Environmental Assessments and Planning in Ireland - The ...

 
Environmental Assessments and Planning in Ireland - The ...
Environmental
Assessments
and Planning
in Ireland

                Planning
                  Leaflet   11
Environmental Assessments and Planning in Ireland - The ...
Environmental
Assessments
and Planning
in Ireland
Assessments of environmental issues in the
planning process, both in relation to preparing
plans and deciding on planning applications
and appeals, have become much more common
in recent years in Ireland. This is as a response
to both pressing environmental challenges
and requirements under EU and national law.
Environmental Assessments and Planning in Ireland - The ...
Environmental Assessments and Planning in Ireland • 3

Introduction                                       area. This ensures that any potential impacts
This leaflet is intended as a practical guide to   on the environment are considered at a
three of the most common assessments:              strategic level.

• Strategic Environmental Assessment (SEA),        The EU SEA Directive, transposed into Irish
  undertaken at the policy level when plans        law, sets out various requirements in the
  (development plans, local area plans, etc.)      conduct of SEA, some principal features of
  are being developed;                             which in the plan-making area are set out in
• Environmental Impact Assessment (EIA),           Question 3.
  undertaken at the project assessment
  (planning application/consent) stage; and        Statutory guidelines on carrying out SEA in
• Appropriate Assessment (AA), considered at       the plan-making area were published by the
  both plan and project stages.                    Minister for Housing, Local Government and
                                                   Heritage in November 2004 and amended
These assessments, along with other                in 2011. The guidelines are accessible at the
environmental requirements including               following link:
water, air quality and waste management are
intended to ensure that proper planning and        https://www.opr.ie/wp-content/
development is based on the principles of          uploads/2019/08/2004-Implementation-of-
sustainable development.                           the-SEA-Directive-2.pdf

This leaflet is not a definitive legal             2. Why is SEA required?
interpretation. The law in relation to the         SEA informs plans or programmes by
above assessments is detailed and if in doubt,     considering which options fit best with wider
you should contact your local planning             environmental policies and obligations such
authority (city or county council) and/or          as climate change, water, air quality and
suitably qualified professionals.                  biodiversity.

Strategic Environmental                            In addition, the plan-making process is
Assessment                                         designed to promote participation by all
1. What is Strategic Environmental                 citizens, groups and organisations that may
Assessment?                                        have particular environmental interests
Strategic Environmental Assessment (SEA) is        and functions. SEA helps to inform all the
a process for evaluating the environmental         stakeholders in the plan-making process
consequences of certain plans or                   to achieve more environmentally sound
programmes, including development plans            planning policies.
and local area plans in the spatial planning
Environmental Assessments and Planning in Ireland - The ...
Environmental Assessments and Planning in Ireland • 4

3. What are the main features of                  Consultation with the public and
the SEA process?                                  environmental authorities for the SEA
Once it is established that a plan requires       Environmental Report and the draft
SEA to be undertaken, the process begins          plan is also required. Transboundary
with an initial scoping stage, to help identify   consultation may also be necessary with
the range of environmental issues that            other administrations, under international
should be covered by the SEA process and          law requirements, where that administration
in the report known as an Environmental           may be impacted by the plan.
Report.
                                                  The planning authority must consider both
As draft plans are prepared the                   the SEA Environmental Report and the
Environmental Report is also prepared as an       submissions made during the consultation
integral part of the process to help identify     process before deciding whether to adopt or
likely significant environmental effects and      modify the draft plan. In making the decision
to inform the plan-making process.                on the plan, the planning authority must
                                                  set out how SEA influenced its decision and
This ensures that any environmental               also must agree to implement monitoring
issues that arise out of the SEA process are      systems to check that the environmental
addressed in the development of the plan.         provisions of the plan are working, following
                                                  the plans adoption.
Environmental Assessments and Planning in Ireland - The ...
Environmental Assessments and Planning in Ireland • 5

