(23) Environmental Law

European Union Environmental Assessment

EIA

ENVIRONMENTAL IMPACT ASSESSMENT

  1.The concept of environmental impact assessment (EIA) has its origins in European law and Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11/EC (the Directive). The Directive will be further amended by the Directive providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment (2003/35/EC) and amending Council Directives 85/337/EEC and 96/91/EC.

The Directive introduced a requirement that the Member States must ensure that projects likely to have a significant effect on the environment by virtue inter alia of their nature, size and location are made subject to a requirement for a development consent and an assessment with regard to their effects on the environment: Art 2. In particular, Art 3 provides that the EIA shall identify, describe and assess the direct and indirect effects of the project on the following factors:

(a) Human beings, fauna and flora;

(b) Soil, water, air, climate and the landscape;

(c) Material assets and cultural heritage; and

(d) The interaction between the above factors.

The Directive gives effect to an important principle of European environmental policy known as the prevention principle: the creation of pollution should be prevented at source rather than subsequently trying to counteract its effects.

The EIA procedure enables the decision-making authority to decide whether or not to grant consent to a project based on its likely effects on the environment and, if it does decide to grant consent, to impose conditions preventing or mitigating these effects. The information received by the authority as a result of the EIA procedure need only be taken into consideration: Art 8. The Directive is of a procedural nature and does not stipulate the actual decision which the authority should reach as a result of the EIA.

In summary, the Directive provides that EIA is mandatory for all Annexe I projects on the basis that they will always have significant environmental effects: Art 4(1). The term ‘project’ has a very broad definition for the purposes of the Directive and is defined as the execution of construction works or of other installations or schemes, and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources. Annexe I projects include oil refineries, integrated chemical installations and significant infrastructure projects. As regards projects listed in Annex II, Member States must determine on a case-by-case basis and/or on the basis of thresholds or other criteria whether or not an Annexe II project should be subject to EIA: Art 4(2). The criteria in Annex III must be taken into account when a case-by-case examination is being carried out or criteria or thresholds are being set. Projects which require an EIA must be subject to an EIA in accordance with Arts 5 to 10 which deal inter alia with the information to be provided by the developer, scoping requests, public consultation requirements and transboundary effects. These provisions are considered in more detail in the context of Irish implementing legislation.

Article 2(2) of the Directive provides that Member States can integrate EIA into existing procedures for consent to projects, into other existing procedures or into procedures established to comply with the Directive. In Ireland, the

The directive has been implemented through the integration of its requirements into the planning control system and several other development consent procedures covering, for example, local authority development, road development and the laying of oil and gas pipelines. This has been done principally by the European Communities (Environmental Impact Assessment) Regulations 1989 to 2001 (the EIA Regulations), the Planning and Development Act 2000 (the 2000 Act) and the Planning and Development Regulations 2001 (the 2001 Regulations).

This text will focus on the EIA system in the context of the planning control system. It will also look briefly at the integration of EIA into other development consent systems and at Irish and European case law on general issues concerning EIA.

2. EIA under planning legislation

The Local Government (Planning and Development) Regulations 1990 and 1994 and the EIA Regulations originally implemented the Directive into the planning control system. The 2000 Act and 2001 Regulations have superseded this regime. Part X of the 2000 Act now provides the framework for EIA in the planning process. The 2001 Regulations contain the procedural details.

Development which requires EIA

Mandatory EIA for development specified in Schedule 5

EIA is required for classes of development prescribed in regulations made under s 176 of the 2000 Act. These classes of development are set out in Schedule 5 to the 2001 Regulations (see Art 93, 2001 Regulations). Part 1 of Schedule 5 replicates Annexe I of the Directive. Part 2 replicates Annex II.

However, it also sets the thresholds or criteria which determine whether an Annex II project requires an EIA (as required by Art 4(2) of the Directive).

An environmental impact statement (EIS) must accompany a planning application made in respect of a development referred to in Schedule 5, which meets the specified thresholds and criteria. There is a distinction between the EIA, the procedure which assesses the likely environmental effects of a project, and the EIS, which is part of the information on which that assessment is based.

Outline planning applications may not be made in respect of development which requires an EIA (Art 96, 2001 Regulations).

 Mandatory EIA for sub-threshold development which is likely to have significant effects on the environment

Sub-threshold development is defined in Art 92, 2001 Regulations, as development of a type set out in Schedule 5 which does not exceed a quantity, area or other limit specified in that Schedule in respect of the relevant class of development.

Where a planning application for sub-threshold development is not accompanied by an EIS, and the planning authority or the Planning Board (the Board) on appeal considers that the development would be likely to have significant effects on the environment, it must require an EIS (Arts 103(1) and 109(2), 2001 Regulations).

Sensitive sites

Where a proposed development would be located on or in a European site, a proposed or designated Natural Heritage Area or a nature reserve or nature refuge, then the planning authority or the Board must make a specific decision as to whether the development would or would not be likely to have significant effects on the environment of such a site (Arts 103(2) and 109(3), 2001 Regulations).

The planning authority or the Board on appeal must have regard to the criteria set out in Schedule 7 to the Regulations in determining whether or not a sub-threshold development would or would not be likely to have significant effects on the environment. These include details regarding the characteristics, location and potential impacts of the proposed development. Professor Yvonne Scannell submits that regulatory authorities should always consider and decide whether or not to require an EIS for a sub-threshold development, regardless of whether or not it is located in or on a sensitive site, and that proper records should be kept of this decision (Arts 103(2) and 109(3), 2001 Regulations).

Exemptions

An applicant or person intending to apply for planning permission can request the Board to grant an exemption from the requirement to prepare an EIS. The Board may only grant an exemption in exceptional circumstances and only after having considered the observations of the relevant planning authority and whether the environmental effects of the development should be assessed in some other manner. Notice of the Board’s decision to grant an exemption and the reasons for doing so must be published in Iris Oifigúil and one daily newspaper (s 172(3) and (4), 2000 Act). A European site includes proposed and designated Special Areas of Conservation and Special Protected Areas (see s 2, 2000 Act).

