(26) Environmental Law

SEA POLLUTION ACT, 1991

Environmental-Law

  1. Introduction

The Sea Pollution Act 1991 gives effect to the London Convention for the Prevention of Pollution from Ships 1973 (the MARPOL Convention), as amended by the London Protocol of 1978. It also gives effect to the London Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil 1973 (the Intervention Protocol). The Sea Pollution Act 1991 also repeals the Oil Pollution of the Sea Acts 1956 to 1977 and provides for other related matters.

2. Definitions

Section 3 of the Sea Pollution Act 1991 provides a number of definitions, the most important of which are as follows:

‘Discharge’ is defined for the purposes of the Sea Pollution Act in relation to oil, oily mixtures, noxious liquid substances, harmful substances, sewage or garbage or any effluent containing any of those substances as meaning: any release, howsoever caused, from a ship and includes any escape, disposal, spilling, leaking, pumping, emitting or emptying of any substance from a ship, but does not include

(a) Dumping, within the meaning of the Dumping at Sea Act 1981; or

(b) The release of oil, oily mixtures, noxious liquid substances or harmful substances directly arising from the exploration exploitation and associated offshore processing of sea bed mineral resources; or

(c) The release of oil, oily mixtures, noxious liquid substances, or harmful substances for the purpose of legitimate scientific research into pollution abatement or control.

‘Garbage’ is defined as meaning: all kind of victual, domestic and operational waste (excluding fresh fish and parts thereof) and any other substance generated during the normal operation of a ship and liable to be disposed of either continuously or periodically other than a substance specifically regulated by [the] Act.

‘Harbour’ is defined as including: any dock, pier, wharf, jetty, boat slip, offshore terminal, installation or place intended or used for the accommodation, berthing or anchorage or for the shipping, unshipping or transshipping of goods.

‘Harmful substance’ means: any substance which, if introduced into the sea, is liable to:

(a) Create hazards to human health;

(b) Harm living marine resources;

(c) Harm flora and fauna;

(d) Damage amenities; or

(e) Interfere with legitimate uses of the sea, and any substance subject to control by the MARPOL Convention or prescribed under s 10 as a harmful substance and includes any such substance carried at sea, however carried.

‘Inspector’ is defined as: a person being:

(a) A surveyor of ships; or

(b) A person appointed to be an inspector by warrant of the Minister for Communications and Natural Resources (the ‘Minister’) under s 20; or

(c) An officer holding a commissioned naval rank in the Defence Forces; or

(d) A member of the Garda Síochána.

The ‘Intervention Convention’ means: the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1969, done at Brussels on the 29th day of November, 1969.

The ‘Intervention Protocol’ means: the Protocol Relating to Intervention on the High Seas in Cases of Pollution by Substances other than Oil done at London on the 2nd day of November, 1973.

‘Maritime casualty’ means: a collision of ships, stranding or other incident of navigation, or other occurrence on board a ship or external to it resulting in material damage or imminent threat of material damage to a ship or cargo.

‘Master’ is defined as: the person having, for the time being, the command or charge of the ship.

‘Noxious liquid substance’ means: any liquid substance which, if introduced into the sea, is liable to:

(a) Create hazards to human health;

(b) Harm living marine resources;

(c) Harm flora and fauna;

(d) Damage amenities; or

(e) Interfere with legitimate uses of the sea; and any liquid substance prescribed under s 10 as a noxious liquid substance.

‘Oil’ is defined as meaning: (other than in s 26) ... petroleum in any form including crude oil, fuel oil, diesel oil, lubricating oil, sludge, oil refuse and refined products and any oil or oily mixture prescribed as such under s 10 but does not include any substance prescribed as a noxious liquid substance ‘Oily mixture’ means: a mixture which has any oil content.

‘Owner’, in relation to a ship, is defined as: the person registered as the owner of the ship, the person who owns the ship, and, in the case of a ship which is owned by a state (including the state) and is operated by a person who in that state is registered as the ship’s operator, ‘owner’ means the person registered as such operator.

‘Pollution’ is defined as including: when used without qualification ... pollution by oil, by an oily mixture, by a noxious liquid substance, by a harmful substance, by sewage or by garbage.

‘Sewage’ means:

(a) Drainage and other wastes from any form of toilets, urinals and water closet scuppers on board a ship; or

(b) Drainage from medical quarters on board a ship by way of wash basins, wash tubs and scuppers located in such quarters; or

(c) Drainage from spaces containing live animals on board a ship; or

(d) Any other waste water discharged from a ship when such water is intermingled with any of the drainages specified at paragraphs (a), (b) or (c).

‘Ship’ is defined as: a vessel of any type whatsoever operating in the marine environment and includes hydrofoil boats, air-cushioned vehicles, submersibles, floating craft and fixed or floating platforms and includes fixtures, fittings and equipment.

3. Application of the Sea Pollution Act

Section 4(1) provides that the Sea Pollution Act shall not apply to any warship or to any ship for the time being used by the government of any country for purposes other than commercial purposes.

The Minister may make regulations exempting, subject to such conditions (if any) as may be specified in the regulations, any class or classes of ships registered in the state from compliance with any provision of the Sea Pollution Act or of any of the regulations made under the Sea Pollution Act, where he is satisfied that such an exemption would not result in a mere risk of pollution.

4. Discharge of oil, oily mixture and related substances

Part II of the Sea Pollution Act deals with the prevention of pollution. Section 10(1) gives the Minister power to make regulations prohibiting or regulating the discharge anywhere at sea from a ship registered in the state, or the discharge in the state from any ship, of any oil, oily mixture, noxious liquid substance, harmful substance, sewage or garbage. The Minister may also make regulations, pursuant to the section, governing prescribed operations on board ship relating to any such substance carried on the ship.

Section 10(3) of the Sea Pollution Act provides that regulations made under s 10 may relate to ships generally or to any class of ship, to substances generally or any description of substance and may be made subject to such conditions and such exemptions as may be rescribed. Section 10(4) of the Sea Pollution Act gives the Minister power to provide by regulations that any prescribed substance shall be a harmful substance, a noxious liquid substance, an oil or oily mixture, sewage or garbage, for the purposes of the Sea Pollution Act.

The Minister may also, by regulations made under s 10(5) of the Sea Pollution Act, require the notification at such time and in such manner as may be prescribed, by the master or owner of a ship carrying any prescribed substance of any intent to load or unload any such substance in the state.

5. Offence to contravene regulations made under s 10(1) of the Sea Pollution Act

Where any regulations made under s 10 are contravened, the owner and the master of the ship in respect of which there is a contravention shall be guilty of an offence under s 10(2) of the Sea Pollution Act.

6. Matters not covered by regulations made under s 10 of the Sea Pollution Act

Section 11 provides that regulations made under s 10 of Sea Pollution Act shall not apply:

(a) To the discharge into the sea of any oil, oily mixture, noxious liquid substance, harmful substance, sewage or garbage for the purpose of securing the safety of a ship, or saving life at sea, if such discharge was, having regard to all the circumstances, necessary and reasonable; or

(b) To the discharge into the sea of any oil, oily mixture, noxious liquid substance, harmful substance, sewage or garbage which resulted from any damage to the ship, or to its equipment provided that all reasonable steps have been taken after the occurrence of the damage, or, as the case may be, the discovery of the discharge, to prevent or minimize the discharge and the owner or the master did not act with intent to cause damage or recklessly; or

(c) To the discharge into the sea of any prescribed substance for the purpose of minimizing the damage from pollution, provided that the discharge was sanctioned by or on behalf of the Minister.

 

 

 

 

 

 

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(25) Environmental Law

Enforce the Clean Water

Water pollution

Pollutionwater

The Local Government (Water Pollution) (Amendment) Act 1990

This Act (the 1990 Act) amends and extends the Act and the Fisheries Act 1959 (in so far as the Fisheries Act 1959 relates to water pollution).

Civil liability for pollution

Section 20 of the 1990 Act deals with civil liability for pollution. Section 20 (1) provides that where trade effluent, sewage effluent or other polluting matter enters waters and causes injury, loss or damage to a person or to the property of a person, the person may recover damages. Damages may be recovered in any court of competent jurisdiction for such injury, loss or damage:

(a) from the occupier of the premises from which the effluent or matter originated unless the entry was caused by an act of God or an act or omission of a third party over whose conduct such occupier had no control, being an act or omission that such occupier could not reasonably have foreseen and guarded against; or

(b) if the entry was occasioned by an act or omission of any person that, in the opinion of the court, contravenes a provision of the Act or the 1990 Act, from that person.

Non-application of s 20(1) of the 1990 Act

Section 20(2) provides that s 20(1) does not apply to the entry of trade effluent, sewage effluent or other polluting matter to waters which is under and in accordance with a licence under s 4 of the 1977 Act or s 171 of the Fisheries Act 1959 or is exempted from the application of s 3(1) of the Act by s 3(5) of that Act.

Bye-laws relating to the carrying on of a specified activity

Under s 21(2) of the 1990 Act a local authority may make bye-laws prohibiting the carrying on of a specified activity in all or part of its area, or providing for the regulation of a specified activity, if it considers it necessary to do so for the purpose of preventing or eliminating the entry of polluted matter to waters.

The activities to which s 21 applies are those listed in s 21(1) of the 1990 Act, including any one or more of the following:

(a) the collection, storage, treatment and disposal of any polluting matter used in connection with, or arising from any operation, activity, practice or use of land or other premises carried on for the purposes of agriculture, horticulture or forestry;

(b) any activity that involves the application to land or to grow crops, or the injection into the land, of any silage effluent, animal slurry, manure, fertiliser, pesticide or other polluting matter; or

(c) any other operation, activity, practice or use of land or other premises for the purposes of agriculture, horticulture or forestry.

Offence to contravene any bye-law

Section 21(3) of the 1990 Act provides that it shall be an offence to contravene or fail to comply with any bye-laws made under s 21.

Declaration that a combined drain shall become a sewer

Section 22(1) of the 1990 Act provides that a sanitary authority may declare by order that a specified combined drain shall become and be a sewer for the purposes of the Act and the 1990 Act. Whenever it does so the drain concerned shall, on commencement of the order, become and be a sewer for those purposes.

Section 22(2) of the Act requires the sanitary authority to give written a notice to the owner of the drain and to the occupier of premises from which effluent is being discharged to the drain of its intention to make such an order. The owner and the occupier may, within 30 days of receipt of the notice, then make written representations to the sanitary authority in relation to the proposed order. These representations, if any, must be considered by the sanitary authority before the order is made.

Offences by bodies corporate

Under s 23 of the 1990 Act, where an offence under the Act or the 1990 Act has been committed by a body corporate and is proved to have been committed with the consent or connivance of, or is to be attributable to any neglect on the part of, a person being a director, manager, secretary or other officer of that body corporate, or a person who was purporting to act in such capacity, that person shall also be guilty of an offence.

Payment of fines to local authority, sanitary authority or regional board

Where a prosecution is brought by a local authority, sanitary authority or regional board, s 26 of the 1990 Act empowers the court, on the application of the local authority, sanitary authority or regional board concerned, to provide for payment of the fine imposed by the court to the relevant local authority, sanitary authority or regional board.

Prosecution of offences

Section 27 of the 1990 Act deals with a number of matters relating to prosecution of offences under the Act. Section 27(a) and (b) stipulate the persons who may bring prosecutions under various sections of the Act. Section 27(c) of the 1990 Act provides that a summary offence under s 21 of the 1990 Act may be prosecuted by the local authority concerned.

According to s 27(d) of the 1990 Act, summary proceedings may be commenced within a period of six months from the date on which evidence sufficient to initiate proceedings comes to the knowledge of the person prosecuting those proceedings. Proceedings may not be initiated later than five years from the date of commission of the offence.

Acertificate signed by, or on behalf of, the person bringing the proceedings, setting out the date or dates on which the relevant evidence came to his knowledge would provide prima facie evidence of those dates, unless the contrary is shown.

Payment of costs of local authority, sanitary authority or regional board

According to s 28 of the 1990 Act where a person is convicted of an offence  under the Act 1977 or the 1990 Act, or s 171 or s 172 of the Fisheries Act 1959, the court shall, unless it is satisfied that there are special and substantial reasons for not doing so, order the person to pay to any local authority, sanitary authority or regional board concerned the costs reasonably incurred by that local authority, sanitary authority or regional board in relation to the investigation, detection and prosecution of the offence, including the costs incurred in taking samples, carrying out tests and examinations and in respect of the remuneration and other expenses of employees, consultants and advisors.

 

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(24) Environmental Law

Indonesia’s plantation lobby challenges environmental law

 

Environment: Law for a healthy planet

environmetallaw25 

WATER POLLUTION

 This text examines the legislation concerning water pollution in Ireland.

Local Government (Water Pollution) Act 1977

Introduction to the Act

The Local Government (Water Pollution) Act 1977 (the Act) provides for the prevention of water pollution in Ireland.

Offence to cause or permit polluting matter to enter waters Section 3(1) makes it an offence for a person to cause or permit any polluting matter to enter waters.

Definition of ‘polluting matter’

‘Polluting matter’ is defined in s 1 of the Act as including:

Any poisonous or noxious matter, and any substance (including any explosive, liquid or gas), the entry or discharge of which into any waters is liable to render those or any other waters poisonous or injurious to fish, spawning grounds or the food of any fish, or to injure fish in their value as human food, or to impair the usefulness of the bed and soil of any waters as spawning grounds or their capacity to produce the food of fish or to render such waters harmful or detrimental to public health or to domestic, commercial, industrial, agricultural or recreational uses.

Definition of ‘waters’

Section 1 of the Act also provides the definition of ‘waters’, which are defined as including:

(a) Any (or any part of any) river, stream, lake, canal, reservoir, aquifer, pond, watercourse or other inland waters, whether natural or artificial,

(b) Any tidal waters, and

(c) Where the context permits, any beach, river bank and salt marsh or another area which is contiguous to anything mentioned in paragraph (a) or (b), and the channel or bed of anything mentioned in paragraph (a) which is for the time being dry, but does not include a sewer.

