Ministerial guidelines
Appropriate Assessment of Plans and Projects in Ireland: Guidance for Planning Authorities
Screening and appropriate assessment under the Habitats Directive, for plans and projects that could affect a Natura 2000 site.
Department of the Environment, Heritage and Local Government (National Parks and Wildlife Service) · December 2009, revised February 2010 · 84 pages
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- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 1 - Introduction 11 significant effect on it, on its own or in combination with other plans and projects, is to be authorised only if it will not adversely affect the integrity of that site. Screening for AA and, if screening indicates the need, AA itself, must be carried out and the assessment and conclusions recorded to ensure that existing and future plans or projects are not authorised if they are likely to adversely affect the integrity of a site. These safeguards are designed to ensure the conservation of Natura 2000 sites. The requirements of the Habitats Directive in respect of plans and projects are similar in many respects to Environmental Impact Assessment (EIA) of projects, and Strategic Environmental Assessment (SEA) of plans and programmes. However, the focus of AA is targeted specifically on Natura 2000 sites and their conservation objectives. Article 6(3) and 6(4) of the Habitats Directive place strict legal obligations on Member States, with the outcomes of AA fundamentally affecting the decisions that may lawfully be made. It is a basic responsibility of all agencies of the state, including planning authorities, to act diligently to ensure that their decisions in the exercise of their functions, as well as their actions, comply fully with the obligations of the Habitats Directive. 1.2. EU Directives The EU introduced the Birds Directive5 in 1979 and the Habitats Directive in 1992 to tackle the long-term declines in European biodiversity that were attributed to habitat destruction and degradation, the persecution of some species, and the unsustainable exploitation of wildlife resources. The essential aim of both directives is to maintain, and where necessary restore, the favourable conservation status of natural habitats and species across Europe, thereby contributing to sustainable development and promoting the maintenance of Europe’s biodiversity. The establishment of Europe’s most important wildlife sites as Natura 2000 sites and strong measures to protect those sites is a key policy in meeting those aims. 5 Council Directive 79/409/EEC on the conservation of wild birds. See http://ec.europa.eu/environment/nature/legislation/birdsdirective/index_en.htm
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities The Habitats Directive was initially transposed into Irish law in 1997 by the European Communities (Natural Habitats) Regulations, 1997 (S.I. No. 94 of 1997)6, with later amendment regulations (S.I. No. 233 of 1998; S.I. No. 378 of 2005). The Birds Directive was anticipated by the Wildlife Act (1976) and its provisions covered many of the requirements of the Birds Directive. Article 7 of the Habitats Directive makes the provisions of Article 6(3) and 6(4) applicable to SPAs. Work to amend, update and consolidate the Habitats Regulations in new comprehensive Birds and Habitats Regulations is at an advanced stage. Among other things, the new regulations will address the transposition issues raised in recent judgements of the ECJ against Ireland. Section 1 - Introduction 12 Figure 1: Legislation timeline 6 See http://www.npws.ie/en/WildlifePlanningtheLaw/Legislation/EURegulations/ for further details European Union (Natural Habitats) (Amendment Regulations S.I. 233/1998 European Union (Natural Habitats) Regulations S.I. 94/1997 Habitats Directive 92/43/EEC Birds Directive 79/409/EEC Wildlife (Amendment) Act (2000) Wildlife Act (1976) 1975 1980 1985 1990 1995 2000 2005 2010 European Union (Natural Habitats) (Amendment Regulations S.I. 378/12005
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 1 - Introduction 13 1.3. Natura 2000 Network The Natura 2000 network provides an ecological infrastructure for the protection of sites that are of particular importance for rare, endangered or vulnerable habitats and species within the EU. The Natura 2000 network in Ireland is made up of European Sites which include: Special Areas of Conservation (SAC) Special Protection Areas (SPA) candidate Special Areas of Conservation (cSAC) proposed Special Protection Areas (pSPA). SACs and SPAs are fully protected by law in Ireland from when the Minister gives notice of his intention to designate the sites7. At present, all SACs are candidate SACs. Candidate and proposed sites are included as part of the Natura 2000 network. Indeed, potential SPAs enjoy protection from the time when they are identified as meriting consideration for designation. It should be noted that in some areas, SAC and SPA designations overlap. SACs (see Figure 2) are selected for the conservation and protection of habitats listed on Annex I and species (other than birds) listed on Annex II of the Habitats Directive, and their habitats. The habitats on Annex I require special conservation measures because they are under threat in the EU and because much of the global resource of the habitat occurs within the EU. A subset of these, Annex I priority habitats, are threatened with disappearance and, accordingly, merit special conservation measures. Ireland has examples of 59 Annex I habitat types and 16 of these are or may be priority types. Appendix 1 contains a list of these habitats; summary descriptions are available in EC (2007b) and NPWS (2008). Ireland supports 26 Annex II species: 6 mammals, 8 fish, 7 invertebrates, and 5 plants (NPWS, 2008). These are species that are threatened in the EU and for which SACs must be designated. There are at present no priority species in Ireland. Other species are listed for protection measures on Annex IV and V, and some species (such as the otter) are included on more than one annex. 7 Technically, the term “designation” applies to SACs only. The terms “classification“ or “recognition” apply to SPAs. In general parlance, the term “designation” is used to cover all of these.