Content of EIS

Article 94 of the 2001 Regulations prescribes the information which an EIS must contain:

(a) The information specified in paragraph 1 of Schedule 6:

• A description of the proposed development comprising information on the site, design and size of the proposed development.

• A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse affects.

• The data required to identify and assess the main effects which the proposed development is likely to have on the environment.

• An outline of the main alternatives studied by the developer and an indication of the main reasons for his/her choice, taking into account the effects on the environment.

(b) The information specified in paragraph 2 of Schedule 6 (which sets out further information by way of explanation or amplification of the information referred to in paragraph 1 above) to the extent that:

• It is relevant to a given stage of the consent procedure and to the specific characteristics of the proposed development and of the environmental features likely to be affected; and

• The person preparing the EIS may reasonably be required to compile such information, having regard, among other things, to current knowledge and methods of assessment.

(c) A non-technical summary of the above information. In 2002, the EPA also published new Guidelines on the Information to be Contained in EIS. These include guidelines on determining whether an EIS should be prepared for sub-threshold development. Local authorities are bound by these guidelines.

Scoping requests

Applicants for planning permission can request the planning authority and the Board, where appropriate, to give a written opinion on the information which should be contained in the EIS prior to submitting the planning application. This is known as a ‘scoping request’. This facilitates the preparation of an adequate EIS and reduces the likelihood of requests for further information once an EIS has been submitted, thereby avoiding delays. However, as noted by Patrick Sweetman (‘Recent developments in conveyancing practice - the European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999’ [1999] 6 IPELJ 110): to seek an opinion is to invite the planning authority to request a very much more comprehensive and wide-ranging EIS than might be warranted in the circumstances of a particular case.

The giving of a written opinion by the planning authority does not prejudice its powers to request further information (s 173 of the 2000 Act; Art 95 of the 2001 Regulations sets out the detailed procedure for scoping requests).

The Commission published Guidelines on Scoping in 2001.

Adequacy of the EIS

The planning authority or the Board must consider whether the EIS is adequate, ie whether it complies with Art 94 or, if it has given a written opinion pursuant to a scoping request, with that written opinion. Applications for judicial review of planning decisions often challenge them on the basis that the EIS was inadequate.

Consultation requirements

The public

The Directive requires that any request for development consent and any information gathered pursuant to Art 5 must be made available to the public in order to give them an opportunity to express their opinion before consent may be granted: Art 6(2). As noted by Lord Hoffmann in the House of Lords decision of Berkley v Secretary of State for the Environment [2000] 3 All ER 897: The directly enforceable right of the citizen which is required by the Directive is not merely a right to a fully informed decision on the substantive issues. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however, misguided or wrong-headed its views may be, is given an opportunity to express its opinion on the environmental issues.

The newspaper notice, which must be published in respect of a planning application, must also state that an EIS will be submitted to the planning authority and that it will be available for inspection or purchase for a reasonable fee: Art 98, 2001 Regulations. Where a planning authority requires an EIS for subthreshold development, the applicant must publish a further newspaper notice of its intention to submit an EIS. The public is, therefore, made aware of the development that requires an EIA and is entitled to make submissions or observations in relation to the EIS in accordance with planning legislation. The Commission has issued a Reasoned Opinion against Ireland stating that it is contrary to the EIA Directive to make comment by the public subject to a participation fee (currently €20). Similar provisions also apply in respect of appeals to the Board which involve an EIS: Arts 112 to 115, 2001 Regulations.

Prescribed bodies

The Directive also requires that Member States take the necessary measures to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the EIS and the proposed development: Art 6. Under the 2001 Regulations, the planning authority must send a copy of the EIS to the bodies it is required to notify in Art 28(2), stating that written sub-missions or observations can be made in relation to the EIS within five weeks of receipt by the planning authority of the EIS: Art 107, 2001 Regulations. For example, the authority must send a copy of the EIS to the EPA if the proposed development comprises or is for the purposes of an activity which requires an IPC licence or a waste licence, or to An Taisce and the Department of the Environment if it appears that the development might have significant effects in relation to nature conservation.

Transboundary states

The planning authority or the Board, in the case of an appeal or application for approval, must notify the Minister for the Environment, Heritage and Local Government (the Minister) of planning applications for proposed development which would be likely to have significant effects on the environment in a transboundary state: Art 104, 2001 Regulations. A transboundary state is defined as any state other than Ireland which is a Member State of the European Communities or a party to the UNECE Convention on Environmental Impact Assessment in a Transboundary Context, otherwise known as the Espoo (EIA) Convention. The Minister must then consult with the planning authority or Board in relation to:

(a) providing the state concerned with information on the proposed development, including the EIS; and

(b) consultations with the state in relation to the potential transboundary effects of the proposed development.

The planning authority or Board must then provide information to the state concerned and enter into consultations with it (Art 126, 2001 Regulations). The planning authority can also, having regard to the views of a transboundary state, require the developer to submit further information and notify certain persons in relation to the additional information received (Arts 128 and 129, 2001 Regulations).

The planning authority or Board shall not reach its decision until after the views if any, of the relevant transboundary state, have been received or consultations are otherwise completed (Art 130, 2001 Regulations).

The decision on the application

In reaching its decision, the planning authority or the Board on appeal must have regard to the EIS, any supplementary information relating to the EIS and any submissions or observations concerning the effects on the environment of the proposed development (s 173, 2000 Act).

3. EIA and other development control systems

 

Local authority development under Part X of the 2000 Act

Development by a local authority in its functional area is exempt development for the purposes of the 2000 Act and is not, therefore, subject to the EIA requirements discussed above in relation to private sector development: s 4(1), 2000 Act. Local authority development carried on outside its functional area is treated on the same basis as private sector development and is subject to the requirements discussed above). However, s 175 of the 2000 Act provides that local authority development in its functional area which belongs to a class of development listed in Schedule 5 to the 2001 Regulations cannot be carried out unless:

(a) the local authority has prepared an EIS;

(b) the Board has approved of the proposed development with or without modifications. (It should be noted that a local authority development which consists of road development within the meaning of the Roads Acts 1993 to 2001 is subject to a separate EIA regime under those Acts.)