Definition of ‘sewer’

‘Sewer’ is defined in s 1 of the Act, as substituted by s 2 of the Local Government (Water Pollution) (Amendment) Act 1990 (the 1990 Act), as being: a sewer within the meaning of the Local Government (Sanitary Services) Acts, 1878 to 1964, that is vested in or controlled by a sanitary authority and includes a sewage treatment works, and a sewage disposal works, that is vested in or controlled by a sanitary authority.

Definition of ‘aquifer’

‘Aquifer’ is defined in s 1 of the Act, as substituted by s 2 of the 1990 Act, as being: any stratum or combination of strata that stores or transmits groundwater.

Defence to a charge of committing an offence under s 3(1)

Section 3(3), as substituted by s 3(1)(a) of the 1990 Act, provides, however, that it is a good defence to a charge of committing an offence under s 3(1) of the Act for the accused to prove that he took all reasonable care to prevent the entry of any polluting matter into any waters to which the charge relates to providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation that were suitable for the purpose of such prevention.

Prosecution for an offence under s 3(1) of the Act

Section 27(b) of the 1990 Act (which replaces s 3(4) of the Act) provides that a prosecution for a summary offence under s 3(1) of the Act may be brought by a local authority, or regional board, in or adjoining whose area any of the waters concerned are situated or any other person affected.

Discharges which are not in breach of s 3(1) of the Act

Section 3(5) of the Act, as substituted by s 3(1)(b) of the 1990 Act provides that certain discharges which are controlled by other provisions of the Act or by other enactments are not offences within s 3(1) of the Act.

These discharges include, inter alia, discharges of trade effluent or sewage effluent made under and in accordance with a licence granted under s 4 of the Act or in accordance with any applicable regulations, the entry of any matter from vessels to tidal waters or discharges authorised by the Foreshore Act 1933, the Harbours Act 1946 or the Fisheries Acts 1959 to 1997.

Offence to discharge effluent to waters without a licence

Section 4(1) of the Act controls the discharge of any trade effluent or sewage effluent. It provides that a person shall not discharge, or cause or permit the discharge of, any trade effluent or sewage effluent to any waters except under and in accordance with a licence granted, in the case of a discharge to waters, by the local authority of the area in which the waters into which the effluent is discharged are located, or, in any other case, by the local authority in whose area any premises, works, apparatus, plant or drainage pipe from which the effluent is discharged are situated. According to s 4(2), s 4(1) does not apply to discharges to tidal waters from vessels or marine structures, or to discharges from a sewer, or discharges exempted by regulations made under s 4(10) of the Act.

Local authority may grant a licence

Section 4(3) of the Act provides that a local authority may grant or refuse to grant a licence under s 4, or may grant it subject to conditions. In deciding whether or not to grant a licence the local authority must have regard to the objectives contained in any relevant water quality management plan made under s 15 of the Act.

Compliance with water quality standards

By virtue of s 4(4) of the Act, a local authority must not grant a licence in respect of the discharge of an effluent which would not comply with, or would result in the waters to which the discharge is made not complying with, any relevant water quality standard prescribed under s 26 of the of the Act.

Types of conditions which may be attached to a licence

Section 4(5) of the Act lists the types of conditions which may be attached to a licence. The conditions may deal with such matters as the nature, composition, rate, volume, method of treatment and location of a discharge, the periods during which a discharge may or may not be made, the provision and maintenance of meters, gauges and other apparatus, the keeping of records of discharges and the prevention of a discharge in the event of breakdown in plant. A local authority may also attach a condition requiring the payment of a charge or charges to the local authority.

Lapse of a licence granted under s 4(1) of the Act

If a licence has been granted under s 4(1) for a certain type of discharge but no such discharge has been made or has ceased, for three years, s 4(7) provides that the licence shall cease to have an effect.

 Prosecution for an offence under s 4(1) of the Act

Section 4(9), which listed the parties permitted to bring a prosecution for a na offence under s 4 of the Act, was repealed by s 30 of the 1990 Act. In its place, s 27(b) of the 1990 Act provides that a prosecution for a summary offence under 4 of the Act may be brought by a local authority, or regional board, in whose area or adjoining whose area any of the waters concerned are situated, or any other person affected.

Defence to a prosecution for an offence under other enactments

Section 4(11) of the Act states that it shall be a good defence to a prosecution for an offence under any other enactment that the act constituting the alleged offence is authorised by a licence under s 4 of the Act.

Section 4(12) provides that the fact that a person has a licence under s 4 does not mean that he is entitled to discharge trade effluent or sewage effluent to waters solely by reason of such licence without regard to such obligations which he may have to others.

Licensing of existing discharges

Section 5 of the Act deals with the licensing of existing discharges of trade effluent or sewage effluent which were being made before, and continued to be made after, the Act came into force. It provides that once a licence application is made for an existing discharge before a date to be prescribed by regulations and any information required by any regulations in relation to a licence is furnished, the applicant may continue to make discharges without being in breach of s 4(1) until such time as the local authority grants or refuses a licence.

Review of licences granted under s 4(1) of the Act

Section 7(1) of the Act provides that licences issued under s 4(1) may be reviewed by a local authority at intervals of not less than three years from the date of granting of the licence, or the date of its last review, or at any time with the consent of the person making, causing or permitting the discharge.

Sections 7(2) and 7(3) of the Act have been amended by s 5 of the 1990 Act which substitutes new s 7(2) and (3) into the Act and inserts a new s 7(2A) into the Act. Section 7(2), as substituted, provides that, notwithstanding any other provision of the Act or any condition in a licence, the licence may be reviewed at any time by the local authority that granted it if any of the followings occurs:

(a) The local authority has reasonable grounds for believing that the discharge authorised by the licence is, or is likely to be, injurious to public health or renders, or is likely to render, the waters concerned unfit for use for domestic, commercial, industrial, fishery (including fish-farming), agricultural or recreational uses;

(b) There has been a material change in relation to the nature or volume of the discharge;

(c) There has been a material change in relation to the waters to which the discharge is made;

(d) Further information has become available since the date of granting of the licence relating to polluting matter present in the discharge concerned, or relating to the effects of such matter; or

(e) The licensee applies to the local authority concerned to review the licence.

Local authority action following a review of a licence

Section 7(3) of the Act, as substituted, provides that on completion of a review under s 7, a local authority may amend or delete any condition of the licence or may attach conditions or further conditions to it or may revoke it. Where it proposes to exercise any of these powers it must do so as soon as may be after the completion of the relevant review.

Appeals

A new s 8 of the Act has been substituted by s 6(1) of the 1990 Act. Section 8(1)(a), as substituted, gives any person a right of appeal to A Bord Pleanála in relation to the grant, refusal to grant or revocation of a licence by a local authority under s 4. An appeal may also be made in relation to the attachment of conditions or additional conditions to such a licence or the amendment or deletion of any such condition. An appeal under s 8(1) must be made before the expiration of such period as may be prescribed by regulations.

Date of effectiveness of a local authority’s decision

Section 8(1)(b) of the Act provides that a decision of a local authority in relation to the grant, refusal to grant, or revocation of a licence, or in relation to the conditions attached to such a licence, shall have effect, where no appeal is brought against it, on the expiration of the period prescribed by regulations.

If an appeal is brought against such a decision and the decision is not set aside by the final determination of the appeal, the decision will have effect in accordance with such final determination. Where an appeal is brought against such a decision but is withdrawn before the final determination of the appeal, the decision shall have effect on such withdrawal if the period prescribed by regulations has expired. If the period has not expired, the decision shall have an effect on its expiry.

Decision of A Bord Pleanála

Section 8(2) of the Act provides that A Bord Pleanála, after consideration of an appeal under s 8, shall (as it thinks proper) allow or refuse an appeal and may give any direction that it considers appropriate to the local authority concerned. This may include a direction that a specified condition is attached to the licence concerned or be amended or deleted. The alocal authority must comply with any such direction.

 Registers of licences and abstractions

Section 9 of the Act obliges a local authority to establish and keep a register of all licences granted by it under s 4 and also to keep a register of abstractions from waters in its area. Each sanitary authority must also keep a register of all licences granted by it under s 16 of the Act. All registers must be kept at the offices of the local authority or sanitary authority and must be open to inspection by any person at all reasonable times. Any person is also entitled to obtain a copy of any entry in a register on payment of a prescribed fee.

 Court order to terminate discharge, remedy effects and pay costs

Section 7 of the 1990 Act has substituted a new s 10 of the Act. Under s 10(1), as substituted, where, on the application of any person to the appropriate court, whether or not that person has an interest in the waters concerned, that court is satisfied that another person either:

(a) Is causing or permitting, or has caused or permitted, polluting matter to enter waters and the entry is or was not one to which s 3(5) applies and is or was not authorised by a licence under s 171 of the Fisheries (Consolidation) Act 1959 (the Fisheries Act 1959); or

(b) Is discharging or causing or permitting to be discharged, or has discharged or caused or permitted to be discharged, trade effluent or sewage effluent to waters and the discharge is or was not one to which s 4(2) of the Act applies and is or was not one authorised by a licence under that s or s 171 of the Fisheries Act 1959, the court may order that other person to do any one or more of the following:

• To terminate the entry or discharge within a specified period; or

• To mitigate or remedy any effects of the entry or discharge in such manner and within such period as may be specified; or

• To pay to the applicant or other specified person a specified amount to defray all or part of the costs incurred by the applicant or such specified person in investigating, mitigating or remedying the effects of the entry or discharge concerned.

Application for an order under s 10(1) of the Act

An application under s 10(1) of the Act, as substituted, may, in any case, be made to the High Court. If the estimated cost of complying with the order to which the application relates comes within the jurisdiction of the District Court or Circuit Court it may, alternatively, be made to the relevant court. If such an application is made and during the hearing of the action the court is of the opinion that the estimated cost will exceed the jurisdiction of the court, it may, if it thinks fit, transfer the application to the appropriate court. An application under s 10(1) of the Act shall be brought in a summary manner and a court may, if it thinks fit, make such interim or interlocutory order as it considers appropriate.

Offence not to comply with an order made under s 10(1) of the Act

If a person does not comply with an order made under s 10(1), he shall be guilty of an offence under s 10(2).

 Defendant must be heard by the court before an order is made Section 10(3) of the Act, as substituted, provides that an order shall not be made by a court under s 10(1) unless the person named in the order has been given an opportunity of being heard by the court in proceedings relating to an application for the order.

Local authority may take action specified in order and recover costs

Section 10(4) of the Act, as substituted, gives the local authority, or the regional board, in whose area the waters concerned are situated, the power, where a person does not comply with an order under s 10(1), to take any steps specified in the order to remedy or mitigate the effects of the entry or discharge. The costs of taking such steps shall be recoverable by the local authority or regional board, as the case may be, from the person in respect of whom the order was made as a simple contract debt in any court of competent jurisdiction.

Local authority may serve a notice requiring cessation of discharge

Section 10(5) of the Act as substituted, empowers a local authority to require, by notice in writing, the cessation of the entry or discharge of polluting matter, or trade or sewage effluent, to waters. Such a notice may be served on a person who is causing or permitting the entry of polluting matter, or trade or sewage effluent, to waters where s 3(5) or s 4(2) of the Act does not apply to such entry or discharge and the entry or discharge is not under and in accordance with a licence under s 171 of the Fisheries Act 1959.

Contents of a notice served under s 10(5) of the Act According to s 10(5) of the Act, as substituted, the notice shall require the cesser of the entry or discharge within such period as may be specified in the notice and shall require the mitigation or remedy of any effects of the entry or discharge within such period and in such manner as may be specified.

If the notice is not complied with within the specified period, s 10(6), as substituted, provides that the local authority may carry out the works itself and recover the cost from the person on whom the notice was served as a simple contract debt in any court of competent jurisdiction.

Jurisdiction of courts in making an order under s 10(1) of the Act Section 10(7) of the Act, as substituted, deals with the jurisdiction of the District Court or Circuit Court in relation to the making of orders under s 10(1). Where an order is sought under s 10(1), as substituted, an application must be made to the judge of the District Court or Circuit Court, as the case may be, for the district or circuit in which the waters concerned, or the land or other premises from which the entry or discharge concerned takes place, are situated.

Action which may be specified in a notice served under s 10(5) of the Act Section 10(8) of the Act, as substituted, specifies the steps which an order made, or notice served, under s 10(1) or s 10(5), as substituted, may require to be taken.

These include the replacement of fish stocks, the restoration of spawning grounds, the removal of polluting matter from waters and the treatment of affected waters so as to mitigate or remedy the effects of the entry or discharge concerned.

Notice may be served without prosecution under s 3 or s 4 of the Act

By virtue of s 10(9), as substituted, an application may be made under s 10(1), as substituted, and a notice may be served under s 10(5) whether or not there has been a prosecution under s 3 or s 4.

Application for an order of the High Court under s 11(1) of the Act

The High Court may make an order under s 11 if it is satisfied that:

(a) Polluting matter is being, has been or is likely to be caused or permitted to enter waters and the entry is not one to which s 3(5)178 of the Act applies or would apply and is not under and in accordance with a licence under s 171 of the Fisheries Act 1959;

 (b) Trade or sewage effluent is being, has been, or is likely to be, discharged or caused or permitted to be discharged to waters and the discharge is not one to which s 4(2)180 of the Act applies or would apply and is not under and in accordance with a licence under that section or s 171 of the Fisheries Act 1959; or

(c) The polluting matter has escaped, is escaping or is likely to escape accidentally from premises to waters.

Such an order may:

(a) Prohibit any person from causing or permitting, or continuing to cause or permit, the entry of polluting matter, or the discharge of trade or sewage effluent, to the waters;

(b) Require the carrying out of specified measures by any person having the custody or control of polluting matter or trade or sewage effluent to prevent any such entry or discharge, or its continuance or recurrence, or refrain from or cease doing any specified act or making any specified omission;

(c) For the purposes of preventing the escape of polluting matter from premises, require the carrying out by the occupier of any such premises of specified measures or to do, refrain from, or cease doing any specified act or making any specified omission.

