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 5 - Projects - AA and Development Management 61 development is proposed. Consequently development which might, on a preliminary assessment, be considered exempted development, such as a small domestic extension, if it is located in a Natura 2000 site or if the proposed development could have significant effects on an adjacent Natura 2000 site, alone or in combination with other plans and projects, and where such an objective has been included in the development plan, the development requires planning permission and consideration for Appropriate Assessment. Planning authorities and An Bord Pleanála need to have regard to this when considering Section 5 declarations/referrals. It should also note that even exempted developments that are not de-exempted may be subject to screening for AA separate from the planning process under the Habitats Regulations If in doubt as to whether certain developments require AA, the Department may be contacted for advice. 5.5. The AA Process and Development Management As previously described in Section 3, there are four stages in the overall AA process: Stage 1. Screening for Appropriate Assessment Stage 2. Statement for Appropriate Assessment and Appropriate Assessment Stage 3. Alternative Solutions Stage 4. IROPI/compensation measures. While there are four procedural steps in the overall process, there are effectively two critical steps, firstly the screening stage and secondly, where necessary, undertaking an Appropriate Assessment. 5.5.1. Screening for AA of a Proposed Development In general planning authorities will face one of the following situations when screening planning applications:
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 62 1. Applications for permission where, from the location, nature and size of the development it is clear that an AA is not required because it is located so far from any Natura 2000 site or precautionary area (e.g. either upstream or downstream) that it is certain that it will not have a significant effect on the Natura 2000 site. 2. Applications for permission where, from the description of the development, it is clear that an AA is not required whether or not the proposal is located within or without a Natura 2000 site. Examples of this would be involving changes to the external appearance of buildings, (such as shop fronts, change of house design/ appearance, domestic extensions) or changes of use that do not involve any extra loading on waste water, water systems or erosion of habitats. 3. Applications for permission where, from the nature, size and location of the development it is clear that an AA will be required. These are more likely to be located within or close to, or upstream of or in the catchment of a Natura 2000 site and have the clear potential to have a significant effect on a Natura 2000 site. Examples of these are developments, which require EIS (above or sub threshold), such as the construction of more than 500 dwelling units22 and developments that have a major physical infrastructural need or impact. 4. Applications for permission, where from the nature, size and location of the development it is unclear if the proposal, will have a significant effect on a Natura 2000 site. This will need an AA if the effects are uncertain (precautionary principle). 5.5.2. Screening for AA: Steps for a Proposed Project Section 3.2 of this guidance outlines the steps that are involved in Screening for Appropriate Assessment. 22 In some cases, smaller scale developments and even individual houses will require an AA (see situation 4).
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 63 Steps One and Two deals with the identification and compilation of the information required about the Natura 2000 sites, to ascertain the locations of the relevant Natura 2000 sites, the qualifying interests and conservation objectives for the sites. Step Three looks at the assessment of likely significant effects. To ascertain this, a description of the project will be required which identifies the main features of the proposed project, this includes its scale and size, physical changes that will result from the project, e.g. excavation, the resource requirements e.g. water abstraction, emissions and waste, noise, light pollution and disturbance, etc. It should be remembered that for large projects it may be necessary to identify the parameters for the construction, the operation, and the decommission phases of the proposed project. This is then related to the sensitivities of the relevant Natura 2000 site(s). Impacts on the site (which would be measured through significance indicators) include loss of habitat, disturbance of species, changes in water resources or quality of the water resource etc. If the site is a priority habitat some indicators such as loss of habitat may be more critical. The assessment of significance may be quite apparent particularly after consultation with the Department, but in other instances further enquiries may be necessary. Step Four requires ‘in combination effects’ to be considered. These include ex situ and in situ projects/developments and as such will change over time so it is important that each screening should clearly indicate what plans/projects have been taken into consideration. Step Five is the conclusion that is drawn as to whether or not the project may give rise to significant effects. In summary, the full details of the proposed development, of the local site characteristics and of the Natura 2000 site are collected. AA screening is undertaken. This may reveal opportunities for relocation, redesign or other avoidance measures that would avoid negative effects, in which case the development should be modified and the screening step repeated. If it is still likely or uncertain whether the proposed development will have a significant effect, AA is required and mitigation measures should be devised as necessary.
