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 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