Application may be made in the absence of a prosecution under s 3 or s 4 of the Act

Section 11(1A) of the Act provides that an application may be brought under s 11(1) Notwithstanding that a prosecution under s 3 or s 4 in respect of the relevant entry or discharge has not been brought.

Notice served on person having custody or control of polluting matter

Under s 12(1) of the Act, a local authority may serve a notice in writing to any person having the custody or control of any polluting matter on premises in its area, where it appears that it is necessary to do so in order to prevent or control pollution of waters.

Section 12 (2) states that the notice shall:

(a) Specify the measures which appear to the local authority to be necessary to prevent such matter from entering waters; and

(b) direct the person on whom the notice is served to take the measures specified

in the notice within a stated period.

Section 9 of the 1990 Act inserts an additional s 12(2A) into the Act. The new s 12(2A) provides that a notice under s 12(1) of the Act may, either in addition to or in lieu of, complying with s 12(2) of the Act:

(a) Regulate or restrict in such manner and for such period as may be specified in the notice the carrying on of any activity, practice or use of premises that, in the opinion of the local authority concerned, could result in the entry of polluting matter to waters; and

(b) Require the provision, re-location or alteration of facilities for the collection or storage of polluting matter.

Person served may make written representations to the local authority

Section 9 of the 1990 Act also substitutes a new s 12(3) into the Act. This provides that a person on whom a notice under s 12(1) of the Act is served may make representations in writing to the local authority regarding the terms of the notice within such period as may be specified in the notice and the local authority may, after consideration of any representations, confirm, amend or revoke the notice and shall inform the person in question of its decision.

Power of local authority to take action to prevent and abate pollution

A new s 13 of the Act has been substituted by s 10 of the 1990 Act. Section 13(1), as substituted, gives a local authority or a sanitary authority power to prevent and abate pollution. The local authority or sanitary authority may take such measures as it considers necessary for the purpose of:

(a) Preventing the entry of polluting matter to any waters, or to any drain or sewer provided solely for the reception or disposal of storm water in its area;

(b) Removing polluting matter from any such waters, drain or sewer;

(c) Preventing polluting matter in waters outside its area from affecting such area or any seashore (within the meaning of the Foreshore Act 1933) adjoining such area; or

(d) mitigating or remedying in relation to its area or any such seashore the effects of any polluting matter in any such waters, drain or sewer.

Measures which may be taken under s 13(1) of the Act

The measures taken by a local authority or sanitary authority under s 13(1) may include the giving of assistance, whether financial or otherwise and the procuring of the taking of measures by others. The local authority or sanitary authority may also dispose of any such polluting matter in such manner as it thinks fit.

Recovery of costs by a local authority or sanitary authority

Section 13(2) of the Act, as amended, states that where any measures taken by a local authority or a sanitary authority under s 13(1) were necessitated by the acts or omissions of a person which that person ought reasonably to have foreseen would or might necessitate the taking of the measures by the relevant authority, the authority may recover the expenditure incurred in taking such measures from the person as a simple contract debt.

Notification of an accidental discharge

Under s 14, notification of any accidental discharge, spillage or deposit of any polluting matter which enters, or is likely to enter, any waters or a sewer must be made as soon as practicable after the occurrence of the discharge, spillage or deposit by the person responsible to the local authority in whose area the discharge, spillage or deposit occurs or, in the case of a sewer, to the sanitary authority in which the sewer is vested or by which it is controlled. It is a na offence to fail to make such notification.

Licence to discharge trade effluent or other matter to a sewer

Section 16(1) of the Act provides that a person, other than a sanitary authority, shall not discharge or cause or permit the discharge of any trade effluent or other matter (other than domestic sewage or storm water) to a sewer, except under and in accordance with a licence granted by the sanitary authority in which the sewer is vested or by which it is controlled.

 Procedure for granting and reviewing a licence granted under s 16(1) of the Act

The provisions governing the granting, reviewing and duration of a licence granted under s 16(1) are broadly similar to those under s 4(1). However, the procedure laid down by regulations to be followed by an applicant for a licence under s 16(1) and by the sanitary authority in considering such an application contains a number of differences from that laid down in respect of a licence under s 4(1). Among the most relevant of these differences are the following:

(a) An applicant for a licence under s 4(1) must publish notice of his intention to apply for a licence in a newspaper circulating in the local authority’s area;

(b) The application for a licence under s 4(1) and all relevant plans and other particulars submitted by the applicant to the local authority must be made available for public inspection at the local authority’s offices but no provision is made for public inspection of materials relating to an application pursuant to s 16(1) of the Act;

(c) Only the applicant, the occupier of premises for which a discharge to which a licence under s 16(1) relates and the sanitary authority which granted, refused or reviewed such a licence may appeal a decision on the licence, whereas any person may appeal against a decision by a local authority relating to a licence granted pursuant to s 4(1) of the Act.

Power of a sanitary authority to grant a licence under s 16(1) of the Act

Section 16(2) of the Act gives a sanitary authority power to refuse to grant a licence under s 16(1) of the Act or to grant such a licence subject to specified conditions. In considering whether or not to grant a licence, a sanitary authority is obliged to consider the objectives stated in any relevant water quality management plan made under s 15 of the Act. In addition, s 16(3) prohibits the granting of a licence in respect of the discharge of a trade effluent which would not comply with any water quality standards made under s 26(1) of the Act.

Conditions attached to a licence under s 16(1) of the Act

Section 16(4)(a) provides that any conditions attached to a licence granted under s 16(1) may relate (but are not limited) to such matters as the nature, composition, temperature, volume, method of treatment and location of a discharge and the times during which a discharge may or may not be made. Conditions may also provide for the provision and maintenance of meters, gauges and other apparatus and require the taking of samples and the keeping of records. The update may also be specified by which conditions must be complied with.

A new s 16(4)(b) has been substituted by s 12 of the 1990 Act. This gives the sanitary authority power to attach a condition to a licence requiring the licence holder to pay the sanitary authority such amount as may be specified by it, having regard to expenditure incurred by it in monitoring, treating and disposing of discharges to sewers in its area.

Section 16(5) provides that any condition attached to a licence granted under s 16(1) of the Act shall be binding on any person discharging, or causing or permitting the discharge of, trade effluent or other matter to which the licence relates.

Lapse of a licence granted under s 16(1) of the Act

If after three years from the date on which such a licence is granted no discharge of the type authorised by that licence has been made, or where such a discharge has ceased for a period of three years, s 16(6) of the Act stipulates that the licence shall cease to have an effect.

Offence to discharge to a drain or sewer provided for storm water

Section 16(7) of the Act makes it an offence for a person to permit or cause the entry of any polluting matter (including sewage) to any drain or sewer provided solely for the reception or disposal of storm water.

Prosecution of offences under s 16 of the Act

Section 16(9), which provided for the prosecution of offences under s 16 by any sanitary authority, has been repealed by s 30 of the 1990 Act and, in its place, s 27(b) of the 1990 Act now provides that a summary offence under s 16 of the Act may only be prosecuted by the sanitary authority in which the sewer concerned is vested, or by which it is controlled, or in whose area it is situated.

Defence to a prosecution under other enactments

According to s 16(11) of the Act, it shall be a good defence to a prosecution under any other enactment that the act constituting the alleged offence is authorised by a licence under s 16.

However, s 16(12) provides that a person shall not be entitled solely by reason of a licence under s 16 to make, cause or permit a discharge to a sewer.

 Local authority power to require cessation of discharge in breach of s 16 of the Act

A sanitary authority is given power by s 16(13) to serve a notice in writing to any person making, causing or permitting a discharge or entry in breach of s 16(1) or 16(7), requiring the cessation of the breach within such period as may be specified in the notice. The notice may also require the mitigation or remedy of any effects of the breach within a specified period and may specify the actual steps to be taken.

 Offence not to comply with a notice served under s 16(13) of the Act

Section 16(13) has been strengthened by the insertion by s 12(b) of the 1990 Act of a news 16(13A) into the Act. Section 16(13A), as inserted, makes it an offence not to comply with a notice served under s 16(13).

Sanitary authority may take steps specified in the notice

In addition, where a person does not comply with a notice served under s 16(13) of the Act within the period specified in the notice, s 16(14) provides that the sanitary authority which served the notice may take any steps it considers necessary to prevent the discharge or entry or to mitigate or remedy any effects of the breach. It may recover the cost of such steps from the person on whom the notice is served as a simple contract debt in a court of competent jurisdiction on proving to the satisfaction of the court that that person is responsible for the breach.

Review of a licence granted under s 16 of the Act

Section 17, as amended by s 13 of the 1990 Act, deals with the power and, in certain cases, the obligation of a sanitary authority to review a licence granted by it under s 16(1).

The circumstances in which the sanitary authority may, and those in which it must, review a licence granted under s 16 are in terms identical to those specified in s 7 of the Act, as amended by s 5 of the 1990 Act, relating to licences granted under s 4(1) of the Act.

 Offence to make a false or misleading statement

Section 19(3)(a) of the Act, as amended by s 24(2) of the 1990 Act, provides that a person who, on application for a licence under s 16, or on appeal under s 20, makes a statement in writing which is false or to his knowledge misleading in a material respect shall be guilty of an offence. In addition, any licence issued to that person as a result of the application or appeal in relation to which the information was furnished shall stand revoked from the date of the conviction.

Appeals relating to a licence granted under s 16 of the Act

A news 20 of the Act has been substituted by s 15(1) of the 1990 Act. The news 20(1)(a), as substituted, now provides that the occupier of premises from which a discharge is made which requires a licence under s 16 may appeal to the Planning Board, within such period as may be prescribed by regulations, against the decision of the sanitary authority to revoke the licence, attach conditions to the licence, or amend or delete any such conditions. Section 20(1), as substituted, gives a person whose application for a licence under s 16(1) has been refused by a sanitary authority a right of appeal to Na Bord Pleanála within such period as may be prescribed by regulations.

Decision of A Bord Pleanála

Section 20(2) of the Act, as substituted, provides that the Planning Board, after consideration of an appeal, shall allow or refuse the appeal and may give a direction to the sanitary authority concerned, which must be complied with by that sanitary authority. Any such direction may require that a specified condition is attached to the licence concerned or be amended or deleted.

 Monitoring of waters and discharges

Under s 22(1) of the Act a local authority or sanitary authority must carry out, or cause to be carried out, such monitoring of waters and discharges of trade effluents and sewage effluents and other matter to waters or to sewers, as the case may be, as it considers necessary for the performance of any of its functions under the Act.

It also may collect, or cause to be collected, such information as it considers necessary for the performance of any of its functions under the Act. Section 22(2) gives a local authority or a sanitary authority the power to provide meters, manholes or inspection chambers, or any other apparatus for any of these purposes.

Notice requiring information about activities or practices

Section 23(1) of the Act, as substituted by s 17 of the 1990 Act, provides that a local authority may serve a notice in writing on certain persons requiring them to give to the local authority in writing, within a specified period of not less than 14 days beginning on the date of the giving or serving of the notice, such details as may be so specified in relation to any such activities or practices and such other information (if any) as it may consider necessary for the purposes of these functions.

The persons on whom such a notice may be served are persons who:

(a) Are abstracting water from any waters in the area of the local authority;

(b) Are discharging, or causing or permitting the discharge of, trade effluent or sewage effluent or other matter to such waters;

(c) have custody or control of any polluting matter in the local authority’s area;

or

(d) are engaged in activities or practices that, in the opinion of the local authority, may cause or permit polluting matter to enter waters.

Notice requiring information about discharges

A similar power is given by s 23(2) of the Act, as substituted by s 17 of the 1990 Act, to a sanitary authority, for the purpose of its functions under the Act, to require a person by notice in writing who is making, causing or permitting a discharge to a sewer to provide such details of the discharge as may be specified in the notice, and any other relevant information, within a specified period of not less than 14 days beginning on the date of the giving or serving of the notice. Section 23(3), which was also substituted by s 17 of the 1990 Act, provides that a notice served under s 23(1) or s 23(2), as substituted, may require maps, plans, drawings or photographs showing the location, nature and extent and condition of:

(a) Any facilities for the collection, treatment or disposal of the effluent or other polluting matter;

(b) Any other premises from which polluting matter may enter waters;

(c) Any sewer, and showing the relationship of those evidential exhibits to any waters.

Details may also be requested of the systems, methods and arrangements in use or proposed for the disposal of the effluent or other polluting matter and of the times and rates at which such disposal is effected.

 Offence to fail to give information or to give misleading information

Section 23(4) of the Act, as substituted by s 17 of the 1990 Act, provides that it is an offence to fail or refuse to comply with such a notice or to give information which, to the knowledge of the person giving it, is false or misleading in a material respect.

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(23) Environmental Law

European Union Environmental Assessment

EIA

ENVIRONMENTAL IMPACT ASSESSMENT

  1.The concept of environmental impact assessment (EIA) has its origins in European law and Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 97/11/EC (the Directive). The Directive will be further amended by the Directive providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment (2003/35/EC) and amending Council Directives 85/337/EEC and 96/91/EC.

The Directive introduced a requirement that the Member States must ensure that projects likely to have a significant effect on the environment by virtue inter alia of their nature, size and location are made subject to a requirement for a development consent and an assessment with regard to their effects on the environment: Art 2. In particular, Art 3 provides that the EIA shall identify, describe and assess the direct and indirect effects of the project on the following factors:

(a) Human beings, fauna and flora;

(b) Soil, water, air, climate and the landscape;

(c) Material assets and cultural heritage; and

(d) The interaction between the above factors.

The Directive gives effect to an important principle of European environmental policy known as the prevention principle: the creation of pollution should be prevented at source rather than subsequently trying to counteract its effects.

The EIA procedure enables the decision-making authority to decide whether or not to grant consent to a project based on its likely effects on the environment and, if it does decide to grant consent, to impose conditions preventing or mitigating these effects. The information received by the authority as a result of the EIA procedure need only be taken into consideration: Art 8. The Directive is of a procedural nature and does not stipulate the actual decision which the authority should reach as a result of the EIA.

