Envir Impact Assessment
Requirement for EIS
An environmental impact assessment must be carried out by the planning authority or the Board, as the case may be, in respect of an application for consent for proposed development where either the proposed development would be of a class specified or where the planning authority or the Board, as the case may be, determines that the proposed development would be likely to have significant effects on the environment. The requirement also applies to development to be carried out by a local authority and development on the foreshore.
An applicant for consent to carry out a proposed development in the above categories shall furnish an environmental impact assessment report to the planning authority or the Board, as the case may be, in accordance with the permission regulations.
In carrying out an environmental impact assessment, the planning authority or the Board, as the case may be, shall consider—
- the environmental impact statement (now an environmental impact assessment report) ;
- any submissions or observations validly made in relation to the environmental effects of the proposed development;
- in some cases, the views, if any, provided by any other EU Member State.
Nature of Environmental Impact Assessment
The Environmental Impact Assessment must identify, describe and assess, in an appropriate manner and in the light of each individual case, the direct and indirect effects of a project on the following environmental factors.
- human beings;
- fauna and flora;
- soil, water, air, climate and landscape;
- material assets and the cultural heritage, and
- the interaction between the above factors.
The assessment is to be undertaken by a competent regulatory authority, having regard to the views of the public and other authorities likely to be affected by the project and to their environmental obligations. The views of other member states must be taken into account in cases with cross-border implications.
The assessment does not require a decision to be made in any particular manner. The authorities may decide that other factors outweigh environmental impact factors. The purpose of the regulation is to bring environmental factors and elements of the project to the fore in the decision-making process.
The Environmental Impact Assessment Directive is directly applicable. To the extent that it is inconsistent with the Irish regulations, it will take precedence over them. The courts are obliged to give effect to the Directives, even if the regulations do not fully implement it.
EIA Assessment
The assessment is required on the occasion of the principal consent in respect of the project. Subsidiary consents, such as by agreement of the planning authority or consents requiring further sub-consents, may require further EIA. Outline planning permission is not available for projects subject to the EIA procedure under Irish law.
An EIA may be required for modifications to the project as approved. Ancillary facilities may require EIA, where the facilities are to be provided in an environmentally or socially sensitive location.
The assessment is carried out on the basis of information provided by the developer. The information is to be made available to the public under the procedure. The authority concerned must take account of the information arising and gathered in the course of the procedure.
The relevant effect is that on the environment in the public sense. The fact that there may be a severe impact on particular private properties or amenities does not of itself make the project subject to EIA.
Environmental Impact Statement/ Report
The 2014 directive and implementing regulations require an environmental impact assessment report instead of an environmental impact statement. The report must be prepared by competent experts. Where there is a requirement both for an environmental impact assessment and appropriate assessment under the habitats or birds directive, there must be coordinated or joint procedures for assessment.
The environmental impact statement (EIS) (now an environmental impact assessment report (EIAR) comprises information supplied by the developer or applicant. The environmental impact assessment takes into account the EIAR, other factors and inputs. This includes further information supplied to the authority and comments by members of the public and other bodies.
The EIAR is to provide the information set out in the Directive. There is no strict format. It should be readily accessible and comprehensible to the public. The description must be in appropriate terms, in light of the individual circumstances.
The information must be relevant to the stage of the consent procedure, the specific characteristics of the project and the environmental features to be affected. The applicant is entitled to information from public authorities which hold relevant information for the purpose of preparing the EIS.
Information Required
The overriding obligation on the applicant is to give information describing the likely significant effects of the project on the environment. The courts will not generally second-guess the sufficiency and adequacy of information in a review, provided the statutory provisions are complied with.
The information must be made available to the public in a comprehensible form. The public must be given the opportunity to make observations and express opinions before the development consent is granted.
The developer need not provide information that is unreasonable to require, having regard to current knowledge and methods of assessment. The following minimum information must be provided.
- description of the project, including details on the site design and size,
- description of the measures envisaged to avoid, reduce and remedy the significant environmental effects;
- data required to identify and assess the main effects that the project is likely to have on the environment;
- outline of the main alternatives studied by the developer and an indication of the reasons for the choice;
- a non-technical summary of the information set out above.
The Directive does not prescribe exactly how the project is to be described and set out. The statutory requirements must be satisfied. The EPA has published guidelines on the information to be contained in an EIAR.
Process and Decision
The Directive requires authorities to give an opinion on the information to be supplied by the developer if it is requested before submitting the application. States may permit authorities to give the opinion even if the developer does not request this. The authority is obliged to consult the developer and other authorities to be affected, which have relevant environmental responsibilities, before giving its opinion.
Authorities with environmental responsibility who are affected by the project must be consulted in the pre-decision-making consultation and in the decision-making process. Other affected States must be given the opportunity to participate where the project is likely to have effects outside the state.
Decision
The decision of the authority must be made public. This includes the decision and the applicable conditions, the principal reasons and a description, where necessary, of the measures required to avoid, reduce and offset the principal adverse effects. The decision of the authority on whether an EIA is required must be made public.
The Directive is not to affect the obligations of authorities in relation to commercial and industrial confidentiality, including intellectual property and safeguarding the public interest.
Screening Determination
When a developer requests a screening determination, the information specified in the directive must be provided. This includes
- a description including physical characteristics and location
- aspects of the environment likely to be affected
- description of likely effects to the extent possible
- from expected residues and emissions in the production of waste where applicable and
- use of natural resources, including soil, water, land and biodiversity.
The authority must decide whether an environmental impact assessment is required within 90 days of the information being submitted. Reasons must be given for the decision. Decisions must be publicised.
The developer is to provide a description of reasonable alternatives and account of the principal reasons for the option for which planning permission has been sought and selected, having regard to the effect that the project is expected to have on the environment.
Where the planning or other authority gives an opinion on the scope, detailed information is to be included in the environmental impact assessment report, and the environmental impact assessment report is to be based on that opinion.
Substitute Consent
Substitute consent is an application for retention of development which should have been subject to an environmental impact assessment. This was introduced by the 2010 Act following a judgement of the Court of Justice of the European Union.
There is a requirement for prior assessment of the impact of development on a site designated under the birds and habitats directives or proposed to be designated and in course of designation. This is an appropriate assessment.
An environmental impact or NATURA impact statement and assessment is required. Screening must be undertaken below the threshold for environmental impact assessment as specified in the legislation for particular projects. It is required to make an assessment as to whether an environmental impact assessment is required.
Application for Substitute Consent
The application is made to Bord Pleanala. It applies to certain planning permissions which were invalidated by findings of the European Court and to cases where notwithstanding the absence of planning permission, there are exceptional circumstances allowing for regularisation of unpermitted development which should have been subject to an environmental impact assessment or appropriate assessment.
The Board determines whether there are exceptional circumstances such that regularisation of the development should be allowed. A remedial environmental impact statement or a remedial NATURA statement is required.
The Board can direct that operations which may have an adverse effect on the European site be required to cease. Where an application for substituted consent is not made or is refused, the planning authority must issue enforcement proceedings after notification by the Board.