Department of the Environment issues new draft guidelines on carrying out Environmental Impact Assessment

Guidelines for planning authorities and An Bord Pleanála on carrying out environmental impact assessment

In July of this year the Department of the Environment, Community and Local Government issued new guidelines for planning authorities and An Bord Pleanála on carrying out environmental impact assessment. The guidelines define environmental impact assessment as the role of the planning authority and establish new procedures to carry out assessments in an open and transparent manner.

As a result of the European Court decision C-50/09 (Commission v Ireland) that Article 3 of the environmental impact assessment Directive had not been adequately transposed into Irish law sections 171 and 172 of the Planning and Development Act 2000 were amended by section 54 of the Planning and Development Act 2010.

Section 171a of the Planning and Development Act 2000 as amended now states:

171A.-(1) In this part-‘environmental impact assessment’ means an assessment carried out by a planning authority or the Board, as the case may be, in accordance with this Part and regulations made thereunder, that shall identify, describe and assess in an appropriate manner, in light of each individual case and in accordance with Articles 4 to 11 of the Environmental Impact Assessment Directive, the direct and indirect effects of a proposed development on the following: human beings, flora and fauna, soil, water, air, climate and the landscape, material assets and the cultural heritage, and the interaction between the factors mentioned in paragraphs (a), (b) and (c).

Section 172 (1B) of P & D Act 2000 as amended now states:

  1. An applicant for consent to carry out a proposed development referred to in subsection (1) shall furnish an environmental impact statement to the planning authority or the Board, as the case may be, in accordance with the permission regulations.

These new provisions came into force on the 19th of November 2010.

In order to provide practical guidance to planning authorities and An Bord Pleanála on the new procedures involved in environmental impact assessment the Department has issued new draft guidelines under section 28 of the Planning and Development Act 2000.

 The guidelines set out a new assessment procedure in which the environmental impact assessment must be carried out by the planning authority or An Bord Pleanála in an open and transparent manner and must be documented with a paper trail available for public scrutiny. The main planners report will now have to contain an environmental impact assessment report. This report will be based on information provided by the developer in the environmental impact statement, submissions from third parties, internal planning authority data and if required requests further information. The report will also have to assess and evaluate the accuracy and veracity of the information submitted and comment on the adequacy of the environmental impact statement. The environmental impact assessment report should identify, describe and assess all the likely significant direct and indirect effects of the proposed development noting their timescale and magnitude.

The assessment itself must be carried out by the decision maker (i.e. the manager or delegated person) who must indicate in a written statement separate to the decision on the planning file that they have read the environmental impact assessment report and either accepted its conclusions in whole or in part or have not accepted them. Where the decision-maker has decided not to accept some or all of the conclusions made by the planner in the environmental impact assessment report they must give reasons why they have not accepted them

The environmental impact statement prepared by the developer will continue to contain the same information required by the Planning and Development Regulations 2001 and article 5 of the EIA Directive. The focus of the environmental impact statement is on providing information, data and description of the proposed development and the aspects of the environment likely to be effected. The developer is also required to submit a description of the likely significant effects of the proposed project on the environment. They must also submit an outline of the main alternatives studied, a non-technical summary of the information provided and an indication of any difficulties encountered in compiling the required information.

Also in response to the C-50/09 judgement in July of this year the Minister for Arts Heritage and the Gaeltacht commenced the European Union (Environmental Impact Assessment of Proposed Demolition of National Monuments) Regulations 2012. This deals with the exclusion of demolition works from the scope of legislation transposing the EIA Directive into Irish Law see here.

Cite this post as:

Mount, C. 2012. Department of the Environment issues new draft Guidelines on carrying out Environmental Impact Assessment. The Charles Mount Blog, 13 September 2012. http://charles-mount.ie/wp/?p=930

 

Update 17/9/12. The Institute of Archaeologist of Ireland have made a a submission on the guidelines.

The IAI made a submission to the Department of Environment, Community and Rural Development in response to the publication of draft guidelines for planning authorities on carrying out environmental impact assessment. While the IAI welcomes the publications of these guidelines we have a number of significant concerns in relation to the competency of planning authorities and An Bord Pleanála to adequately assess the impact of proposed developments on our archaeological heritage. The full submission can be read here IAI Submission EIA September 2012

Environmental impact assessment and the demolition of national monuments

 

The national monument at Lismullin, Co. Meath which was identified during road construction.

The national monument at Lismullin, Co. Meath which was identified and demolished during road construction.

New regulations introduce an important change in the way environmental impact assessment is carried out in Ireland in order to comply with a ruling of the European Court. In future environmental impact assessment will be the responsibility of the competent authority that will come to a decision after receiving an environmental impact statement from the developer. The change means that from now on the demolition of national monuments like Lismullin, Co. Meath (pictured) will be the subject of an environmental impact assessment carried out by the Minister for Arts, Heritage and the Gaeltacht.