In summary, the Directive provides that EIA is mandatory for all Annexe I projects on the basis that they will always have significant environmental effects: Art 4(1). The term ‘project’ has a very broad definition for the purposes of the Directive and is defined as the execution of construction works or of other installations or schemes, and other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources. Annexe I projects include oil refineries, integrated chemical installations and significant infrastructure projects. As regards projects listed in Annex II, Member States must determine on a case-by-case basis and/or on the basis of thresholds or other criteria whether or not an Annexe II project should be subject to EIA: Art 4(2). The criteria in Annex III must be taken into account when a case-by-case examination is being carried out or criteria or thresholds are being set. Projects which require an EIA must be subject to an EIA in accordance with Arts 5 to 10 which deal inter alia with the information to be provided by the developer, scoping requests, public consultation requirements and transboundary effects. These provisions are considered in more detail in the context of Irish implementing legislation.

Article 2(2) of the Directive provides that Member States can integrate EIA into existing procedures for consent to projects, into other existing procedures or into procedures established to comply with the Directive. In Ireland, the

The directive has been implemented through the integration of its requirements into the planning control system and several other development consent procedures covering, for example, local authority development, road development and the laying of oil and gas pipelines. This has been done principally by the European Communities (Environmental Impact Assessment) Regulations 1989 to 2001 (the EIA Regulations), the Planning and Development Act 2000 (the 2000 Act) and the Planning and Development Regulations 2001 (the 2001 Regulations).

This text will focus on the EIA system in the context of the planning control system. It will also look briefly at the integration of EIA into other development consent systems and at Irish and European case law on general issues concerning EIA.

2. EIA under planning legislation

The Local Government (Planning and Development) Regulations 1990 and 1994 and the EIA Regulations originally implemented the Directive into the planning control system. The 2000 Act and 2001 Regulations have superseded this regime. Part X of the 2000 Act now provides the framework for EIA in the planning process. The 2001 Regulations contain the procedural details.

Development which requires EIA

Mandatory EIA for development specified in Schedule 5

EIA is required for classes of development prescribed in regulations made under s 176 of the 2000 Act. These classes of development are set out in Schedule 5 to the 2001 Regulations (see Art 93, 2001 Regulations). Part 1 of Schedule 5 replicates Annexe I of the Directive. Part 2 replicates Annex II.

However, it also sets the thresholds or criteria which determine whether an Annex II project requires an EIA (as required by Art 4(2) of the Directive).

An environmental impact statement (EIS) must accompany a planning application made in respect of a development referred to in Schedule 5, which meets the specified thresholds and criteria. There is a distinction between the EIA, the procedure which assesses the likely environmental effects of a project, and the EIS, which is part of the information on which that assessment is based.

Outline planning applications may not be made in respect of development which requires an EIA (Art 96, 2001 Regulations).

 Mandatory EIA for sub-threshold development which is likely to have significant effects on the environment

Sub-threshold development is defined in Art 92, 2001 Regulations, as development of a type set out in Schedule 5 which does not exceed a quantity, area or other limit specified in that Schedule in respect of the relevant class of development.

Where a planning application for sub-threshold development is not accompanied by an EIS, and the planning authority or the Planning Board (the Board) on appeal considers that the development would be likely to have significant effects on the environment, it must require an EIS (Arts 103(1) and 109(2), 2001 Regulations).

Sensitive sites

Where a proposed development would be located on or in a European site, a proposed or designated Natural Heritage Area or a nature reserve or nature refuge, then the planning authority or the Board must make a specific decision as to whether the development would or would not be likely to have significant effects on the environment of such a site (Arts 103(2) and 109(3), 2001 Regulations).

The planning authority or the Board on appeal must have regard to the criteria set out in Schedule 7 to the Regulations in determining whether or not a sub-threshold development would or would not be likely to have significant effects on the environment. These include details regarding the characteristics, location and potential impacts of the proposed development. Professor Yvonne Scannell submits that regulatory authorities should always consider and decide whether or not to require an EIS for a sub-threshold development, regardless of whether or not it is located in or on a sensitive site, and that proper records should be kept of this decision (Arts 103(2) and 109(3), 2001 Regulations).

Exemptions

An applicant or person intending to apply for planning permission can request the Board to grant an exemption from the requirement to prepare an EIS. The Board may only grant an exemption in exceptional circumstances and only after having considered the observations of the relevant planning authority and whether the environmental effects of the development should be assessed in some other manner. Notice of the Board’s decision to grant an exemption and the reasons for doing so must be published in Iris Oifigúil and one daily newspaper (s 172(3) and (4), 2000 Act). A European site includes proposed and designated Special Areas of Conservation and Special Protected Areas (see s 2, 2000 Act).

Content of EIS

Article 94 of the 2001 Regulations prescribes the information which an EIS must contain:

(a) The information specified in paragraph 1 of Schedule 6:

• A description of the proposed development comprising information on the site, design and size of the proposed development.

• A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse affects.

• The data required to identify and assess the main effects which the proposed development is likely to have on the environment.

• An outline of the main alternatives studied by the developer and an indication of the main reasons for his/her choice, taking into account the effects on the environment.

(b) The information specified in paragraph 2 of Schedule 6 (which sets out further information by way of explanation or amplification of the information referred to in paragraph 1 above) to the extent that:

• It is relevant to a given stage of the consent procedure and to the specific characteristics of the proposed development and of the environmental features likely to be affected; and

• The person preparing the EIS may reasonably be required to compile such information, having regard, among other things, to current knowledge and methods of assessment.

(c) A non-technical summary of the above information. In 2002, the EPA also published new Guidelines on the Information to be Contained in EIS. These include guidelines on determining whether an EIS should be prepared for sub-threshold development. Local authorities are bound by these guidelines.

Scoping requests

Applicants for planning permission can request the planning authority and the Board, where appropriate, to give a written opinion on the information which should be contained in the EIS prior to submitting the planning application. This is known as a ‘scoping request’. This facilitates the preparation of an adequate EIS and reduces the likelihood of requests for further information once an EIS has been submitted, thereby avoiding delays. However, as noted by Patrick Sweetman (‘Recent developments in conveyancing practice - the European Communities (Environmental Impact Assessment) (Amendment) Regulations 1999’ [1999] 6 IPELJ 110): to seek an opinion is to invite the planning authority to request a very much more comprehensive and wide-ranging EIS than might be warranted in the circumstances of a particular case.

The giving of a written opinion by the planning authority does not prejudice its powers to request further information (s 173 of the 2000 Act; Art 95 of the 2001 Regulations sets out the detailed procedure for scoping requests).

The Commission published Guidelines on Scoping in 2001.

Adequacy of the EIS

The planning authority or the Board must consider whether the EIS is adequate, ie whether it complies with Art 94 or, if it has given a written opinion pursuant to a scoping request, with that written opinion. Applications for judicial review of planning decisions often challenge them on the basis that the EIS was inadequate.

Consultation requirements

The public

The Directive requires that any request for development consent and any information gathered pursuant to Art 5 must be made available to the public in order to give them an opportunity to express their opinion before consent may be granted: Art 6(2). As noted by Lord Hoffmann in the House of Lords decision of Berkley v Secretary of State for the Environment [2000] 3 All ER 897: The directly enforceable right of the citizen which is required by the Directive is not merely a right to a fully informed decision on the substantive issues. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however, misguided or wrong-headed its views may be, is given an opportunity to express its opinion on the environmental issues.

The newspaper notice, which must be published in respect of a planning application, must also state that an EIS will be submitted to the planning authority and that it will be available for inspection or purchase for a reasonable fee: Art 98, 2001 Regulations. Where a planning authority requires an EIS for subthreshold development, the applicant must publish a further newspaper notice of its intention to submit an EIS. The public is, therefore, made aware of the development that requires an EIA and is entitled to make submissions or observations in relation to the EIS in accordance with planning legislation. The Commission has issued a Reasoned Opinion against Ireland stating that it is contrary to the EIA Directive to make comment by the public subject to a participation fee (currently €20). Similar provisions also apply in respect of appeals to the Board which involve an EIS: Arts 112 to 115, 2001 Regulations.

Prescribed bodies

The Directive also requires that Member States take the necessary measures to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the EIS and the proposed development: Art 6. Under the 2001 Regulations, the planning authority must send a copy of the EIS to the bodies it is required to notify in Art 28(2), stating that written sub-missions or observations can be made in relation to the EIS within five weeks of receipt by the planning authority of the EIS: Art 107, 2001 Regulations. For example, the authority must send a copy of the EIS to the EPA if the proposed development comprises or is for the purposes of an activity which requires an IPC licence or a waste licence, or to An Taisce and the Department of the Environment if it appears that the development might have significant effects in relation to nature conservation.

Transboundary states

The planning authority or the Board, in the case of an appeal or application for approval, must notify the Minister for the Environment, Heritage and Local Government (the Minister) of planning applications for proposed development which would be likely to have significant effects on the environment in a transboundary state: Art 104, 2001 Regulations. A transboundary state is defined as any state other than Ireland which is a Member State of the European Communities or a party to the UNECE Convention on Environmental Impact Assessment in a Transboundary Context, otherwise known as the Espoo (EIA) Convention. The Minister must then consult with the planning authority or Board in relation to:

(a) providing the state concerned with information on the proposed development, including the EIS; and

(b) consultations with the state in relation to the potential transboundary effects of the proposed development.

The planning authority or Board must then provide information to the state concerned and enter into consultations with it (Art 126, 2001 Regulations). The planning authority can also, having regard to the views of a transboundary state, require the developer to submit further information and notify certain persons in relation to the additional information received (Arts 128 and 129, 2001 Regulations).

The planning authority or Board shall not reach its decision until after the views if any, of the relevant transboundary state, have been received or consultations are otherwise completed (Art 130, 2001 Regulations).

The decision on the application

In reaching its decision, the planning authority or the Board on appeal must have regard to the EIS, any supplementary information relating to the EIS and any submissions or observations concerning the effects on the environment of the proposed development (s 173, 2000 Act).

3. EIA and other development control systems

 

Local authority development under Part X of the 2000 Act

Development by a local authority in its functional area is exempt development for the purposes of the 2000 Act and is not, therefore, subject to the EIA requirements discussed above in relation to private sector development: s 4(1), 2000 Act. Local authority development carried on outside its functional area is treated on the same basis as private sector development and is subject to the requirements discussed above). However, s 175 of the 2000 Act provides that local authority development in its functional area which belongs to a class of development listed in Schedule 5 to the 2001 Regulations cannot be carried out unless:

(a) the local authority has prepared an EIS;

(b) the Board has approved of the proposed development with or without modifications. (It should be noted that a local authority development which consists of road development within the meaning of the Roads Acts 1993 to 2001 is subject to a separate EIA regime under those Acts.)

The 2001 Regulations contain similar provisions regarding sub-threshold local authority development as noted above (Arts 117 to 124, 2001 Regulations). Where a local authority proposes to carry out sub-threshold development and it considers the development would be likely to have significant effects on the environment, it must prepare an EIS for submission to the Board. Similarly, a local authority must make a specific decision as to whether or not sub-threshold development in or on a sensitive site requires an EIS. The Board can also request an EIS be prepared in respect of sub-threshold development which it considers would be likely to have significant effects on the environment. The local authority or the Board must also have regard to the criteria set out in Schedule 7 when deciding whether a development is likely to have significant effects on the environment.

Section 175(4) also prescribes a public consultation process. The local authority must publish a newspaper notice stating its intention to apply to the Board for approval of the proposed development, that an EIS has been prepared, and that submissions and observations can be made to the Board relating to:

(a) The implications of the proposed development for proper planning and sustainable development in the area concerned; and

(b) The likely effects on the environment of the proposed development if carried out.

The local authority must also send a copy of the application and the EIS to certain prescribed authorities together with a notice stating that they may also make such submissions or observations (Art 121 of the 2001 Regulations sets out the prescribed authorities for the purposes of s 175). Under s 175(5), the Board can require a local authority to furnish additional information in relation to the effects on the environment of the proposed development. If the Board considers that the further information contains significant additional data, it must require the local authority to publish a further newspaper notice stating that submissions or observations can be made in relation to the additional information.

Before making a decision in respect of the proposed development, the Board must consider the EIS, any submissions or observations from the public and the prescribed authorities, the views of a transboundary state and the views of the EPA where requested under s 175(10). Section 175(10) relates to proposed local authority development, which comprises or is for the purposes of an activity for which an IPC licence or waste licence is required. The Board can consult with the EPA regarding such development. Like s 98 of the Environmental Protection Agency Act 1992, where the Board decides to approve the proposed development it shall not subject that approval to conditions which are for the purposes of controlling emissions. However, the Board can, notwithstanding the licensing of the activity, decide to refuse the proposed development where the Board considers the development is unacceptable on environmental grounds having regard to the proper planning and sustainable development of the area in which the development is or will be situated.

Road development

The Roads Acts 1993 to 2001 require that local authorities prepare an EIS in respect of certain proposed road development such as motorways, bus ways, a new road of four or more lanes and a new bridge or tunnel 100 m or more in length. Section 50(1)(d) of the Roads Act (as inserted by the European Communities (Environment Impact Assessment) (Amendment) Regulations 1999, SI 93/1999, Art 14) also provides that a local authority must prepare an EIS in respect of other types of proposed road development if they would be likely to have significant environmental effects on a sensitive site.

Section 50 of the Roads Act as amended by Art 14 of the European Communities (Environment Impact Assessment) (Amendment) Regulations 1999 prescribes the content of the EIS. The information that the EIS must contain is identical to that which is required for private sector development.

The local authority must then apply to the Board for approval of the road development under s 51, which application must include the EIS. Initially, the Minister for the Environment and Local Government was responsible for approving road development under s 51 of the Roads Acts. His functions have now been transferred to the Board under s 215 of the Planning and Development Act 2000. The EIS can be inspected by members of the public who can make written submissions to the Board regarding the likely effects of the proposed road development on the environment. The EIS must also be sent to various prescribed authorities for comment.

