Planning and Development (Amendment) Act 2010

1. Planning and Development (Amendment) Act 2010 Part XAB Appropriate Assessment Gabrielle McKeown DEHLG IPI Seminar November 2010

2. Overview of presentation Context Appropriate Assessment (AA) in the 2010 Amendments Act Interpretations Procedures Implications for Land Use Plans Implications for Development Management Local Authority development and AA

3. Habitats Directive92/43/EEC • Purpose of the directive • To promote the maintenance of biodiversity……to maintain at, and where necessary restore to, favourable conservation status, flora, fauna and Habitats of European importance…

4. Context • Requirement since 1997 • EU Habitats Directive (92/43/EEC) transposed by EU (Natural Habitats) Regulations1997 • Related to Development Management • Case 418/04 (protection of birds) • Case 183/05 (protection of species) • Circular letter ..SEA 1/08 NPWS1/08 Appropriate Assessment of all Land Use Plans • Guidance Document issued Dec 2009 • Planning and Development (Amendments) Act 2010 • introduces Appropriate Assessment for land use plans and planning projects into planning legislation • Future Guidelines

5. Planning Amendments Act 2010Appropriate Assessment • Part XAB • Interpretations, e.g. • Competent authority • Natura Impact Report (NIR) Natura Impact Statement (NIS) Procedures • General • Appropriate assessment • Imperative reasons of overriding public interest (IROPI) • Local authority own development • References in other sections of the act

6. Interpretations • Competent Authority • Natura Impact Report • Natura Impact Statement

7. Competent Authority Regional Authority, Planning Authority, An Bord Pleanála. …in performing the functions conferred on it by or under this Part shall take appropriate steps to avoid in a European site the deterioration of natural habitats and the habitats of species as well as the disturbance of the species for which the site has been designated ….. Implications for Competent Authorities Skills base needed… Importance of “paper trail”…

8. Natura Impact Report (NIR) Relates to land use plans …(CDP’s, LAP’s, RPG’s, SDZs)… Statement for the purposes of Article 6 of the Habitats Directive of the implications of a proposed plan objective, on its own or in combination with other plans and projects for one or more Natura 2000 sites, in view of the conservation objectives of the site… Based on ecological expertise… Scientific examination of evidence and data Carried out by competent persons Plan may only be adopted where a determination is made that the plan shall not adversely affect the integrity of European Sites…NIR is crucial in demonstrating this … …(unless IROPI process followed )…

9. Natura Impact Statement (NIS) Relates to projects (including LA projects, SI cases)… Screening of the proposed project will indicate if NIS is required.. Statement for the purposes of Article 6 of the Habitats Directive of the implications of a proposed development on its own or in combination with other plans/projects for one or more Natura 2000 sites in view of the conservation objectives of the site… Where NIS required ( and hasn’t come in as part of original application documentation) CA can request by FI, Need for professional input – ecological expertise… Scientific examination of evidence and data Carried out by competent persons Project may only be approved where a determination is made that the proposal shall not adversely affect the integrity of European Sites…NIS is crucial in demonstrating this…(unless IROPI process followed –)…

10. General ProceduresLand use plans and proposed development • Screening • Appropriate assessment • IROPI • Non priority habitats • Priority habitat

11. Screening (1) First stage in Appropriate Assessment consideration. Process that addresses and records whether or not a plan or project (1)is directly connected to or necessary for the management of the site (2)alone or in combination with other plans or projects is likely to have significant effects on a Natura 2000 site. If the plan or project is directly connected to or necessary for the management of the site then Appropriate assessment is not required If the plan objective, or project proposal cannot be clearly stated to not have a significant effect, then Appropriate Assessment required Remember!: Precautionary Principle – if in doubt, do AA…

12. Screening procedures(2) • Is the plan or project likely to have a significant effect on the European site • Carried out by the competent authority… • Prior to the plan being made or consent given… • In view of best scientific knowledge… • Individually or in combination… • Competent Authority may request information and consult as necessary… • Competent Authority makes determination • AA is required if it cannot be excluded on the basis of objective information that the plan or project, individually or in combination with other plans or projects will have a significant effect on a European site

13. Screening procedures(3) • Determination. • Draft plan and proposed development determination must be availablefor inspection by the public • If AA required and proposed development, CA must, • Give Notice of determination with reasons • to Applicant • Any person who made submissions • Any part to an appeal or referral (if appropriate) • Make available for inspection • Notice may contain that Natura Impact Statement required

