The Irish Government has unveiled its approach to amending the Environmental Impact Assessment system to comply with the European Court of Justice ruling C-66/06. The new regulations will require more land restructuring and water management projects be scoped and environmentally assessed.
The European Court judgement
In November 2008 the European Court of Justice in the case of the European Commission versus the Republic of Ireland (ECJ C-66/06) ruled that Ireland had not adopted all measures to ensure that projects likely to have significant effects on the environment that belong to categories 1a (projects for the restructuring of rural land holdings), b (projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes); and c (water management projects for agriculture, including irrigation and land drainage projects) of Annex II of Environmental Impact Directive 85/337/EEC (amended by Directive 97/11/EC) were assessed for environmental impacts before consent was given. See the full judgement here .
The court ruled that by setting thresholds which take account only of the size of projects – to the exclusion of the other criteria laid down in Annex III to Directive 85/337 such as:
- project characteristics,
- project size,
- cumulative impacts,
- the use of natural resources,
- waste production,
- risk of accident,
- project location, and
- characteristics of potential impacts;
and by not providing for project screening, Ireland had exceeded the limits of its discretion under Articles 2(1) and 4(2) of the Directive and had consequently not adopted all necessary measures to ensure that projects likely to have significant effects on the environment are made subject to a requirement for development consent and to an assessment of their environmental effects in accordance with Articles 5 to 10 of the Directive.
The court also noted that the Irish EIA thresholds of 100 ha in relation to the restructuring of rural holdings and 20ha in relation to water management projects in wetlands were so large that projects below these thresholds with significant environmental impacts would be granted consent without having been subject to Environmental Impact Assessment.
Significance for cultural heritage
The significance of this for cultural heritage is that the European Court noted that Irish studies had established a risk of accelerated destruction of archaeological remains directly connected with projects for the restructuring of rural land holdings and land drainage projects. In fact Archaeological Features at Risk (O’Sullivan et al. 2001), published by the Heritage Council, had found that land improvement (the removal of field boundaries and ditches) and drainage were the overwhelming causes of loss of field monuments in Ireland. The report also found that with the increasing intensification of Irish agriculture the rate of monument loss was increasing.
The Irish Government response
In response to the judgement the Minister for the Environment and Local Government and the Minister for Agriculture, Fisheries and Food have jointly produced new regulations – the Planning and Development (Amendment) (No.2) Regulations 2011 and the European Communities (Agricultural Environmental Impact Assessment) Regulations 2011 - to bring Ireland into compliance with the principles and requirements of the Environmental Impact Assessment Directive.
The new Planning and Development (Amendment) (No.2) Regulations 2011, transfer responsibility for most of the activities covered by the ECJ C-66/06 judgment, such as the re-structuring of fields and removal of boundaries, the use of uncultivated land or semi-natural areas for intensive agriculture and normal field drainage works, to a new consent system that will operate under the aegis of the Department of Agriculture, Fisheries and Food.
The new Department of Agriculture, Fisheries and Food regulations cover the following categories of development:
- the restructuring of farm holdings;
- the use of uncultivated land or semi-natural areas for intensive agriculture; and
- land drainage works on lands used for agriculture, excluding the drainage and reclamation of wetlands, and
propose a new system of screening, to be undertaken by the Department of Agriculture, for environmental impact above certain thresholds for different types of agricultural activity, and the requirement for mandatory Environmental Impact Assessment to be carried out on such projects at a higher level.
The regulations will have impose new thresholds for Environmental Impact Assessment screening and mandatory Environmental Impact Assessment that are set out below:
|Category of activity||Threshold for Environmental Impact Assessment screening||Threshold for consent and mandatory Environmental Impact Assessment|
|Re-structuring of rural land holdings
||500 metres||4 kilometres|
||2 hectares||5 hectares|
||5 hectares||50 hectares|
|Commencing to use uncultivated land or semi-natural areas for intensive agriculture||5 hectares||50 hectares|
|Land drainage works on lands used for agriculture (excluding drainage or reclamation of wetlands)||15 hectares||50 hectares|
Additional considerations will also have to be given to activities that impact on certain sites such as designated Natura 2000 areas, recorded monuments, natural heritage areas and proposed natural heritage areas and other nature reserves, given their environmental and heritage sensitivities.
The only element of the Environmental Impact Assessment system touched on by the ECJ C-66/06 judgment that will be retained within the Local Authority planning system is on-farm development activity that impacts wetlands. The Planning and Development (Amendment) (No.2) Regulations 2011 propose an exempted development threshold of 0.1 hectare. The mandatory threshold for Environmental Impact Assessment of drainage of wetlands will be reduced from 20 hectares to 2 hectares. Planning permission accompanied by an Environmental Impact Assessment may be required even in respect of drainage below the 0.1 threshold in cases where the drainage would have a significant effect on the environment.
O’Sullivan. M., O’Connor, D.J. and Kennedy, L. 2001. Archaeological Features At Risk: A Survey Measuring The Recent Destruction OF Ireland’s Archaeological Heritage. The Heritage Council, Kilkenny.
Cite this post as:
Mount, C. New Irish environmental regulations require more land restructuring and water management projects be scoped and assessed. The Charles Mount Blog, September 15, 2011. http://charles-mount.ie/wp/?p=500.