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Europe ruling on planning directive welcomed

By: 
BARRY ROCHE, The Irish Times - Saturday, March 5, 2011

ENVIRONMENTAL CAMPAIGNERS have welcomed a ruling by the European Court of Justice reversing an Irish Supreme Court judgment which they say has serious implications for how Irish planning authorities assess major projects.

The European Court of Justice has issued a ruling in the case of the European Commission vs Ireland in which the court found that Ireland had failed to properly implement the EU’s environmental impact assessment directive in the case of major projects.

Solicitor Joe Noonan, acting for the Cork Harbour Alliance for a Safe Environment (Chase), had argued that Ireland had breached the EU directive in the way it had split the statutory approval functions for major projects between the EPA and An Bord Pleanála.

Mr Noonan had also argued that Ireland had breached the directive by failing to require either the EPA or An Bord Pleanála to perform an assessment of environmental impacts as required.

Under article 2 of the council’s 1985 EIA directive, planning permission can only be given after an assessment is carried out on all significant projects which, because of their nature, size or location, could have significant effects on the environment.

Article 3 of the 1985 EIA directive says any assessment must look at the impact of a project on human beings, fauna, flora, soil, water, air, climate, landscape, material assets and the cultural heritage as well as the interaction between any of these subjects.

The European Court of Justice found that Ireland had failed to properly transpose article 3 and had failed to properly implement the requirements of article 2 in cases where the Irish planning authorities and the EPA both have decision-making powers concerning a project.

The court also ruled that Ireland was in breach of the directive by excluding demolition works from the scope of its legislation, not transposing the EU EIA directive into Irish law and ordered Ireland to pay costs in the case.

Mr Noonan said it was a significant decision and would come into effect immediately. It would apply to any major projects in the pipeline while the consequences of the ruling with regard to any retrospective application would also have to be considered.

The ruling would require consideration by both the Department of the Environment and the Attorney General as it marked a reversal of a 2007 Supreme Court decision which found the State could split the statutory approval functions between the EPA and planning authorities, he said.

The Department of the Environment said the part of the judgment relating to demolition works had been clarified by a 2008 amendment to the 2001 planning and development regulations regarding which aspects of demolition were exempt from planning permission requirements.

A second part of the judgment relating to the transposing article 3 of the 1985 directive had been remedied through the Planning and Development (Amendment) Act 2010, said the department in its statement.

“A response to the final substantive element of the judgment regarding split decision-making will require further consideration by the State,” it said.