Implementation of Directive 2014/52/EU on the effects of certain public and private
projects on the environment (EIA Directive)
I have been asked by Mr. Simon Coveney, T.D., Minister for Housing, Planning, Community and Local Government to refer to key changes to the environmental impact assessment (EIA) procedures set out in the above Directive, which amends Directive 2011/92/EU. In its Article 2, Directive 2014/52/EU provides that Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 16 May 2017.
This circular sets out procedures:
-to be followed in the case of applications falling within the scope of EIA on hands on
or before 15 May 2017; and that may be followed in the case of such applications received on or after 16 May 2017, by planning authorities and An Bord Pleanála (Competent Authorities).
Applications on hands on or before 15 May 2017 Article 3 of Directive 2014/52/EU provides that where, before 16 May 2017, the following circumstances apply, the relevant provisions of Directive 2011/92/EU must be applied:
-An application for planning permission or other development consent with an
Environmental Impact Statement has been submitted;
-An application for planning permission or other development consent has been
submitted and the screening to determine whether EIA applies under Article 4(2) of
Directive 2011/92/EU has commenced by this date;
-In the case of projects requiring assessment and a request has been made, providing
the information specified in Annex IV in an adequate and appropriate form, for an
opinion under Article 5(2) of Directive 2011/92/EU as to the information to be
provided by the developer and to be contained in an Environmental Impact Statement
(request for scoping opinion).
It will be noted that where the screening for EIA has commenced prior to 16 May 2017 and is carried out in accordance with Directive 2011/92/EU, but the application for planning permission or other development consent and accompanying EIS, where EIA is determined to be required, is submitted on or after 16 May 2017, the application will fall to be dealt with in accordance with Directive 2014/52/EU.
Applications made on or after 16 May 2017
An outline of the key amendments required on foot of Directive 2014/52/EU is identified in the public consultation document issued by the Department on 2 May 2017 (copy attached for ease of reference).
In respect of applications for planning permission or other development consent received on or after 16 May 2017 falling within the scope of Directive 2011/92/EU, or within the scope of Directive 2014/52/EU, competent authorities are advised to consider applying the requirements of Directive 2014/52/EU by way of administrative provisions in advance of the transposition of Directive 2014/52/EU into Irish law.
To assist competent authorities for planning consent, where they decide such applications will be dealt with under Directive 2014/52/EU, particular attention is drawn to the following key provisions of that Directive (referred to as the 2014 Directive).
Environmental Impact Assessment
1. This is redefined in the 2014 Directive as a process, which includes the responsibility
of the developer to prepare an Environmental Impact Assessment Report (EIAR), and
the responsibility of the Competent Authority to provide reasoned conclusions
following the examination of the EIAR and other relevant information.
Environmental Impact Assessment Report (EIAR)
2. Where EIA is required the developer must prepare an EIAR (previously EIS).
3. The information to be provided by the developer is set out in Article 5(1)(a) to (e) of
the 2014 Directive. This is the least information which should be provided.
4. The developer is required also to submit any additional information specified in a new
Annex IV in the 2014 Directive where this information is relevant to the specific
characteristics of the project, or type of project, and to the environmental features
likely to be affected. This may include relevant demolition works.
5. The EIAR must include a description of the reasonable relevant alternatives studied
by the developer and an indication of the main reasons for the option chosen.
6. The EIAR must be prepared by “competent experts”. The competency of experts will
be a matter for the Competent Authority.
7. Where the Competent Authority has issued a scoping opinion, the EIAR must be
based on that opinion.
8. The EIAR must take into account “current knowledge” and “methods of assessment”.
Competent Authority Environmental Impact Assessment
9. The assessment must identify, describe and assess appropriately the direct and indirect significant effects on the project on the factors set out in Article 3(1)(a) to (e) of the 2014 Directive.
