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

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