The 2001 Regulations contain similar provisions regarding sub-threshold local authority development as noted above (Arts 117 to 124, 2001 Regulations). Where a local authority proposes to carry out sub-threshold development and it considers the development would be likely to have significant effects on the environment, it must prepare an EIS for submission to the Board. Similarly, a local authority must make a specific decision as to whether or not sub-threshold development in or on a sensitive site requires an EIS. The Board can also request an EIS be prepared in respect of sub-threshold development which it considers would be likely to have significant effects on the environment. The local authority or the Board must also have regard to the criteria set out in Schedule 7 when deciding whether a development is likely to have significant effects on the environment.

Section 175(4) also prescribes a public consultation process. The local authority must publish a newspaper notice stating its intention to apply to the Board for approval of the proposed development, that an EIS has been prepared, and that submissions and observations can be made to the Board relating to:

(a) The implications of the proposed development for proper planning and sustainable development in the area concerned; and

(b) The likely effects on the environment of the proposed development if carried out.

The local authority must also send a copy of the application and the EIS to certain prescribed authorities together with a notice stating that they may also make such submissions or observations (Art 121 of the 2001 Regulations sets out the prescribed authorities for the purposes of s 175). Under s 175(5), the Board can require a local authority to furnish additional information in relation to the effects on the environment of the proposed development. If the Board considers that the further information contains significant additional data, it must require the local authority to publish a further newspaper notice stating that submissions or observations can be made in relation to the additional information.

Before making a decision in respect of the proposed development, the Board must consider the EIS, any submissions or observations from the public and the prescribed authorities, the views of a transboundary state and the views of the EPA where requested under s 175(10). Section 175(10) relates to proposed local authority development, which comprises or is for the purposes of an activity for which an IPC licence or waste licence is required. The Board can consult with the EPA regarding such development. Like s 98 of the Environmental Protection Agency Act 1992, where the Board decides to approve the proposed development it shall not subject that approval to conditions which are for the purposes of controlling emissions. However, the Board can, notwithstanding the licensing of the activity, decide to refuse the proposed development where the Board considers the development is unacceptable on environmental grounds having regard to the proper planning and sustainable development of the area in which the development is or will be situated.

Road development

The Roads Acts 1993 to 2001 require that local authorities prepare an EIS in respect of certain proposed road development such as motorways, bus ways, a new road of four or more lanes and a new bridge or tunnel 100 m or more in length. Section 50(1)(d) of the Roads Act (as inserted by the European Communities (Environment Impact Assessment) (Amendment) Regulations 1999, SI 93/1999, Art 14) also provides that a local authority must prepare an EIS in respect of other types of proposed road development if they would be likely to have significant environmental effects on a sensitive site.

Section 50 of the Roads Act as amended by Art 14 of the European Communities (Environment Impact Assessment) (Amendment) Regulations 1999 prescribes the content of the EIS. The information that the EIS must contain is identical to that which is required for private sector development.

The local authority must then apply to the Board for approval of the road development under s 51, which application must include the EIS. Initially, the Minister for the Environment and Local Government was responsible for approving road development under s 51 of the Roads Acts. His functions have now been transferred to the Board under s 215 of the Planning and Development Act 2000. The EIS can be inspected by members of the public who can make written submissions to the Board regarding the likely effects of the proposed road development on the environment. The EIS must also be sent to various prescribed authorities for comment.

The Board can hold an oral hearing where it considers it necessary or expedient for the purposes of reaching its decision (European Communities (Environment Impact Assessment) (Amendment) Regulations 2001, SI 450/2001, Art 6). However, the inspector conducting the oral hearing into the compulsory acquisition of land for the proposed road development is entitled to hear evidence in relation to the likely effects on the environment of the road development (s 51(7)). The Board must also approve the compulsory purchase order at the same time. So, in practice, one oral hearing is held to consider both the environmental and compulsory acquisition issues relating to proposed road development.

The Board may, by order, approve the proposed road development with or without modifications or may refuse to approve it (s 51(6)).

Environmental licensing

The EPA does not have a statutory power to request an EIS of its own accord when considering whether or not to grant an IPC licence or a waste licence. However, where an application for planning permission for development (comprising or for the purposes of an activity which also requires an IPC licence) requires an EIS, then copies of the EIS must also be sent to the EPA. The EPA must consider the EIS in so far as the risk of environmental pollution is concerned and has the power to seek further information (Environmental Protection Agency (Licensing) Regulations 1994, SI 85/1994, Art 14). Similar provisions apply with respect to waste licensing (Waste Management (Licensing) Regulations 2001, SI 185/2000, Art 13). The EPAalso has environmental assessment functions under the European Communities (Natural Habitats) Regulations 1997 (SI 94/1997).

Other development control systems

The EIA procedure has also been incorporated into various other development control systems relating to, for example, development on the foreshore, arterial drainage, afforestation and oil and gas pipelines development.

4. Recurring issues regarding EIA

The decisions of regulatory authorities are often challenged by way of a judicial review on the basis of a failure to comply with EIA requirements. The following are some of the issues which have come before the Irish and European courts.

Requirement for EIA

The requirement for an EIA is a matter of law for the courts to determine. In Maher v An Bord Pleanála [1999] 2 ILRM 198, the applicant alleged that the Board’s failure to require an EIS for a 200-sow integrated pig-unit was in contravention of the EIA Regulations. The EIA Regulations provided that an EIA was mandatory for:

Pig rearing installations where the capacity would exceed 1,000 units on gley soils or 3,000 units on other soils and where units have the equivalents: 1 pig = 1 unit; 1 sow = 10 units.

