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JOINT COMMITTEE ON THE ENVIRONMENT, HERITAGE AND LOCAL GOVERNMENT debate -
Tuesday, 3 Mar 2009

Business of Joint Committee.

Apologies have been received from Senator Paudie Coffey and Deputy Eamon Scanlon.

The first item on the agenda is the minutes of the meeting of 24 February which have been circulated. Are they agreed? Agreed.

The next item is correspondence. The first item is 2009/373, press releases from the Department of the Environment, Heritage and Local Government regarding the historic buildings advice series of booklets, a mid-western conference, the publication of a book on Cork's heritage and the launch of the 2009 rural water programme. They are noted.

The next item is No. 374, an information note from the Department of the Environment, Heritage and Local Government in response to a request for additional information following our meeting of 7 January regarding WEEE and the chewing gum levy. Members can make a note of it and make comments if they wish.

Item No. 375 is a letter from the Ceann Comhairle on cuts being considered by the Houses of the Oireachtas Commission. There is a proposed cut in travel expenses for committees, especially for foreign travel, but we have no specifics as yet. As all Members of the Oireachtas have received a copy of the letter, we will note it.

There was agreement at the meeting of Chairmen that there would be cuts. This proposal would be on top of these.

The letter has been in the public arena since last week.

The next item is No. 376, a newsletter from Europe's World, which is noted. The next item is a newsletter on environmental issues from GLOBE, which is also noted. Item No. 378 is a Combat Poverty Agency newsletter for spring 2009 which is noted.

Item No. 379 is a letter from the Dublin city manager in reply to correspondence forwarded by the joint committee at the request of Deputy Lucinda Creighton who requested that the committee investigate the planning department at Dublin City Council with regard to the decision made on the former Jury's Hotel site in Dublin 4. I have not gone through the details but the city manager had said the local council had granted planning permission for aspects of the development which were not in accordance with its development plan. The city manager has sent a copy of the presentation made to An Bord Pleanála at an oral hearing. It sets out his views and he believes it is a full response to Deputy Creighton's earlier correspondence. People want to study it and Deputies with an interest can pursue it in further detail. We should not be involved in an individual planning decision as we have a clear response from the manager setting out his views on the issue.

Did Deputy Creighton receive a copy of that?

We shall send it to her after today's meeting because the correspondence relates to her.

The next item, No. 380, is a newsletter from the European Water Partnership, which we note.

The last item, No. 381, is from the Department of the Environment, Heritage and Local Government and is a reply to queries raised at this committee on 2 December 2008. It relates to planning consultants and the European Court of Justice judgment on the Derrybrien wind farm. I have received correspondence from different organisations on this in my capacity as Chairman. The Derrybrien wind farm case went to the European Court of Justice, which decided last July that across Europe there should not be provision in law to allow for the retention of planning permission that requires an environmental impact assessment in the first instance. In other words, a large-scale development that requires an environmental impact assessment should not commence before that assessment is carried out; to commence might damage the environment that is yet to be assessed. According to the judgment, from now on local authorities are precluded from granting permission for such actions. The Department issued circulars informing local authorities that they may no longer process such planning applications because an environmental impact assessment, EIA, is first required. This affects retention applications, mainly those relating to quarries, sand pits and such large-scale developments.

It is coincidental that the Minister is here today because I propose we write to him on one aspect of this. We understand the logic of the European Court of Justice decision but in Ireland environmental impact assessments are required for projects of a scale far smaller than that outlined by the European Commission. In Ireland projects covering five hectares require environmental impact assessments; the threshold set for Europe is several times greater than this. It is the Minister's intention to incorporate the European Court of Justice decision in our legislation but this means the law will apply to smaller projects in Ireland than in other EU countries. Such an approach will put Irish businesses at a significant disadvantage compared to European competitors. We all agree with the logic of the European Court of Justice decision but it should apply in Ireland to projects of the same size as those in other EU countries. I propose we write to the Minister to see that the decision is applied consistently across the EU; Ireland should not impose an unnecessarily greater level of restriction on itself. We will put this to the Department and I do not ask the Minister to discuss this today as he is here on another matter. I think the Minister understands my point.

It is a very good point.

I have received representations on this matter and we will set out our position for the Department and the Minister. He should consider this matter before the legislation is drafted.

That is the final item of correspondence.

Is this decision in force at the moment and are we asking for it to be rescinded?

As a result of the European Court of Justice decision last July the Department issued two circulars, one in September and one in October, informing local authorities that they cannot accept planning applications relating to retention where the scale of the project would have required an EIA in the first place. Local authorities have also been told to write to people who received permission relating to planning retention between July and October, after the European Court of Justice decision but before local authorities were made aware of its implications, instructing them to seek legal advice. The decision of the European Court of Justice stands from the day it was made so a number of people are seeking legal advice. A number of quarries, sandpits and so on have operated outside of their boundary of five hectares and are precluded by law from applying for retention to regularise their position.

Are they being told that planning retention no longer applies?

No, it advises them that the Department issued a circular in September informing local authorities that they shall not accept any applications for retention in that category. It is possible some decisions had been given before the circular was issued. In light of the decision of the European Court of Justice, the people concerned need to take legal advice. There is probably a lacuna. The planning permission had been granted and it was not cancelled.

Why would legal advice be necessary if it was not cancelled?

It means that a council may have inadvertently granted a planning permission during August or early September in contravention of the decision of the European Court of Justice of which it might not have been aware.

Does that mean that the permissions are not valid?

That is why the people affected were asked to take legal advice. I am sure the Department and local authorities will do likewise. That will have to be thrashed out legally. We do not know what the outcome will be. I have heard only the case that was put to me and I have given a reasonable response. I will ask the Department to clarify matters by way of correspondence if I am incorrect, and we will contact the people concerned in due course.

We will move to the main item of business, the Planning and Development (Regional Planning Guidelines) Regulations 2009.

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