Appropriate Assessments &
Environmental Impact Assessments
Presented By: Seán Crowley
Date: 16th February 2015
About the Course
CMG Professional Training
Presenters:
• Alice Whittaker, Partner, Philip
Lee Solicitors.
• Anne Murray, Senior
Ecologist, JBA Consulting Ltd.
Appropriate Assessments
Learning Objectives
• What is an AA?
• When is an AA required?
• What is the process of an AA?
What is an Appropriate Assessment?
• A system that is put in place at the planning stages
of a project to safeguard the interests of the Natura
2000 network.
Why Bother with an AA?
• Conservation: Biodiversity can cause
• Decline 10-1,000 faster than natural extinction
• Homogenisation – simplification of communities
• Increase in amount of generalists “weedy” species
• It’s the law – ECJ prosecution can lead to the
imposition of fines to Ireland
Legislation & Directives
• Article 6(3) and 6(4) of the Habitats Directive
• Any plan or project likely to have a significant effect on a
Natura 2000, either individually or in combination with
other plans or projects, shall undergo an Appropriate
Assessment to determine its implications for the site. The
competent authorities can only agree to the plan or project
after having ascertained that it will not adversely affect the
integrity of the site concerned.
• In exceptional circumstances, a plan or project may still be
allowed to go ahead, in spite of a negative assessment,
provided there are no alternative solutions and the plan or
project is considered to be of overriding public interest. In
such cases the Member State must take appropriate
compensatory measures to ensure that the overall
coherence of the N2000 Network is protected.
Legislation & Directives
• Birds Directive (1979)
Natura 2000 Network
• Habitats Directive (1992)
• AA has been a legal requirement in Ireland since 1997
• SACs (Special Area of Conservation) incl. cSAC
• Annex I habitats
• Annex II species (other than birds)
• SPAs (Special Protection Areas) incl. pSPA
• Annex I birds
• Other regularly occurring migratory birds & their habitats
SPA Map 2009
Fore more information: http://www.npws.ie/
SAC Map 2009
Legislation Timeline
Appropriate Assessment Process
Stage 1
Screening for
AA
Stage 2
Appropriate
Assessment
Article 6(3)
• 4 Step Process
Stage 3
Alternative
Solutions
Stage 4
IROPI
Article 6(4)
Stage 1 – AA Screening
• Where significant effects (direct or indirect) are
likely, uncertain or unknown at screening stage, an
AA will be required.
• Mr. Justice Hedigan - Rossmore and Killross v An
Bord Pleanála, the State and Eirgrid (28 August
2014) – To included mitigation measures at the
screening stage
• Link to online article
Stage 2 – Appropriate Assessment
• If it can be concluded on the basis of AA that there will be
no adverse effects on the integrity of a Natura 2000 site,
the plan or project can proceed to authorisation, where
the normal planning or other requirements will apply in
reaching a decision to approve or refuse.
• Includes mitigation measures to avoid, reduce or offset
negative effects.
• The proponent is required to submit a NIS (Natura Impact
Statement)
• If negative effects cannot be avoided – proceed to stage 4
Stage 3 – Alternative Solutions
• Examines alternative solution that would enable
the plan or project to proceed without adverse
effects on the integrity of the Natura 2000 site.
• Process then returns to Stage 2
Stage 4 - IROPI
• Imperative Reasons of Overriding Public Interest
• Article 6(4) of the Habitats Directive
• No less damaging situation exists
• Compensatory measures must be proposed and
addressed
• Measures must be practical, implementable, likely
to succeed and approved by the Minister
Environmental Impact Assessments
What is an EIA?