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 1 - Introduction 14 SPAs (see Figure 3) are sites that have been selected and notified for the conservation and protection of bird species listed on Annex I of the Birds Directive and regularly occurring migratory species, and their habitats, particularly wetlands8. Annex I birds are those that require special conservation measures because they are rare, in danger of extinction, or vulnerable to habitat changes in the EU. Ireland supports populations of 33 Annex I bird species. The SPA network includes important seabird colonies, wintering waterfowl sites, and sites supporting rare species (e.g. the corncrake). It is important to note that Natura 2000 network is not static but varies. The Department is currently examining the requirements under the Birds Directive for additional designations or re-designations of SPAs. The possibility also exists that additional SACs may require to be designated. Another consideration is that the use of new Ordnance Survey Ireland (OSi) base mapping and the re-digitising of site boundaries are also likely to result in minor cartographic corrections to sites. 8 For further information, see http://www.npws.ie/en/ProtectedSites/SpecialProtectionAreasSPAs/SPASpecies/
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Figure 2 : Indicative SAC map (2009) Figure 3: Indicative SPA map Section 1 - Introduction 15
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 1 - Introduction 16 1.4. The Role of the EU Commission As the Birds and Habitats Directives are European Directives, the European Commission monitors their implementation by individual Member States. Where the Commission is not satisfied with progress or compliance, it is likely to initiate infringement proceedings against the Member State concerned; the main categories of concern are inadequate transposition of the Directives and breaches of their requirements, including failure to implement and enforce the directives on the ground. The progress of each Member State is monitored by: Examining the completeness of the transposition by each Member State of the Habitats Directive into national law, having regard to the case law of the ECJ. Monitoring progress made in the establishment and protection of the Natura 2000 network by each Member State. Examining the effectiveness of the enforcement policies implemented by each Member State. Examining the submissions of each Member State every six years under Article 17 of the Habitats Directive on the status of listed habitats and species, as summarised in NPWS (2008). Areas of concern for the Commission are pursued actively with each Member State by direct communication (i.e. letter of Formal Notice, Reasoned Opinion, and referral of case to the ECJ). Persistent failure by a Member State to comply with the requirements of the directives is likely to lead to substantial financial penalties being imposed on the Member State by the ECJ. Once fines have been imposed, daily fines are likely until the infringement is fully rectified. The potential fines are very substantial, running to tens of millions of Euro.
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 1 - Introduction 17 1.4.1. Legal Proceedings against Ireland at the European Court of Justice The European Commission has taken, and continues to pursue, legal action at the ECJ against Ireland for failure to implement and comply with the requirements of the Habitats Directive. In its judgement of 13 December 2007 (C-418/04), the Court found that Ireland had failed, among other things, to meet its obligations under the Habitats Directive by not requiring AA in the case of land use plans. Furthermore, on 27 March 2007, in relation to the same case, the Commission decided to refer Ireland to the ECJ for general failures in the implementation of the Habitats Directive, in particular Article 6. Failure to rectify this will result in the imposition of fines.
