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 2 - Articles 6(3) and 6(4) – Clarification of Concepts and Terminology 21 require waste permits or discharge licences, and other local authority projects, such as recreation and amenity projects, and road and bridge works, are also projects for the purposes of Article 6(3). All Departments within a local authority are advised to seek advice and guidance from their own Planning Department regarding such projects and their potential to impact on Natura 2000 sites. An application for retention could fall within the definition of project but must be treated with particular caution to ensure that an unauthorised development that has damaged or is likely to damage the integrity of a Natura 2000 site will not be approved subsequently. Article 6(3) establishes a procedure whereby a plan or project may be authorised only to the extent that it will not adversely affect the integrity of the site. In the same way as the EIA Directive13, Article 6(3) seeks to prevent activities which would be likely to damage the environment from being authorised without prior consideration and assessment of their effects. This involves prior screening and AA. Retrospective assessments are not favoured by the case law of the ECJ, as they raise obvious questions regarding compliance. 2.2. Directly Connected with or Necessary to the Management of the Natura 2000 Site Plans or projects that are directly connected with or necessary to the management of a Natura 2000 site do not require AA. For this exception to apply, management should be interpreted narrowly as nature conservation management in the sense of Article 6(1) of the Habitats Directive. This refers to specific measures to address the ecological requirements of annexed habitats and species (and their habitats) present on a site. The relationship should be shown to be direct and not a by-product of the project or activity, even if this might result in positive or beneficial effects for a site. For example, a new or upgraded wastewater treatment plant may benefit water quality in a river but its primary purpose is not generally the nature conservation management of a Natura 2000 site, but to service development. Similarly, a project involving amenity and recreation provision in a Natura 2000 site is also unlikely to qualify. 13 ECJ case C-215/06 – see Departmental Circular PD 5/08: European Court of Justice ruling on retention planning permission for development requiring environment impact assessment, and the specific case of a windfarm development at Derrybrien in Galway
- 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 22 Examples of nature conservation management projects could include drain-blocking on a bog, riverbank restoration works, or removal of a barrier to species movement. However, in such cases the potential for associated negative effects would need to be considered in advance and mitigation measures developed as appropriate. If a plan or project is considered to be directly connected with or necessary to the management of the site, this should be addressed in consultation with and in agreement with the Department. All such cases should be supported by sufficient scientific and other necessary evidence and backing to show cause for the project and to address any questions that might be raised in relation to compliance, including any other possible impact. 2.3. Likely to Have Significant Effect Thereon Any plan or project that is not directly connected with or necessary to the management of a site must be subject to AA of its implications for the Natura 2000 site in view of the site’s conservation objectives “if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects” (EC, 2006). The precautionary principle, derived from the EU Treaty and developed in the case law of the ECJ14, is one of the foundations of the high level of protection pursued by EU Community policy on the environment, and underpins the Habitats Directive. Where doubt exists about the risk of a significant effect, an AA must be carried out. In assessing the risk of such effects, the significance must be established in the light of, among other things, the characteristics and specific environmental conditions of the site concerned, and the likely effects of the plan or project. If a plan or project is likely to undermine any of the site’s conservation objectives (i.e. objectives that relate to the Birds or Habitats Directives), it must be considered likely to have a significant effect on that site (EC, 2006). Conversely, if a plan or project will have impacts on a site, but these impacts will clearly not affect or undermine those conservation objectives, it is not considered that it will have a significant effect on the site concerned. However, the level of information and assessment necessary to make this determination
- 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 23 may be substantial, and will need to be presented and recorded at screening and, if required, at AA stage. The requirement is not to prove what the impacts and effects will be, but rather to establish beyond reasonable scientific doubt that adverse effects on site integrity will not result. 2.4. Appropriate Assessment The requirements for AA derive directly from Article 6(3). No definition of the content or scope of AA is given in the Habitats Directive but the concept and approach are set out in Commission guidance (EC 2000, 2002, 2006). AA is an impact assessment process that fits within the decision-making framework and tests of Articles 6(3) and 6(4) and, for the purposes of this guidance, it comprises two main elements. Firstly a Natura Impact Statement – i.e. a statement of the likely and possible impacts of the plan or project on a Natura 2000 site (abbreviated in the following guidance to “NIS”)must be prepared. This comprises a comprehensive ecological impact assessment of a plan or project; it examines the direct and indirect impacts that the plan or project might have on its own or in combination with other plans and projects, on one or more Natura 2000 sites in view of the sites’ conservation objectives. Secondly, the competent authority carries out the AA, based on the NIS and any other information it may consider necessary. The AA process encompasses all of the processes covered by Article 6(3) of the Habitats Directive, i.e. the screening process, the NIS, the AA by the competent authority, and the record of decisions made by the competent authority at each stage of the process, up to the point at which Article 6(4) may come into play following a determination that a plan or project may adversely affect the integrity of a Natura 2000 site. Case law of the ECJ has established that AA must be based on best scientific knowledge in the field. Accordingly, the NIS must be prepared by a person or persons with the requisite ecological expertise and experience, supplemented as necessary by 14 ECJ case C-127/02 – Waddenzee, Netherlands