Environmental Impact                            permission for a development proposal, the
Assessment                                      planning authority or An Bord Pleanála fully
4. What is Environmental Impact                 understands the significant effects it is likely
Assessment?                                     to have on the environment and has factored
Environmental Impact Assessment (EIA)           that in to the decision.
is a process of assessment of the effects
of a project or development proposal on         Statutory guidelines on carrying out EIA were
the environment. In the planning area, it       published by the Minister for Housing, Local
is undertaken by a planning authority or        Government and Heritage in August 2018
An Bord Pleanála during the consideration       and are accessible at the following link:
of applications for planning permission,
taking account of an Environmental Impact       https://www.opr.ie/wp-content/
Assessment Report (EIAR). An EIAR is a report   uploads/2019/08/2018-Environmental-
or statement of the effects, if any, which      Impact-Assessment-1.pdf
the proposed project, if carried out, would
have on the environment. The EIAR must be       5. How is an EIA carried out?
prepared by, or on behalf of the developer,     The EIA process is made up of five steps as
by qualified and competent experts. The         follows:
EIAR informs the EIA process.
                                                i. An Environmental Impact Assessment
EIA identifies, describes and assesses the           Report (EIAR) is prepared by the
direct and indirect effects of a proposed            developer and submitted with the
project in relation to the following                 planning application. Details must be
environmental factors:                               published in the newspaper notice and
                                                     site notice accompanying the planning
a. population and human health,                      application;
b. biodiversity, with particular emphasis on    ii. The planning authority must carry
   species and habitats protected under EU           out consultations, including public
   Directives,                                       consultation;
c. land, soil, water, air and climate,          iii. The planning authority must carry
d. material assets, cultural heritage and the        out an examination of the EIAR,
   landscape, and                                    any supplementary information
e. the interaction between the factors               provided by the developer and any
   mentioned in (a - d).                             relevant information received through
                                                     consultations;
The purpose of EIA is to protect the
environment by ensuring that before
deciding whether to grant planning
Environmental Assessments and Planning in Ireland - The ...
Environmental Assessments and Planning in Ireland • 6

iv. The planning authority must provide a        7. When is EIA required for sub-
    reasoned conclusion on the significant       threshold development?
    effects of the project on the environment,   Some of the classes of development listed in
    taking into account the results of the       Schedule 5 above have thresholds beyond
    examination and, where appropriate, its      which there is a mandatory requirement for
    own supplementary examination; and           EIA. If the proposed development is listed
v. The reasoned conclusion must then             as a class of development but is below the
    be integrated into the decision of the       threshold, it is referred to as sub-threshold
    planning authority.                          development.

Within the steps above, there can be other       In these cases, the planning authority must
important inputs such as screening for EIA       consider if the proposed development is
and determining the scope of an EIAR. These      likely to have any significant effects on
are dealt with in Questions 8 and 12 below.      the environment that should be assessed
                                                 through the EIA process. This is known as
6. When is an EIA mandatory?                     ‘EIA screening’.
The carrying out of an EIA is mandatory for
the types of development listed in Part 1        8. EIA Screening
or Part 2 of Schedule 5 to the Planning and      For relatively simple cases, screening can be
Development Regulations 2001, as amended.        done through a ‘preliminary examination’ of
These are developments considered to             the proposal. However, if there is any doubt
be likely to have significant effects on the     as to whether an EIA is required, a more
environment. Examples of projects include        detailed process known as a ‘screening’ must
certain power stations, airports, railways,      be carried out and concluded in a ‘screening
ports, waste disposal activities and certain     determination’ by the competent authority
overhead power lines, pig and poultry            (i.e. the planning authority in this instance).
farms and larger housing (>500 dwellings)        The decision as to whether a preliminary
and retail (> 10,000 square metres area)         examination or screening determination is
developments.                                    required is made by the planning authority.

EIA is also mandatory for certain categories     No additional documentation is required
of changes or extensions to an existing          to be submitted with the application
development, for example, an extension to a      where a proposal can be considered under
pig farm over a certain size.                    ‘preliminary examination’. If a ‘screening
                                                 determination’ is required, the developer
                                                 must submit certain information, known as a
Environmental Assessments and Planning in Ireland • 7