The Board had excluded weaners and finishers from the calculation of the number of units. On that basis, the Board considered that the capacity of the installation would only be 2,208 units and that an EIA was not therefore required as it fell below the 3,000 unit threshold. Kelly J in the High Court held that the proper interpretation of the EIA Regulations and questions as to whether thresholds had been exceeded are matters of law to be decided by the courts. He stressed that since the EIA Regulations have their genesis in an EU Directive, they must be interpreted in accordance with the underlying purpose of the Directive: projects likely to have a significant effect on the environment must be subject to an EIA. Having regard to these purposes, Kelly J held that the Board had incorrectly included weaners and finishers among the 10 units attributed to a sow (although it was correct to include unweaned piglets). They ought to have been regarded as pigs attracting one point each which meant that the capacity of the piggery was well in excess of the 3000 unit threshold. An EIA was therefore required. As no EIA had been carried out, the Board’s decision to grant planning permission was fatally flawed and was accordingly quashed.

See also Shannon v Regional Fisheries Board and An Bord Pleanála [1994] 3 IR 449, where the High Court interpreted the word ‘sow’ purposively to include a pregnant gilt and rejected the Board’s contention that it was not entitled to interpret the EIA Regulations unless the Board’s decision could be classified as wholly irrational.

The matter is less clear when it comes to the role of the courts in determining whether an EIA is required for sub-threshold development. As noted above, where a planning authority considers that a sub-threshold development is likely to have significant effects on the environment, it must require an EIA.

In O’Nuallain v Dublin Corporation (unreported, 2 July 1999, High Court, Smyth J), the decision to grant planning permission for the Millennium Spike was challenged on the basis that an EIS should have been prepared. The High Court held that the Spike was an urban development project within the meaning of the EIA Regulations even though it fell well below the thresholds set for an EIA.

The EIA Regulations required an EIA for urban development projects comprising an area greater than two hectares within existing urban areas. However, the High Court found that the development would have significant effects on the environment noting that the planning authority should consider the positive as well as the negative impacts of the proposed development on the environment. Dublin Corporation was therefore obliged to carry out an EIA in respect of the Spike.

This decision can be contrasted with that of the Supreme Court in Lancefort v An Bord Pleanála [1998] ILRM 401. In this case, the applicants sought to challenge the Board’s decision to grant planning permission to develop what is now the Westin Hotel, office accommodation and a bank on the grounds inter alia that it involved the demolition of and interference with listed buildings.

Again, the development fell below the thresholds set for EIA. However, the applicants considered that it would unarguably have a significant effect on the environment and specifically the material assets and cultural heritage of the area (see Art 3 of the Directive, third indent). Accordingly, the applicants contended that the Board was obliged at the least to consider whether it should exercise its power to require an EIS for sub-threshold development. The Supreme Court held that the applicants, a limited liability company, did not have locus standing to challenge the Board’s decision primarily on the basis that it had been incorporated after the decision which it sought to challenge had been reached. However, the court did consider the merits of the case in determining whether the applicants had locus stand. The court said it would be unwilling to interfere with the exercise of the Board’s discretion unless it involved an abuse of power or grave default in the procedure. The Supreme Court also considered that it had not been shown that the failure to consider whether an EIS should have been prepared had the slightest effect on the attainment of the Directive’s objectives.

Adequacy of the EIS

The Irish courts have generally been proactive in determining whether or not an EIS is required. However, they have consistently deferred to the regulatory authorities regarding the adequacy of EIS. In Browne v An Bord Pleanála [1989] ILRM 865, Baron J took the view that it is solely for a planning authority to determine upon the sufficiency of an EIS. He considered that any other approach would be to turn an application for judicial review into a further appeal. A similar approach was taken by the High Court in Murphy v Wicklow County Council (unreported, 19 March 1999, High Court, Kearns J). The applicant had brought judicial review proceedings challenging the controversial decision of the Minister to approve a road-widening scheme through the Glen of the Downs nature reserve.

The High Court held that the Minister was the sole arbiter for determining the adequacy of compliance with the EIA Regulations. Kearns J considered that:

To interfere, the court would require being satisfied that there was virtually no material upon which the Minister could reasonably exercise his discretion to grant a certificate. It is not a function of the court to ‘second-guess’ the Minister or to apply standards of an extreme nature particularly when any review is taking place almost ten years after the EIS was first prepared.

Kearns J, therefore, adopted the test of unreasonableness laid down in O’Keefe v An Bord Pleanála [1993] 1 IR 39. This case established that an applicant must satisfy the courts that a decision-making authority had no information before it which would support its decision before a court would quash the decision.

This is subject to the caveat that the courts will intervene if the statutory requirements have not been complied with (for example, if the EIS fails to contain the basic information specified in Art 94 of the 2001 Regulations). Once the statutory requirements have been satisfied, the Irish courts will not concern themselves with the qualitative nature of the EIS unless the decision of the planning authority or the Board, that the EIS was adequate, was so unreasonable that it should be quashed. See also Kenny v An Bord Pleanála [2001] 1 IR 565 where the applicant unsuccessfully sought to impugn the decision of the Board to grant planning permission to Trinity College Dublin for the development of student accommodation at Trinity Hall, Dartry, on the grounds that the EIS was so defective that it did not comply with the statutory requirements.

Aine Ryall has argued that the courts should take a more robust approach regarding the adequacy of EIS in light of the ‘clear mandate from Luxembourg to enforce EIA law locally’. Ryall is of the view that the national courts are under a clear duty to review whether the information supplied in the EIS is sufficient to enable the competent authority to assess the likely environmental impacts of the proposed project (Aine Ryall, ‘Judicial review and the adequacy of the EIS: Kenny v An Bord Pleanála’ [2002] 9 IPELJ)

Multiple consents and s 98 of the Environmental Protection Agency Act 1992

Section 98 provided that, where a proposed development required an IPC licence, the planning authority or the Board could not have regard to the risk of environmental pollution when deciding whether to grant permission or when imposing conditions on the grant. The reason for this is that, in cases where an IPC licence is required, the EPAis the competent authority to consider matters relating to environmental pollution. Several cases have come before the courts alleging that this division of functions between the planning authorities and the EPA fails to implement the Directive.