- 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 24 additional expertise and experience (e.g. geology, hydrology, civil engineering or planning), and produced in a scientifically complete, professional and objective manner. While the NIS will generally be submitted by those seeking approval for a plan or project, competent authorities should satisfy themselves that it demonstrates sufficient expertise, scope and focus in relation to the ecological or other issues (e.g. hydrological) concerned, and competence and standards in scientific methodology and impact assessment15. The timing of the AA is critical and it must precede the decision to authorise, adopt or proceed with a plan or project (i.e. the formal or legal consent stage where that exists) and must inform the overall decision made16. The NIS and the AA must be completed prior to any decision being made to authorise a plan or project. It is entirely unacceptable for a planning authority to approve a plan or project conditioned on the undertaking or completion of surveys, research or data-gathering of relevance in assessing the likely effects. 2.5. Conservation Objectives When a Natura 2000 site is proposed, a statement of its conservation objectives is produced which identifies the qualifying interests or conservation features for which the site is designated. These are the Annex I habitats (and their species) and Annex II species (and their habitats) hosted by a site and for which that site has been selected in the case of SACs. The conservation objectives for SACs are determined under Article 4 of the Habitats Directive and are intended to ensure that the relevant Annex I habitats and Annex II species present on a site are maintained in a favourable condition. A full listing of the qualifying interests for SACs is available from the NPWS website: www.npws.ie. Additional background information is available from the Natura 2000 standard data forms. The conservation objectives derive from the qualifying interests, the Natura 2000 standard data form, and the management plan for the site, with summary information also available in the site synopsis. 15 Departmental Circular Letter SEA 1/08 and NPWS 1/08 16 Departmental Circular Letter PD 2/07 and NPWS 1/07
- 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 25 The conservation objectives for SPAs are in preparation at present and are determined from the Special Conservation Interests and additional Species Conservation Interests of these sites. 2.6. Competent National Authorities The competent authorities in Ireland are the national, regional or local authorities that are charged with or responsible for consenting, authorising, adopting or deciding to proceed with a plan or project. A broad range of authorities is involved, and it is not uncommon for more than one authority to be the competent authority for aspects of an individual project. For the purposes of Chapters 4 and 5 of this guidance, and from a planning and land use perspective, the competent authorities are considered to be the regional authorities, the planning authorities and An Bord Pleanála. It is the competent authority’s responsibility to obtain (normally from the proponent of a plan or project) the information to enable it to screen a plan or project for AA and, if required, obtain from the proponent of the plan or project the NIS. Obviously if a plan or project is being proposed by a competent authority itself, the competent authority will be responsible for the production of the NIS. The competent authority is then responsible for carrying out AA and for maintaining a complete audit trail of the AA process. This will involve collation and consideration of the NIS and other pertinent information and data that are available or can be obtained. This may involve requesting or otherwise obtaining whatever additional information and data are necessary, from various sources, including stakeholders, and particularly from project or plan proponents, nature conservation authorities and NGOs. The NIS should include information on the plan or project, its location, extent and receiving environment, the Natura 2000 sites, their conservation objectives and ecological and environmental sensitivities, and the likely or potential effects of the plan or project. If the NIS is deficient or incomplete those deficiencies must be remedied fully by the supply of
- 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 26 additional data, information or analysis before authorisation may be considered. All documentation needs to be retained so that if questions arise subsequently, evidence of the process followed will be to hand, i.e. an audit trail. Such material is crucial if litigation arises in the national courts or the ECJ, and for reporting to the Commission as required under the Directives. 2.7. Imperative Reasons of Overriding Public Interest – IROPI Where a plan or project is deemed to have an adverse effect on the integrity of a Natura 2000 site and no alternative solutions are available, the plan or project can only then proceed on the grounds of Imperative Reasons of Overriding Public Interest (IROPI), including, in general, those of a social or economic nature. The protection mechanism is stricter in the case of priority habitats (and priority species17), and in such cases the only reasons that may be raised are those relating to human health, public safety or beneficial consequences of primary importance to the environment. If other IROPI are to be invoked, the opinion of the Commission is necessary and should be obtained, by way of a request made through the Minister, before finalisation of the AA. For more information on IROPI, and the process of derogation under Article 6(4), see Section 3.5 of this guidance and also Commission guidance (EC, 2000, 2007a). 17 Ireland does not at present host any priority species.
