Dáil Éireann Debate, Wednesday - 9 July 2008
39 Deputy Phil Hogan asked the Minister for the Environment, Heritage and Local Government the effect the recent European Court of Justice decision on environmental impact assessments will have on current and future construction projects; and if he will make a statement on the matter. [27786/08]
View answerThere are two aspects to the judgment of the European Court of Justice delivered on 3 July. First, the compatibility with the requirements of Directive 85/337/EEC on Environmental Impact Assessment, as amended, of Irish legislation under which permission may be granted for the retention of unauthorised development and, second, whether appropriate environmental impact assessments were carried out in respect of the development of a windfarm at Derrybrien, County Galway, which was the subject of a number of planning applications between 1998 and 2003.
With regard to retention permission, the court noted that while Community law cannot preclude applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the condition that it does not offer the persons concerned the opportunity to circumvent Community rules or to dispense with applying them, and that it should remain the exception. The court found, however, that under Irish law, there is the possibility of the grant of retention permission in cases lacking any exceptional circumstances.
With regard to the Derrybrien development, the court found that the development consents given for, and the execution of, the wind farm development and associated works at Derrybrien were not preceded by environmental impact assessments which conformed to the requirements of Directive 85/337/EEC.
This very recent judgment is being studied in detail to determine the appropriate response. I have already been examining legislative options for removing or minimising the possibility of retention for unauthorised developments that would otherwise have been subject to environmental impact assessment under Directive 85/337/EEC and these will be further developed in light of the court's judgment.
The position remains that under Part 10 of the Planning and Development Act 2000 and Part 10 of the Planning and Development Regulations 2001, a planning application in respect of a development or class of development falling within the scope of Directive 85/337/EEC, as amended, must be accompanied by an appropriate environmental impact statement. The carrying out of unauthorised development is an offence under the Act.
Would the Minister agree with the European opinion that Irish planning law is weak on retention planning? Will he bring any proposals forward to assist local authorities in ensuring they have better guidance on matters such as the one in Derrybrien? I cannot believe such a large wind farm would not be subject to an environmental impact statement. A large number of environmental cases are active against the Government in the EU. Is the Government taking steps to ensure these complaints are addressed? What progress is being made on them?
The Deputy is correct. The Commission challenged the enforcement measures put in place by Ireland to ensure genuine application of the EIA directive. According to the Commission, Irish legislation did not impose any clear obligation to bring unauthorised development to a stop. In particular, the Commission felt Ireland had not presented evidence of clear guidelines for local authorities to ensure these authorities take the necessary enforcement action. The Commission set out some examples illustrating the failure to take enforcement action in Ireland and cited five particular examples relating to quarries and one each of a piggery, a peat bog, a hotel, a convention centre and a wood processing factory. Ireland argued that the existence of an exception power to grant retention permission represents a sensible fallback development and consent position.
It has always been my conviction that in this country we play fast and loose on planning and particularly on retention. I am introducing a suite of measures, which I have circulated to my Government colleagues. I want to develop the heads of a new planning Bill that will address these issues.