 

On the 9th of July 2012 the Minister for Arts Heritage and the Gaeltacht commenced the European Union (Environmental Impact Assessment of Proposed Demolition of National Monuments) Regulations 2012. The requirement for the regulations result from the decision of March 2011 of the European Court in case C-50/09 the European Commission vs. Ireland, that Ireland had failed to fulfil its obligations under the Environmental Impact Assessment Directive as it had (amongst other things) excluded demolition works from the scope of legislation transposing the Directive into Irish Law. In other words demolition of a significant heritage building or structure where the works would constitute a significant impact on cultural heritage should have required an environmental impact assessment.

 

The new regulations amend the National Monuments Act 1930 by introducing environmental impact assessment procedures in relation to the demolition of national monuments. The amendment adds a new section 14D and only applies in relation to consents under section 14 or directions under section 14A (as inserted by the National Monuments (Amendment) Act 2004) in relation to national monuments discovered in the course of construction of an approved road scheme under the Road Act 1993.

 

This new section requires the Minister, as the competent authority, before deciding to grant a consent or issue directions that would result in the demolition of a national monument to ensure that the proposed demolition has been the subject of an environmental impact assessment. Environmental impact assessment means an assessment, being an assessment which includes an examination, analysis and evaluation, by the Minister that identifies, describes and assesses in an appropriate manner, in light of each individual case and in accordance with Articles 4 to 11 of the Environmental Impact Assessment Directive, the direct and indirect effects which proposed demolition of a national monument would have on the following:

(a) human beings, fauna and flora;

(b) soil, water, air, climate and landscape;

(c) material assets and the cultural heritage;

(d) the interaction between the factors referred to in paragraphs (a)

to (c).

 

The Minister, as the competent authority will receive information from the applicant in the form of an environmental impact statement, and will then carry out the assessment of impact on the environment of the proposed development. Environmental impact statement means a written statement of the direct and indirect effects, if any, which the proposed demolition of a national monument, if carried out, would have on the environment and which contains the information which an environmental impact statement is required to contain under this section. The Minister may after consultation with the Director of the National Museum and the responsible local authority grant an exemption from these requirements in exceptional circumstances. Where an applicant is required to submit an environmental impact statement a notice of this intention must be published in the press two weeks before the submission of the statement. The Minster must circulate the environmental impact statement to the Director of the National Museum and the responsible local authority. If the Minister considers the environmental impact statement is inadequate he may request further information. The Minister will then carry out an environmental impact assessment of the proposal and decide whether or not to grant a consent or issue directions to demolish the national monument. Once the Minister has decided whether or not to grant consent or issue directions for the demolition of a national monument he shall publish a notice in the press and arrange for the environmental impact statement and information on the decision to be made publicly available.

 

I will be speaking about EIS practice for quarry developments at the Portobello Institute 10 August 2012.  See here

Cite this post as:

Mount, C. 2012. Environmental impact assessment and the demolition of national monuments. The Charles Mount Blog, 19 July 2012. http://charles-mount.ie/wp/?p=906

 

A new approach to Environmental Impact Assessment in Ireland: Remedial EIA

The European Court

In the next few months a new and unprecedented form of Environmental Impact Assessment, the remedial Environmental Impact Assessment, will be required in Ireland. The remedial EIA is a creation of the Planning and Development (amendment) Act 2010. Section 177F of the Act states that a remedial EIA shall contain a statement of the significant effects on the environment which may have, or reasonably be expected to occur because a development was (authors emphasis) carried out, the details of any appropriate remedial measures undertaken or proposed to be undertaken to remedy any adverse effects on the environment and the time period in which the remedial measures shall be carried out. The remedial EIA will accompany another unprecedented document, an application for substitute planning consent, required under section 177C of the Act.

The reason for the establishment of the new process stems from a decision of the European Court of Justice in July 2008 in the Derrybrien, Co. Galway wind farm case (ECJ 215/06). In that case the court found that Ireland was in breach of the European Union EIA Directive as retention planning permission had been granted to a wind farm development without an EIA being carried out. In fact the practice of granting planning retention permission for developments that would have required an EIA and also for developments which would have required a determination as to whether EIA was required (i.e. screening) was widespread. The result of the decision is that retention planning for developments requiring EIA ceased completely from July 2008. A large number of developments that took place after the transposition of the EIA Directive into Irish Law in February 1990 and were in receipt of retention planning have been left in a difficult legal position. The new procedure of substitute consent and remedial EIA is intended to regularise the position of these developments, both those that required an EIA and those that required screening. Once the developments requiring substitute consent have been identified they will be allowed to submit an application for substitute consent accompanied by a remedial EIS directly to An Bord Pleanála, the statutory planning appeals board, for a decision.