• An Environmental Impact Assessment is a critical
tool in managing and clarifying the complex
relationships between development and the
environment
Hierarchy & Integration of Assessment
Policy
Strategy
Plan
Appropriate
Assessment of
public and private
plans and projects
SEA of public
plans and
programmes
Programme
Project
EIA of public &
private projects
ie: just project level
Directives
• 85/337/EEC - Original Directive
• 97/11/EC - added further projects and screening
procedure
• 2003/35/EC – provided for public participation in decisionmaking and access to justice in environmental matters (to
give effect to Aarhus Convention)
• 2009/31/EC - added further projects
• 2011/92/EU – Consolidation of previous Directives
• 2014/52/EU – Amendments to 2011/92/EU
When do we need an EIA?
• Projects likely to have significant effects on the
environment by virtue of their nature, size or
location are made subject to
• a requirement for development consent and
• an assessment with regard to their effects
• Must be a prior assessment
• Systematic grant of retention permission not
compliant with Directive
EIA Process
Proposed
Development
Examine the
Impacts on the
Environment
Significant Likely
Adverse Impacts
Positive Residual
or no Impacts
Propose
Mitigation
Measures
Finalise Design
Incorporate
Revisions into
Design
Apply for
Development
Consent
Class of Project
• Annex I (PDR Sch. 5 Pt. 1) – EIA Mandatory
• Eg: waste disposal installations, crude oil refineries,
groundwater abstraction, wastewater treatment plants
(>150,000 pe), dams, pipelines greater than 800 mm dia.
and a length >40 km etc…
• Annex II (PDR Sch. 5 Pt. 2) – EIA Triggered by
significant effects
• Above national threshold – EIA Mandatory
• Below national threshold – Screening Required
• Eg: Intensive fish farms, deep drillings, food industry
factories, airfields etc…
Screening
• Screen Annex II ‘below threshold’ projects
• New Annex IIA – information to be provided by
developer
• To determine whether there are significant effects,
apply Annex III criteria (amended)
• CA decision in writing, reasoned (90 days, plus)
• Available to the public but no statutory obligation for
public consultation
Significant Effects
• Annex III Criteria
• Characteristics of Project (size, the cumulation with
other projects, use of natural resources, production of
waste etc..)
• Location (existing land use, sensitive sites, absorption
capacity of land)
• Characteristics of Impact (extent, magnitude, duration
and probability of impacts)
Whole Project Approach
• Include ancillary and subsidiary elements within the
project description, for screening, scoping and EIA
•
•
•
•
•
Access roads
Pipelines
Power Stations
Pumping Stations
Construction Compounds
• AVOID project splitting
2014/52/EU – Take account of impact of whole project,
including subsurface, underground elements, as well as
construction, operation and demolition phases.
Project Splitting
• Splitting a project into below threshold elements
• Incremental developments, extensions and
modifications
• Commission v Ireland (Derrybrien) – At the time,
wind farms not listed in Annex I or II. CJEU held that
the EIA should nonetheless have been carried out
because subsidiary elements – road, peat
extraction, removal of forestry were Annex II
projects – requirement to screen
EIA Report
• Detailed project and site description (whole
project)
• Likely significant effects and proposed mitigation
measures
• Main alternatives, reasons for project taking into
account the environmental effects
• Non-technical summary
EIA – 2014/52/EU
• New definition of EIA, a process (for which the
competent authority is responsible) for comprising
• Preparation of EIA Report by developer
• Consultations, public participation further information
• Examination and assessment by C.A of all relevant
information
• ‘Reasoned conclusion’ on significant effects
• Consent decision (detailed requirements – Art. 8a)
Environmental Factors
a) Human beings (population and human health),
flora and fauna (biodiversity, with particular
attention to species and habitats protected under
the Birds and Habitats Directives);
b) (Land) soil, water, air, climate and the landscape;
c) Material Assets and the cultural heritage;
d)The interaction between each of these factors
Role of Competent Authority
• EIA is the responsibility of the competent authority
• EIA is a process whereby the direct and indirect
significant effects of a project on certain
environmental factors are:
• Identified
• Described
• Assessed
• Culminating in a decision to grant or refuse consent
More Information?
• Full presentations (incl. this one) have been made
available on the network:
O:\Misc\KM\Water\Presentations\20141120 AA &
EIS
Thank You