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

 

Minister for the Environment commences new quarry legislation

A sandpit in operation

On the 15 of November 2011 the Minister for the Environment, Community and Local Government signed the Planning and Development (Amendment) Act 2010 (Commencement) (No.3) (Order 2011). This order commences sections 74 and 75 of the Planning and Development Act (Amendment) Act 2010 that amended the Planning and Development Act 2000 by the insertion of a new section 261a which relates to the regulation of quarries. Continue reading

What is Strategic Environmental Assessment?

Proposed National Children's Hospital, Dublin

 

Strategic Environmental Assessment (SEA) is in the news because The Heritage Council, a statutory body, has made a formal submission at an Bord Pleanála oral hearing into the plan to build a 16 storey National Children’s Hospital in Dublin; stating that the Department of Health has failed to comply with the European Union SEA Directive by not carrying out a strategic environmental assessment of the proposal before it was formally adopted in 2006.

For those not familiar with SEA it is mandated by EU Directive 2001/42/EC of the European Parliament and of the Council On The Assessment Of The Effects OF Certain Plans And Programmes On The Environment. The Directive took effect in member states on 21 July 2004 and was implemented in Ireland through two sets of regulations: SI No. 435 of 2004 European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004 and SI No. 436 of 2004 The Planning and Development (Strategic Environmental Impact) Regulations 2004.

SEA is different from Environmental Impact Assessment (EIA) in that it looks at the likely significant environmental effects of plans or programmes rather than projects and is carried out by competent authorities, those responsible for the preparation or modification of a plan or programme, rather than developers. SEA is carried out out in relation to plans and programmes for: agriculture,  forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications and  tourism; where these set the framework for future development consent projects and the competent authority determines they are likely to have significant effects on the environment. Some plans and programmes, such as those involving national defence, financial plans and some EU plans are excluded.

Screening

A competent authority must also screen plans or programmes not on the above list that set the framework for future development consent projects and are likely to have significant effects on the environment on a case by case basis. The competent authority must consult with the environmental authorities. These include the Environmental Protection Agency (EPA) and in relation to architectural or archaeological heritage or nature conservation, fisheries or the marine includes the appropriate minister. Determinations on screening must be made available to the public and notified to the environmental authorities.

Strategic Environmental Assessment

Where a plan or programme is determined to require an SEA this must be carried out by the competent authority during the preparation of the plan or programme. The competent authority must also give notice of the scoping of the SEA to the environmental authorities. An SEA shall indentify, describe and evaluate the likely significant effects on the environment of implementing or modifying the plan or programme and any reasonable alternatives. The authority must send the draft plan to the environmental authorities for comment and publish a notice for the public inviting comments. Once the plan or programme is adopted the competent authority must send a notice of adoption to the environmental authorities and publish a notice of adoption. The competent authority must also monitor the significant environmental effects of the implementation of the plan to identify any unforeseen adverse effects to be able to undertake remedial action.

Cite this post as:

Mount, C. What is Strategic Environmental Assessment? The Charles Mount Blog, November 3, 2011. http://charles-mount.ie/wp/?p=637

New Irish environmental regulations require more land restructuring and water management projects be scoped and assessed.

A ringfort forms part of a field boundary near Cam, Co. Roscommon.

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,
  • pollution,
  • nuisance,
  • 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

  • Length of field boundary to be removed
 500 metres  4 kilometres
  • Re-contouring (within farm-holding)
2 hectares 5 hectares
  • Area of lands to be restructured by removal of field boundaries
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.

Further reading

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.

Environmental Impact Assessment EIA and the demolition of heritage buildings in Ireland

Wexford farmhouse.

The Irish landscape is characterised by its heritage buildings and structures, some of which are protected from demolition in the County Development Plans. Although the Environmental Impact Directive (85/337/EEC amended by 97/11/EC) requires the identification, description and assessment of material assets and the cultural heritage, and buildings and structures are part of the cultural heritage, the demolition of buildings and structures in Ireland has not been considered within the Environmental Impact Assessment (EIA) process unless the proposed development itself came within the scope of EIA. The Planning and Development Regulations 2001 state that building demolition is an exempted development (Class 50) except in cases where the building is a habitable house, forms part of a terrace of buildings or abuts on another building in separate ownership. In these cases the demolition will require planning permission but not an Environmental Impact Assessment. Therefore a significant heritage structure, that has not been designated, can be demolished without any assessment and if unoccupied, without any planning permission. However, this situation will soon change.

In March of this year the European Court ruled 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 all along.

Now the Department of the Environment, Community and Local Government must frame new legislation to give effect to the decision of the European Court.  An important consideration in framing the new legislation will be how to come to a decision as to whether a structure proposed for demolition should be the subject of an EIA. The first approach would be to require all structures designated as Protected Structures in the County development Plans or that have been included in the National Inventory of Architectural Heritage to undergo EIA before demolition. However not all significant heritage structures have been designated or included in the National Inventory of Architectural Heritage and the Architectural Protection Divison of the Department of Arts, Heritage and the Gaeltacht regularly request that EIAs assess non-designated structures in the vicinity of proposed developments.

An additional approach would be to set a size threshold. This is currently how most development types are judged to have a significant environmental impact and come within the scope of EIA. For example a forestry application over 50 ha will require an EIA but one under will not. However, significant heritage structures come in a variety of sizes. For example Wicklow Co. Council has designated a J.W. Penfold post box dating from 1870 in Carrigoona Commons as a protected structure. Similar structures would not be included in EIA under a threshold system based on size.

Another approach would be to set a threshold date range for structures coming within EIA. However, significant heritage structures may date from any period. For example Archer’s Garage in Dublin City, a listed building, was built as recently as the 1940s. Setting an age threshold would include many but not all heritage structures.

The only foolproof method of ensuring that all significant heritage structures are included in EIA will be to carry out a formal recorded screening of each structure proposed for demolition. This will generate a lot of reports so the numbers requiring screening could be reduced by introducing thresholds based on age and scale noted above as long as the screening is carried out on all structures outside the thresholds.

The decision of the European Court has dramatically changed how the demolition of structures in Ireland is to be assessed. It is now up to the Government to introduce the necessary legislation to give effect to the judgement.

Cite this post as:

 Mount, C. Environmental Impact Assessment EIA and the demolition of heritage buildings in Ireland. The Charles Mount Blog, June 14, 2011. http://charles-mount.ie/wp/?p=149