Substituted Consent? Surely not!

man shoots turbineABP

 

Section 34 of the Planning and Development Act of 2000 (“PDA2000”) deals with the actual decision on an application for planning permission, including all the necessary formalities and time-limits and so on.

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Subsection (12) of Section 34 deals with retention permission which covers cases where unauthorised development has been, or is being, carried out and the unauthorised developer can apply for retrospective planning permission. This is often used where a person might have erected an unauthorised structure in the garden and when the unauthorised builder wants to sell his property, the fact that there is a structure not recorded on the deed pops up and it is necessary to apply for retention permission.

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The PDA2000 makes it clear that the exact same rules apply to an application for retention as apply for ‘original’ planning permission. In other words, the application for retention should be treated as if you were seeking planning permission in the usual way, even though it is after the fact of the development. Therefore, the entire Section 34 (and the rest of the Act) should apply to your retention application in the same way as it applies to an application before commencement of the development.

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When considering a retention application, the courts have held that the planning authority and the ABP are not allowed to be influenced by the fact that the unauthorised structure is already built and that the refusal of the permission will mean that the structure will have to be demolished (see State (Fitzgerald) v An Bord Pleanála [1985] I.L.R.M. 117; Village Residents Association Ltd v An Bord Pleanála (No. 1) [2000] 1 I.R. 65).

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This is, of course, to prevent developers taking advantage on the fact that once up, it is going to be hard work to get it taken down. Under Section 162(3) the Act makes it clear that if something is to be demolished, a person cannot save that building simply by filing an application for retention permission. There needs to be a far better reason than that. Section 191(4) makes it clear that compensation is not payable where permission is refused for retention of an unauthorised structure. This means that there is no financial disincentive for a Council to refuse retention.

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Despite these apparent restrictions, the history of enforcement in this country is not great, and retention permission is definitely over-used (and often abused) in Ireland.

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The European Court of Justice (“ECJ”) has stopped one form of abuse when it comes to retention planning. When Ireland first transposed the EIA Directive into our law, it was possible to get retention permission on EIA projects. However, in Commission v Ireland (Case C-216/06) the ECJ ruled that the provision made for retention planning permission under domestic law was inconsistent with the EIA Directive. The ECJ was very disparaging about the fact that it was so easy to get retention permission in Ireland, and more so in the case of EIA development, where the Court noted that there should be more restrictions on the practice of retrospective planning permission, in keeping with the aims of the Directive.

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This led to the passing of the Planning and Development (Amendment) Act 2010, which amended Section 34(12) and abolished retention planning permission insofar as EIA projects were concerned. However, the practice was not completely removed. The Amendment Act instead introduced a limited form of development consent, namely “substitute consent”, which involves persuading An Bord Pleanála that there are “exceptional circumstances” which would justify the making of an application for substitute  consent. This test came about because the ECJ said in passing that there might be “exceptional circumstances” where a development can retrospectively be granted permission after it has gone through a “remedial” EIA process, and the Irish Government grabbed that chance with both hands in the Amendment Act.

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In other words, substitute Consent is a mechanism which allows a person to apply for retrospective permission for a project that required an Environmental Impact Assessment or a Screening for Environmental Impact Assessment or an Appropriate Assessment, but did not get that at the time. If the applicant can show “exceptional circumstances”, they will be allowed to perform the EIS/EIA process after (or during) the fact of the development.

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The amended section of PDA2000 dealing with substituted consent is Section 177. More specifically, Section 177B involves a planning authority directing a person to apply to An Bord Pleanála for substitute consent and this can only be used where planning permission has already been granted. Section 177C allows the developer concerned to voluntarily make an application for substitute consent.

 

The decision that faces An Bord Pleanala

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We all know the story of the courage and tenacity of William Bailey, who appealed the refusal of the High Court to dismantle three turbines which had been built in the wrong place and were higher than the measurements originally granted in the planning permission. Unfortunately, the matter did not end there as the Court of Appeal stayed the Order to dismantle pending the wind farm’s application for substituted consent.

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The Court of Appeal held as follows:

 

“113. It must be recalled, however, that An Bord Pleanála has already given the defendant leave to apply for substituted consent within the meaning of s. 177C of the 2000 Act in respect of this wind farm as constructed. As I have already noted, that application to the Board was pending at the date of the hearing before this Court and it may be anticipated that a final decision is some several months away. If the Board were indeed to grant the defendant such substituted consent – and I express no view at all on the merits of any such application – this would have the effect of regularising the planning status of the wind farm as constructed.”

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So what does Section 177 C say?

(1) A person who has carried out a development referred to in subsection (2), or the owner or occupier of the land as appropriate, to whom no notice has been given under section 177B, may apply to the Board for leave to apply for substitute consent in respect of the development.

(2) A development in relation to which an applicant may make an application referred to in subsection (1) is a development which has been carried out where an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required, and in respect of which—

(a) the applicant considers that a permission granted for the development by a planning authority or the Board may be in breach of law, invalid or otherwise defective in a material respect, whether pursuant to 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 permission including omission of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or

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

or

(b) the applicant is of the opinion that exceptional circumstances exist such that it may be appropriate to permit the regularisation of the development by permitting an application for substitute consent.

(3) An applicant for leave to apply for substitute consent under subsection (1) shall furnish the following to the Board:

(a) any documents that he or she considers are relevant to support his or her application;

(b) any additional information or documentation that may be requested by the Board, within the period specified in such a request.

(4) Where an applicant for leave to apply for substitute consent under subsection (1) fails to furnish additional information or documentation within the period specified in a request under subsection (3)(b), or such additional period as the Board may allow, the application shall be deemed to have been withdrawn by the applicant.

