1. LEGISLATIVE DEVELOPMENTS IN NATURE CONSERVATION AND HABITATS LAW IN 2011 Margaret Austin 29 March 2012

2. 2 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

3. 3 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

4. 4 Appropriate Assessment (“AA”) 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. 5 Appropriate Assessment (“AA”) 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…..

6. 6 Appropriate Assessment (“AA”) 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…..

7. 7 Appropriate Assessment (“AA”) 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…..

8. 8 Habitats & 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

9. 9 Habitats & Planning Regulations 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…..

10. 10 Habitats & Planning Regulations 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…..

11. 11 Habitats & Planning Regulations 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…..

12. 12 Habitats & Planning Regulations 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…..

13. 13 Appropriate Assessment and Planning Regulations Procedural requirements – application for substitute consent Procedural requirement for AA and submission of NIS

14. 14 European Communities (Birds & Natural Habitats) Regulations 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

15. 15 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

16. 16 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

17. 17 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

18. 18 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

19. 19 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

20. 20 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

21. 21 European Communities (Birds & Natural Habitats) Regulations 2011 Minister can direct restoration  restoration warrant Injunctions Threat response plans Cont’d…..

22. 22 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

23. 23 European Communities (Birds & Natural Habitats) Regulations 2011 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…..

24. 24 THANK YOU MARGARET AUSTIN

25. LEGISLATIVE DEVELOPMENTS IN NATURE CONSERVATION AND HABITATS LAW IN 2011 Margaret Austin 29 March 2012