The Board can hold an oral hearing where it considers it necessary or expedient for the purposes of reaching its decision (European Communities (Environment Impact Assessment) (Amendment) Regulations 2001, SI 450/2001, Art 6). However, the inspector conducting the oral hearing into the compulsory acquisition of land for the proposed road development is entitled to hear evidence in relation to the likely effects on the environment of the road development (s 51(7)). The Board must also approve the compulsory purchase order at the same time. So, in practice, one oral hearing is held to consider both the environmental and compulsory acquisition issues relating to proposed road development.

The Board may, by order, approve the proposed road development with or without modifications or may refuse to approve it (s 51(6)).

Environmental licensing

The EPA does not have a statutory power to request an EIS of its own accord when considering whether or not to grant an IPC licence or a waste licence. However, where an application for planning permission for development (comprising or for the purposes of an activity which also requires an IPC licence) requires an EIS, then copies of the EIS must also be sent to the EPA. The EPA must consider the EIS in so far as the risk of environmental pollution is concerned and has the power to seek further information (Environmental Protection Agency (Licensing) Regulations 1994, SI 85/1994, Art 14). Similar provisions apply with respect to waste licensing (Waste Management (Licensing) Regulations 2001, SI 185/2000, Art 13). The EPAalso has environmental assessment functions under the European Communities (Natural Habitats) Regulations 1997 (SI 94/1997).

Other development control systems

The EIA procedure has also been incorporated into various other development control systems relating to, for example, development on the foreshore, arterial drainage, afforestation and oil and gas pipelines development.

4. Recurring issues regarding EIA

The decisions of regulatory authorities are often challenged by way of a judicial review on the basis of a failure to comply with EIA requirements. The following are some of the issues which have come before the Irish and European courts.

Requirement for EIA

The requirement for an EIA is a matter of law for the courts to determine. In Maher v An Bord Pleanála [1999] 2 ILRM 198, the applicant alleged that the Board’s failure to require an EIS for a 200-sow integrated pig-unit was in contravention of the EIA Regulations. The EIA Regulations provided that an EIA was mandatory for:

Pig rearing installations where the capacity would exceed 1,000 units on gley soils or 3,000 units on other soils and where units have the equivalents: 1 pig = 1 unit; 1 sow = 10 units.

The Board had excluded weaners and finishers from the calculation of the number of units. On that basis, the Board considered that the capacity of the installation would only be 2,208 units and that an EIA was not therefore required as it fell below the 3,000 unit threshold. Kelly J in the High Court held that the proper interpretation of the EIA Regulations and questions as to whether thresholds had been exceeded are matters of law to be decided by the courts. He stressed that since the EIA Regulations have their genesis in an EU Directive, they must be interpreted in accordance with the underlying purpose of the Directive: projects likely to have a significant effect on the environment must be subject to an EIA. Having regard to these purposes, Kelly J held that the Board had incorrectly included weaners and finishers among the 10 units attributed to a sow (although it was correct to include unweaned piglets). They ought to have been regarded as pigs attracting one point each which meant that the capacity of the piggery was well in excess of the 3000 unit threshold. An EIA was therefore required. As no EIA had been carried out, the Board’s decision to grant planning permission was fatally flawed and was accordingly quashed.

See also Shannon v Regional Fisheries Board and An Bord Pleanála [1994] 3 IR 449, where the High Court interpreted the word ‘sow’ purposively to include a pregnant gilt and rejected the Board’s contention that it was not entitled to interpret the EIA Regulations unless the Board’s decision could be classified as wholly irrational.

The matter is less clear when it comes to the role of the courts in determining whether an EIA is required for sub-threshold development. As noted above, where a planning authority considers that a sub-threshold development is likely to have significant effects on the environment, it must require an EIA.

In O’Nuallain v Dublin Corporation (unreported, 2 July 1999, High Court, Smyth J), the decision to grant planning permission for the Millennium Spike was challenged on the basis that an EIS should have been prepared. The High Court held that the Spike was an urban development project within the meaning of the EIA Regulations even though it fell well below the thresholds set for an EIA.

The EIA Regulations required an EIA for urban development projects comprising an area greater than two hectares within existing urban areas. However, the High Court found that the development would have significant effects on the environment noting that the planning authority should consider the positive as well as the negative impacts of the proposed development on the environment. Dublin Corporation was therefore obliged to carry out an EIA in respect of the Spike.

This decision can be contrasted with that of the Supreme Court in Lancefort v An Bord Pleanála [1998] ILRM 401. In this case, the applicants sought to challenge the Board’s decision to grant planning permission to develop what is now the Westin Hotel, office accommodation and a bank on the grounds inter alia that it involved the demolition of and interference with listed buildings.

Again, the development fell below the thresholds set for EIA. However, the applicants considered that it would unarguably have a significant effect on the environment and specifically the material assets and cultural heritage of the area (see Art 3 of the Directive, third indent). Accordingly, the applicants contended that the Board was obliged at the least to consider whether it should exercise its power to require an EIS for sub-threshold development. The Supreme Court held that the applicants, a limited liability company, did not have locus standing to challenge the Board’s decision primarily on the basis that it had been incorporated after the decision which it sought to challenge had been reached. However, the court did consider the merits of the case in determining whether the applicants had locus stand. The court said it would be unwilling to interfere with the exercise of the Board’s discretion unless it involved an abuse of power or grave default in the procedure. The Supreme Court also considered that it had not been shown that the failure to consider whether an EIS should have been prepared had the slightest effect on the attainment of the Directive’s objectives.

Adequacy of the EIS

The Irish courts have generally been proactive in determining whether or not an EIS is required. However, they have consistently deferred to the regulatory authorities regarding the adequacy of EIS. In Browne v An Bord Pleanála [1989] ILRM 865, Baron J took the view that it is solely for a planning authority to determine upon the sufficiency of an EIS. He considered that any other approach would be to turn an application for judicial review into a further appeal. A similar approach was taken by the High Court in Murphy v Wicklow County Council (unreported, 19 March 1999, High Court, Kearns J). The applicant had brought judicial review proceedings challenging the controversial decision of the Minister to approve a road-widening scheme through the Glen of the Downs nature reserve.

The High Court held that the Minister was the sole arbiter for determining the adequacy of compliance with the EIA Regulations. Kearns J considered that:

To interfere, the court would require being satisfied that there was virtually no material upon which the Minister could reasonably exercise his discretion to grant a certificate. It is not a function of the court to ‘second-guess’ the Minister or to apply standards of an extreme nature particularly when any review is taking place almost ten years after the EIS was first prepared.

Kearns J, therefore, adopted the test of unreasonableness laid down in O’Keefe v An Bord Pleanála [1993] 1 IR 39. This case established that an applicant must satisfy the courts that a decision-making authority had no information before it which would support its decision before a court would quash the decision.

This is subject to the caveat that the courts will intervene if the statutory requirements have not been complied with (for example, if the EIS fails to contain the basic information specified in Art 94 of the 2001 Regulations). Once the statutory requirements have been satisfied, the Irish courts will not concern themselves with the qualitative nature of the EIS unless the decision of the planning authority or the Board, that the EIS was adequate, was so unreasonable that it should be quashed. See also Kenny v An Bord Pleanála [2001] 1 IR 565 where the applicant unsuccessfully sought to impugn the decision of the Board to grant planning permission to Trinity College Dublin for the development of student accommodation at Trinity Hall, Dartry, on the grounds that the EIS was so defective that it did not comply with the statutory requirements.

Aine Ryall has argued that the courts should take a more robust approach regarding the adequacy of EIS in light of the ‘clear mandate from Luxembourg to enforce EIA law locally’. Ryall is of the view that the national courts are under a clear duty to review whether the information supplied in the EIS is sufficient to enable the competent authority to assess the likely environmental impacts of the proposed project (Aine Ryall, ‘Judicial review and the adequacy of the EIS: Kenny v An Bord Pleanála’ [2002] 9 IPELJ)

Multiple consents and s 98 of the Environmental Protection Agency Act 1992

Section 98 provided that, where a proposed development required an IPC licence, the planning authority or the Board could not have regard to the risk of environmental pollution when deciding whether to grant permission or when imposing conditions on the grant. The reason for this is that, in cases where an IPC licence is required, the EPAis the competent authority to consider matters relating to environmental pollution. Several cases have come before the courts alleging that this division of functions between the planning authorities and the EPA fails to implement the Directive.

In O’Connell v EPA (unreported, 21 February 2003, Supreme Court) the applicant sought to challenge the decision of the EPAto grant an IPC licence for a power plant. The heat output of the plant was such that it required an IPC licence but did not require an EIA. Neither the planning authority or the Board exercised its power to request an EIS for sub-threshold development when considering whether to grant planning permission (and, as noted above, the EPA does not have an express statutory power to require an EIS). The principal grounds of challenge were that:

(a) The licence sought was likely to have a significant effect on the environment and accordingly an EIS was required;

(b) The planning authority and the Board were precluded by s 98 from considering environmental pollution not only when deciding whether to grant permission but also in considering whether to demand an EIS;

(c) Therefore, in order to give effect to the Directive the court should interpret the powers of the EPA as including a power to demand an EIS, otherwise, the state is in breach of its obligations under EC law.

The Supreme Court held that the applicant’s argument regarding s 98 was mistaken. Section 98 prevented the planning authority and the Board from considering matters of environmental pollution only when making the substantive planning decision. This did not apply at the earlier stage when it was necessary to consider whether to require an EIS in sub-threshold cases. (The applicant may have stood a better chance if she had challenged the decisions of the planning authority or Board. Presumably, she missed the two-month time limit within which she had to file her application for leave to apply for judicial review.)

In the O’Connell case, the applicant unsuccessfully argued that s 98 resulted in a failure to require an EIS contrary to the Directive. Section 98 has also been challenged on the basis that the division of functions results in inadequate EIA. As noted above, Art 3 of the Directive requires an assessment of the interaction between the various factors which an EIA must consider. In Martin v An Bord Pleanála (unreported, 24 July 2002, High Court, O’Sullivan J), the applicant, a member of the No Incineration Alliance, was granted leave to apply for judicial review of, inter alia, the decision of the Board to hold an oral hearing regarding the application for a proposed incinerator on the basis that the system operated by the Board contravened the Directive. The key challenge is that by splitting the consideration of the potential effects of the incinerator between the Board and the EPA:

(a) All relevant considerations are not considered before the go-ahead is given for the construction of the plant (ie because it can receive planning permission before an IPC licence is granted); and

(b) Some environmental effects - especially those which can arise from the interaction between planning and environmental effects - are not considered at all.

However, the High Court, applying Campus Oil principles, refused the application for a stay of the Board’s proceedings until the court had determined, at the substantive hearing, whether the Directive had been correctly implemented into Irish law. In O’Brien v South Tipperary County Council (unreported, 22 October 2002, High Court, O’Caoimh J), the decision of a planning authority was challenged on very similar grounds. The respondents conceded that the applicant raised substantial grounds of a challenge but O’Caoimh J rejected their argument that an appeal to the Board was a more appropriate remedy. He also considered that the balance of convenience favoured the granting of a stay on an appeal to the Board. In this regard, O’Caoimh J attached significance to the fact that the applicant would be in a position to honour his undertaking as to damages (distinguishing the Martin case where the court considered that the applicant had only made a perfunctory undertaking as to damages).

The Commission also issued a reasoned opinion against Ireland in July 2001 arguing that s 98 results in a breach of Art 3 of the Directive (as there is no provision to ensure that the EIA will cover the interaction of factors mentioned) and of Art 8 (which requires that the competent authority take into account all the information gathered under Arts 5, 6 and 7).

We need to await the outcome of the courts’ decisions in Martin and O’Brien and possibly a decision of the ECJ for a final determination of the matter. It should, however, be noted that s 98 has since been amended by s 256 of the 2000 Act. Planning authorities and the Board are prohibited from imposing conditions for the purposes of controlling emissions (this is the function of the IPC licence). However, they can now refuse a grant of permission, notwithstanding the licensing of the activity, if it considers that the development is unacceptable on environmental grounds having regard to the proper planning and sustainable development of the area. This goes some way to remedying any perceived defects in the implementation of the Directive as the planning authority and Board can have regard to environmental effects in deciding whether to grant permission.

This division of functions between the EPAand local authorities also exists under the waste licensing regime (see s 54 of the Waste Management Act 1996). Section 54 has also been amended by s 257 of the 2000 Act so that planning authorities and the Board can refuse permission for development on environmental grounds notwithstanding the licensing of the activity.

Cumulative impacts

EIS have been challenged as being inadequate on the basis that they failed to take into consideration the cumulative impacts of existing development or other proposed development. As noted by Scannell, developers are not expected to enter the realms of speculation but the Advocate General in Bund Naturschutzin Bayern v Freistaat Bayern [1994] ECR I-3137 referred to projects within ‘current plans’ (Yvonne Scannell, Environmental Impact Assessment (Intensive Course on Planning Law 2002, Centre for Environmental Law and Policy)).

In O’Connell v O’Connell [2001] IEHC 69 (29 March 2001), the applicants’ argument that the EIS should have covered a possible future extension of the road was rejected by the High Court. Similarly, in Sloan v An Bord Pleanála (unreported, High Court, 7 March 2003), the High Court refused an application to challenge a decision of the Board confirming a proposed motorway scheme.

The principle ground of challenge was that the inspector conducting the oral hearing had wrongfully excluded evidence in relation to the cross-border route on the basis that it did not relate to the proposed development, the subject matter of the application. The High Court held that the inquiry did not require an investigation into a road, which would be the subject matter of a future scheme and a separate inquiry.

