Appropriate Assessment of Plans and Projects in Ireland: Guidance for Planning Authorities

1. Page 41

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities 3.4. Stage 3 - Alternative Solutions Stage 1 Screening for AA Stage 2 AA Stage 3 Alternative Solutions Stage 4 IROPI This stage examines alternative ways of implementing a project or plan that, where possible, avoids any adverse impacts on the integrity of a Natura 2000 site. Before a project or plan that either alone or in combination with other projects or plans has adverse effects on a Natura 2000 site can proceed for imperative reasons of overriding public interest, it must be objectively concluded that no less-damaging alternative solutions exist. Therefore, this stage becomes critical if it appears that derogation procedures may need to be pursued. Alternative solutions should normally already have been identified within the framework of the screening, the NIS and the AA. Possible alternative solutions may, for example include variants or combinations of:  locations or routes  scale or size  means of meeting objectives (e.g. demand management)  methods of construction (e.g. ‘silent piling’)  operational methods  decommissioning methods at the end of a project’s life  scheduling and timescale proposals (e.g. seasonal working)  mitigation  the so-called ‘zero-option’, i.e. abandonment of a proposal It rests with the competent authorities to make the necessary comparisons between these alternative solutions, based on each option being subject to Stage 2 AA. If the proponents Section 3 - The AA Process 41

2. Page 42

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 3 - The AA Process 42 of a plan or project are not the competent authority itself, then it is to be expected at this stage that additional information will need to be sought from them. This may take the form of a NIS for each of the solutions considered, but will also need to incorporate a comparative dimension between the different solutions. Each solution should be put forward and assessed as a detailed proposal (e.g. specimen design for a new road scheme rather than just a route corridor). The alternatives must be compared with respect to the significance of their likely effects on the integrity of the site. In this phase, therefore, other assessment criteria, such as economic criteria, cannot be seen as overruling ecological criteria.

3. Page 43

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities 3.5. Stage 4 - Imperative Reasons of Overriding Public Interest (“IROPI”) Stage 1 Screening for AA Stage 2 AA Stage 3 Alternative Solutions Stage 4 IROPI In the absence of alternative solutions, or if alternative solutions are likely to have even more negative environmental effects on the site concerned with regard to its conservation objectives, or if a better solution is identified that will reduce but not avoid an impact on the site, the competent authority must establish whether or not the plan or project can be considered to be necessary for imperative reasons of overriding public interest (IROPI). These include, as a general protection measure, the need to have reasons of a social or economic nature that critically require the realisation of the plan or project in question. In the case of sites where priority habitats (or species) are affected, the protection mechanism is stricter, and the only IROPI reasons that may be raised are those relating to human health, public safety or beneficial consequences of primary importance to the environment. In the case of other IROPI that may need to be raised, the opinion of the European Commission must first be obtained, thereby introducing the additional safeguard of independent appraisal by the Commission. It is clear from the wording of Article 6(4) that only public interests can be balanced against the conservation aims of the Habitats Directive. Plans or projects that lie entirely in the interest of companies or individuals are not considered to be covered. Some private projects may have public interest importance but only in exceptional cases will it be possible to argue that imperative reasons of overriding public interest require the plan or project to proceed. Furthermore, as the public interest must be overriding, it is clear that not every kind of public interest of a social or economic nature is sufficient, in particular when seen against the particular weight of the interests protected by the Habitats Directive. In this context, it also seems reasonable to assume that the public interest will, Section 3 - The AA Process 43