(5) The Board may seek information and documents as it sees fit from the planning authority for the administrative area in which the development the subject of the application under this section is situated, including information and documents in relation to a permission referred to in subsection (2)(a) and in relation to any other development that may have been carried out by the applicant and the planning authority shall furnish the information not later than 6 weeks after the information is sought by the Board.

 

A voluntary application for substitute consent (Section 177C) begins with an application being made to ABP for permission to apply. Should this stage be successful, a remedial EIS and/or remedial Natura impact statement is then submitted for ABP’s full consideration.

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In the case of voluntary applications, Section 177C of the PDA presents two options:

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The first option is set down in Section 177C(2)(a) and concerns AA or EIA development that has planning permission but where the developer has concerns about it being “in breach of law, invalid or otherwise defective in a material respect”. The legislation is clear that this must arise from either something significant having been missed from, or wrongly stated in, the original planning application (s177C(2)(a)(i)) or, if not, because of “any error of fact or law or procedural error” (s177C(2)(a)(ii)). It must be assumed that the “error of fact or law or procedural error” is the ground that applies here, as the Court of Appeal (and the ABP before it) confirmed that the turbines had exceeded the specifications set out in the planning permission.

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Of course, whether there was an “error” is up for debate. Can it be an error when you knowingly exceed the original planning permission?

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The second option is contained in Section 177C(2)(b) and relates to where an applicant considers that “exceptional circumstances exist such that it may be appropriate to permit the regularisation of the development”. In this instance, there is no requirement about planning permission being granted, with the grounds about what exceptional circumstances entail being quite wide.

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It would seem that this is the sub-section that the applicant wind farm is relying on (according to the Court of Appeal judgment, in any effect).

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I would argue that the applicant should not be allowed to rely on this option as planning permission was originally granted but subsequently contravened. In addition, where are those exceptional circumstances?

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

(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.

 

The nature of what entail exceptional circumstances is expanded upon in Section 177D(2) of the PDA, which lists seven relevant factors that ABP must consider in making its decision about an application lodged under Section 177C(2)(b). These include whether the application is being used as a way to circumvent the purpose of the EIA or Habitats Directive, whether the applicant realistically could have been unaware that the development was unauthorised or has a history of non-compliance with previous permissions, whether public participation in the EIA/AA process still remains possible, the possible environmental effects of the development and whether such effects can be repaired or avoided.

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If the applicant was allowed to apply under this option (which I think would be wrong), it must still be argued that the wind farm cannot succeed on the facts of the matter in arguing that there were “exceptional circumstances”. Can it really argue that any of those considerations favourably apply to its situation?

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Even with the generality of that sub-section, should the wind farm even be allowed to apply for substitute consent? When one considers its deliberate conduct (and the Court of Appeal was scathing in that regard), the fact that it continues to operate the wind farm and reap the profits, and most importantly, the fact that the reason for the wind farm being unauthorised development has nothing to do with the existence or not of an EIS, but rather concerns a material contravention of a grant of planning permission?

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To make matters worse, when you look closely at those “exceptional circumstances”, they are so vague and necessarily linked to the EIS/EIA process that the wind farm (which relied on informal permission to exceed the original planning permission specifications), one might argue that it doesn’t fall foul of any of those EIS/EIA requirements / considerations, as one must assume that those matters were considered at the original planning application when permission was granted. Although ABP were scathing in their review of the wind farm’s EIS, that was not the basis of their decision to declare the wind farm an unauthorised development.

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And that is the point – the applicant deliberately contravened the conditions of its planning permission but is still given permission to apply for substituted consent under a section that is really aiming to enforce compliance with the provisions of the EIA Directive. The EIA Directive is not about penalising developers who contravene the terms of their planning permission, it is about ensuring that the EIS/EIA procedure is properly carried out before planning permission is granted.

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So why is the applicant wind farm even being allowed to apply for substituted consent? The turbines are unauthorised development, in violation of the law, and should be torn down.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in An Bord Pleanala; appeal; interested parties, EIA Directive 2014/52/EU, High Court; Judicial Review; Appeal on the merits; judicial discretion, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Kilvinane Wind Farm Ltd; substituted consent, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act and tagged , , , . Bookmark the permalink.

6 Responses to Substituted Consent? Surely not!

  1. fclauson says:

    Neil

    You raise some interesting points – I am sure Peter Sweetman will have some comments considering he has multiple cases in the HC in regards to substitute consent.

    Part X of the PDA does not specifically allow for the public to make a submission but consider this in regard to

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

    Will ABP write to every planning authority asking if this developer has previously complied? I have a situation which may well come to a Part X substitute consent application but unless ABP are made a aware of other planning apps in other counties in Ireland or even in other jurisdiction’s (i.e.UK and Germany) where the applicant has flouted planning law how will they be able to take into consideration and matters under (f)

    In regard to
    (g) such other matters as the Board considers relevant

    does ABP consider it relevant a member of the public made a submission – this still needs to be tested in court

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

    Any substitute consent must, by virtue of the content of the Habitats Directive which requires an assessment PRIOR to the development, circumvent that directive so this is a nonsense test

    Part X is flawed in a number of ways and I am sure should ABP grant this wind farm substitute consent then we will have to wait further until a JR and not doubt an appeal are taken.

    This matter is a long way from being closed.

  2. I have a judgement due in Monday from the Court of Appeal on part of this point.

  3. “exceptional circumstances” seems to mean I need retention permission

  4. Pingback: Substituted Consent? Surely not! | ajmarciniak

  5. “exceptional circumstances” now means something

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