Schedule 7A Report or EIA Screening Report,       (a) the characteristics of the proposed
to the planning authority.                            development (including scale,
                                                      demolition, use of natural resources,
The planning authority must also notify the           waste production, pollution and risk of
developer of its decision if it has carried out       major accidents);
a screening determination, and this must          (b) the location proposed (including
be done within eight weeks (except for                environmental sensitivity and absorption
exceptional circumstances). There is no such          capacity); and
requirement for notification in the case of a     (c) the type and characteristics of potential
preliminary examination.                              impacts (including the size of the area
                                                      affected, the scale of the impact, how
When making a determination in relation to            likely the impact is to occur and the
screening for EIA, the planning authority will        duration of any impact).
consider the following:
                                                  Where the planning authority decides that
                                                  there is no real likelihood of significant
                                                  effects on the environment, then an EIA (or
                                                  EIAR) is not required.
Environmental Assessments and Planning in Ireland • 8

Where the planning authority decides that         9. What is an application for a
there is a real likelihood of significant         screening determination and how
effects on the environment then the               is it made?
developer must prepare and submit an EIAR,        A separate application for a screening
and the planning authority must carry out         determination can also be made to the
an EIA.                                           planning authority independent of the
                                                  planning application process. The planning
In the case of appeals to An Bord Pleanála,       authority must issue a decision within a
it is also required to carry out EIA screening,   statutory period of either three or four weeks
where relevant, even if the process has           (depending on the circumstances). Where
already been undertaken by the planning           the applicant disagrees with the outcome,
authority. In these cases, the outcome of a       or where the planning authority has not
screening determination may be notified to        issued its determination within the statutory
the developer before the planning appeal          period, the matter can be referred to An Bord
decision because of the different timeframes      Pleanála for review.
involved.
Environmental Assessments and Planning in Ireland • 9

Under this process, a screening for             information, the planning authority has a
Appropriate Assessment (see Question 20         further three weeks to give a written scoping
below) must be carried out by the planning      opinion.
authority or An Bord Pleanála, at the same
time.                                           There is no obligation for public participation
                                                at this stage, however, the scoping opinion
10. Can a member of the public                  must be made public and the planning
seek a screening determination                  authority is permitted to take into account
in respect of a local authority                 any unsolicited submissions made by
development?                                    members of the public.
Any person may apply to An Bord Pleanála
for a screening determination where a           13. What is an Environmental
local authority proposes to carry out a         Impact Assessment Report
development and he/she considers that           (EIAR)?
the development would be likely to have         An EIAR is a document that provides
significant effects on the environment.         information on the direct and indirect
                                                impact(s) that a proposed project is likely to
11. Do the exempted development                 have on the environment. An EIAR must be
provisions apply to development                 prepared by, or on behalf of the developer,
where EIA is required?                          by qualified and competent experts, and
The provisions relating to an exemption         decision-makers must ensure they have
from the need to obtain planning permission     sufficient expertise to examine the EIAR.
(exempted development) do not apply if EIA
is required.                                    In general, the EIAR should include the
                                                following:
12. What is involved in the
scoping process?                                • a description of the project, including
A developer may also request the planning         information on the site, design, size and
authority to provide an overview of the           any other relevant features of the project;
information likely to be important during       • a description of the likely significant effects
EIA, this is termed as ‘scoping’. The scoping     of the project on the environment;
opinion should set out the range and level      • a description of the features of the project
of detail required in the EIAR. Where such a      and/or measures envisaged in order to
request is received, the planning authority       avoid, prevent or reduce and, if possible,
must give notice to specified bodies and          offset likely significant adverse effects on
request their observations within four weeks      the environment;
of such notice. Subject to having sufficient
Environmental Assessments and Planning in Ireland • 10