4. Page 44

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 3 - The AA Process 44 in general, only be overriding if it is a long-term interest. Short-term economic interests or other interests that only yield short-term benefits for society are very unlikely to be of sufficient weight to outweigh the long-term conservation interests protected by the Directive. Every effort should be made to avoid recourse to IROPI, as this is a legally difficult, expensive, lengthy and complex process, with no guarantee of a successful outcome and with a serious risk of legal challenges. It is also important to emphasize that one cannot avoid recourse to IROPI by an interpretation of facts that is inconsistent with, or selective in its use of, scientific data and best advice. Adoption or permission also requires that provision has been made to provide compensatory measures, including, if required, providing compensatory habitat. If IROPI do not exist then a plan cannot be adopted nor can planning permission be granted for a project. 3.5.1. Statement of IROPI Case Where it is considered that there are no alternative solutions and that IROPI apply, it is necessary to prepare statement of case for the invocation of imperative reasons of overriding public interest to permit a plan to be adopted or a project to be approved. The statement should set out: a) the nature of the potential negative impacts on the site that led to the negative appropriate assessment; b) the grounds for the view that there are no alternatives, including a comprehensive examination of all options including the option of abandoning the plan or proposed development; c) the imperative reasons of overriding public interest that the authority considers necessitate adoption of the land use plan or approval of the proposed development, and its grounds for considering that they apply; and

5. Page 45

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 3 - The AA Process 45 d) the compensatory measures that would need to be provided if the plan were to be adopted or the proposed development were to be approved, and a proposal of how this could be achieved. This statement of case will serve as the basis for an IROPI decision and referral to the Minister and for informing or obtaining the opinion of the European Commission. 3.5.2. Compensatory Measures It is a strict obligation under Article 6(4) of the Habitats Directive that, where a plan or project is being permitted for imperative reasons of overriding public interest, all compensatory measures that are necessary to ensure the overall coherence of Natura 2000 is protected must be put in place. In many cases the measures to be taken will include the identification and securing of compensatory habitat and the necessary works to ensure that that habitat will be in good ecological condition. Compensatory measures must compensate for the expected impact on the site, e.g. providing substitute habitat of the same habitat type that will be damaged or lost. Given the overreaching requirement regarding the coherence of Natura 2000 and the possibility that compensatory habitat outside of an existing designated area may have to be designated by the Minister, the Minister must be consulted regarding the proposed compensatory measures, so that he can satisfy himself that the proposed measures adequately meet the requirements of the Directive. Until the Minister has agreed to the proposed compensatory measures, a plan or project cannot be adopted or approved on IROPI grounds. Finally, the approved compensatory measures must be incorporated in the plan or included in the conditions of the approval.

6. Page 46

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 3 - The AA Process 46 3.5.3. Prior Consultation with Minister Regarding IROPI In every case in which a local authority envisages approving or proceeding with a plan or project on grounds of IROPI, the Minister must be consulted. This should happen as early as possible in the AA process, and certainly before a decision is taken to proceed on the grounds of IROPI.

7. Page 47

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 4 - Plans - AA and Development Planning 47 4. Plans - AA and Development Planning 4.1. Overview A key objective of the Planning and Development Acts 2000-2006 (as amended) is to ensure that plans are updated on a regular basis, and within specified timeframes. This section establishes the steps and procedures to be followed in undertaking the AA of statutory land use plans within the framework of current planning legislation. Land use plans and strategies establish the framework and policy context for all planning decisions. 4.2. Types of Plans Section 2.1 of this document examines what is meant by the term ‘plan’ for the purposes of Article 6(3) of the Habitats Directive. Plans considered in this section include any land use or spatial plans, covered by the Planning and Development Acts 2000-2006 (as amended), that set the framework for or influence development decisions, or determine or set the management framework or programme the undertaking, timing or phasing of development. All the following types of land use, spatial plans and guidelines require to be considered for AA:  Regional Planning Guidelines (RPGs);  City and County Development Plans (CDPs) and any material amendments/variations;  Development Plans by Town Councils (TCDPs) and any amendments/variations;  Local Area Plans (LAPs) and any amendments; and  Planning Schemes in respect of Strategic Development Zones (SDZs). There are, in addition, many examples of non-statutory plans which are usually made at local authority level and pertain generally to urban areas, and are used as advisory tools in the development management process but are not statutorily adopted. Planning authorities

