legislative developments in nature conservation and habitats law in 2011 margaret austin 29 march...

LEGISLATIVE DEVELOPMENTS

IN NATURE CONSERVATION

AND HABITATS LAW IN 2011

Margaret Austin29 March 2012

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Habitats & Appropriate Assessment (“AA”)Habitats & Appropriate Assessment (“AA”)

• Part XAB of the Planning & Development Acts 2000-2011

• New definitions

• “European site”; “land use plan”

• Natura Impact Statement (“NIS”) and Natura Impact Report

(“NIR”)

• NIR for land use plans, NIS for consent for proposed

development

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Appropriate Assessment (“AA”)Appropriate Assessment (“AA”)

•Screening for AA

screening before plan made or consent given for proposed development

•“Competent Authority” must assess:

in view of best scientific knowledge

if land use plan or proposed development

individually or in combination with another plan or project

is likely to have significant effect on a European site

if cannot exclude plan or development will have significant effects, AA required

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•Competent Authority to determine:

under Article 6.3 of the Habitats Directive

whether proposed plan or development

would adversely affect the integrity of a European site

•Can only make plan or give consent, if:

determine would not adversely affect the integrity of the European site

Cont’d…..

5


•Land Use Plans (“LUP”):

if LUP will adversely affect the integrity of the European site and

no alternative solution

can decide should be made for IROPI

•Detailed procedural mechanism for Ministerial consideration of IROPI

and compensating measures

Cont’d…..

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• Statement of Case and NIR to the Minister

• If site hosts priority habitat type or priority species:

more limited IROPI

opinion of EU Commission

• Consultations

• Minister issues notice to the Competent Authority

• Competent Authority decides

Cont’d…..

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•Similar procedural mechanism for consent for proposed

development

•Statement of Case and NIS to the Minister

•3 courses of action open to the Minister

•Competent Authority decides

•Requirement for AA for LA development

Cont’d…..

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Habitats & Planning RegulationsHabitats & Planning Regulations

•Land reclamation exemption changed

•New Article 8 exempts:

field drainage

land reclamation consisting of recontouring of land, infilling of soil within a farm

removal of field boundaries

•Article 9 re de-exemptions extended re monuments

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•Works on places, caves …. objects of archaeological, geological,

ecological interest, the preservation, conservation or protection of

which is an objective of a development plan, LAP, draft plan or draft

variation

•Development for which AA required not exempt

•Development likely to have adverse impact on NHA not exempt

•Thresholds on EIA for agricultural works and wetlands changed

Cont’d…..

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• New Article 103 on sub-threshold development:

more nuanced requirement for determination on whether EIS required

if proposed sub-threshold development located “on or in or has potential to impact on …….”

“a place, site or feature of ecological interest, the preservation or conservation of which is an objective of a development plan ….”

proposed Natural Habitat Areas

Cont’d…..

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•Procedures re strategic infrastructure and submission of NIS:

public notification and consultation procedures re NIS

•Board can direct production of NIS (PADA)

•Substitute Consent:

• public notification and consultation procedures

Cont’d…..

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•No outline permission for development requiring an NIS

•AA applicant submits or may be directed to submit NIS 10 copies, 1 electronic copy newspaper notice

•Regulations on AA cross refer to other regulations on EIS

procedures

Cont’d…..

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Appropriate Assessment and Planning RegulationsAppropriate Assessment and Planning Regulations

•Procedural requirements – application for substitute consent

•Procedural requirement for AA and submission of NIS

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European Communities (Birds & Natural Habitats) European Communities (Birds & Natural Habitats) Regulations 2011Regulations 2011

• Repeals the 1997 Regulations

• System of Ministerial consent for activities

any operation or activity likely to impact on the physical environment or on wild flora or fauna or on the habitats of wild flora and fauna

excludes activities given consent under other statutory consent regimes – Schedule 2

excludes development under PADA 2000-2011

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• Conservation of natural habitats, habitats of species

Minister to establish priorities for designation of sites as SAC and SPA

• To undertake surveillance and monitoring of conservation status of

the natural habitats and species, especially priority habitats and

species (Article 2 of Habitats Directive) and of birds (Article 1 of

Birds Directive)

Cont’d…..

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• Identification of sites for consideration as SCI:

notification of candidate sites to specified bodies

notification of owners and occupiers of land in cSCI of inclusion on list

public notice

system for objections to be made

• Adoption by EU Commission, designation as SAC, notification

Cont’d…..

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• Identification and notification of cSPA:

notification of cSPA to specified bodies

notification of owners and occupiers of land included in the cSPA

public notice

• Classification and notification:

notice operates to classify as SPA

Cont’d…..

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• Minister to establish conservation objectives and measures to achieve

objectives

• Duties of public authorities

• Ministerial direction – activity may not be carried out without consent:

will not apply if consent under PADA 2000-2011

consents under Schedule 2 of Regulations

• Ministerial direction to control specified activities:

can direct activity will not be carried out

restrict or regulate the activity

Cont’d…..

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• Derogation consents by applicant:

Minister to make scientifically based assessment of impacts

screening for AA

consent only if satisfied activity will not adversely affect the integrity of the

European site

can invite public opinion and can revoke consents

if Minister believes application is for development and not exempted

development, can ask Board to determine

Cont’d…..

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• Objections to Ministerial Directions

• Review of Ministerial Directions

• Creation of offences:

carrying out activity within or outside European site

enters, occupies, brings or releases animals or objects

likely to have significant effect or adversely affect the integrity of the

European site

extensive Gardaí powers

Cont’d…..

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• Minister can direct restoration

restoration warrant

• Injunctions

• Threat response plans

Cont’d…..

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• Part 5 of Regulations incorporates AA into consent procedures (other

than those under PADA)

• Applies to “plans” and “projects”

plan – statutory or non-statutory that establishes public policy on land use

and infrastructure development

extraction or exploitation of mineral resources

renewable energy resources

that’s to be considered for adoption, authorisation, approval or for the

grant of licence, permit, etc.

includes public authority’s own land use plans and projects

Cont’d…..

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• Public authority must carry out screening for AA

must have regard to cumulative effect of plans or projects when

screening and carrying out AA

can request NIS + opinion of the public

• Process similar to that under Part XAB of PADA

Cont’d…..

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THANK YOUTHANK YOU

MARGARET AUSTINMARGARET AUSTIN

LEGISLATIVE DEVELOPMENTS

IN NATURE CONSERVATION

AND HABITATS LAW IN 2011

Margaret Austin29 March 2012

legislative developments in nature conservation and habitats law in 2011 margaret austin 29 march...

Documents

development plan

draft plan

planning development

habitats directivewhether

subthreshold development

submission of nis

recontouring of land

adverse impact