The ECJ has however condemned Ireland for failing inter alia to take into account the cumulative effects of certain projects in Commission v Ireland [1999] ECR I-5901. As noted above, Art 4(2) of the Directive requires that projects listed in Annex II must be the subject of an assessment where their characteristics so require. Member States can specify certain types of projects or may establish the criteria and/or thresholds necessary to identify such projects. In this case, the Commission challenged Irish legislation regarding EIS for afforestation, peat extraction and the use of uncultivated/semi-natural areas for intensive agricultural purposes. The legislation provided that only projects which exceeded certain size thresholds had to be subject to an EIS. The ECJ held that Ireland was in breach of the Directive as the thresholds failed to take the nature and location of the projects into consideration contrary to Art 2(1). The ECJ also stated that a Member State would exceed the limits on its discretion under Arts  2(1) and 4(2): where a Member State merely set a criterion of project size and did not also ensure that the objective of the legislation would not be circumvented by the splitting of projects. Not taking account of the cumulative effects of projects means in practice that all projects of a certain type may escape the obligation to carry out an assessment when taken together, they are likely to have a significant effect on the environment within the meaning of Art 2(1).

The European Communities (Environmental Impact Assessment) (Amendment) Regulations 2001 (SI 450/2001) were subsequently introduced to facilitate compliance with the ECJ’s decision. With regard to initial afforestation, the Regulations provide for the introduction of a statutory consent system by the Minister for the Marine and Natural Resources which provides for mandatory EIA above the reduced 50-hectare threshold and also provides for the possibility of sub-threshold EIA, where a project is likely to have significant effects on the environment. The threshold for mandatory EIA in relation to peat extraction has been reduced from 50 hectares to 30 hectares. The 2001 Planning Regulations also include a new planning threshold for peat extraction of 10 hectares. These EIA Regulations also amend the Wildlife (Amendment) Act 2000 and the European Communities (Natural Habitats) Regulations 1997 to allow for the possibility of EIA for peat extraction below the 10-hectare threshold in Natural Heritage Areas and Special Areas of Conservation, where a project is likely to have significant effects on the environment.

Substantial compliance

An issue that has been attracting some debate is whether ‘substantial compliance’ with the Directive is sufficient. The decision of the House of Lords in Berkeley v Secretary of State for the Environment [2000] 3 All ER 897 considers this issue. The applicant challenged the decision of the Secretary of State for the Environment approving the redevelopment of the Fulham Football Club ground at Craven Cottage on the grounds that he should have considered whether the project should have been subject to an EIA. Both the High Court and the Court of Appeal rejected his application on the basis that an EIA would not have altered the Secretary’s decision and that the objectors had not been prejudiced by the absence of an EIA. However, the House of Lords quashed the Secretary’s decision.

By the time the matter came before the House of Lords, the parties had agreed that the Secretary’s decision was ultra vires because of his failure to consider whether an EIA was required. They also agreed that the fact that his decision would have been the same did not remedy the situation. The issue before the House of Lords was whether there had been ‘substantial compliance’ with the Directive. Hoffmann LJ considered that an EIA by any other name would satisfy the requirements of the Directive provided that the procedure followed was ‘in substance’ an EIA. However, he rejected the argument that the equivalent of an EIS could be found in the documents submitted in this case, namely, the statement of case submitted by the developer, which in turn referred to the local authority’s statement of case, which in turn incorporated the report to the planning sub-committee which incorporated third party submissions! The public had access to all these documents and would have been entitled to express an opinion on them at the public inquiry. He stated as follows: My Lords, I do not accept that this paper chase can be treated as the equivalent of an environmental statement … The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in nontechnical language. It is true that Art 6(3) gives member states a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted.

But I do not think it allows member states to treat a disparate collection of documents produced by parties other than the developer and traceable only by persons with a great deal of energy and persistence as satisfying the requirement to make available to the public the Annex III information which should have been provided by the developer.

Hoffmann LJ did accept that a court could exercise its discretion not to quash a planning permission in a case where there was a failure to observe ‘a procedural step which was clearly superfluous to the requirements of the Directive’ without breaching the courts’ obligations under Community law. However, this was not such a case. See Aine Ryall, ‘Environmental assessment law: Berkeley v Secretary of State for the Environment’ [2001] 2 IPELJ for an analysis of this decision in the context of ECJ judgments regarding the Directive. Ryall submits that the judgments of the ECJ are sufficiently broad to be interpreted as requiring national courts to quash decisions taken in breach of the Directive.

She notes that the ECJ has acknowledged that a Member State could adopt an alternative assessment procedure provided that it satisfied the requirements of Arts 3 and Arts 5 to 10 of the Directive. However, in light of the ECJ’s determination to ensure that the effectiveness of the Directive is not undermined, it may take a strict approach if asked to provide a preliminary ruling on the substantial compliance issue.

The decision in Berkeley can be contrasted with the approach of the Supreme Court in the Lancefort case discussed at 7.4.1 above. Keane J was of the view that it had not been shown that the failure to consider whether an EIS should have been prepared had ‘the slightest adverse effect’ on the attainment of the Directive’s objectives. In particular, he noted that the public had access to the detailed plans lodged with the planning application and that an exhaustive public consultation process had been carried out. Ryall considers that the judgment suggests a minimalist approach to the requirements of the Directive in contrast to the approach taken by Hoffmann J in Berkeley. In particular, she notes that Keane J did not consider how the information supplied complied with the requirements of Arts 3 and 5 of the Directive. However, it is possible that the courts will take a different approach where the applicant has been granted locus stand.

The decision in Berkeley also raises questions regarding excessive requests by decision-making bodies for further information on the EIS.

Qualified consents

As noted above, outline planning permission is not permissible where an EIS is required for the reason that an outline application would not contain sufficient details to enable the likely significant effects on the environment to be described and to then identify the requisite mitigation measures. Similar concerns arise regarding ‘qualified consents’, ie consents which leave certain matters to be addressed at a later stage. An acommon example is a planning permission which contains conditions that certain matters, such as landscaping or wastewater treatment, must be the subject of a future agreement with the planning authority. The leading case in this area is Boland v An Bord Pleanála [1996] 3 IR 435. The courts are of the view that some degree of flexibility must be left to developers engaged in a complex development. The extent to which flexibility is permissible in a planning permission is largely a matter of degree.

These types of condition raise concerns regarding public participation requirements and the abdication by the authorities of their responsibilities (and particularly of the Board if it remits matters to be decided between the developer and the planning authority). However, they also raise questions regarding compliance with the EIA Directive.

In McNamara v An Bord Pleanála [1995] 2 ILRM 125, the High Court held that substantial grounds for granting leave to apply for judicial review included the fact that a condition in the planning permission required the large-scale excavation of sand and gravel below the waterline. An EIA may have been required for this development and the planning authority should have required further information from the developer on the environmental effects of this condition. Similarly, in Houlihan v An Bord Pleanála (unreported, 4 October 1993, High Court, Murphy J), the High Court held that most of the conditions requiring future agreement were valid as they concerned matters of detail. However, it held that the Board had improperly abdicated its responsibilities by imposing a condition which required the effluent discharge to be re-routed in an easterly direction in a manner to be agreed with the planning authority. The Board should at least have prescribed that the main should be re-routed along a wide but defined pathway with the particular route to be agreed with the planning authority.

A recent decision of the English courts goes much farther than this. In R v Cornwall County Council ex p Hardy [2000] Env LR 25, ecological surveys revealed the possible existence of a habitat for bats. The planning authority considered that the development did not raise any significant nature conservation issues and granted planning permission. However, the permission was subject to conditions prohibiting the commencement of the development until additional surveys had been carried out and, if such habitats existed, the approval of mitigatory measures. The High Court considered that the planning authority could not rationally have decided that nature conservation aspects did not amount to significant adverse effects until it had the results of the surveys. This information should have been included in the EIS, otherwise, the authority could not comply with the EIA Regulations. The authority must have all the information it needs to assess the likely significant effects of the project before it reaches its decision.

Professor Scannell submits that it is permissible to impose conditions reserving matters for future approval or agreement, provided the reserved matters deal with the proposed development, the likely significant impacts of which are capable of being assessed at the initial consent stage. As was the case in Hardy, the developer can do this by providing a worst case scenario. The planning authority can then impose conditions requiring that these effects be mitigated in the event that the worst case scenario occurs.

Subsequent modifications

Paragraph 13 of Annex II to the Directive includes: Projects which involve any change or extension of projects listed in Annexe I or Annex II already authorised, executed or in the process of being executed, which may have significant effects on the environment.

So projects which may already have been the subject of an EIA will require a further EIA if they have been modified in a manner which is likely to have significant effects on the environment. See Commission v Germany [1995] ECR I-02189, where the ECJ held that a project which comes within Annexe I must undergo an EIA irrespective of whether it is a separate project, will be added to a pre-existing project or even if it has close functional links with the pre-existing project. A project which comes within Annexe I cannot come within the category of ‘modifications to development projects included in Annexe I’ mentioned in paragraph 12 of Annex II for which an optional assessment is provided.

The EIA Directive will be expressly amended to incorporate the ECJ’s decision by adding a new class of projects to Annex I to include: any changes to or extension of projects listed in this Annexe where such a change or extension in itself meets the appropriate criteria or threshold set out in this Annexe.

As noted above, Member States must determine on a case-by-case basis and/or on the basis of thresholds or other criteria whether or not an Annexe II project should be subject to EIA. The 2001 Regulations (paragraph 13, Part 2, Schedule 5, 2001 Regulations) require an EIA for any change or extension of development which would:

(a) Result in the development being of a class listed in Part 1 or paragraphs 1 to 12 of Part 2 of Schedule 5; and

(b) Result in an increase in size greater than 25% or an amount equal to 50% of the appropriate threshold, whichever is the greater.

It is questionable whether the thresholds have been set too high. In addition, it does not appear to cover modifications to a development which was already in a class listed in Schedule 5.

Modifications to road development which have already been approved by the Minister, now the Board, under the Roads Acts have given rise to some challenges. As noted above, certain road development is subject to a separate regime under the Roads Act. Unlike the planning regulations, the Roads Acts do not contain any express provisions regarding modifications to road development post statutory approval.

In the decision of O’Connell v O’Connell noted above, the applicant sought to argue that the EIS was inadequate on the basis that it did not consider the effects of a subsequent omission of a 1 km stretch of road. The High Court refused to amend the applicant’s grounds for judicial review in this regard holding that the EIS covered the effects of such an omission. This case is not, strictly speaking, a case of modification post approval (as the scheme was modified on the last day of the oral hearing). However, it raises similar issues regarding the adequacy of the EIA.

The development of the M50 through an archaeological site at Carrick mines also raised these issues. The Minister approved the road development in 1998. In 2001, subsequent modifications were proposed in order to preserve more of the site. An application was made to the Board requesting a further EIS under the Roads Acts in respect of these modifications.

The Board refused to direct the road authority to prepare a further EIS as the modifications:

(a) Did not significantly alter the proposed development from that previously approved and that the development remained, in essence, the same as that for which approval had previously been obtained; and

(b) Would not of themselves have significant adverse effects on the environment and accordingly do not comprise a project specified in paragraph 13 of Annex II of the EIA Directive.

In DeFreitas Waddington v An Bord Pleanála (unreported, 21 December 2000, High Court, Butler J) where the applicant sought judicial review of the Board’s decision to grant permission for a 60 m riverside quay extension which was adjacent to a Special Protection Area (SPA). The High Court held that the Board had already conducted an EIA for the previous development of the quay and in any event was entitled to conclude that that the proposed extension was not ‘likely to have a significant effect’ on the site under Regulation 27 of the European Communities (Natural Habitats) Regulations 1997. Accordingly, leave to apply for judicial review was refused.

 5. The ECJ and the Directive

There is extensive European case law on the EIA Directive. Unfortunately, it is not within the scope of this book to consider this in detail. However, the following are some important points to note:

(a) Individuals may invoke the obligations imposed on the Member States by the EIADirective in proceedings before the national courts to consider whether the legislative or administrative authorities have remained within the limits of their discretion, as set out in the Directive. See Luxembourg v Linster [2000] ECR I-06917; WWF and Others v Autonome Provinz Bozen [1999] ECR I-05613; and Kraaijeveld [1996] ECR I-054030.

(b) Individuals can call on the national courts to set aside national rules or measures incompatible with the provisions of the Directive. As noted by Aine Ryall, it appears that the national court is also obliged to quash a planning decision taken in breach of the requirements of the Directive. However, this point is not settled. The ECJ in its case law has referred to national ‘provisions’, ‘rules’ and ‘measures’ that must be set aside, rather than expressly, stating that individual planning decisions taken in breach of the Directive must be quashed. However, Ryall submits that the ECJ’s ruling in Kraaijeveld is sufficiently broad to be interpreted as requiring national courts to quash such decisions.

(c) Member States cannot exclude, from the outset and in their entirety, from the EIA procedure certain classes of Annex II projects or specific projects unless the specific project or those classes of projects ‘in their entirety’ could be regarded, on the basis of a comprehensive assessment, as not being likely to have significant effects on the environment (the Bozen case).

(d) Member States are entitled to use an assessment procedure other than the procedure introduced by the Directive provided that it satisfies the requirements of Art 3 and Arts 5 to 10 of the Directive, including the public participation requirements laid down in Art 6 (the Bozen case).

6. New developments

Strategic environmental impact assessment

The EIA Directive discussed above requires an environmental assessment of certain projects. Directive 2001/42/EC on the assessment of certain plans and programmes on the environment, as its name suggests, requires that certain plans and programmes, which provide a framework for the development consent of projects, be assessed for their environmental effects. (Plans and programmes are defined as plans and programmes, including those co-financed by the European Community, as well as any modifications to them, which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and which are required by legislative, regulatory or administrative provisions.) This is known as strategic environmental assessment (SEA) and this Directive is often referred to as the SEA Directive.

The SEA Directive was adopted on 21 July 2001 and must be transposed by 21 July 2004. The essential objective of the SEA Directive is the same: to ensure that the environmental effects of plans and programmes are taken into consideration during their preparation and before their adoption. The SEA Directive is also of a procedural nature.

Scope of the SEA Directive: Art 3

Under the SEA Directive, an environmental assessment must be carried out for all plans and programmes which:

(a) Are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexe I and II to the EIA Directive; or

(b) In view of the likely effect on sites, have been determined to require an assessment under Arts 6 or 7 of the Habitats Directive 92/43/EEC.