8. Page 48

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 4 - Plans - AA and Development Planning 48 should undertake screening for AA in such cases and, if necessary, consult with the Department. In the interest of clarity, all references to ‘plan’ in this section of the document include the full hierarchy of statutory land use plans as defined within the framework of current planning legislation as mentioned above and established by the Planning and Development Acts 2000-2006 (as amended). 4.3. Hierarchy of Plans A clear hierarchy of statutory spatial and land use plans has been established in Ireland under the Planning and Development Acts 2000-2006 (as amended). These include the following:  The Regional Planning Guidelines (RPGs) which provide a long-term (12-year) strategic planning framework for the development of a region;  City/County Development Plans, which set the 6-year framework and associated objectives for the sustainable development of the city, county or town; and  Local Area Plans, based upon the detailed development plan objectives for specific areas. The hierarchy of land use plans means that the level of detail will vary considerably between plans at the different levels in the hierarchy. Quite clearly this will influence the nature and detail of an AA and the extent to which relevant issues can be examined at any particular level. Consequently, as one moves down the hierarchy of land use plans from the RPGs to CDPs to LAPs, it is advised that the level of detail that will be required for the plan’s AA will become more defined and focused. The greatest level of detail will normally be required at CDP and LAP level as it is at this level that policies, objectives and zonings that determine planning applications are adopted. Both CDPs and LAPs are required to contain sustainable planning policies and

9. Page 49

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   Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 4 - Plans - AA and Development Planning 49 objectives for the area that the development management process implements over the time period of the plan. The CDPs and LAPs will indicate the location of Natura 2000 sites. The site synopsis will give an indication of the site’s conservation objective(s) and this will alert planning staff and the general public to both the Natura 2000 site location and also the precautionary areas outside the site where development will have to be carefully screened and managed to ensure that there are no significant effects on the Natura 2000 site. 4.4. Plan Policies Under Article 10 of the Habitats Directive, Member States are required to endeavour in their land use planning and development policies to improve the ecological coherence of the Natura 2000 network and to encourage the management of features such as rivers with their banks, traditional field boundaries and ponds or small woods which are essential for the migration, dispersal and genetic exchange of wild species which are of major importance for wild fauna and flora. It is recommended that policies to reflect the requirements of Article 10 and the Habitats Directive in general, and the necessary measures, are included in regional planning guidelines, development plans and local area plans. Examples of such polices could include:  It is the policy of the Regional Authority/Council that plans and projects which would be likely (either individually or in combination with other plans or projects) to give rise to significant adverse direct, indirect or secondary impacts on the integrity of any Natura 2000 sites having regard to their conservation objectives, shall not be permitted on the basis of this Plan unless imperative reasons of overriding public interest can be established and there are no feasible alternative solutions.  It is a policy of the Regional Authority/Council to conserve and protect the ecological integrity of designated sites of international and national importance, and sites proposed for designation, in particular, European sites (including Natura 2000 sites), and Ramsar sites, NHAs and statutory nature reserves.

10. Page 50

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    Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 4 - Plans - AA and Development Planning 50  It is a policy of the Regional Authority/Council to implement the National Biodiversity Plan, through the preparation and adoption of Local Biodiversity Action Plans as part of integrated Local Heritage Plans, as the conservation of biodiversity is an essential component of sustainable development. Other policies will be necessary for the conservation of legally protected species, notably those listed on Annex IV of the Habitats Directive. 4.5. AA and SEA There are clear links and analogies between AA of plans and SEA. They are parallel but separate processes that commonly overlap but also differ in some key respects. AA is narrower in focus and requires more rigorous tests, with the conservation and protection of Natura 2000 sites at its core. The findings and recommendations of AA are overriding and must be incorporated into and be part of a plan that is presented for adoption. The focus of AA is on the impacts of a plan on the integrity of Natura 2000 sites and the Natura 2000 network. In contrast, SEA assists in formulating plan policies and objectives that provide for a more strategic level of protection of the environment. Nonetheless both SEA and AA contribute to the integration of environmental considerations in the adoption of a plan and promote sustainable development. The three main inter-relationships between AA and SEA are: • AA is a tool that assists in addressing environmental issues as part of the SEA in relation to Natura 2000 sites. • AA assists the SEA process in the systematic and explicit appraisal of alternatives in relation to Natura 2000 sites. • Undertaking AA in parallel with SEA provides for an efficient use of resources and expertise. Both processes benefit each other’s findings. In order to ensure that AA is properly integrated into the plan-making process and within the relevant timeframes, it will be essential to carry out AA screening in advance of the start of the statutory preparation/review process for the plan. As a plan is amended

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.