The purpose of this page is to assist applicants in the preparation of documents to support their applications for Substitute Consent and Section 37L (Further Development Applications). It is not intended as a legal guide, and you are recommended to review the relevant legislation and consider the need to obtain professional advice. Guidelines for prospective applicants have been prepared below.
These guidelines and appendices are available in a printable version at the end of the page.
1.0 Introduction
1.1 Substitute Consent applications arise where development has occurred that required an EIA or Appropriate Assessment, or both, and these assessments have not been carried out or have been found to be defective.
1.2 An application for substitute consent must include a Remedial EIAR (rEIAR) or Remedial NIS (rNIS) or both. In the case where the applicant considers only one such document applies, a Screening Report for the other document must be submitted to demonstrate why it is not required.
1.3 In the event that an applicant does not consider that a development that is seeking retention permission, does not require an rEIAR or rNIS, then the applicant can consider availing of Section 176A of the Planning and Development Act, 2000, for the planning authority to screen for an EIAR. The planning authority is obliged to screen for Appropriate Assessment at the same time. A determination made by the planning authority may be referred to An Coimisiún Pleanála for review, under Section 176C.
1.4 If the applicant is seeking to further develop the lands / development which are subject to a requirement to obtain Substitute Consent, or extend it onto adjoining land, an application can be made under Section 37L within 6 weeks of the Substitute Consent application being submitted. Both files will decided by the Commission together.
2.0 Contents of the Substitute Consent application
2.1 Form 7 in the Planning and Development Regulations 2001 as amended, is the application form to be used. All sections are to be completed, with N/A indicated if a field is not relevant to the development.
2.2 Site Notice – a copy of the Site Notice must be included (Form 6 in the Regulations). The Site Notice must generally comply with the requirements of Article 19(1) of the Planning and Development Regulations, 2001, as amended.
2.3 Newspaper Notice - a copy of the Newspaper Notice must be included. The newspaper used for publication must come from the approved list of newspapers of the planning authority where the site is located.
2.4
The fee accompanying the application is calculated in accordance with Schedule 9 of the Regulations. We recommend that you attach a note to your fee calculation to explain how it has been calculated. For example, the fee calculation could be made from Class 6 (the mining of minerals), Class 4 (for the provision of buildings) and Class 8 (for the provision of plant or machinery).
S.177M(1) states that the fee in respect of an application for substitute consent shall be the same as the fee that would be payable under the permission regulations if the applicant were making an application for permission under s.34(1) rather than an application for substitute consent.
The Commission may seeks some or all of the costs incurred by the Commission or the planning authority when granting Substitute Consent and may by notice direct the applicant to pay sums to both or either party. The applicant, within 2 weeks of receiving such a notice, may make submission to the Commission.
2.5 Six hard copies of the drawings and other particulars accompanying the application should be provided. An electronic version of all documents should also be provided. Should the electronic version of the documents not match the hard copies, the application shall be returned to the applicant. A letter by the applicant, or applicant’s agent, confirming that the digital version matches the hard copy should be provided.
2.6 Where the application is accompanied by a remedial EIAR then a receipt of submission to the EIAR Portal maintained by the Department of Housing, Local Government and Heritage should be included.
2.7 Where either an rEIAR or rNIS is not submitted with the application, a screening document for either EIA or AA should be included demonstrating why it is not required.
2.8 Progression over time should be indicated on drawings, where relevant. This can be presented in terms of a baseline (what the site was like prior to the development commencing) and the current situation. In the case of quarries, cross-sections that have been colour coded and use of aerial photographs to demonstrate the progress of development are particularly helpful.
2.9 A letter of consent from the owners or occupiers of the land, where relevant.
2.10
A Statement of Exceptional Circumstances. Planning permission can only be granted for Substitute Consent where all the following exceptional circumstances are met under S.177K. The applicant should address each of these points in a Statement of Exceptional Circumstances. This can be a standalone document or contained within a planning report.
The statement should address the following:
- Would the regularisation of the development circumvent the EIA or Habitats directive?