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 64 5.5.3. Carrying out AA of a Proposed Development Section 3.3 of this guidance outlines this process in some detail. In addition, the guidance issued by the EU Commission is very helpful in describing the steps that are required in undertaking an AA (particularly EC, 2002). The first step will be the preparation by the applicant of a NIS. The proposed development is then examined on the basis of the statement. If it still cannot be stated clearly that there will be no adverse affects on the integrity of the site, alternative solutions must then be considered. If the alternative solutions still do not clearly indicate that there will be no adverse effects, then the proposed development must either be rejected or considered under IROPI. This represents the derogation procedures of Article 6(4) and, as indicated earlier, private developments will very rarely fall for consideration as being required for imperative reasons of overriding public interest, Section 3.4 outlines the different procedures that are required to be followed if it is proposed to go ahead with the development even though it adversely impacts on a Natura 2000 site and the different procedures to be followed if it is a priority habitat. 5.5.4. Pre-application Discussions Given the potential complexity of dealing with AA, it is strongly advised that pre-application discussions are held for any developments where an EIS will be mandatory, for sub threshold developments that will require to be screened for EIS and AA, or for developments that may not require an EIS but that are located in, or close to, a Natura 2000 site or have the potential to impact such a site. At the pre-application stage applicants or their agents should be informed of the location of the Natura 2000 sites and /or adjacent sites, and of the availability of information about the sites (e.g. site synopses), and of the implications this may have for the project. In addition
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 65 to the normal planning requirements, where possible, the applicant should be informed of the type and level of detail of information that will be required to be lodged with the application to screen the project for AA, and that such information may need to be prepared by an ecologist and, in certain circumstances, other specialists (e.g. hydrologist or hydrogeologist). The possible need for a NIS should also be explained. In some cases it will be clear that planning authorities should consult the Department, or advise the prospective applicant to engage in pre-planning consultations or scoping requests with the Department, if they are unclear as to the type and nature of the information detail required. In some instances it will be very clear that an AA will be required. The applicant should be informed of this and if it is clear that it is unlikely that the application will be successful on ecological grounds, the applicant should also be informed of this so that the applicant can make an informed decision as to whether or not to proceed with the proposal. 5.6. AA and EIA The mandatory requirements under the EIA Directives are that certain projects above a threshold automatically trigger the EIA process; those under the thresholds require consideration on a case-by-case basis in the context of nature, size and location criteria, or increase in size or capacity criteria. Chapter 4 of the Development Management Guidelines issued (DEHLG, 2007), details the process required for lodging a planning application in these circumstances. The EPA has also published two guidance documents that should be consulted by planning authorities when assessing an EIS (EPA, 2002, 2003). The planning authority must now also screen the application to ascertain if the proposed development will require AA. The Screening for AA, NIS and AA may be carried out as
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 66 part of the EIS, as indicated in the Habitats Regulations23 but, if so, the screening or AA results must be a distinct and discrete section within the EIS. Where a development is proposed that is located within a Natura 2000 site it may be preferable that the AA element of the EIS is carried out initially as it will inform the decision making process, the possible mitigation measures, the use of reasonable alternatives and, ultimately, whether or not the project is acceptable in the location in question. In other situations it may only be during the EIS process, or during the consideration of the application that it becomes clear that AA will be necessary. Planning authorities will have to consider this on a case-by-case basis. 5.6.1. EIA Sub Threshold Development When considering sub threshold developments using Schedule 7 criteria24, the planning authority will now also have to consider the project in relation to AA. 5.7. Referral of the Application The Minister of DEHLG, the Heritage Council, and An Taisce, are required to be notified if an application for a proposed development is lodged that might affect or is unduly close to a site of ecological interest. 5.7.1. Assessment of the Application In assessing an application, the planning authority and An Bord Pleanála will firstly have to screen the application and make a decision on whether or not AA is required. If it is clear that it is not required in the first instance, then the planning application can be assessed as normal. If it is decided that AA is required, then the application should be referred to in- 23 European Communities (Natural Habitats) Regulations, 1997 (S.I. No. 94 of 1997) 24 Schedule 7 Planning and Development Regulations 2001
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 67 house experts if available and to the Department25, to help the planning authority or the Board to assess the application and to ascertain, where necessary, the types of additional information that may be required, including a NIS if one was not already prepared. In some cases where, for example, through pre-application discussions it is clear that AA would be required, the NIS may be lodged with the planning application. In this instance, the planning authority will refer the application to the Department (NPWS), their own inhouse experts if available, and if necessary acquire expertise to help in considering the AA and its findings and conclusions, to enable a planning decision to be made. 5.7.2. Additional Information Requests Planning authorities will have to screen requests for additional information to ensure that the request, in itself, does not give rise to a significant change to the development so that the development will now significantly impact on a Natura 2000 site, thereby requiring further screening and possibly, AA. If it is felt that the additional information request has the potential to give rise to this, the additional information request should indicate this and then request