However, these types of plans and programmes which determine the use of small areas at the local level and minor modifications to these plans and programmes will only require an environmental assessment where the Member States determine that they are likely to have significant environmental effects. Similarly, any other types of plans and programmes, which set the framework for development consent of projects, will only require an assessment if they are likely to have significant effects on the environment. Member States must determine whether these plans and programmes are likely to have significant environmental effects on a case-by-case basis and/or by specifying certain types (taking into account the criteria set out in Annex II).

The SEA Directive does not apply to certain plans and programmes eg those whose sole purpose is to serve national defence or civil emergency.

Environmental assessment: Arts 4 to 9

The requirements of the SEA Directive must be integrated into existing procedures or into procedures established to comply with the Directive. The environmental assessment must be carried out before the adoption of the plan or programme and is defined in Art 2(b) as: the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Arts 4 to 9.

This definition neatly summarises the requirements of the SEA Directive. An environmental report must be prepared in which the likely significant effects on the environment and reasonable alternatives are identified and evaluated. The information which the report must contain is set out in Annex I. This includes inter alia the contents of the plan or programme and its main objectives, any relevant existing environmental problems, relevant environmental protection objectives, the likely environmental effects and mitigation measures. Like the EIA Directive, the report must also include a non-technical summary of the information. The public, certain authorities by virtue of their specific environmental responsibilities and affected Member States must be consulted. Their views and the environmental report must be taken into account during the preparation of the plan or programme and before its adoption. An environmental assessment carried out under the SEA Directive shall be without prejudice to any requirements under the EIA Directive and any other Community law requirements. However, Member States may provide for coordinated or joint procedures for plans and programmes which require an environmental assessment under both the SEA Directive and other Community legislation (Art 11).

SEA in Ireland

As noted by Professor Scannell, there has been some informal SEA in Ireland already. The National Development Programme 2000–2006 and other programmes for investment in infrastructure have been subjected to eco-audits. Under the 2000 Act, development plans, local area action plans and regional planning guidelines must also contain information on the likely effects on the environment of implementing the plan.

Public participation and access to information on the environment

In May 2003, the Council adopted Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending Council Directives 85/337/EEC and 96/61/EC. This Directive amends the EIA Directive in order to comply with the Community’s obligations arising under the UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (otherwise known as the Aarhus Convention). This Directive still has to be formally approved and will come into effect two years from the date of its publication in the Official Journal. The text of the approved Directive is published as OJ L156/17, 25/6/03.

Current information indicates that the new Directive contains the main elements of the Commission’s proposal. This amends Art 6 of the EIA Directive to ensure fuller public participation in the EIA procedure. Article 6 previously just provided that the information gathered under Art 5 had to be made available to the public within a reasonable time in order to give the public concerned the opportunity to express an opinion before the development consent was granted. Article 6, as amended, should ensure greater public participation as it specifies that the public is given an early and effective opportunity to participate in the development consent procedure and that it be informed, whether by public notices or other means, of certain specified information. The public concerned must then be entitled to express comments and opinions to the competent authority before it reaches its decision.

The Commission proposal also inserts a new Art 10(a) which provides that Member States must ensure that the public concerned has access to a review procedure before the courts or other body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the EIA Directive. This procedure must be expeditious and must not be prohibitively expensive. Irish legislation would already appear to comply with these amendments regarding public participation and the availability of a review procedure.

The Council has also adopted a new Directive 2003/4/EC on public access to environmental information. This Directive must be implemented by 14 February 2005 and will replace the current Directive 90/313/EEC on the Freedom of Access to Information on the Environment. This Directive also seeks to ensure compliance with the Community’s obligations under the Aarhus Convention regarding access to environmental information. The objectives of the Directive are to guarantee the right of access to environmental information held by or for public authorities and to ensure that environmental information is progressively made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information (Art 1). These Directives, therefore, complement the EIA and SEA Directives.

 

 

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(22) Environmental Law

What is Environmental Legislation? - Laws, Regulations & Timeline

Environment Law - Environmental and Natural Resources Law

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THE ENVIRONMENTAL PROTECTION AGENCY AND INTEGRATED POLLUTION CONTROL

 The Environmental Protection Agency (the Agency) was set up under the Environmental Protection Agency Act 1992 (the EPAAct). The Act also established the system of licensing known as Integrated Pollution Control (IPC). IPC licensing had previously been introduced in England in 1990.

The idea of IPC licensing was taken up at European level and led to the adoption of Council Directive 96/61 on integrated pollution prevention and control (OJ L257 10.10.96 p 26), known as the IPPC Directive. Ireland implemented the IPPC Directive five years late, in the Protection of the Environment Act 2003. Much of that Act has still to come into force, though the Irish IPC regime was already broadly in line with EU requirements and had to be interpreted in accordance with the objects and purposes of the EU Directive.

The Agency is a statutory body corporate and has legal personality. It can sue and be sued. It is headed by a Board of Directors chaired by a Director General. Part II of the EPAAct deals with the establishment and functioning of the Agency.

 Powers and duties of the Agency

The Agency enjoys a wide remit in relation to the protection of the environment. Its powers are set out in s 52 of the EPAAct.

They are:

(a) Licensing and control of polluting activities;

(b) Monitoring and recording environmental quality;

(c) Support and advice to local and public authorities and to government ministers;

and

(d) Promotion, co-ordination and funding of environmental research.

Additional powers may be conferred on the Agency by the Minister for the Environment. The Agency’s powers in relation to local authorities include setting out procedures to be followed, offering advice, and requiring information and monitoring. This programme-oriented portion of the Agency’s responsibility is possibly its most scientifically significant activity, though of least significance to lawyers.

Section 52(2), on the other hand, is relevant for lawyers because it provides an underlying policy for the Agency’s actions in the fields of licensing and enforcement, where the Agency has most contact with the public and with industry. It outlines the considerations which must guide the Agency’s policy.

The Agency must:

(a) Keep itself informed of public policy;

(b) Have regard to the need for a high standard of environmental protection;

(c) Promote sustainable and environmentally sound development;

(d) Take a precautionary approach where there is reasonable evidence of likely significant environmental harm;

(e) Apply the ‘polluter pays’ principle insofar as possible; and

(f) Balance the need for development against the need to protect the environment.

The Agency must take account of these objectives in its actions. Significantly they are similar to the objectives of EU environmental law laid down in Art 174 of the EC Treaty.

Integrated Pollution Control

IPC is a system of licensing industrial activities in order to control the pollutants they emit.

 Control of environmental pollution

The purpose of the IPC licensing system is to control environmental pollution.

This is defined to include air pollution, water pollution and waste, in a way which ties the EPA Act in with the Air Pollution Act 1987, Local Government Acts 1997-1990, and Waste Management Act 1996.

The pollution displacement problem

Where there are different rules for air pollution, water pollution and waste disposal, waste will tend to be disposed of in such a way as to take advantage of the least strict regime. If air emission standards are strict, waste products may be diverted to water instead, for example. IPC tries to prevent this by setting up one license for all pollutants.

 Implementation of IPPC Directive

Because the IPPC Directive postdates the EPAAct, the Act cannot be regarded as implementing the Directive. Although the deadline for implementation was 30 October 1999, Ireland still only adopted legislation to implement the Directive in 2003. The Protection of the Environment Act should remedy this problem, but much of it has not been commenced at the time of publication. In the meantime, the EPA Act can, and indeed must, be interpreted in order to give effect to the IPPC Directive. This is a straightforward application of the rule laid down by the European Court in Case C-106/89 Marleasing [1990] ECRI-4135. The Directive is very similar to the Irish provisions, so compliance is relatively easy. There may be some incompatibilities but no litigant has yet identified them.

Obligation to hold a licence

A person who wishes to carry on an activity must first obtain an IPC licence.

This is laid down in s 82 of the EPAAct and Art 4 of the Directive. The question ‘is this an activity?’ is the first question to ask in any case.

 Activities

An activity is defined as any activity listed in the First Schedule. An activity is any ‘process, operation or development’. There are 12 classes of activity listed in the Schedule, each subdivided into a number of sub-headings.

The general classes are:

(a) Mineral extraction;

(b) Energy production;

(c) Metal production and use;

(d) Production of mineral fibres and glass;

(e) Chemical production;

(f) Intensive agriculture (pigs and poultry);

(g) Food and drink production;

(h) Wood, paper, textile and leather working;

(i) Extraction and refining of fossil fuels;

(j) Cement production;

(k) Waste disposal or recovery (where combined with an activity under another class only) (Waste Management (Amendment) Act 2001, s 13);

(l) Paints, electroplating and other surface coatings; and

(m) Some minor miscellaneous activities.

In order to determine whether something constitutes an activity, it is always necessary to check the First Schedule to see if it comes within any of the relevant sub-classes.

The 2003 Act amends the list of classes of activity in the First Schedule to the 1992 Act. The two are broadly similar but there are differences of detail.

Activities are covered when they rise above certain intensity, usually measured by reference to the capacity of the activity. For instance, piggeries with a capacity of over 3,000 units need a licence (or 1,000 units on gley (waterlogged) soils), and power stations with a rated thermal input greater than 50MW.

Interpretation of thresholds in the Act poses problems.

Three examples may be noted.

First, in relation to piggeries, pigs are counted as one unit but sows are counted as 10 units. In the case of Shannon Regional Fisheries Board v An Bord Pleanála [1994] 3 IR 449 the High Court held that a ‘maiden gilt’ (a sow which had not yet had her first litter) was a sow and not a pig. The practice had been to treat it as a pig, since sows are counted as 10 units to take account of the waste produced by their offspring. Then in Maher v An Bord Pleanála [1999] 2 ILRM 198 the High Court held that, in spite of this explanation for counting a sow as 10 units, each of the sow’s progeny had to be counted as a separate unit. This meant that piggeries across the country were overnight reckoned to hold twice as many pig units (these cases were brought in relation to environmental impact assessment where Irish law uses the same thresholds). Under the new Act the problem disappears: piggeries which either have more than 2,000 production pigs or 285 sows need a licence.

Secondly, a similar problem arises in relation to slaughterhouses. Where these have the capacity to slaughter more than 300 cattle per day, they need a licence. It is not clear whether this is based on the capacity which they could slaughter in a 24-hour day, or the actual number routinely slaughtered in a working day. This difficulty is replicated under the 2003 Act.

Thirdly, in relation to electrical equipment, power stations can be run in excess of 100% of their nominal value for a limited period of time, so the normal maximum is not the real maximum.

In all instances, thresholds need to be treated with some caution, but also with a measure of common sense. If an activity is at or near the threshold, it is probably better to apply for a licence, but an unduly technical reading is probably not required: it is better for the applicant to decide what capacity the activity will actually be carried out at, and then not to exceed that level, even if it would nominally be possible to do so.

There are differences in threshold level between the Act and the Directive.

Where the Irish threshold is lower than the EU threshold the difference should not pose a problem.

 Established activities and new activities

As a rule, all new activities require a licence. Almost all established activities also require a licence.

An established activity is an activity for which planning permission was granted before the ‘relevant’ day in 1994-1996 or for which planning permission was not required on that day. The relevant day is prescribed in Art 4 of the Environmental Protection Agency (Licensing) Regulations 1994-1996 (SI 85/1994 as amended, the relevant amendment in this case being SI 240/1996) and is either 16 May 1994, 3 April 1995 or 3 September 1996. The Minister set out different days for different classes of activity, and this can be confusing. Provided planning permission was granted after 3 September 1996, the activity is not established. If it was granted before then, it will be necessary to look at the question in more detail. Licensing of established activities was introduced in stages. The Minister specified a number of dates by which different established activities had to have a licence (Environmental Protection Agency Act 1991 (Established Activities) Orders 1995–98 (SI 58/1995 and SI 460/1998)). If a licence has not been obtained by the day specified for that class of activity, it is an offence to continue the activity.

Established activities could continue to operate prior to the grant of a licence, provided the owner applied for a licence before the specified day. The Agency prosecutes the owners of activities for not applying for a licence in time and further unlicensed activities are still coming to light. Where an unlicensed activity is modified, the owner must notify the Agency, and the Agency may require the owner to apply for a licence. Article 5 of the IPPC Directive mirrors the requirements of the Act. Existing installations must obtain an IPPC permit within eight years, or immediately if the installation is to be altered; they should also comply with the objectives of the Directive, public availability of monitoring results and best available technology requirements immediately. Installations are defined in the Annex.

Existing installations are defined as those which are already operating when the Directive is brought into effect, or which have a permit and commence operating within one year of the implementing law. If an activity listed in the Annex of the IPPC Directive is not included in the Schedule of the EPA Act, or if no date has been set by which it must obtain a licence, the Agency cannot require the operator of the activity to apply for a licence. Its duty as competent authority to give effect to the Directive is limited by the rule laid down by the European Court in Case C-168/95 Arcaro [1996] ECR I-4705 that the obligation to reinterpret pre-existing national law to give effect to a Directive cannot be used to impose new obligations on individuals. To impose such obligations would effectively give horizontal direct effect to a Directive, and that cannot be done. Thus, if there is any activity which should be licensable, but is not, this can only be rectified by further legislation.

The Agency as licensing authority

Under s 83 of the EPAAct, you apply to the Agency for a licence. It may grant a licence, with or without conditions, or may refuse a licence. The Agency must have regard to the following criteria:

(a) Relevant air quality, water quality and waste management plans;

(b) Any special control area under the Air Pollution Act 1987;

(c) Any noise regulations; and

(d) Any other matters relating to environmental pollution which it considers necessary.

The Agency must also have regard to any environmental impact statement submitted, and to any further information from the applicant and any comments or submissions from the public or other Member States relating to it, but only insofar as the EIS and comments relate to the risk of environmental pollution.

The Agency is thereby made the competent authority responsible for carrying out that part of an environmental impact assessment (Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L175 5.7.85 p 40 as amended by Council Directive 97/11/EC, OJ L73 14.3.97 p 5) which relates to matters within its jurisdiction. This issue is discussed in more detail below.