• a description of the reasonable alternatives   within the time limit and accompanied by
  studied relevant to the project and an         the fee must be considered by the planning
  indication of the main reasons for the         authority in its decision.
  option chosen, taking into account the
  effects of the project on the environment;     15. Will I be notified of the
  and                                            planning application decision on
• a non-technical summary.                       cases involving EIAR?
                                                 The planning authority will inform all
14. How can members of the                       persons, who made a valid submission, of
public participate in the EIA                    its decision. Any member of the public who
process?                                         made a valid submission can appeal the
The EIA process allows for a large degree        decision of the planning authority to An Bord
of public involvement. The EIAR may be           Pleanála.
inspected at the offices of the relevant
planning authority and a copy can be             Following recent changes to planning
purchased there. The public are notified         legislation, a grant of permission must
of any planning application that is              include more information than it did
accompanied by an EIAR through the               previously, including:
following means:
                                                 • the reasoned conclusion of the competent
• the public notices published by the              authority on the significant effects on the
  developer;                                       environment;
• the weekly lists of planning applications      • any environmental conditions attached;
  published by the planning authority;           • a description of any features and measures
• access to application particulars via the        envisaged to avoid, prevent or reduce
  planning authority’s website and through         and, if possible, offset significant adverse
  their offices; and                               effects on the environment; (‘mitigation
• the Department of Housing, Local                 measures’); and
  Government and Heritage’s dedicated            • monitoring measures, where appropriate.
  EIA Portal which hosts the details of all
  EIA applications to various competent          Any decision to refuse development must
  authorities in Ireland, including those to     also state the main reasons for refusal.
  planning authorities.
                                                 The planning authority must give careful
Members of the public have a period of           consideration to the conclusion of the
five weeks from the receipt of a planning        EIA process as to whether the proposed
application to make submissions to the           development is likely to have significant
planning authority. The required fee is €20,
and any submissions that are received
Environmental Assessments and Planning in Ireland • 11

effects on the environment after mitigation    16. Environmental Impact
measures are taken into account.               Assessment and Appropriate
                                               Assessment
However, planning permission can still         In many cases an application for
be granted even if some negative effects       development consent will involve both EIA
are identified, as the planning authority      under the EIA Directive and an Appropriate
must weigh up this conclusion against the      Assessment (AA) carried out under
arguments in favour of the development.        the Habitats Directive. EIA is a holistic
                                               assessment of the potential impact on the
A negative assessment does not, therefore,     overall environment, whereas AA is a specific
necessarily dictate that a proposed project    assessment dealing with designated areas
must be refused permission (this differs       that are ecologically sensitive. While there
to the Appropriate Assessment process,         may be some overlap between these two
detailed below in Question 17). In addition,   assessments, there are also significant
as in any case of a grant of planning          differences.
permission, the granting of such permission
does not remove the developers statutory       Appropriate Assessment
obligations or requirements under any other    17. What is Appropriate
statutory enactments or regulations.           Assessment?
                                               An Appropriate Assessment (AA) is a
                                               detailed study of the likely impacts of a
                                               proposed plan or project on the ecology of
                                               a designated European site (also known as a
Environmental Assessments and Planning in Ireland • 12

Natura 2000 site). A plan or project can only   18. Who carries out AA for plans
be approved, where it can be demonstrated       and projects?
beyond reasonable scientific doubt, that it     Both plans and projects are subject to the
will not negatively affect the integrity of a   AA process. In the case of plans, such as
Natura 2000 site.                               county and city development plans or local
                                                area plans, the process is carried out by the
The EU Birds Directive in 1979 and the          planning authority, who must be satisfied
Habitats Directive in 1992 established          that the plan would not adversely affect the
the Natura 2000 network of sites of the         integrity of a Natura 2000 site before the plan
highest biodiversity importance for rare and    is adopted.
threatened habitats and species across the
EU.                                             In the case of projects, the AA process is
                                                carried out by the planning authority or An
National guidance for planning authorities      Bord Pleanála prior to deciding whether or
on AA of plans and projects in Ireland was      not to grant planning permission. Where
published by the Department of Housing,         relevant, AA must be carried out by An Bord
Local Government and Heritage in 2009           Pleanála on appeal, even if it has already
and updated in 2010 and is available at the     been undertaken by the planning authority.
following link:
                                                19. What is a Natura 2000 Site?
http://www.npws.ie/sites/default/files/         Natura 2000 is a pan-European network
publications/pdf/NPWS_2009_AA_Guidance.         of ecologically important sites. A Natura
pdf                                             2000 site is a site that has been designated
                                                as a nature protection area as part of the
Environmental Assessments and Planning in Ireland • 13