- Would the applicant had or could have a reasonable belief that the development was not unauthorised?
- Can an EIA/AA, which is open to public participation, be substantially impaired?
- What are the actual or likely effects resulting from the continuation of the development?
- To what extent that significant effects on the environment or adverse effects on the integrity of a European site be remediated?
- Has the applicant complied with other planning permissions or previously carried out unauthorised activities?
- Any other relevant matters.
2.11 The Commission will also consider matters relating to proper planning and sustainable development.
2.12 The Substitute Consent application generally only provides permission for development that has already taken place, unless it involves the completion of a development that has already been permitted. If the application contains works for the completion of a permitted development, the applicant should consider whether EIA or AA is required for the elements of the development to be completed. If the applicant consider that these documents are not required, then screening reports should be submitted to support this opinion.
2.13 If the applicant is looking to continue to undertake further development, on site or on adjoining lands, then a Section 37L application is required.
3.0 Contents of the Section 37L application
3.1 A Section 37L application is for the purpose of further development of land associated with a substitute consent application. For example, it can relate to physical expansion onto adjoining land or the deepening or lateral extension of an existing quarry. It may also deal with the completion of, extension to a development the subject of a substitute consent application.
3.2 Form – As per Form 2 of the Regulations.
3.3 Site Notice – the site notice must be set out as per Form B (Form No. 10) as set out in the Planning and Development Regulations, 2001, as amended. The Site Notice(s) must be indicated on the Site Layout Plan.
3.4 Fees - the fees for applications for Section 37L are as set out in Section 2 of Schedule 9 of the Planning and Development Regulations, 2001 as amended.
3.5 We recommend that you attach a note to your fee calculation to explain how it has been calculated. For example, the fee calculation could be made from Class 6 (the mining of minerals), Class 4 (for the provision of buildings) and Class 8 for the provision of plant or machinery).
3.6 Six hard copies of the drawings and other particulars accompanying the application should be provided. An electronic version of all documents should also be provided. Should the electronic version of the documents not match the hard copies, the application shall be returned to the applicant. A letter by the applicant, or applicant’s agent, confirming that the digital version matches the hard copy should be provided.
3.7 Where the application is accompanied by either an EIAR, then a receipt of submission to the EIAR Portal maintained by the Department of Housing, Local Government and Heritage should be included.
3.8 Where either an EIAR or NIS is not submitted with the application, a screening document for either EIA or AA should be included demonstrating why it is not required.
4.0 Validation for Substitute Consent Applications
4.1 Appendix 1 contains the checklists that the Commission will assess applications against. Applicants are recommended to check their documents against these checklists to increase the likelihood of a valid application. This checklist is not exhaustive and should be used as a guide only.
4.2 The Commission may request more information to enable it to validate the application.
4.3 The Commission may decide at a later date, for example, following a site visit, that the information submitted is substantially incorrect or significant omissions have been made in the application. The Commission at that time can still decide to invalidate the application.
5.0 Validation for Section 37L Applications
5.1 Appendix 2 contains the checklists that the Commission will assess applications against. Applicants are recommended to check their documents against these checklists to increase the likelihood of a valid application. This checklist is not exhaustive and should be used as a guide only.
5.2 The application must be lodged within 6 weeks of the lodgement of the SC application.
5.3 The Commission may request more information to enable it to validate the application.
5.4 The Commission may decide at a later date, for example, following a site visit, that the information submitted is substantially incorrect or significant omissions have been made in the application. The Commission at that time can still decide to invalidate the application.
6.0 Pre-application Consultation
6.1 It is recommended that an applicant engages in the Pre-Application Consultation process before submitting an application and requests a meeting with the Commission.
6.2 The Commission has discretion whether to hold a meeting or not. However, consultations are advised particularly in respect of more complex cases.
6.3 The Pre-application meeting is not merits based. Its focus is the process and the relevant documentation that should accompany the application(s). There is no decision making in these Pre-application Consultation meetings.
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