177K.—F854[(1) Where an application is made to the Board for substitute consent in accordance with this Act and regulations under this Act—

(a) the Board shall ensure that it has, or has access to, sufficient expertise to enable it to examine the remedial environmental impact assessment report and ensure its adequacy, and

(b) the Board may, subject to subsection (1A)—

(i) grant substitute consent (with or without conditions) in respect of the development concerned, or

(ii) refuse substitute consent in respect of the development concerned.]

F855[(1A) (a) The Board shall not grant substitute consent (whether subject to conditions or not) unless it is satisfied that exceptional circumstances exist that would justify the grant of such consent by the Board.

(b) F856[…]

(c) F856[…]

(1B) F857[…]

(1C) F857[…]

(1D) F857[…]

(1E) F857[…]

(1F) F857[…]

(1G) F857[…]

(1H) F857[…]

(1I) F857[…]]

F858[(1J) In considering whether exceptional circumstances exist under subsection (1A)(a) 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.]

(2) When making its decision in relation to an application for substitute consent, the Board shall consider the proper planning and sustainable development of the area, regard being had to the following matters:

(a) the provisions of the development plan or any local area plan for the area;

(b) the provisions of any special amenity area order relating to the area;

(c) the F859[remedial environmental impact assessment report, or remedial Natura impact statement, or both that report and that statement, as the case may be, and, where section 177E(2A)(b) applies, the environmental impact assessment report or Natura impact statement or both that report and that statement] F860[, as the case may be,] submitted with the application F858[or in accordance with a requirement under subsection (2CA), (2CB) or (2CC)];

(d) the significant effects on the environment, or on a European site, which have occurred or which are occurring or could reasonably be expected to occur because the development concerned F861[was or is proposed to be carried out];

(e) the report and the opinion of the planning authority under section 177I;

(f) any submissions or observations made in accordance with regulations made under section 177N;

(g) any report or recommendation prepared in relation to the application by or on behalf of the Board, including the report of the person conducting any oral hearing on behalf of the Board;

(h) if the area or part of the area is a European site or an area prescribed for the purposes of section 10(2)(c), that fact;

(i) conditions that may be imposed in relation to a grant of permission under section 34(4), F862[282(3) or 293(7)];

(j) the matters referred to in section 143;

(k) the views of a Member State where the Member State is notified in accordance with regulations under this Act;

(l) any relevant provisions of this Act and regulations made thereunder.

F863[(2A)(a) Subject to paragraph (b), the Board shall make a determination for the purposes of this section as to whether an environmental impact assessment was or is required within 8 weeks of receipt of the information specified in Schedule 7A to the Planning and Development Regulations 2001.

(b) Subject to paragraph (c), the Board shall not be required to comply with paragraph (a) within the period specified in paragraph (a) 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.

(c) Where paragraph (b) applies, the Board shall, by notice in writing served on the applicant before the expiration of the period specified in paragraph (a), inform him or her of the reasons why it would not be possible or appropriate to comply with paragraph (a) within that period and shall specify the date before which the Board intends that the determination concerned shall be made.

(2B) Where the Board makes a determination for the purposes of this section as to whether an environmental impact assessment was or 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 article 227(2)(cb) of the Planning and Development Regulations 2001 and the description, if any, referred to in article 227(2A) of those Regulations,

(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.

(2C) The Board shall include, or refer to, in its decision under subsection (1) 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 determination under subsection (2A) is based.

F864[(2CA) Where the applicant submitted a remedial Natura impact statement under section 177E(2), but did not submit a remedial environmental impact assessment report under that section, 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.

(2CB) Where the applicant submitted a remedial environmental impact assessment report under section 177E(2), but did not submit a remedial Natura impact statement under that section, 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.

(2CC) Where section 177E(2A)(b) applies and 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 under subsection (2CA) or (2CB), the Board shall, in relation to the part of the development referred to in section 177E(2A)(b) 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.

(2CD) Where the Board requires the applicant to submit within a specified period a report under subsection (2CA), a statement under subsection (2CB), or a report or statement under subsection (2CC), 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.]

(2D)(a) Paragraph (b) applies where the determination under subsection (2A) 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, F865[in accordance with the Planning and Development Regulations 2001], 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 (1).