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities 2. Articles 6(3) and 6(4) – Clarification of Concepts and Terminology Articles 6(3) and 6(4) of the Habitats Directive introduce new concepts and terminology that are explained in Commission guidance (EC, 2000, 2002, 2007a), with some refinements introduced by case law (EC, 2006). What is meant by the key terms that are outlined in bold in Box 1 (with emphasis added) is summarised below. 6(4) – If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest. Box 1: Full text of Article 6(3) and 6(4) of the Habitats Directive 6(3) – Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public. Section 2 - Articles 6(3) and 6(4) – Clarification of Concepts and Terminology 18
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 2 - Articles 6(3) and 6(4) – Clarification of Concepts and Terminology 19 2.1. Definition of Plan and Project ‘Plan’ and ‘project’ are not defined in the Habitats Directive but European Commission guidance and ECJ case law indicate that both should be given a very broad interpretation. The Waddenzee judgement9 has been critical in defining the concept of plan or project so that, in addition to new plans and projects, existing plans and projects that are modified or undergo new or periodic consents or authorisations, are captured by AA requirements. For example, an existing operational wastewater treatment plant requires AA when applying for a wastewater discharge licence under the Waste Water Discharge (Authorisation) Regulations, 200710. In addition, where projects require more than one authorisation (e.g. planning permission, waste permit and foreshore lease/licence), each consent authority must treat the separate applications as projects. It should be noted also that an assessment made at plan level does not exempt specific projects from AA requirements. In cases of doubt as to whether a proposal constitutes a plan or project for the purposes of Article 6(3), it is recommended that contact should be made with the Department for advice. 2.1.1. Plans Plans include all statutory and non-statutory land use, framework and sectoral plans and strategies to the extent that they have the potential to have significant effects on a Natura 2000 site. This incorporates ‘plans and programmes’ covered by the SEA Directive11, and other plans and strategies, including those that are designed or intended to benefit the environment or heritage, such as Heritage and Biodiversity plans, recreation/amenity plans or strategies, and River Basin Management Plans. 9 ECJ case C-127/02 – Waddenzee, Netherlands 10 See EPA’s ‘Note on Appropriate Assessments for the purposes of the Waste Water Discharge (Authorisation) Regulations, 2007 (S.I. No. 684 of 2007)’ 11 Directive 2001/402/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment where ‘plans and programmes’ include 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
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 2 - Articles 6(3) and 6(4) – Clarification of Concepts and Terminology 20 Chapter 4 of this guidance deals specifically with statutory plans covered by the Planning and Development Acts, 2000-2006 (as amended). These are plans that, with their associated strategies, set the framework for or influence development decisions, or determine or set the management framework, or programme the undertaking, timing or phasing of development. Other non-statutory plans made at local authority level and pertaining to urban and/or rural areas will fall within the definition of plan for the purposes of Article 6(3). Non-statutory plans may be used as advisory tools in the development management process. In some cases such plans are adopted by elected members and thereby given a status capable of implementation. 2.1.2. Projects Current ECJ case law and Commission guidance gives a broad interpretation to the term ‘project’. The Commission (EC, 2006) puts the position as follows: … “such a definition of project [i.e. definition of ‘project’ from the EIA Directive12] is relevant to defining the concept of plan or project as provided for in the Habitats Directive, which, seeks, as does Directive 85/337, to prevent activities which are likely to damage the environment from being authorised without prior assessment of their impact on the environment”, and goes on to say that “the fact that the activity has been carried on periodically for several years on the site concerned and that a licence has to be obtained for it every year … does not in itself constitute an obstacle to considering it, at the time of each application, as a distinct plan or project within the meaning of the Habitats Directive”. Chapter 5 of this guidance deals specifically with public and private developments that are covered by the Planning and Development Acts, 2000-2006 (as amended), and that require a statutory planning consent. This includes classes of exempted development where restrictions on these exemptions apply. However, development or activities that 12 Directive 85/337/EEC defines project as the execution of construction works or of other installations or schemes – other interventions in the natural surroundings and landscape including those involving the extraction of minerals
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