14. Appropriate Assessment procedures • Carried out by the competent authority… • Prior to the plan being made or consent given… • In view of best scientific knowledge… • Individually or in combination… • Shall have regard • to the NIS or NIR • Supplemental information or any information sought by the competent authority • Shall make a determination • Consideration of IROPI

15. Imperative Reasons of Overriding PublicInterest (IROPI) Commission Guidance indicates that Public Interest must be overriding, long term, of public interest, project necessary IROPI (2 categories) European site - hosts a priority natural habitat type or priority species (a) human health, (b) public safety, (c) beneficial consequences of primary importance to the environment, or (d) having obtained an opinion from the Commission other IROPI. European site - hosts a non priority natural habitat type or non priority species social or economic nature. Compensatory Measures Can include Restoration Creation Enhancement

16. IROPIprocedures Detailed procedures Development Plan process Non priority habitats Priority habitats Compensatory measures Ministerial involvement Development management process Rare occurrence

17. Land use Plans and Appropriate Assessment Natura Impact report shall be prepared for RPGs, SDZs, Development plans/ variations and LAPs, Additional mandatory objective Inclusion of Article 10 of Directive ..’of management of the features of the landscape, such as traditional field boundaries, important for the ecological coherence of the natura 2000 network and essential for the migration, dispersaland genetic exchange of wild species’ Material alteration of draft – subject to AA screening SEA/AA of modifications required –Manager required specify period within which this undertaken Newspaper notice & display 4 week period Further modification of proposed alterations – Minor in nature Not likely to have significant effect on the environment Not adversely effect the integrity of a European site. If IROPI being considered part of plan subject to AA set aside until assessment completed – remainder of plan can progress

18. Development management and Appropriate Assessment Planning Authorities ...all proposed developments to be screened, both own works and development management proposed development An Bord Pleanála...all projects to be screened Appeals Strategic Infrastructure EIA Part X Section 5 declarations / referrals --AA a consideration

19. Development management and Appropriate assessment (2) Planning Register – PA obliged to register where EIA/Natura impact statement required Planning application –FI request - for an EIA/Natura impact statement – newspaper notices, etc - PA 8 weeks to make decision Default permission – doesn’t apply to applications which require an EIS or AA Material contravention of development plan/LAP – FI request for EIA/Natura impact statement – PA 8 weeks to make decision Power to extend the appropriate period – only permitted, inter alia, where development has not commenced and an EIA/AA, if required was carried out before permission was granted.

20. Local authority Projects and Appropriate assessment(1) Where a NIS has been prepared the Planning authority shall publish a notice in a newspaper etc Proposes to seek the approval of the Bord That an NIS has been prepared That the Board may give approval etc Invite the making of submissions to the Bord in relation to Planning implications of the proposed development Likely effects on the environment Likely significant effects on a European site Send a copy of the application, the NIS, to the prescribed authorities inviting submissions or observations as above

21. LA Projects and AA (2) Bord may request further information including obs from the EPA Or may inform the PA that it is of the view that with certain alterations that the proposed development may be approved and request a change in the proposed development and if appropriate the NIS If the PA makes these alterations then this is the proposed development Re advertisement required If significant additional data If the PA revise their original proposal at the suggestion of the Bord.,

22. LA Projects and AA(3) Before making a decision the Bord shall consider Natura Impact Statement Submissions/ observations made Any other information (including at oral hearing) furnished in respect of Likely effects on the environment Likely consequences for proper planning and sustainable development Likely significant effects Inspector’s report

23. Regulations Minister may make Regulations Procedure and administration Matters of observation from the EPA Role of the Bord

24. Useful references • EC 2000: Managing Natura 2000 sites. The provisions of Article 6 of the ‘Habitats’ Directive 92/43/EEC • EC 2002: Assessment of plans and projects significantly affecting Natura 2000 sites. • EC 2007:Guidance document on Article 6(4) of the ‘Habitats Directive’ 92/43/EEC • EC 2010: Guidance Document. Wind energy developments and Natura 2000. • EC2010: Guidance Document. Non-energy mineral extraction and Natura 2000

25. Finally! Remember purpose of Appropriate Assessment To promote the maintenance of biodiversity …to maintain at, and where necessary restore to, favourable conservation status, flora, fauna and Habitats of European importance Integration of AA into decision making process AA is an iterative process, 1st screen, and depending on outcome proceed to carry out AA and ensure protection of European sites IROPI: only where there are no alternatives (even of not carrying out the development) – IROPI: a last resort.