(2E)(a) Where the Board decides under subsection (1) to grant substitute consent for the development, it shall—

(i) attach such conditions, if any, to the grant as it considers necessary to avoid, prevent or reduce and, if possible, offset the significant adverse effects on the environment of the development,

(ii) where the applicant has provided, F865[in accordance with the Planning and Development Regulations 2001], a description of the features, if any, of the development and the measures, if any, incorporated or envisaged to avoid, prevent or reduce and, if possible, offset what might otherwise have been the significant adverse effects on the environment of the development, specify such features, if any, and such measures, if any, in the decision, and

(iii) subject to paragraph (b), where appropriate, specify in the decision measures to monitor the significant adverse effects on the environment of the development (being measures, as regards the types of parameters to be monitored and the duration of the monitoring, that are proportionate to the nature, location and size of the development and the significance of the effects on the environment of the development).

(b) Where the Board decides under subsection (1) to grant substitute consent for the development, it may, if appropriate to avoid duplication of monitoring, and without prejudice to existing monitoring arrangements pursuant to national or European Union legislation (other than the Environmental Impact Assessment Directive) identify such arrangements (or parts thereof as it thinks appropriate in the particular case) to be used for the purpose of paragraph (a)(iii).]

(3) The conditions referred to in subsection (1) may include—

(a) one or more than one condition referred to in section 34(4), F862[282(3) or 293(7), as may be appropriate,]

(b) a condition or conditions relating to remediation of all or part of the site on which the development the subject of the grant of substitute consent is situated,

(c) a condition or conditions requiring a financial contribution in accordance with section 48, or

(d) a condition or conditions requiring a financial contribution in accordance with a supplementary development contribution scheme under section 49.

(4) The Board shall send a notification of its decision under subsection (1) to the applicant, and such notification shall state—

(a) the main reasons for and considerations on which the decision is F866[made,]

F867[(aa) F868[where an environmental impact assessment was carried out,] the reasoned conclusion by the Board on the significant effects on the environment of the development, taking into account the results of the examination of the information contained in the remedial environmental impact assessment report or the environmental impact assessment report, or both such reports, as the case may be, and any supplementary information provided, where necessary, by the applicant in accordance with regulations under this Part and any relevant information received through consultations with prescribed authorities in accordance with regulations under this Part and, where appropriate, its own supplementary examination, and]

(b) where conditions are imposed in relation to the grant of substitute consent the main reasons for the imposition of any such conditions.

F869[(4A)(a) Where the decision under subsection (1) by the Board to impose a condition (being an environmental condition which arises from the consideration of the remedial environmental impact assessment report or the environmental impact assessment report concerned, or both such reports, as the case may be) in relation to the grant of substitute consent is materially different, in relation to the terms of such condition, from the recommendation in a report of a person assigned to report on the application on behalf of the Board, the Board shall, in its statement under subsection (4)(b), indicate the main reasons for not accepting, or for varying, as the case may be, the recommendation in the last-mentioned report in relation to such condition.

(b) Where F868[an environmental impact assessment was carried out and] the decision under subsection (1) by the Board is to grant, subject to or without conditions, substitute consent, the Board shall cause the decision to be accompanied by a statement that the Board is satisfied 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.

(c) F865[Where an environmental impact assessment was carried out, the Board shall] include in its decision under subsection (1) a summary of the results of the consultations that have taken place and information gathered in the course of the environmental impact assessment concerned and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and specify how those results have been incorporated into the decision or otherwise addressed.]

(5) The Board shall also send a copy of its decision under subsection (1) to the planning authority in whose area the development the subject of the application for substitute consent is situated and to any person who made submissions or observations in relation to the application.

(6) For the avoidance of doubt, there shall be no right to compensation under Part XII in respect of any of the following:

(a) F870[…]

(b) a direction of the Board to cease all or part of an activity or operations under section 177J;

(c) a decision of the Board under this section to refuse an application for substitute consent under this section;

(d) a decision of the Board under this section to grant substitute consent subject to one or more than one condition;

(e) a direction of the Board to cease activity or operations or to take remedial measures under section 177L.]