10. Article 3(1)(a) to (e) contains significant amendments to the 2011 Directive. New
factors in the 2014 Directive include “population and human health” (replacing
“human beings”), “biodiversity” with particular attention to species and habitats protected under the Habitats and Birds Directives (replacing “flora and fauna”), and
“land”. It should be noted that consideration of “climate” should include “climate
change”.
11. Consideration of significant effects must include expected effects deriving from
vulnerability of the project to risks of major accidents and/or disasters, where relevant
to the project.
12. The Competent Authority must have, or have access, as necessary, to sufficient
expertise to examine the EIAR. This will be a matter for each Competent Authority.
13. The Competent Authority may seek supplementary information in order to reach a
reasoned conclusion on the significant effects on the environment.
Competent Authority decision
14. A decision to grant development consent must incorporate, at least, the reasoned
conclusion in relation to the significant effects on the environment.
15. The reasoned conclusion must take into account results of the examination of the
EIAR and any supplementary information received through consultations with
Prescribed Bodies and the public, and any transboundary consultations.
16. A decision to grant must incorporate a description of any features of the project
envisaged to avoid, prevent or reduce and, if possible, offset significant adverse
effects on the environment.
17. Where appropriate, a decision to grant must include monitoring measures.
18. Monitoring conditions must be proportionate to the nature, location and size of the
project and the significance of its effects on the environment. Monitoring conditions
should not be used as a general means of gathering environmental information.
19. A decision to refuse must state reasons for refusal.
Screening for EIA
20. Where a developer makes a screening determination request, he or she must provide
the Competent Authority with the information listed in Annex IIA (new to the 2014
Directive).
21. A screening determination must be based on the information provided by the
developer.
22. The reasons for the determination must be given with reference to the criteria set out
in Annex III (amended from the 2011 Directive).
23. If mitigation measures are influential to a screening determination, these must be
stated by the Competent Authority in the screening determination.
24. A screening determination must be given within a period not exceeding 90 days from
the date the developer submits the required information, except in exceptional cases
where the period may be extended.
25. Screening relates only to Annex II projects where significant effects on the
environment cannot be discounted.
Scoping
26. When requested by the developer, the Competent Authority must give an opinion on
the scope and level of information to be included in an EIAR.
27. Scoping of an EIAR is voluntary for developers.
28. There is a mandatory obligation for the Competent Authority to consult with the
appropriate Prescribed Bodies before giving an opinion.
Information to be made available to the public
29. The public must be informed electronically and by public notices or by other
appropriate means of matters set out in Article 6(2) of the 2014 Directive. Relevant
environmental information should be made electronically accessible to the public by
the Competent Authority.
30. The Competent Authority must inform the public and Prescribed Bodies of its
decision.
31. The information to be made available must include the content of the decision and any conditions attached.
32. The information to be made available must include the main reasons and
considerations on which the decision is based, including information about the public
participation process, including a summary of results of consultations and information
gathered during the EIA process. It must include a statement as to how the results
gathered have been incorporated or otherwise addressed.
Legislative Transposition
The Department is in the process of urgently drafting the required amendments to the
Planning and Development Act 2000 as amended and the Planning and Development
Regulations 2001-2015 to provide for the transposition of the Directive into the Irish
planning code. The Department is also in the process of updating the March 2013
“Guidelines for Planning Authorities and An Bord Pleanála on carrying out Environmental Impact Assessment” to provide practical guidance on legal and procedural issues arising from the requirement to undertake EIA in accordance with Directive 2014/52/EU.
You will be advised when the amendments to the legislation are made and the draft
Guidelines are issued for consultation.
In advance of transposition of Directive 2014/52/EU into Irish law, it is a matter for each
Competent Authority to apply this Circular Letter, taking such advices as the Competent
Authority considers appropriate. Any requests for clarifications that the Department may be able to provide with regard to the contents of this Circular letter should be addressed to
Aisling Holohan at EIAtransposition@housing.gov.ie phone 01 8882873.
Terry Sheridan
Principal
Planning Policy
cc all Government Departments
Environmental Protection
