent.

177D

177D. (1) F834[Subject to section 261A(21), the Board shall] only grant leave to apply for substitute consent in respect of an application under section 177C where it is satisfied that an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required in respect of the development concerned and where it is further satisfied

(a) that a permission granted for development by a planning authority or the Board is in breach of law, invalid or otherwise defective in a material respect whether by reason of a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise, by reason of

(i) any matter contained in or omitted from the application for the permission including omission of an F835[environmental impact assessment report or a Natura impact statement or both that report and that statement, as the case may be, or inadequacy of an environmental impact assessment report or a Natura impact statement or both that report and that statement], as the case may be, or

(ii) any error of fact or law or procedural error,

or

(b) that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.

F836[(1A) Where the Board makes a determination for the purposes of this section as to whether an environmental impact assessment is required, it shall, in making that determination, have regard to

(a) the criteria set out in Schedule 7 to the Planning and Development Regulations 2001,

(b) the information submitted pursuant to Schedule 7A to the Planning and Development Regulations 2001,

(c) the further relevant information, if any, referred to in section 177C(3)(aa) and the description, if any, referred to in section 177C(3A),

(d) the available results, where relevant, of preliminary verifications or assessments of the effects on the environment carried out pursuant to European Union legislation other than the Environmental Impact Assessment Directive, and

(e) in respect of a development which would be located on, or in, or have the potential to impact on

(i) a European site,

(ii) an area the subject of a notice under section 16(2)(b) of the Wildlife (Amendment) Act 2000 (No. 38 of 2000),

(iii) an area designated as a natural heritage area under section 18 of the Wildlife (Amendment) Act 2000,

(iv) land established or recognised as a nature reserve within the meaning of section 15 or 16 of the Wildlife Act 1976 (No. 39 of 1976),

(v) land designated as a refuge for flora or as a refuge for fauna under section 17 of the Wildlife Act 1976,

(vi) a place, site or feature of ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area plan, draft development plan or draft local area plan, or proposed variation of a development plan, for the area in which the development is proposed, or

(vii) a place or site which has been included by the Minister for Culture, Heritage and the Gaeltacht in a list of proposed Natural Heritage Areas published on the National Parks and Wildlife Service website,

the likely significant effects of the development on such site, area, land, place or feature, as appropriate.

(1B) The Board shall include, or refer to, in its decision under subsection (4) the main reasons and considerations, with reference to the relevant criteria listed in Schedule 7 to the Planning and Development Regulations 2001, on which the decision is based.]

(2) In considering whether exceptional circumstances exist the Board shall have regard to the following matters:

(a) whether regularisation of the development concerned would circumvent the purpose and objectives of the Environmental Impact Assessment Directive or the Habitats Directive;

(b) whether the applicant had or could reasonably have had a belief that the development was not unauthorised;

(c) 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;

(d) 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;

(e) the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated;

(f) whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development;

(g) such other matters as the Board considers relevant.

(3) In deciding whether it is prepared to grant leave to apply for substitute consent under this section the Board shall have regard to any information furnished by the applicant under section 177C(3) F837[, information, if any, furnished under section 177C(3A)] and any information furnished by the planning authority under section 177C(5).

(4) The Board shall decide whether to grant leave to apply for substitute consent or to refuse to grant such leave.

F838[(5)(a) Subject to paragraph (b), the decision of the Board under subsection (4) shall be made

(i) 12 weeks after receipt of an application under section 177C(1),

(ii) 12 weeks after receipt of additional information from the applicant under section 177C(3)(b), or

(iii) 12 weeks after receipt of information from the planning authority under section 177C(5),

whichever is the later.

(b)(i) Subject to subparagraph (ii), the Board shall not be required to comply with paragraph (a)(i) or (ii) within the period concerned referred to in that paragraph 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.

(ii) The Board shall, by notice in writing served on the applicant before the expiration of the period concerned referred to in paragraph (a)(i) or (ii), inform him or her of the reasons why it would not be possible or appropriate to comply with that paragraph within that period and shall specify the date before which the Board intends that the decision concerned shall be made.]

F839[(5A)(a) Paragraph (b) applies where the determination under subsection (1A) is that the development did not or would not be likely to have significant effects on the environment (and, accordingly, an environmental impact assessment is or was not required) and the applicant has provided under section 177C(3A) a description of the features, if any, of the development and the measures, if any, incorporated or envisaged to avoid, prevent or reduce what might otherwise be or have been significant adverse effects on the environment of the development.

(b) The Board shall specify such features, if any, and such measures, if any, in its decision under subsection (4).]

(6) The Board shall give notice in writing to the applicant of its decision on the application for leave to apply for substitute consent and of the reasons therefor.

(7) Where the Board decides to grant leave to apply for substitute consent, the notice under subsection (6) shall also contain a direction

(a) to apply for substitute consent not later than 12 weeks after the giving of the notice, and

(b) to furnish with the application a F840[remedial environmental impact assessment report or a remedial Natura impact statement, or both that report and that statement] as the Board considers appropriate.

(8) The Board shall give a copy of the notice of its decision under subsection (6) and direction under subsection (7) to the planning authority for the administrative area in which the development the subject of the application for leave to apply for substitute consent is situated and details of the decision and direction shall be entered by the authority in the register.]

Annotations

Amendments:

F833

Inserted (21.09.2011) by Planning and Development (Amendment) Act 2010 (30/2010), s. 57, S.I. No. 475 of 2011.

F834

Substituted (22.07.2015) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2015 (S.I. No. 320 of 2015), reg. 3.

F835

Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 72, in effect as per reg. 2(1).

F836

Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 23(a), in effect as per reg. 2(1).

F837

Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 23(b), in effect as per reg. 2(1).

F838

Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 23(c), in effect as per reg. 2(1).

F839

Inserted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 23(d), in effect as per reg. 2(1).

F840

Substituted (1.09.2018) by European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 (S.I. No. 296 of 2018), reg. 36 and sch. 1 table ref. no. 73, in effect as per reg. 2(1).

F841

Repealed by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 40(c), not commenced as of date of revision.

Modifications (not altering text):

C145

Prospective affecting provision: section repealed by Planning and Development, Maritime and Valuation (Amendment) Act 2022 (29/2022), s. 40(c), not commenced as of date of revision.

177D.F841[]

Editorial Notes:

E362

Previous affecting provision: subs. (5)(a) amended (22.07.2015) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2015 (S.I. No. 320 of 2015), reg. 3; substituted as per F-note above.

E363

Previous affecting provision: subs. (5)(b) amended (22.07.2015) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2015 (S.I. No. 320 of 2015), reg. 3; substituted by F-note above

E364

Previous affecting provision: subs. (5)(c) amended (22.07.2015) by European Union (Environmental Impact Assessment and Habitats) (No. 2) Regulations 2015 (S.I. No. 320 of 2015), reg. 3; substituted by F-note above