Changes in Planning Law Relating to Retention Planning Permission

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
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
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
Mary Moran-Long PhD BL
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
 Annex
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 projectsAssessed as to whether EIA required.
Mary Moran-Long PhD BL
Transposes Annex I and II of EIA
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
Sub threshold development
 Articles 92 and 103 of the P&D Regs. 2001:
Art. 92 - 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
Mary Moran-Long PhD BL
Schedule 7 P&D Regs. 2001 – 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
2. Location of proposed development;
3. Characteristics of potential impacts.
Mary Moran-Long PhD BL
‘’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
Case 215/2006 Commission v Ireland (3 July 2008)
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
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
S34(12) as amended - A planning authority must now refuse to
consider an application for retention planning permission for an EIA
Subsection (a) includes development for which EIA is mandatory
(Annex I and Schedule 5 Part 1)
Subsection (b)
o Developments which are required to be screened as to whether an
EIA is required (Annex II and Schedule 5 Part 2)
o Sub-threshold developments (PA must assess using criteria in
Schedule 7)
o Extends to developments where if screened (before construction)
would have led to the conclusion that an EIA was not required
o Subsection (c) Assessments regarding Habitats Directive (Natura)
Mary Moran-Long PhD BL
 S154 P&D Act 2000- RPP not a remedy for EIA unauthorised
development, UD.
Section 160 P&D Act 2000 - 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
Regularization of unlawful operations in
exceptional circumstances – ECJ Case C215/06.
Section 57 of the Planning and Development
(Amendment) Act 2010 inserts a new Part XA,
into the 2000 Act.
Mary Moran-Long PhD BL
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
With notice from planning authority
o Permission was granted – found to be unlawful,
invalid or defective in a material respect by final
judgment of Court.
o EIA/NIA was required for the development but was
not provided or was inadequate.
o Planning authority must issue notice to relevant
o 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
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
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
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
o 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
- ORo due to any error of law, fact or procedure ;
–ORo The applicant claims exceptional circumstances exist that would permit
the Board to regularise the development by substitute consent
o Apply to Board for leave to apply for substitute consent.
Mary Moran-Long PhD BL
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
In exceptional circumstances
Mary Moran-Long PhD BL
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
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
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
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
 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
Planning authority must provide a report to the Board with 10 weeks
of a copy of the application being received
The report must include:
o Planning history of the development site
o Any warning letters and enforcement notices served on the applicant
o Relevant provisions of the Development Plan or LAP that affect the
o Any information regarding significant environmental impacts
associated with the development and/or the site
o Any remedial measures recommended or taken
o The opinion of the County Manager as to whether substitute consent
should be granted (with reasons)
o Any conditions that should attach to a grant of substitute consent
Mary Moran-Long PhD BL
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
No right of compensation in respect of circumstances set out
under section 177K(6) of the Act
Mary Moran-Long PhD BL
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
On summary charge up to €12,600 fine and/or 6 months
On indictment up to €12.6 million fine and/or 2 years
Mary Moran-Long PhD BL

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