In O’Connell v EPA (unreported, 21 February 2003, Supreme Court) the applicant sought to challenge the decision of the EPAto grant an IPC licence for a power plant. The heat output of the plant was such that it required an IPC licence but did not require an EIA. Neither the planning authority or the Board exercised its power to request an EIS for sub-threshold development when considering whether to grant planning permission (and, as noted above, the EPA does not have an express statutory power to require an EIS). The principal grounds of challenge were that:

(a) The licence sought was likely to have a significant effect on the environment and accordingly an EIS was required;

(b) The planning authority and the Board were precluded by s 98 from considering environmental pollution not only when deciding whether to grant permission but also in considering whether to demand an EIS;

(c) Therefore, in order to give effect to the Directive the court should interpret the powers of the EPA as including a power to demand an EIS, otherwise, the state is in breach of its obligations under EC law.

The Supreme Court held that the applicant’s argument regarding s 98 was mistaken. Section 98 prevented the planning authority and the Board from considering matters of environmental pollution only when making the substantive planning decision. This did not apply at the earlier stage when it was necessary to consider whether to require an EIS in sub-threshold cases. (The applicant may have stood a better chance if she had challenged the decisions of the planning authority or Board. Presumably, she missed the two-month time limit within which she had to file her application for leave to apply for judicial review.)

In the O’Connell case, the applicant unsuccessfully argued that s 98 resulted in a failure to require an EIS contrary to the Directive. Section 98 has also been challenged on the basis that the division of functions results in inadequate EIA. As noted above, Art 3 of the Directive requires an assessment of the interaction between the various factors which an EIA must consider. In Martin v An Bord Pleanála (unreported, 24 July 2002, High Court, O’Sullivan J), the applicant, a member of the No Incineration Alliance, was granted leave to apply for judicial review of, inter alia, the decision of the Board to hold an oral hearing regarding the application for a proposed incinerator on the basis that the system operated by the Board contravened the Directive. The key challenge is that by splitting the consideration of the potential effects of the incinerator between the Board and the EPA:

(a) All relevant considerations are not considered before the go-ahead is given for the construction of the plant (ie because it can receive planning permission before an IPC licence is granted); and

(b) Some environmental effects - especially those which can arise from the interaction between planning and environmental effects - are not considered at all.

However, the High Court, applying Campus Oil principles, refused the application for a stay of the Board’s proceedings until the court had determined, at the substantive hearing, whether the Directive had been correctly implemented into Irish law. In O’Brien v South Tipperary County Council (unreported, 22 October 2002, High Court, O’Caoimh J), the decision of a planning authority was challenged on very similar grounds. The respondents conceded that the applicant raised substantial grounds of a challenge but O’Caoimh J rejected their argument that an appeal to the Board was a more appropriate remedy. He also considered that the balance of convenience favoured the granting of a stay on an appeal to the Board. In this regard, O’Caoimh J attached significance to the fact that the applicant would be in a position to honour his undertaking as to damages (distinguishing the Martin case where the court considered that the applicant had only made a perfunctory undertaking as to damages).

The Commission also issued a reasoned opinion against Ireland in July 2001 arguing that s 98 results in a breach of Art 3 of the Directive (as there is no provision to ensure that the EIA will cover the interaction of factors mentioned) and of Art 8 (which requires that the competent authority take into account all the information gathered under Arts 5, 6 and 7).

We need to await the outcome of the courts’ decisions in Martin and O’Brien and possibly a decision of the ECJ for a final determination of the matter. It should, however, be noted that s 98 has since been amended by s 256 of the 2000 Act. Planning authorities and the Board are prohibited from imposing conditions for the purposes of controlling emissions (this is the function of the IPC licence). However, they can now refuse a grant of permission, notwithstanding the licensing of the activity, if it considers that the development is unacceptable on environmental grounds having regard to the proper planning and sustainable development of the area. This goes some way to remedying any perceived defects in the implementation of the Directive as the planning authority and Board can have regard to environmental effects in deciding whether to grant permission.

This division of functions between the EPAand local authorities also exists under the waste licensing regime (see s 54 of the Waste Management Act 1996). Section 54 has also been amended by s 257 of the 2000 Act so that planning authorities and the Board can refuse permission for development on environmental grounds notwithstanding the licensing of the activity.

Cumulative impacts

EIS have been challenged as being inadequate on the basis that they failed to take into consideration the cumulative impacts of existing development or other proposed development. As noted by Scannell, developers are not expected to enter the realms of speculation but the Advocate General in Bund Naturschutzin Bayern v Freistaat Bayern [1994] ECR I-3137 referred to projects within ‘current plans’ (Yvonne Scannell, Environmental Impact Assessment (Intensive Course on Planning Law 2002, Centre for Environmental Law and Policy)).

In O’Connell v O’Connell [2001] IEHC 69 (29 March 2001), the applicants’ argument that the EIS should have covered a possible future extension of the road was rejected by the High Court. Similarly, in Sloan v An Bord Pleanála (unreported, High Court, 7 March 2003), the High Court refused an application to challenge a decision of the Board confirming a proposed motorway scheme.

The principle ground of challenge was that the inspector conducting the oral hearing had wrongfully excluded evidence in relation to the cross-border route on the basis that it did not relate to the proposed development, the subject matter of the application. The High Court held that the inquiry did not require an investigation into a road, which would be the subject matter of a future scheme and a separate inquiry.