network. There are two types of Natura            AA is required if a plan has potential to
2000 site that are subject to Appropriate         have a significant effect on the Natura 2000
Assessment. They are Special Areas of             network, or if the effects are uncertain.
Conservation (SACs) and Special Protection        Where AA is required for a plan, a Natura
Areas (SPAs). These sites are designated          Impact Report (NIR) must be prepared to
areas for the protection and conservation         address the implications of the plan, on its
of certain habitats and species. Each Natura      own or in combination with other plans or
2000 site has site-specific conservation          projects, on the Natura 2000 network. The
objectives which aim to define favourable         NIR addresses issues including mitigation,
conservation conditions for a particular          alternatives, IROPI and compensatory
habitat or species at that site.                  measures, as necessary. The NIR is placed
                                                  on display with the draft plan as part of the
Appropriate Assessment only applies to            public consultation process.
SACs and SPAs. It does not apply to other
ecologically designated areas such as             The AA process informs the formulation
Natural Heritage Areas or National Parks.         of the plans policies and objectives and
                                                  decisions made relating to these.
20. What is screening for AA?
The screening process determines whether          The final plan must include a statement
or not a plan or project requires an AA of        summarising how the ecological
the likely significant impacts on a Natura        considerations in relation to Natura 2000
2000 site. In order for a plan or project to be   sites have been integrated into the plan and
screened out from requiring AA, it must be        an AA conclusion statement.
proven beyond scientific doubt, that no such
significant impacts are likely to result from     22. If AA is required for a project
the implementation of the proposed plan or        or development proposal
project.                                          what documentation must be
                                                  submitted?
No mitigation measures can be relied upon         If AA is required for a project or development
to reach this conclusion. If there is any         proposal, a Natura Impact Statement (NIS)
doubt, then the plan or project should be         must be submitted to the planning authority
screened in and a full AA must be carried out.    (as the competent authority for the purposes
                                                  of decision-making under the Directives) by
21. What happens if AA is                         the applicant. This is a scientific study of the
required for a plan?                              likely impact of the proposed development
AA screening for plans takes place in tandem      on the integrity of the Natura 2000 site that
with the preparation of the Issues Paper.         may be affected.
Environmental Assessments and Planning in Ireland • 14

Members of the public have an opportunity        to An Bord Pleanála and submit a NIS. The
to make a submission to the planning             local authority must publish notices and
authority during the five week consultation      the public have the opportunity to make
period.                                          submissions.

The planning authority must then consider        Any member of the public who believes
the NIS, any other relevant information          a proposed local authority development
submitted with the application, and any          would likely impact significantly on a Natura
submissions made during the consultation         2000 site can apply to An Bord Pleanála for a
period, including by members of the public.      determination as to whether this is the case.
The AA will consider if the potential impacts
identified at the screening stage can be         If An Bord Pleanála agrees with the person
avoided or reduced through the application       who made the submission the local authority
of mitigation measures so that no adverse        is required to prepare a NIS and apply for
effects on the integrity of the Natura           permission from An Bord Pleanála.
2000 site will result from the proposed
development.                                     Conclusion
                                                 The law governing the planning system,
23. What are the subsequent                      including SEA/EIA/AA requirements is
stages of AA?                                    extensive and is set out in the Planning and
If the AA process concludes that adverse         Development Act 2000, as amended, and
effects cannot be ruled out, alternative         the Planning and Development Regulations
routes can be pursued in order to enable a       2001, as amended. You can purchase
grant of planning permission. These routes       these from the Government Publications
include the examination of alternative           Sales Office, telephone (01) 6476834 or at
solutions, and a specific statutory process      publications@opw.ie or download them
where it is considered that the projects         for free from the Department of Housing,
should be allowed to proceed for Imperative      Local Government and Heritage’s website
Reasons of Overriding Public Interest (IROPI).   www.gov.ie/housing. Legislation is also
These processes are not common in the Irish      available to view and download from:
planning system.                                 www.irishstatutebook.ie.

24. What happens if a local                      You should consult with professionally
authority development requires                   qualified advisers if the planning matters
AA?                                              you are interested in relate to any of the
If a local authority development requires AA,    environmental assessments noted above.
the local authority must apply for permission
Office of the Planning Regulator
Fourth Floor (West Wing)
Park House
Grangegorman
191-193A North Circular Road
Dublin 7
D07 EWV4

opr.ie
info@opr.ie
01 854 6700

Disclaimer: Issued January 2021. While every care has been taken in the preparation of this planning information leaflet,
the Office of the Planning Regulator assumes no responsibility for and gives no guarantees concerning the accuracy,
completeness or up to date nature of the information provided and accepts no liability arising from any errors or omissions.
Please notify any errors, omissions and comments by email to info@opr.ie
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