State Works

State Sector Development

There is a range of public authorities, ranging from ministers/departments of the Government to state authorities, which are in the broad public sector, to greater or lesser extents. Formerly, the State itself was assumed to be exempt from the Planning Acts under the general State privilege.

The courts held in the 1990s that state authorities are presumptively subject to planning permission obligations. Legislation was introduced to provide for the obligations of State authorities in relation to state works.  It was updated and reenacted in 2000.

Under the 2000 Act,  development by a State authority may be exempt and not subject to public consultation or may be subject to a public consultation procedure similar to that for local authorities.  The Minister may specify development which, for the purpose of public safety, order or the administration of justice, national security or defence, is exempt and does not require public consultation.

Exemption

Where development is proposed to be carried out by a State Department or the Commissioners of Public Works, the Minister may, if satisfied that the carrying out of the development is required by reason of an accident or an emergency, by order, suspend or vary any provisions of the legislation.

Those exempted on security/justice grounds include

• Garda stations, premises or installations for the purpose of the operations of the Gardai;
• prisons and places of detention;
• courthouses, whether temporary or permanent;
• barracks and other buildings for in connection with Defence Force operations;
• office buildings used for the purpose of or in connection with the business of the Dáil, Oireachtas certain departments, the Chief State Solicitor’s Office, DPP, Office of the Attorney General and the Courts Service; and
• certain works which have a national security element.

Also exempt is a range of development consisting of extensions to buildings within their curtilage, works which affect a protected structure and certain installations within their respective curtilages.

Development carried out by or on behalf of the National Roads Authority by way of construction and maintenance of a national road is exempt. Special consent provisions apply under the Roads Act.

Procedure

Where public consultation is required, the State authority must give the planning authority for the area notice of the proposal, including particulars, plans, and other information. The State authority publishes a notice of the proposed development in a newspaper and affixes a site notice.  This contains information on the nature of the development.

The notice sets out where the drawings and particulars are available for inspection for a period of six weeks following publication.  It invites submissions and observations.  Similar requirements apply to the site notice and newspaper notice.

The proposal must be made available for inspection. This must include documents, particulars, plans and other information. Submissions and observations may be made to the State authority in relation to the development.  The state authority has to give notice to certain parties, including the planning authority.  Where it affects a protected structure or is within an architectural conservation order area or proposed area, notice must o be given to the Minister for Arts, Heritage and the Gaeltacht.

The plans are to remain available for inspection for the requisite period.  They are to contain details of the documents setting out the nature of the development, location, plan, and particulars of the appearances via drawings attached.

Decision

The state authority decides on the proposal having regard to submissions and observations made. It may decide to proceed with the proposal as formulated or as modified. It must notify the planning authority and others who made observations and submissions.

The State authority, in deciding whether the proposed development is to be carried out, must have regard to the submissions and observations made by the planning authority and others.  It may carry out the proposal as originally proposed or as varied and amended or may choose not to carry it out at all.

After making a decision, it must give notice to the planning authority.  The notice must also be given to certain persons who have made submissions and observations.  Where a large number of observations have been made, a general public notice may be given.  Notice of the decision may be published in a newspaper.

Environmental Impact

Where a State authority proposes to carry out or has carried out development of a class specified in regulations made, and identified as likely to have significant effects on the environment, not directly connected with or necessary to the management of a European site, likely to have a significant effect either individually or in combination with other plans or projects on a European site,  the authority shall prepare, or cause to be prepared, an application for approval of the development and an environmental impact assessment report or Natura impact statement. It shall apply to the Board for such approval accordingly.

Before a State authority makes an application for approval it is to publish in one or more newspapers circulating in the area or areas in which it is proposed to carry out the development a notice indicating the nature and location of the proposed development and stating that—

• it proposes to seek the approval of the Board for the proposed development; an environmental impact assessment report or Natura impact statement or both has been prepared in respect of the proposed development) where relevant, the proposed development is likely to have significant effects on the environment in another Member State of the European Communities or other party to the Transboundary Convention,
•  specifying the times and places at which, and the period (not being less than 6 weeks) during which a copy of the application and the environmental impact assessment report or Natura impact statement or both that report and that statement] as the case may be,] may be inspected free of charge or purchased on payment of a specified fee (which fee shall not exceed the reasonable cost of making such copy),
•  inviting the making, during such period, of submissions and observations to the Board relating to the implications of the proposed development for proper planning and sustainable development in the area or areas concerned, and the likely effects on the environment or adverse effects on the integrity of a European site, as the case may be,] of the proposed development, if carried out, and
• specifying the types of decision the Board may make,  in relation to the application, stating that a person may question the validity of a decision of the Board by way of an application for judicial review, and
• stating where practical information on the review mechanism can be found.

It shall send a copy of the application and the environmental impact assessment report or Natura impact statement or both, as the case may be] to the local authority or each local authority in whose functional area the proposed development would be situate and to any prescribed bodies, together with a notice stating that submissions or observations may, during the period.