The ECJ has however condemned Ireland for failing inter alia to take into account the cumulative effects of certain projects in Commission v Ireland [1999] ECR I-5901. As noted above, Art 4(2) of the Directive requires that projects listed in Annex II must be the subject of an assessment where their characteristics so require. Member States can specify certain types of projects or may establish the criteria and/or thresholds necessary to identify such projects. In this case, the Commission challenged Irish legislation regarding EIS for afforestation, peat extraction and the use of uncultivated/semi-natural areas for intensive agricultural purposes. The legislation provided that only projects which exceeded certain size thresholds had to be subject to an EIS. The ECJ held that Ireland was in breach of the Directive as the thresholds failed to take the nature and location of the projects into consideration contrary to Art 2(1). The ECJ also stated that a Member State would exceed the limits on its discretion under Arts  2(1) and 4(2): where a Member State merely set a criterion of project size and did not also ensure that the objective of the legislation would not be circumvented by the splitting of projects. Not taking account of the cumulative effects of projects means in practice that all projects of a certain type may escape the obligation to carry out an assessment when taken together, they are likely to have a significant effect on the environment within the meaning of Art 2(1).

The European Communities (Environmental Impact Assessment) (Amendment) Regulations 2001 (SI 450/2001) were subsequently introduced to facilitate compliance with the ECJ’s decision. With regard to initial afforestation, the Regulations provide for the introduction of a statutory consent system by the Minister for the Marine and Natural Resources which provides for mandatory EIA above the reduced 50-hectare threshold and also provides for the possibility of sub-threshold EIA, where a project is likely to have significant effects on the environment. The threshold for mandatory EIA in relation to peat extraction has been reduced from 50 hectares to 30 hectares. The 2001 Planning Regulations also include a new planning threshold for peat extraction of 10 hectares. These EIA Regulations also amend the Wildlife (Amendment) Act 2000 and the European Communities (Natural Habitats) Regulations 1997 to allow for the possibility of EIA for peat extraction below the 10-hectare threshold in Natural Heritage Areas and Special Areas of Conservation, where a project is likely to have significant effects on the environment.

Substantial compliance

An issue that has been attracting some debate is whether ‘substantial compliance’ with the Directive is sufficient. The decision of the House of Lords in Berkeley v Secretary of State for the Environment [2000] 3 All ER 897 considers this issue. The applicant challenged the decision of the Secretary of State for the Environment approving the redevelopment of the Fulham Football Club ground at Craven Cottage on the grounds that he should have considered whether the project should have been subject to an EIA. Both the High Court and the Court of Appeal rejected his application on the basis that an EIA would not have altered the Secretary’s decision and that the objectors had not been prejudiced by the absence of an EIA. However, the House of Lords quashed the Secretary’s decision.

By the time the matter came before the House of Lords, the parties had agreed that the Secretary’s decision was ultra vires because of his failure to consider whether an EIA was required. They also agreed that the fact that his decision would have been the same did not remedy the situation. The issue before the House of Lords was whether there had been ‘substantial compliance’ with the Directive. Hoffmann LJ considered that an EIA by any other name would satisfy the requirements of the Directive provided that the procedure followed was ‘in substance’ an EIA. However, he rejected the argument that the equivalent of an EIS could be found in the documents submitted in this case, namely, the statement of case submitted by the developer, which in turn referred to the local authority’s statement of case, which in turn incorporated the report to the planning sub-committee which incorporated third party submissions! The public had access to all these documents and would have been entitled to express an opinion on them at the public inquiry. He stated as follows: My Lords, I do not accept that this paper chase can be treated as the equivalent of an environmental statement … The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in nontechnical language. It is true that Art 6(3) gives member states a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted.

But I do not think it allows member states to treat a disparate collection of documents produced by parties other than the developer and traceable only by persons with a great deal of energy and persistence as satisfying the requirement to make available to the public the Annex III information which should have been provided by the developer.

Hoffmann LJ did accept that a court could exercise its discretion not to quash a planning permission in a case where there was a failure to observe ‘a procedural step which was clearly superfluous to the requirements of the Directive’ without breaching the courts’ obligations under Community law. However, this was not such a case. See Aine Ryall, ‘Environmental assessment law: Berkeley v Secretary of State for the Environment’ [2001] 2 IPELJ for an analysis of this decision in the context of ECJ judgments regarding the Directive. Ryall submits that the judgments of the ECJ are sufficiently broad to be interpreted as requiring national courts to quash decisions taken in breach of the Directive.

She notes that the ECJ has acknowledged that a Member State could adopt an alternative assessment procedure provided that it satisfied the requirements of Arts 3 and Arts 5 to 10 of the Directive. However, in light of the ECJ’s determination to ensure that the effectiveness of the Directive is not undermined, it may take a strict approach if asked to provide a preliminary ruling on the substantial compliance issue.

The decision in Berkeley can be contrasted with the approach of the Supreme Court in the Lancefort case discussed at 7.4.1 above. Keane J was of the view that it had not been shown that the failure to consider whether an EIS should have been prepared had ‘the slightest adverse effect’ on the attainment of the Directive’s objectives. In particular, he noted that the public had access to the detailed plans lodged with the planning application and that an exhaustive public consultation process had been carried out. Ryall considers that the judgment suggests a minimalist approach to the requirements of the Directive in contrast to the approach taken by Hoffmann J in Berkeley. In particular, she notes that Keane J did not consider how the information supplied complied with the requirements of Arts 3 and 5 of the Directive. However, it is possible that the courts will take a different approach where the applicant has been granted locus stand.

The decision in Berkeley also raises questions regarding excessive requests by decision-making bodies for further information on the EIS.

Qualified consents

As noted above, outline planning permission is not permissible where an EIS is required for the reason that an outline application would not contain sufficient details to enable the likely significant effects on the environment to be described and to then identify the requisite mitigation measures. Similar concerns arise regarding ‘qualified consents’, ie consents which leave certain matters to be addressed at a later stage. An acommon example is a planning permission which contains conditions that certain matters, such as landscaping or wastewater treatment, must be the subject of a future agreement with the planning authority. The leading case in this area is Boland v An Bord Pleanála [1996] 3 IR 435. The courts are of the view that some degree of flexibility must be left to developers engaged in a complex development. The extent to which flexibility is permissible in a planning permission is largely a matter of degree.

These types of condition raise concerns regarding public participation requirements and the abdication by the authorities of their responsibilities (and particularly of the Board if it remits matters to be decided between the developer and the planning authority). However, they also raise questions regarding compliance with the EIA Directive.

