Works at Monuments
Historic and Archaeological Heritage Act 2023
The 2023 Act repeals the National Monuments Act 1930 to 2014 and several associated Acts, or sections of Acts, the provisions of which are to be replaced by corresponding provisions under the 2023 Act. This is subject to a range of transitional provisions that will continue to apply elements of the repealed enactments up to a date specified by the Minister by way of a published order in Iris Oifigiúil.
Chapter 6 does not apply to an authorisation of another State body, where such authorisation is granted or issued under a different enactment for the purposes of making an act lawful under that enactment (e.g. a felling licence under the Forestry Act 2014). This is to ensure the State body in question will not require a licence, or be required to go through the notice procedure, under the 2023 Act in order to issue their own authorisations.
This does not mean that the works in question are themselves exempted from licence or notice requirements under the 2023 Act – the grant of a licence etc. under another enactment will not remove the need for a licence or notice under the 2023 Act.
The provisions under the 2023 Act relating to environmental impact assessment will only apply where a person proposing to carry out works has not already applied for an authorisation under another enactment (e.g. planning permission under the Planning and Development Act 2000).
Proposed Works
The 2023 Act makes important provision relating to proposals for works to be carried out at or on a monument to which general protection applies. A person who wants to carry out such works will not be permitted to do so unless under and in accordance with a licence, or unless a notification procedure has been completed.
A person shall not carry out, or direct or authorise the carrying out of works to or at a monument to which special protection applies, other than under and in accordance with a licence.
This notification procedure requires a person to give notice to the Minister 90 days before proposing to carry out works (a shorter notice period may be prescribed by the Minister in certain circumstances). The notice will be in a specified form and will seek certain information (e.g. information about the proposed works or the person proposing to carry out the works). If a person does not provide the required information, the notice will be considered invalid and the Minister will issue confirmation that a notice has been validated or is considered invalid.
On receipt of a notice, the Minister will consider whether special protection should be applied to the monument. The notice procedure itself cannot prevent special protection from being applied. The Minister may require that the proposed works be carried out in accordance with conditions specified by the Minister.
Screening and Assessment
Unless already determined under another enactment, a notice is considered an application for consent for the purposes of Regulation 42 of the European Communities (Birds and Natural Habitats) Regulations 2011 and the Minister will carry out a screening for appropriate assessment. Where the Minister determines an appropriate assessment is required, the notice procedure will cease to have effect and the Minister will issue written confirmation of the decision including his or her reasons for that decision.
Screening determinations for appropriate assessment will be published on the Department’s website and will include information on seeking a judicial review.
If the proposed works require an appropriate assessment, a screening determination for environmental impact assessment, an environmental impact assessment (see section 34), or the proposed works require a licence under Part 6 of the 2023 Act, the notice procedure cannot be availed of.
Decision
The Minister may apply conditions to works proposed. Such conditions (if any) will issue by written notice, possibly in combination with the written acknowledgement that the notice for proposed works is a valid notice. Conditions may relate to, inter alia, assessments of heritage interest or potential, recording or protection of the monument or time periods when the proposed works can be carried out.
Conditions may also contain a requirement that specified actions or steps are to be taken in advance of any works being carried out and that works cannot commence until the Minister has had an opportunity to review any report prepared in relation to the specified actions or steps. Following consideration of such a report, the Minister will be permitted to specify additional conditions.
Exemptions
The Minister may prescribe a class of works that are exempt from requirements, i.e. a licence or notification would not be required in order to carry out works. An exemption could only be considered if certain strict criteria are met, e.g. the Minister is satisfied that the works are not likely to have significant effects on the environment by virtue of their nature, size or location.
The Minister may prescribe a class of works that are exempt, i.e. a licence would not be required in order to carry out works. An exemption could only be considered if certain strict criteria are met, e.g. the Minister is satisfied that the works are not likely to have significant effects on the environment by virtue of their nature, size or location.
Screening Exemptions
An applicant for a licence may request a screening determination for environmental impact assessment if the proposed works to or at a monument meet specified criteria, e.g. consists of a class specified in Part 2 of Schedule 5 to the Planning and Development Regulations 2001, but does not exceed the relevant quantity, area or other limits specified in that Part. The Minister may request further information and consult with other stakeholders such as the National Museum of Ireland. If the person proposing the works is not the owner or occupier of the land the subject of the proposed works, the Minister will invite the owner or occupier to make a submission on the proposed works and inform the owner or occupier if the application is rejected.
The Act sets out the determination process for a screening for environmental impact assessment. It requires the Minister to make a determination within 90 days (except in exceptional cases) and to specify the reasons for that determination. Screening determinations for environmental impact assessment will be published on the Department’s website and will include information on seeking a judicial review.
EIA
The Minister may carry out an environmental impact assessment where works proposed as part of a licence application meet specified criteria, e.g. consist of development referred the Forestry Regulations 2017. An environmental impact assessment must be carried out where the proposed relevant works would result in the demolition of a monument to which special protection applies.