While the Planning and Development Act was passed into law in July of 2010 a number of technicalities have delayed the commencement of the sections dealing with substitute consent and remedial EIA. It has been reported that these will soon be overcome and that part of the Act commenced this summer.

About the author

Dr. Charles Mount is Project Archaeologist with the Irish Concrete Federation where he is dealing with the cultural heritage aspects of the remedial EIA process. You can contact him about this blog at Charles.mount@irishconcrete.ie

Cite this post as:

Mount, C. A new approach to Environmental Impact Assessment in Ireland: Remedial EIA. The Charles Mount Blog, May 23, 2011. http://charles-mount.ie/wp/?p=30

What’s wrong with the Register of Historic Monuments?

The Four Courts in Dublin

Recent controversy surrounding the inclusion of a site on the Register of Historic Monuments, leading to a trip to the High Court in Dublin, has been reported in the Irish media. I’m not going to comment on the merits of this particular case but I want to discuss a major omission from what to many is a little known part of the Irish Monuments Acts. The Register of Historic Monuments was established under section 5 of the National Monuments (Amendment) Act 1987. The section states (with amendments and changes of responsibility) that the responsible Minister shall establish and maintain a Register of Historic Monuments. The Minister shall enter in the Register the name, location and description of the monuments and other archaeological sites known at the commencement of the Act, and any monuments or areas that become known after the commencement, which in his opinion should be entered. The Minister may also amend or delete entries in the Register.

The Minister shall publish in Iris Oifigiúil (the official state gazette) a list of the monuments and areas entered in the Register. The Minister shall notify the owner or occupier of the monument or area in writing of the entry, amendment or deletion from the Record by registered post or be delivered to him by hand by an agent of the Minister.

Where the owner or occupier of a Registered Historic Monument or any other person proposes to carry out work in relation to the monument or area, he shall give notice in writing of his proposal to the Minister and shall not, except in a case of urgent necessity with the consent of the Minister, commence the work for two months after giving the notice. A person shall not demolish or remove wholly or in part or disfigure, deface, alter or in any manner interfere with a Registered Historic Monument. A person who contravenes this section shall be guilty of an offence. The Register performs an important function in safeguarding the cultural heritage of Ireland but the manner in which it is operated appears not to have kept in step with the times.

What about the procedures for entering monuments in the register?

The inclusion of lands on the Register can have a substantial impact on the ability of a landowner to enjoy the use of his or her lands and may have also an impact on the land’s value. Therefore one would expect that there are a rigorous set of procedures for consulting with landowners and for landowners to appeal the registration process. However, An examination of the 1987 National Monuments Act reveals that there are no procedures set out for entering a monument or area in the Register other than stating that the Minister may enter monuments or areas that in “his opinion” should be entered. This sounds very arbitrary and there is no consultation or appeal procedure established in the Act.

The National Policy on archaeology Frameworks and Principles for the Protection of the Archaeological Heritage 1999 does not include any procedure for the inclusion of monuments on the Register. However, in section 4.3.3 it states that areas containing no known archaeological monuments may be included in the Register of Historic Monuments as archaeological areas if the Minister has reason to believe that such an area is of archaeological interest, including on the grounds of its potential for containing archaeological monuments or objects, its interest in respect of palaeoenvironmental studies, or its importance in respect of protecting the amenities of an archaeological monument.

The Register of Historic Monuments is not mentioned in the Department of the Environment’s (who had responsibility until recently) Customer Service Action Plan 2009-11, nor is there any procedure for including monuments in the Register on the Departments’ website. In relation to major infrastructure projects, such as the N25 Waterford City Bypass, the Minister has established a working group to advise him on the preservation and archaeological investigation of the Viking site at Woodstown, Co. Waterford. He then accepted the Groups recommendation to enter the site in the Register of Historic Monuments in 2008. However, this procedure appears to have been used in relation to only a handful of state-sponsored developments.

In the Review of Archaeological Policy and Practice published by the Department of the Environment in 2007 the issue of opening the listing and registering of monuments and sites to public consultation and scrutiny was highlighted. However, to date nothing has been put in place. On the face of it this appears to be contrary to the principles of natural justice, but it would seem that for the moment the only place where a landowner can expect to appeal the imposition of a registration is in the High Court.

Cite this post as:

Mount, C. What’s wrong with the Register of Historic Monuments? The Charles Mount Blog, May 18, 2011. http://charles-mount.ie/wp/?p=24