In McNamara v An Bord Pleanála [1995] 2 ILRM 125, the High Court held that substantial grounds for granting leave to apply for judicial review included the fact that a condition in the planning permission required the large-scale excavation of sand and gravel below the waterline. An EIA may have been required for this development and the planning authority should have required further information from the developer on the environmental effects of this condition. Similarly, in Houlihan v An Bord Pleanála (unreported, 4 October 1993, High Court, Murphy J), the High Court held that most of the conditions requiring future agreement were valid as they concerned matters of detail. However, it held that the Board had improperly abdicated its responsibilities by imposing a condition which required the effluent discharge to be re-routed in an easterly direction in a manner to be agreed with the planning authority. The Board should at least have prescribed that the main should be re-routed along a wide but defined pathway with the particular route to be agreed with the planning authority.

A recent decision of the English courts goes much farther than this. In R v Cornwall County Council ex p Hardy [2000] Env LR 25, ecological surveys revealed the possible existence of a habitat for bats. The planning authority considered that the development did not raise any significant nature conservation issues and granted planning permission. However, the permission was subject to conditions prohibiting the commencement of the development until additional surveys had been carried out and, if such habitats existed, the approval of mitigatory measures. The High Court considered that the planning authority could not rationally have decided that nature conservation aspects did not amount to significant adverse effects until it had the results of the surveys. This information should have been included in the EIS, otherwise, the authority could not comply with the EIA Regulations. The authority must have all the information it needs to assess the likely significant effects of the project before it reaches its decision.

Professor Scannell submits that it is permissible to impose conditions reserving matters for future approval or agreement, provided the reserved matters deal with the proposed development, the likely significant impacts of which are capable of being assessed at the initial consent stage. As was the case in Hardy, the developer can do this by providing a worst case scenario. The planning authority can then impose conditions requiring that these effects be mitigated in the event that the worst case scenario occurs.

Subsequent modifications

Paragraph 13 of Annex II to the Directive includes: Projects which involve any change or extension of projects listed in Annexe I or Annex II already authorised, executed or in the process of being executed, which may have significant effects on the environment.

So projects which may already have been the subject of an EIA will require a further EIA if they have been modified in a manner which is likely to have significant effects on the environment. See Commission v Germany [1995] ECR I-02189, where the ECJ held that a project which comes within Annexe I must undergo an EIA irrespective of whether it is a separate project, will be added to a pre-existing project or even if it has close functional links with the pre-existing project. A project which comes within Annexe I cannot come within the category of ‘modifications to development projects included in Annexe I’ mentioned in paragraph 12 of Annex II for which an optional assessment is provided.

The EIA Directive will be expressly amended to incorporate the ECJ’s decision by adding a new class of projects to Annex I to include: any changes to or extension of projects listed in this Annexe where such a change or extension in itself meets the appropriate criteria or threshold set out in this Annexe.

As noted above, Member States must determine on a case-by-case basis and/or on the basis of thresholds or other criteria whether or not an Annexe II project should be subject to EIA. The 2001 Regulations (paragraph 13, Part 2, Schedule 5, 2001 Regulations) require an EIA for any change or extension of development which would:

(a) Result in the development being of a class listed in Part 1 or paragraphs 1 to 12 of Part 2 of Schedule 5; and

(b) Result in an increase in size greater than 25% or an amount equal to 50% of the appropriate threshold, whichever is the greater.

It is questionable whether the thresholds have been set too high. In addition, it does not appear to cover modifications to a development which was already in a class listed in Schedule 5.

Modifications to road development which have already been approved by the Minister, now the Board, under the Roads Acts have given rise to some challenges. As noted above, certain road development is subject to a separate regime under the Roads Act. Unlike the planning regulations, the Roads Acts do not contain any express provisions regarding modifications to road development post statutory approval.

In the decision of O’Connell v O’Connell noted above, the applicant sought to argue that the EIS was inadequate on the basis that it did not consider the effects of a subsequent omission of a 1 km stretch of road. The High Court refused to amend the applicant’s grounds for judicial review in this regard holding that the EIS covered the effects of such an omission. This case is not, strictly speaking, a case of modification post approval (as the scheme was modified on the last day of the oral hearing). However, it raises similar issues regarding the adequacy of the EIA.

The development of the M50 through an archaeological site at Carrick mines also raised these issues. The Minister approved the road development in 1998. In 2001, subsequent modifications were proposed in order to preserve more of the site. An application was made to the Board requesting a further EIS under the Roads Acts in respect of these modifications.

The Board refused to direct the road authority to prepare a further EIS as the modifications:

(a) Did not significantly alter the proposed development from that previously approved and that the development remained, in essence, the same as that for which approval had previously been obtained; and

(b) Would not of themselves have significant adverse effects on the environment and accordingly do not comprise a project specified in paragraph 13 of Annex II of the EIA Directive.

In DeFreitas Waddington v An Bord Pleanála (unreported, 21 December 2000, High Court, Butler J) where the applicant sought judicial review of the Board’s decision to grant permission for a 60 m riverside quay extension which was adjacent to a Special Protection Area (SPA). The High Court held that the Board had already conducted an EIA for the previous development of the quay and in any event was entitled to conclude that that the proposed extension was not ‘likely to have a significant effect’ on the site under Regulation 27 of the European Communities (Natural Habitats) Regulations 1997. Accordingly, leave to apply for judicial review was refused.

 5. The ECJ and the Directive

There is extensive European case law on the EIA Directive. Unfortunately, it is not within the scope of this book to consider this in detail. However, the following are some important points to note:

(a) Individuals may invoke the obligations imposed on the Member States by the EIADirective in proceedings before the national courts to consider whether the legislative or administrative authorities have remained within the limits of their discretion, as set out in the Directive. See Luxembourg v Linster [2000] ECR I-06917; WWF and Others v Autonome Provinz Bozen [1999] ECR I-05613; and Kraaijeveld [1996] ECR I-054030.