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities 3. The AA Process 3.1. Stages in the Process The Commission’s methodological guidance (EC, 2002) promotes a four-stage process to complete the AA, and outlines the issues and tests at each stage. An important aspect of the process is that the outcome at each successive stage determines whether a further stage in the process is required. The four stages are summarised diagrammatically below, and an outline of the steps and procedures involved in completing each stage follows. Stages 1-2 deal with the main requirements for assessment under Article 6(3). Stage 3 may be part of Article 6(3) or may be a necessary precursor to Stage 4. Stage 4 is the main derogation step of Article 6(4). Stage 1 Screening for AA Stage 2 AA Stage 3 Alternative Solutions Stage 4 IROPI Stage 1. Screening for Appropriate Assessment Screening is the process that addresses and records the reasoning and conclusions in relation to the first two tests of Article 6(3): i) whether a plan or project is directly connected to or necessary for the management of the site, and ii) whether a plan or project, alone or in combination with other plans and projects, is likely to have significant effects on a Natura 2000 site in view of its conservation objectives. If the effects are deemed to be significant, potentially significant, or uncertain, or it the screening process becomes overly complicated, then the process must proceed to Stage 2 (AA). Screening should be undertaken without the inclusion of mitigation, unless potential impacts clearly can be avoided through the modification or redesign of the plan or project, Section 3 - The AA Process 27
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 3 - The AA Process 28 in which case the screening process is repeated on the altered plan. The greatest level of evidence and justification will be needed in circumstances when the process ends at screening stage on grounds of no impact. Stage 2. Appropriate Assessment This stage considers whether the plan or project, alone or in combination with other projects or plans, will have adverse effects on the integrity of a Natura 2000 site, and includes any mitigation measures necessary to avoid, reduce or offset negative effects. The proponent of the plan or project will be required to submit a Natura Impact Statement, i.e. the report of a targeted professional scientific examination of the plan or project and the relevant Natura 2000 sites, to identify and characterise any possible implications for the site in view of the site’s conservation objectives, taking account of in combination effects. This should provide information to enable the competent authority to carry out the appropriate assessment. If the assessment is negative, i.e. adverse effects on the integrity of a site cannot be excluded, then the process must proceed to Stage 4, or the plan or project should be abandoned. The AA is carried out by the competent authority, and is supported by the NIS. Stage 3. Alternative Solutions This stage examines any alternative solutions or options that could enable the plan or project to proceed without adverse effects on the integrity of a Natura 2000 site. The process must return to Stage 2 as alternatives will require appropriate assessment in order to proceed. Demonstrating that all reasonable alternatives have been considered and assessed, and that the least damaging option has been selected, is necessary to progress to Stage 4. Stage 4. Imperative Reasons of Overriding Public Interest (IROPI)/Derogation Stage 4 is the main derogation process of Article 6(4) which examines whether there are imperative reasons of overriding public interest (IROPI) for allowing a plan or project that will have adverse effects on the integrity of a Natura 2000 site to proceed in cases where it has been established that no less damaging alternative solution exists.
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 3 - The AA Process 29 The extra protection measures for Annex I priority habitats come into effect when making the IROPI case18. Compensatory measures must be proposed and assessed. The Commission must be informed of the compensatory measures. Compensatory measures must be practical, implementable, likely to succeed, proportionate and enforceable, and they must be approved by the Minister. 18 IROPI reasons that may be raised for sites hosting priority habitats are those relating to human health, public safety or beneficial consequences of primary importance to the environment. In the case of other IROPI, the opinion of the Commission is necessary and should be included in the AA
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities 3.2. Stage 1 - Appropriate Assessment Screening Stage 1 Screening for AA Stage 2 AA Stage 3 Alternative Solutions Stage 4 IROPI 3.2.1. Introduction Screening determines whether appropriate assessment is necessary by examining: 1) whether a plan or project can be excluded from AA requirements because it is directly connected with or necessary to the management of the site, and 2) the potential effects of a project or plan, either alone or in combination with other projects or plans, on a Natura 2000 site in view of its conservation objectives, and considering whether these effects will be significant. Screening is an iterative process that involves consideration of the plan or project and its likely effects, and of the Natura 2000 sites and their ecological sensitivities, and the likely interaction between these. These and other ecological issues should always be taken into account at the earliest possible stage in the planning, design or preparation process so that any constraints are identified and can be taken into consideration, and delays and negative outcomes can be avoided insofar as is possible. Specialist ecological input and advice is recommended in undertaking the various elements of screening. Departmental Circular L8/0819 provides an outline of the screening and assessment processes for Water Services projects. Screening involves the following: 1. Description of plan or project, and local site or plan area characteristics Section 3 - The AA Process 30
Source Department of the Environment, Heritage and Local Government (National Parks and Wildlife Service): Appropriate Assessment of Plans and Projects in Ireland: Guidance for Planning Authorities (December 2009, revised February 2010) · Licence the publisher's termsText read from the publisher’s PDF; tables, maps and drawings do not survive as text, and page numbers are the PDF’s (its first page is 1). Check the original before relying on a passage.