Where the Minister is required to carry out an environmental impact assessment in respect of an application, the applicant will be obligated to submit an ‘EIAR’ (an environmental impact assessment report) to the Minister in respect of the proposed relevant works. Before submitting an EIAR, the applicant may request an opinion from the Minister regarding the scope and level of detail of information to be included in the EIAR. The Minister must consult with the National Museum of Ireland, relevant local authority and relevant regional assembly (see section 43 of the Local Government Act 1991) and may request additional information from the applicant in order to provide an opinion.
The 2023 Act relates to the submission of an EIAR to the Minister. It requires the applicant to fulfil a number of obligations, e.g. publish a notice in a national newspaper of their intention to submit an EIAR. It also requires the Minister to send copies of the EIAR to the National Museum of Ireland, relevant local authority and relevant regional assembly.
The Minister must ensure he or she has access to persons who have sufficient expertise in the matters the subject of the environmental impact assessment. Where the Minister requests and receives additional information from an applicant, it must be forwarded to any person who was consulted during the process up to that point and published by the applicant in a national newspaper.
There are specific matters to be taken into account by the Minister when carrying out an environmental impact assessment and when deciding whether to grant a licence where an environmental impact assessment has been carried out. Regardless of the Minister’s general powers to attach conditions to a licence, where the Minister grants a licence following an environmental impact assessment, conditions may be attached to that licence to avoid, prevent etc. significant effects on the environment.
Notice
The Minister must notify an EU Member State of proposed works that are the subject of an EIAR where such works are likely to have a significant effect on the environment in that EU Member State. That EU Member State will be given the opportunity to provide their views on the effects and if views are to be provided, the Minister will consult with the EU Member State regarding the potential effects of the works and the measures envisaged to reduce or eliminate those effects. The EU Member State must also be notified of the Minister’s decisions to grant or not to grant the relevant licence concerned.
The Minister is to give public notice of decisions to grant or refuse licences after an environmental impact assessment has been carried out. The notice must be published in at least one national newspaper. The corresponding EIAR and information relating to the decision must be made available for inspection on the Department’s website and on the EIA portal (see section 172A of the Planning and Development Act 2000). The information to be provided is specified under this section.
EIA Exemptions
The Minister, subject to certain conditions, may exempt a person proposing works from EIA-related requirements provided under the 2023 Act. Before making a determination, the Minster must consult with the relevant local authority and consider whether a state party to the ‘UNECE Convention on Environmental Impact Assessment in a Transboundary Context’ should be informed about the proposed works (i.e. major projects under consideration likely to have a significant adverse environmental impact across boundaries).
The Minister cannot grant an exemption unless satisfied that a number of strict requirements have been met. If an exemption is granted, the Minister must publish a notice on the Department’s website and in a national newspaper, as well as sending written notification to the relevant local authority, a state party to the UNECE Transboundary Convention (if applicable) and the European Commission, before making a determination in relation to the proposed works to which the exemption applies.
The Minister may, by order, declare that Part 2 of the 2023 Act shall not apply to proposed works where the Minister is satisfied that the carrying out of the works is for the sole purpose of the defence of the State or responding to a civil emergency, and the application of Part 2 would adversely affect that purpose.
Judicial Review
Statutory notices relating to environmental impact assessment must inform the public that the validity of the decision provided by way of the notice may be questioned by way of a judicial review. The validity of an act done by the Minister under Chapter 6 in the performance of a function, or the validity of a licence granted in relation to a matter in Chapter 6, for which an environmental impact assessment or appropriate assessment is required may be questioned by way of a judicial review.
The Act sets out conditions for the High Court in relation to granting leave for a judicial review, provides clarification on costs of proceedings (by way of referencing section 50B of the Planning and Development Act 2000 and Part 2 of the Environment (Miscellaneous Provisions) Act 2011), and also provides for time limits for initiating judicial reviews.
Works at Registered Monuments
Works carried out, or proposed to be carried out, at a site shown on a map by way of notice under the Act , shall be taken to have been carried out, or proposed to have been carried out, at that site unless the contrary is shown. This will apply to any provisions of the 2023 Act requiring that something be done under and accordance with a licence and for the purposes of any proceedings.
Protection of Monument Movables
The export of a monument to which general protection or special protection applies is restricted other than under and in accordance with a license. This restriction will not apply where the export is granted under section 50 of the National Cultural Institutions Act 1997 and the Minister has approved of the terms and conditions of the corresponding licence.
There is general or special protection to a part of a monument where it is removed from a monument. General or special protection will not apply where a part of a monument is removed under and in accordance with a license which provides for this or if the Minister publishes a notice in Iris Oifigiúil declaring that general or special protection does not apply.
Dangerous Property Notice
A local authority is to inform the Minister after serving or proposing to serve a notice under the Local Government (Sanitary Services) Act 1964 in relation to carrying out works to prevent a structure from becoming a danger to a person or property.
Where work is carried out by a local authority on or in relation to a monument, the monument must be protected in so far as possible or a record must be made of the monument if it is not practicable to protect the monument. The local authority must also inform the Minister in writing of the works carried out when completed.