Where the proposed development is likely to have significant effects on the environment of a Member State of the European Communities or a state which is a party to the Transboundary Convention, send a prescribed number of copies of the application and the environmental impact assessment report to the prescribed authority of the relevant state or states together with a notice stating that submissions or observations may, during the period referred to be made in writing to the Board.

Board Options

The Board may, if it considers it necessary to do so,

• require a State authority that has applied for approval for a proposed development to furnish to the Board such further information in relation to the effects on proper planning and sustainable development or the environment of the proposed development as the Board may specify, or
• if it is provisionally of the view that it would be appropriate to approve the proposed development were certain alterations to be made to the terms of it, notify the State authority that it is of that view and invite the State authority to make to the terms of the proposed development alterations specified in the notification

Exemption

The Board may exempt the requirement for an EIA  where it is satisfied that—

• exceptional circumstances so warrant,
• the application of the requirement to prepare an environmental impact assessment report would adversely affect the purpose of the proposed development, and
• the objectives of the Environmental Impact Assessment Directive are otherwise met.

No exemption may be granted where another Member State of the European Union or a state which is a party to the Transboundary Convention, having been informed about the proposed development and its likely significant effects on the environment in that State or state, as the case may be, has indicated that it wishes to furnish views on those effects.

Special Necessity

Minister for Defence may, where he or she is satisfied that a proposed development or part of it is for the sole purpose of national defence, declare that the proposed development or relevant part of the proposed development is exempt from a requirement arising only on the basis that an environmental impact assessment of the proposed development is required, to apply for approval and prepare an environmental impact assessment report, if he or she considers that the application would have adverse effects on such purpose.

A Minister of the Government may, where he or she is satisfied that a proposed development or part of a proposed development is for the sole purpose of responding to a civil emergency, declare that the proposed development or relevant part of the proposed development is exempt from a requirement u arising only on the basis that an environmental impact assessment of the proposed development is required, to apply for approval and prepare an environmental impact assessment report, if he or she considers that it would have adverse effects on such purpose.

Notice of any exemption granted and of the reasons for granting the exemption and, where appropriate, of any requirements applied u shall, as soon as may be—

• be published in Iris Oifigiúil and in at least one daily newspaper published in the State, and
• be given, together with a copy of the information, if any, made available to the members of the public in accordance with subsection (3), to the Commission of the European Communities.

Decision of Board

Before making a decision in respect of a proposed development the Board shall consider—

• the environmental impact assessment report or Natura impact statement or both that report and that statement], any submissions or observations made and any other information furnished relating to— the likely consequences for proper planning and sustainable development in the area in which it is proposed to situate the proposed development of such development, and ) the likely effects on the environment or adverse effects on the integrity of a European site] of the proposed development, and
• the report and any recommendations of a person conducting any oral hearing relating to the proposed development.

The Board shall make its decision within a reasonable period of time and may, in respect of such application—

• approve the proposed development,
• make such modifications to the proposed development as it specifies in the approval and approve the proposed development as so modified,
• approve, in part only, the proposed development (with or without specified modifications of it of the foregoing kind), or
• refuse to approve the proposed development, and
• may attach to an approval such conditions as it considers appropriate.

Decision Matters

A decision of the Board

• shall have a reasoned conclusion in relation to the significant effects on the environment of the proposed development, on which the decision is based,
• in relation to the approval of, or refusal to approve, the development, where a decision (being a decision which arises from the consideration of the environmental impact assessment report concerned) by the Board to approve or to refuse to approve such development is different from the recommendation in a report of a person assigned to report on the application on behalf of the Board, the main reasons for not accepting the recommendation in the last-mentioned report to approve or refuse to approve the development,
• where a decision to impose a condition (being an environmental condition which arises from the consideration of the environmental impact assessment report concerned) in relation to any approval is materially different, in relation to the terms of such condition, from the recommendation in a report of a person assigned to report on the application for approval on behalf of the Board, the main reasons for not accepting, or for varying, as the case may be, the recommendation in the last-mentioned report in relation to such condition, and
• in relation to the approval of, or refusal to approve, the development, subject to or without conditions, that the Board is satisfied that the reasoned conclusion on the significant effects on the environment of the development was up to date at the time of the taking of the decision.

A decision given u and the notification of the decision shall include a summary of the results of consultations that have taken place and information gathered in the course of the environmental impact assessment and, where appropriate, the comments received from an affected Member State of the European Union or other party to the Transboundary Convention, and specify how those results have been incorporated into the decision or otherwise addressed.

In particular, the Board may attach to an approval a condition requiring—

• the construction or the financing, in whole or in part, of the construction of a facility, or
• the provision or the financing, in whole or in part, of the provision of a service,

in the area in which the proposed development would be situated, being a facility or service that, in the opinion of the Board, would constitute a substantial gain to the community.