the appropriate information. Similarly, when additional information is received this must also be screened by the planning authority/An Bord Pleanála to see if an AA is now required, and the decision formally noted. Example 1 - An application for permission is lodged with a planning authority for an access onto a road at an unsafe location for a dwelling. When the application was lodged it was screened by the planning authority and found not to require appropriate assessment. The applicant has other road frontage which, from a policy or safety perspective, is more acceptable. If the alternative access is located in or near a Natura 2000 site, the planning authority will need to screen this alternative proposal to ascertain if an appropriate assessment is required, and, if necessary, so inform the applicant and also request the specialist information that is required in a NIS. 25 Note, for example, that assessing risks associated with types of on-site wastewater treatment systems, and determining the attenuation and treatment capacity of soils on a site, will require the expertise of specialists in the local authority’s Environment section
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 68 Example 2 - An application is lodged for a development on a site which is partly in or near a Natura 2000 site. When the application was lodged it was screened by the planning authority and found not to require appropriate assessment. For visual and amenity reasons it is proposed to move all the development to one part of the site. However, the proposed relocation of the development brings it within the Natura 2000 site or closer to it, the planning authority will need to screen this alternative proposal to ascertain if appropriate assessment is required, and if necessary so inform the applicant and also request the specialist information that is required in a NIS. 5.8. The Decision The following are the probable scenarios that will face the planning authority when considering a decision for a proposed development. 1. No Adverse Affects on the integrity of the Natura 2000 site If, after Screening for AA, or carrying out AA, it can be objectively concluded that the proposed development on its own and in combination with other plans and projects will not adversely affect the integrity of a Natura 2000 site, the development may proceed and permission may be granted, subject to all other planning considerations. 2. IROPI and Annex I habitats and species26 and Annex II species - General If it is determined that the proposed development will adversely affect the integrity of a Natura 2000 site (but will not affect priority habitats), and it can be demonstrated that it is the least damaging of all possible alternatives (irrespective of cost), and it is necessary for Imperative Reasons of Overriding Public Interest, (IROPI) including those of a social and economic nature, the proposal may be granted, subject to consultation with the Minister to agree the necessary compensatory measures to ensure that the overall coherence of the site is protected, and subject to all other planning issues being resolved. Compensatory
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 69 measures can be used only as a last resort and the Commission must be informed of the compensatory measures adopted. 3. IROPI - Annex I Priority Habitats If the site hosts an Annex I priority habitat, and it is considered that the proposed development will adversely affect the integrity on the Natura 2000 site, additional criteria and procedures have to be followed. In this instance, the only Imperative Reasons of Overriding Public Interest (IROPI) that can be considered are those relating to human health and public safety, beneficial consequences of primary importance for the environment, or further to an opinion from the European Commission, other IROPI.. While the planning authority or the Board, as the case may be, makes the decision regarding whether IROPI apply, following, if required, an opinion from the European Commission, the Minister must be satisfied that appropriate compensatory measures have been identified and will be delivered. Approval for a project on IROPI grounds should, therefore, await the Minister’s approval of the compensatory measures. 4. Adverse Affects on the integrity of a Natura 2000 Site but not IROPI If the proposed development will adversely affect the integrity of a site, and if less damaging alternatives are not feasible or imperative reasons of overriding public interest do not exist, the development will require to be refused. 5.9. Conditions on Permissions The Development Management guidelines (Chapter 7) provide guidance on drafting planning conditions. Circular letter PD 2/07 and NPWS 1/07 goes into some detail on where compliance conditions should not be used and where they may be appropriate. Conditions should never be seen as providing a means to avoid AA or circumvent provisions of the Habitats Directive or Regulations. 26 Ireland at present has no priority species.
- Appropriate Assessment of Plans and Projects in Ireland - Guidance for Planning Authorities Section 5 - Projects - AA and Development Management 70 5.10. Material Contraventions Material contraventions must also undergo AA screening similar to any other planning application seeking permission. 5.11. Works carried out by the Local Authority Screening for AA also applies to all works and activities carried out, undertaken or regulated by planning authorities, other sections of the local authority and other public bodies. Local authorities should formally screen all works and activities carried out by them or on their behalf (not just those carried out under Part X and XI) for AA and, where necessary, carry out AA. As with development requiring planning permission, some works will clearly not require an AA, e.g. repaving an already surfaced area. In other areas this may not be so clear and, in line with the precautionary approach, further screening will be required. Some development will obviously require AA, e.g. waste water treatment works discharging into a Natura 2000 site. Where another Department of a local authority proposes to carry out any works or activities it should check with the local authority’s Planning Department to determine whether screening or appropriate assessment will be required before they proceed with their proposal. It should be noted that the maintenance of a drain by the OPW was recently found by the European Court of Justice to have been in breach of the Habitats Directive because it had not been subject to appropriate assessment. 5.12. An Bord Pleanála An Bord Pleanála will be the competent authority when fulfilling its functions under the Planning and Development Acts 2000-2006 (as amended). As with other planning authorities, An Bord Pleanála will have to undertake AA of projects and SDZ planning schemes.
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.