(b) Individuals can call on the national courts to set aside national rules or measures incompatible with the provisions of the Directive. As noted by Aine Ryall, it appears that the national court is also obliged to quash a planning decision taken in breach of the requirements of the Directive. However, this point is not settled. The ECJ in its case law has referred to national ‘provisions’, ‘rules’ and ‘measures’ that must be set aside, rather than expressly, stating that individual planning decisions taken in breach of the Directive must be quashed. However, Ryall submits that the ECJ’s ruling in Kraaijeveld is sufficiently broad to be interpreted as requiring national courts to quash such decisions.

(c) Member States cannot exclude, from the outset and in their entirety, from the EIA procedure certain classes of Annex II projects or specific projects unless the specific project or those classes of projects ‘in their entirety’ could be regarded, on the basis of a comprehensive assessment, as not being likely to have significant effects on the environment (the Bozen case).

(d) Member States are entitled to use an assessment procedure other than the procedure introduced by the Directive provided that it satisfies the requirements of Art 3 and Arts 5 to 10 of the Directive, including the public participation requirements laid down in Art 6 (the Bozen case).

6. New developments

Strategic environmental impact assessment

The EIA Directive discussed above requires an environmental assessment of certain projects. Directive 2001/42/EC on the assessment of certain plans and programmes on the environment, as its name suggests, requires that certain plans and programmes, which provide a framework for the development consent of projects, be assessed for their environmental effects. (Plans and programmes are defined as plans and programmes, including those co-financed by the European Community, as well as any modifications to them, which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions.) This is known as strategic environmental assessment (SEA) and this Directive is often referred to as the SEA Directive.

The SEA Directive was adopted on 21 July 2001 and must be transposed by 21 July 2004. The essential objective of the SEA Directive is the same: to ensure that the environmental effects of plans and programmes are taken into consideration during their preparation and before their adoption. The SEA Directive is also of a procedural nature.

Scope of the SEA Directive: Art 3

Under the SEA Directive, an environmental assessment must be carried out for all plans and programmes which:

(a) Are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexe I and II to the EIA Directive; or

(b) In view of the likely effect on sites, have been determined to require an assessment under Arts 6 or 7 of the Habitats Directive 92/43/EEC.

However, these types of plans and programmes which determine the use of small areas at the local level and minor modifications to these plans and programmes will only require an environmental assessment where the Member States determine that they are likely to have significant environmental effects. Similarly, any other types of plans and programmes, which set the framework for development consent of projects, will only require an assessment if they are likely to have significant effects on the environment. Member States must determine whether these plans and programmes are likely to have significant environmental effects on a case-by-case basis and/or by specifying certain types (taking into account the criteria set out in Annex II).

The SEA Directive does not apply to certain plans and programmes eg those whose sole purpose is to serve national defence or civil emergency.

Environmental assessment: Arts 4 to 9

The requirements of the SEA Directive must be integrated into existing procedures or into procedures established to comply with the Directive. The environmental assessment must be carried out before the adoption of the plan or programme and is defined in Art 2(b) as: the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Arts 4 to 9.

This definition neatly summarises the requirements of the SEA Directive. An environmental report must be prepared in which the likely significant effects on the environment and reasonable alternatives are identified and evaluated. The information which the report must contain is set out in Annex I. This includes inter alia the contents of the plan or programme and its main objectives, any relevant existing environmental problems, relevant environmental protection objectives, the likely environmental effects and mitigation measures. Like the EIA Directive, the report must also include a non-technical summary of the information. The public, certain authorities by virtue of their specific environmental responsibilities and affected Member States must be consulted. Their views and the environmental report must be taken into account during the preparation of the plan or programme and before its adoption. An environmental assessment carried out under the SEA Directive shall be without prejudice to any requirements under the EIA Directive and any other Community law requirements. However, Member States may provide for coordinated or joint procedures for plans and programmes which require an environmental assessment under both the SEA Directive and other Community legislation (Art 11).

SEA in Ireland

As noted by Professor Scannell, there has been some informal SEA in Ireland already. The National Development Programme 2000–2006 and other programmes for investment in infrastructure have been subjected to eco-audits. Under the 2000 Act, development plans, local area action plans and regional planning guidelines must also contain information on the likely effects on the environment of implementing the plan.

Public participation and access to information on the environment

In May 2003, the Council adopted Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Council Directives 85/337/EEC and 96/61/EC. This Directive amends the EIA Directive in order to comply with the Community’s obligations arising under the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (otherwise known as the Aarhus Convention). This Directive still has to be formally approved and will come into effect two years from the date of its publication in the Official Journal. The text of the approved Directive is published as OJ L156/17, 25/6/03.

Current information indicates that the new Directive contains the main elements of the Commission’s proposal. This amends Art 6 of the EIA Directive to ensure fuller public participation in the EIA procedure. Article 6 previously just provided that the information gathered under Art 5 had to be made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before the development consent was granted. Article 6, as amended, should ensure greater public participation as it specifies that the public is given an early and effective opportunity to participate in the development consent procedure and that it be informed, whether by public notices or other means, of certain specified information. The public concerned must then be entitled to express comments and opinions to the competent authority before it reaches its decision.

The Commission proposal also inserts a new Art 10(a) which provides that Member States must ensure that the public concerned has access to a review procedure before the courts or other body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the EIA Directive. This procedure must be expeditious and must not be prohibitively expensive. Irish legislation would already appear to comply with these amendments regarding public participation and the availability of a review procedure.

The Council has also adopted a new Directive 2003/4/EC on public access to environmental information. This Directive must be implemented by 14 February 2005 and will replace the current Directive 90/313/EEC on the Freedom of Access to Information on the Environment. This Directive also seeks to ensure compliance with the Community’s obligations under the Aarhus Convention regarding access to environmental information. The objectives of the Directive are to guarantee the right of access to environmental information held by or for public authorities and to ensure that environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information (Art 1). These Directives, therefore, complement the EIA and SEA Directives.

 

 

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