Natura Site Controls
State Obligations
A Natura site refers to a site covered under the Habitats and Birds Directives which provide for special areas of conservation (habitats) and special protection areas (birds). Over 60o such sites in the Republic of Ireland cover 13% of the country’s land area. In common with other EU legislation, the Habitats and Birds Directive bind the State.
Natura 2000 sites are known in Irish legislation as ‘European sites’. The State is obliged to take proactive measures for European Sites.
A site of European importance is one that is adopted in the list of sites adopted by the Commission pursuant to submissions by member states. A European site is
- a site or candidate site of Community importance
- a candidate or designated special area of conservation (Habitats Directive)
- a candidate (in some cases) or designated a special protection area (Birds Directive).
The State may be obliged to take conservation measures to manage the sites. This includes management plans specifically designated for the site or integrated into a plan such as the development plan.
Screening
A planning authority or An Bord Pleanala is to undertake screening before development consent can be given. The authority must consider if an appropriate assessment is required.
It must do so unless it can be excluded based on objective information that the proposal will not have a significant effect on the European site. If it cannot be excluded on the basis of the best scientific knowledge that the project may have significant effects on a Natura site, it must be subject to appropriate assessment.
This screening is to be based on information objectively available and take account of the project and its effects when combined with other plans and developments.
An appropriate assessment is an assessment of the potential adverse effects of a plan or project (in combination with other plans or projects) on special areas of conservation and special protection areas.
Natura Site Impact & Planning
An application for planning permission must, where applicable, include a Natura impact statement prepared by a competent person setting out the implications of the development on that site where applicable. It must include a scientific examination of evidence and data and identify possible implications on the Natura site.
Under the Habitats Directive and Birds Directive, a planning authority and an Bord Pleanala may not grant planning permission for development, which would adversely affect the integrity of a European site, unless a special procedure is complied with. The designations are incorporated into the development plan, so they will be triggered on a planning application.
The development need not directly affect the site or be within the site. There must be an appropriate assessment of plans which may affect the site. Where development is indirectly connected with a European site, the planning authority undertakes an appropriate assessment.
Plans and projects which would adversely affect the site are generally prohibited. Planning permission may be granted only if there are imperative overriding reasons of public importance.
Local and State Development
There are special procedures for approval of local authority and central government bodies’ work. These are not subject to planning permission but to a special consultation procedure, the results of which must be taken into account.
There is a requirement for screening and appropriate assessment for development to be carried out by state and local authorities as well as for private development. The relevant assessment and controls must be applied in this procedure, generally by An Bord Pleanala. Because matters of EU law are involved, the State is bound to comply.
Generally, consent or approval may be given only having decided first that the proposal for development will not adversely affect the integrity of the European site. There is an exception where development is justified on a part of reasons of overriding public interest, subject to strict conditions. See below.
In this case, a public consultation procedure must be undertaken. The Minister (for the Environment, et cetera), must be advised as to why he should be satisfied to request an opinion from the European Commission.
Special Consent
There might be planning exemptions because the works are minor or fall within certain very broad exemptions, for example, in agriculture or because of the body concerned, e.g. governmental sector. Where operations and activities are exempt from planning permission, a special consent procedure applies.
The consent system is operated by the Minister (Department) for Housing, Local Government and Heritage (formerly the Environment) or by another relevant public authority to which the consent function for that activity falls for operations and activities on land included in a European Site. The National Parks & Wildlife Service is a division of the Department.
When an application for consent is made, the Minister considers the application concerning the conservation objective. The owner or occupier can appeal the decision within 30 days to an internal departmental appeal heard by an independent lawyer.
Notification is still required where there is a management agreement. It is an offence to contravene this obligation without reasonable excuse.
Criteria for Special Consent
Consent will only be granted if it does not adversely affect the site’s integrity. The exception is where there are imperative reasons for overriding public interest. If a plan or project must be carried out for overriding public interest reasons, then this may only be done where certain conditions apply.
There must be a high degree of certainty that it will not adversely affect the site. An activity or operation will not normally be given consent where it would adversely affect the integrity of the site unless there are imperative reasons of overriding public importance.
It may be that there is a negative assessment of the implications for the site, but in the absence of alternative solutions, a project must nevertheless be carried out for imperative reasons of overriding public interest, including those of a social and economic nature. In this case, the State must take compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It must inform the EU Commission of the compensatory measures.
Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating to human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, other imperative reasons of overriding public interest.
Environmental Licences
Obligations apply under the Habitats Directive apply in relation to environmental licences. These licences are granted and renewed periodically. They will include water pollution and other licences that may affect rivers and bodies of water. Some such licences are granted by the local authorities, while others are granted by the Environmental Protection Agency depending on the scale of the activity type of activity concerned.
Authorities such as councils and other decision-making bodies in relation to environmental licences and applications must assess the impact of the proposal on a European site. It must be subject to an appropriate assessment of the proposal’s implications, given the site’s conservation objectives.
Developments on the Foreshore
Similar considerations apply to powers for Departments and other bodies to license particular activities. This includes drainage fisheries, mineral development for sure development and other particular schemes.
EIA of development on the foreshore is regulated under the Foreshore Acts. EIA requirements have been integrated into consent. A lease or licence must be obtained from the Minister for Communications and Natural Resources for development on the State foreshore.
Development consisting of the erection of any building, pier, wall or other permanent structure on non-State foreshore must be carried out in accordance with maps, plans and specifications approved by the Minister.
Ministerial consent must be obtained for the deposit of material on the foreshore. The Environmental Protection Agency Act applies to the various prior authorisations obtainable under the Foreshore Act 1933. Planning permission may also be required for these developments. Local authority development on the foreshore must be approved by An Bord Pleanála.