Tag Archives: European Court of Justice

Environmental impact assessment and the demolition of national monuments

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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

 

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

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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.

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

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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