Designated Areas Control
General
The measures to implement the Habitats Directive are generally preventative. Under the Irish Constitution, the general position is that private landowners are not required to meet the expenditure for public purposes where they are not undertaking some new activity or development. It is lawful for conditions to apply to planning permissions requiring substantial expenditure, which the landowner would not wish to do if given a choice. Taking up the planning permission is a choice.
In contrast, the State cannot generally require upgrading or new measures. For example, legislation which required employers to undertake substantial expenditure in adjusting buildings and workplaces for disabled persons was found unconstitutional.
The position will be different if there has been a breach of legislation, such as some earlier unlawful pollution. In this case, steps can be taken to require the landowner or the person concerned to remediate the position.
State Obligations
The State is obliged to take proactive measures for European sites. This includes management plans specifically designated for the site or integrated into a plan such as the development plan. The State may be obliged to ensure there are conservation measures to manage the sites.
Authorities such as councils and other decision-making bodies in relation to environmental licences and applications must assess the impact of the proposal on the site concerned. It must be subject to an appropriate assessment of the proposal’s implications, given the site conservation objectives.
Restrictions on Development
Under the Habitats Directive and Birds Directive, a local or planning authority and an Bord Pleanala may not grant planning permission for development which would adversely affect the integrity of the European site unless the special procedure in the Habitats Directive is complied with.
There is an exception to the general obligation in relation to the site, if 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 the 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, to other imperative reasons of overriding public interest.
Controls on SAC SPA
Where operations and activities are exempt from planning permission, a special consent procedure applies. The consent system is operated by the Department of the [Environment] for operations and activities on land included in a European Site.
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
- a candidate (in some cases) or designated a special protection area
Landowners and occupiers will usually have received notices indicating the operational activities which are indicated might be considered would be likely to alter, damage or destroy the integrity of the site. A person shall not carry out an activity or operation mentioned in the notice unless it is carried out and permitted by the owner and occupier and one of them has given the Department notice of the proposal carrying out the operational activity specifying its nature.
Notification is still required where there is a management agreement. It is an offence to contravene this obligation without reasonable excuse.
Process
There must be an appropriate assessment of plans which may affect the site. Plans and projects which would adversely affect the site are prohibited. A project or plan may only be permitted if there is a high degree of certainty that it will not adversely affect the site. If a plan or project must be carried out for overriding public interest reasons within a special area of conservation, then this may only be done under certain conditions.
When an application for consent is made, the Minister considers the application concerning the conservation objective. Consent will only be granted if it does not adversely affect the site’s integrity. The exception is where there are imperative reasons of overriding public interest.
The criteria for the decision is as stated above. 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. Conditions may be attached. The owner or occupier can appeal the decision within 30 days to an internal departmental appeal heard by an independent lawyer.
The Minister may apply to the High Court or Circuit Court for an order against the owner or occupier of land to do or not to do or to cease to do anything necessary in order that the unauthorized operation is discontinued or not carried out or is carried out only in accordance with the terms of the requisite consent. And where action has been carried out in contravention of the requirements or consent, the owner or occupier may be required to restore the land.
In common with other EU legislation, the Habitats Directive binds the State. The special (quicker) procedures for approval of local authority and central government body work apply. The special, more limited procedures resemble the planning permission process but do not actually involve an independent decision maker. The relevant assessment and controls must be applied in this procedure.
Developments on the Foreshore
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 the Communications and Natural Resources under ss.2 or 3 of the 1933 Act for development on 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 2, 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.
Other Channels of Controls
The special consent procedure was adopted by the Minister/Department of Culture, Heritage and the Gaeltacht [formerly the Environment] in relation to various works that are exempted from planning permission. There might be planning exemptions because works are minor or fall within certain very broad exemptions for example, in agriculture or because of the body concerned. E.g. governmental
The designations are incorporated into the development plan so they will be triggered on a planning application. Where development is not directly connected with a European site, the planning authority must require an appropriate assessment. Planning permission may be granted only if there are imperative overriding reasons of public importance.
Similar obligations apply to local authority and state sector development. These are not subject to planning permission, but to a special consultation procedure, the results of which must be taken into account. It does not necessarily bind the local authority or state body. However, because matters of EU law are involved, the state is bound to act in particular ways to comply.
Similar considerations apply to powers for Departments and other bodies to license particular activities. Includes drainage fisheries mineral development for sure development and many other particular schemes.
Obligations apply under the habitat directors 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.
Landowners in a Natural Heritage Area are required to apply for permission to the Minister under Regulation 19 of the Wildlife (Amendment) Act 2000 to carry out certain works on a NHA. The works which require the consent of the Minister are found at Schedule 2 of the S.I. designating the relevant NHA. This prior consent requirement ensures that the Minister carries out the necessary environmental assessment to determine if the activity can take place and if any conditions should be attached to any consent given.