The Agency cannot grant a licence unless it is satisfied that:

(a) Emissions to air and water, and waste disposal or recovery, will comply with any relevant environmental quality standards and emission limits for air, water, waste, noise, or otherwise;

(b) The emissions from the activity will not cause significant environmental pollution (in practice this significant environmental pollution test is very important); and

(c) The Best Available Technology Not Entailing Excessive Cost (BATNEEC) will be used (now Best Available Techniques under the 2003 Act, though the two concepts include a cost element and are quite similar).

In coming to its decision, the Agency must attach conditions to ensure that the above requirements are complied with. Thus, any condition which contributes to the fulfilment of these obligations should be valid.

 The licence application

An IPC licence is effectively a two-stage procedure. The procedure is laid down in s 84 of the EPAAct and in the Environmental Protection Agency (Licensing) Regulations 1994 (SI 85/1994).

Stage 1: Proposed determination

In the first stage, leading up to the proposed determination, an applicant publishes a newspaper notice and erects a site notice informing people of the licence application which the applicant then lodges with the Agency.

The application must contain the application fee and a long list of information about the proposed activity including:

(a) What it is and where it is;

(b) What local authorities are relevant;

(c) What emissions the proposed activity will cause;

(d) How emissions will be monitored and controlled;

(e) What BATNEEC (or, presumably, under the 2003 Act amendments, BAT) the Agency has prescribed and how the applicant will use it (if no BATNEEC has been prescribed, there is no such obligation).

An environmental impact statement should be included where the application is for an activity which requires an EIA.

The Agency assesses the application to see if it is valid. If it is not, the Agency may either reject it outright or may request that the applicant supply further information to complete the application. The Agency can also require that the applicant make a further publication if it believes the original notices were insufficient. It is not unusual for the stage of requirements for further information to continue for a considerable time, with the applicant answering only a part of the Agency’s requirements or needing time to carry out monitoring or research which the Agency requires. Having determined that an application is valid, the Agency will usually require that the applicant publish a further notice of the application, so that interested parties can make submissions.

Once the application has been assessed as valid, time begins to run against the Agency. Section 85(3) provides that the Agency must publish notice of its proposed determination within two months. However, the Agency has jurisdiction to request further information under Art 17 of the Licensing Regulations. Usually the Agency requests so much information before confirming that the application is valid that it has little need to require further information here, and the two powers effectively duplicate one another.

However, if Art 17 is invoked, the time for the Agency to issue its proposed determination is extended to two months from the date on which the Art 17 notice is complied with, and the Agency must publish notice of the extension of time in a newspaper circulating in the area.

The right of interested persons to make submissions is inferred from two provisions. Under s 85(3) the Agency must serve notice of its proposed determination on any person who made a submission on the application. Under s 85(2) the Agency must take account of any submission made in relation to an Environmental Impact Statement submitted as part of a licence application. It must therefore be intended that people can make submissions. Submissions can be made within one month after receipt of the application. Where further information is received, the Agency will normally notify anyone who has made a submission so that he/she can make a submission on the further information. (These provisions are contained in s 87 of the EPAAct as amended by the 2003 Act.)

Once the application is complete, the Agency’s inspector prepares a report and a draft licence (if appropriate) and forwards them to the Board of the Agency. The Board considers the application, submissions and report and issues a ‘proposed determination’ stating how it proposes to decide the application. This concludes the first stage of the procedure. If there is no objection to the proposed determination, the Agency must issue the licence in those terms within one month. If there is an objection, the process moves to its second stage.

 Stage 2: Objection

In the second stage, any person may object to the proposed determination. An objection must be made in writing, accompanied by the appropriate fee, and set out the grounds of objection. The Agency circulates the objection to the licensee and to the local authority. Where there are other objectors, it circulates each objection to each objector as well. The applicant for a licence will often object to the severity of the conditions. Every person to whom an objection is circulated has the right to make a submission on it.

Where a submission contains new information, the Agency may circulate it to the parties, and will normally do so to comply with the requirements of natural justice. The Agency has to satisfy itself that it is appropriate to grant the licence and so it can carry out investigations and commission reports. The results of these should also usually be circulated to the parties. (The parties are the objectors, the applicant, and the local authority.)

Any party may request an oral hearing and the Agency has an absolute discretion whether to hold one. In practice, very few oral hearings have been held under the EPAAct, though a considerable number have taken place under the similar Waste Management Act. If there is an oral hearing, the Agency appoints a Chairman of the hearing to conduct the hearing and to report on it.

The Agency considers the objection(s) and all submissions received and decides what changes, if any, it should make to the proposed determination before issuing its final decision. The decision may be to grant, to refuse, or to grant subject to conditions. In most cases the decision is to grant subject to conditions. A grant without conditions would probably be invalid since the Agency is obliged to impose appropriate conditions to ensure that the statutory objectives are complied with. The Agency must notify the decision to all the parties to the objection. Some aspects of the procedure deserve comment.

The public has the right to access the application under Art 23 of the Licensing Regulations and this facilitates the making of submissions and objections.

Duration and transfer of licences

Where a licence is granted, operation must commence within three years. If it does not, the licence will lapse. If operations cease for a period of more than three years, the licence will also lapse. The Agency can grant a licence for more than three years, and the licensee can apply for an extension of time (s 90). A licence ‘enures for the benefit of’ the activity, so when a landowner sells the land on which the activity is carried out, the licence passes to the new landowner. Where a transfer is proposed, the Agency must be notified, and, under the 2003 Act, the Agency has a role in consenting to the transfer or surrender of a licence.

Review of licences

The Agency can review an IPC licence under s 88 of the EPAAct. Areview can be carried out after three years without the need for further justification. It can be carried out if the licensee agrees or wants it. It can also be carried out after less than three years if there is a significant risk of pollution, or the nature of an emission has changed, or the state of the environment has changed in a way which could not have been foreseen. It can also be carried out if there is new evidence available, or if initial application, but the public notice requirements differ slightly, in particular in that the Agency must publish notice that it is commencing the review. On an application for a review, the Agency originally had no power to refuse the licence, but the 2003 Act confers such a power.

Modification of installations

Where the operator of an activity proposes to carry out any reconstruction, or to modify the activity, where this would materially change or increase the emissions, the Agency must be informed under s 92 (s 98 once the amendments come into force), and it may decide to review the licence.

Relationship to Planning and Development Act: IPC and EIA

Section 98 of the EPAAct (now s 99F) deals with the relationship of IPC to other procedures, and was amended in 2000. Originally, the Agency could only consider the risk of environmental pollution, while the planning authority (or An Bord Pleanála) was precluded from considering the risk of environmental pollution. This was an attempt to establish an absolute line between the planning process and the IPC process. This led to an alleged incompatibility between s 98 and the EIA Directive. It has caused a substantial amount of litigation but there is no decided case on the point.

In effect the EIA was split between the EPA and the planning authorities/An Bord Pleanála. This has meant that the Agency considered the effect of emissions, while the planning authorities considered the effect on the built environment. It was argued that the Agency could not consider whether an activity was appropriate in a particular location, since it could grant a licence for any location, provided the emission limits were strict enough, while the planning authorities could not refuse an application for an activity in a sensitive location, since it could not consider the risk of environmental pollution.

Hence, it was said, the key feature of the risk of an accident was always overlooked. The second argument put forward (more frequently) was that nobody ever considered the interaction between the different effects or decided whether on balance the project should be allowed to go ahead or not and that this breached the whole idea of an assessment. Cases relating to this point are still before the courts and could have an effect on the new version of s 98.

As amended, s 98 allows the planning authority or An Bord Pleanála to take account of the risk of environmental pollution, and to refuse planning permission where the risk is excessive, but not to impose conditions intended to control such pollution. Section 34 of the Planning and Development Act 2000 provides that the planning authority or An Bord Pleanála may request the Agency’s views on the proposed activity, and the Agency has three weeks to give an opinion. new standards have been adopted, or if a special control area order has been made for the area where the activity is located. Under the 2003 Act, all existing licences must be examined to see if they should be reviewed in order to bring them into compliance with the Directive and the new Act. The procedure applicable to a review is essentially the same as for an 6.2.13 Monitoring The IPPC Directive requires that licensed activities should be monitored, that the monitoring results should be communicated quickly to the Agency, and that the monitoring results should be available to the public. In an IPC licence,

licensees are generally required to install monitoring equipment at selected points, and to send the results of monitoring to the Agency which puts them on the register where the public may inspect them. This also enables the Agency to obtain the information it needs to know if a breach of the licence has occurred, or if the activity is causing pollution. The Agency’s other method of obtaining information is through using its powers to inspect activities under s 13.

Enforcement

Section 84(2) makes it an offence to breach the conditions of a licence. In addition, s 8 makes it an offence to breach any provision of the Act. Penalties for offences are laid down in s 9: €1,269.74 on summary prosecution and €12,697,380.78 on indictment. The Agency is authorised to prosecute summarily under s 11, and regularly does so. It has brought a large number of prosecutions across the State. Only the Director of Public Prosecutions can prosecute more serious offences, though to date there have been no prosecutions brought on indictment.

The Agency is also responsible for enforcing the requirement to hold a licence. Section 83 provides that an activity shall not be carried out after a particular date unless a licence or revised licence is in force in respect of the activity. Section 8 makes it an offence to breach any provision of the Act. Penalties are as mentioned above.

 Civil enforcement

Civil remedies are introduced into the EPAAct by the 2003 Act. The Agency can seek an injunction to restrain a breach of an IPC licence or to clear up pollution caused by such a breach (s 99H). The 2003 Act also give the Agency power to suspend or revoke a licence, subject to a right of appeal to the High Court (s 15, amending s 97 of the 1992 Act). It is also open to the Agency or any person to seek an injunction against a licensee in relation to actual or threatened air pollution (Air Pollution Act 1987, s 28B, as inserted by the Second Schedule of the EPA Act itself) water pollution (Local Government (Water Pollution) (Amendment) Act 1990, s 20), or waste (Waste Management Act 1996, s 57). 6.2.16 IPC, IPPC and relationship to other Directives As the IPC procedure has to be implemented in such a manner as to give effect to the IPPC Directive, it is appropriate to set out the scheme of the IPPC Directive below.

Each provision of the Irish legislation may need to be examined in order to determine how it should be interpreted to accord most closely with European law. In the Directive:

• Article 1 sets out the objectives of the Directive.

• Article 2 provides definitions.

• Article 3 sets out general principles which the competent authority must oblige the operator of an activity to comply with, and is a key provision.

• Article 4 provides that all new activities need a permit.

• Article 5 provides that existing activities must comply with some of the obligations immediately, and must obtain a permit within eight years of implementation.

• Article 6 lays down procedures which must be incorporated into the permit regime.

• Article 7 specifies that procedures must be fully co-ordinated where more than one competent authority is involved in granting permits which together constitute an IPPC permit, so that the result will be a fully co-ordinated procedure.

• Article 8 provides that, where a permit is granted, it must contain conditions to ensure that the objectives of IPPC are achieved.

• Article 9 details the matters which the conditions must deal with.

• Article 10 provides that environmental quality standards must be achieved even where best available techniques are incapable of delivering them: additional measures are required.

• Article 11 stipulates that Member States must ensure that the competent authorities are kept informed of the best available techniques.

• Article 12 states that installations cannot be altered without a permit.

• Article 13 requires that permits must be reviewed periodically, particularly where there is pollution, or new legislation, techniques or standards.

• Article 14 deals with compliance and monitoring.

• Article 15 deals with public participation in licensing and public access to information.

• Article 16 addresses exchange of information between Member States in general.

• Article 17 deals with consultation between Member States in relation to installations with transboundary effects.

• Article 18 provides for the Council to set emission limit values for the industries listed in the Annex, except waste activities which are covered by separate legislation.

Procedural rules for EU institutions follow.

The Directive came into force on 14 October 1996 and had to be implemented by 14 October 1999. To date, Ireland has activated only parts of the implementing legislation.

While the IPC procedure laid down in the EPA Act largely gives effect to the IPPC Directive, the Directive itself gives rise to difficulty. It is stated to apply without prejudice to the application of other Community measures, including the Environmental Impact Assessment Directive (Council Directive 85/337 as amended by Council Directive 97/11), the Habitats Directive (Council Directive 92/43), as well as Council Directive 76/464 on water pollution, and Council Directive 84/360 on discharges to the atmosphere from industrial plants, and the Waste Framework Directive (Council Directive 75/442 as amended by Council Directive 91/156). This ‘without prejudice’ approach poses huge problems of interpretation where national implementing legislation has to bring the various EU Directives together into a coherent whole with no guidance from European law itself. It may well be that any Irish failure to implement European law properly may be as much the fault of the EU as of the State.

In Irish law, IPC is a two-stage procedure. An applicant applies for a licence and gets a proposed determination. There is then an opportunity for anyone to object to the grant of the final licence. The public is involved at all stages. The objective of IPC is to prevent environmental pollution. When the Agency considers a licence application, this is its overriding objective. It is usually possible to grant a licence provided the emission limits are set low enough and provided the controls are good enough. Enforcement is usually carried out by way of criminal prosecution in the District Court, but prosecutions on indictment are possible, and injunctive relief will soon be available. The IPC procedure gives effect to the subsequent IPPC Directive and this causes some interpretation difficulty.

 

 

 

 

 

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(21) Environmental Law

Save Our Marine Environment

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Marine environment

Marine environment - European Environment Agency

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Marine Environment

Integrated Coastal Zone Management

The need for an integrated coastal area management (ICAM) emerged from the conflicts among the different potential users of coastal areas. Tourism and fisheries, conservation and land development, and oil shipping and recreation are rarely compatible with each other.

Integrated coastal management has been defined as a continuous and dynamic process by which decisions are made for marine and coastal area management. The purpose of this process is to overcome the fragmentation that underlines both a sectoral management approach (tourism/oil shipping/fishing) and departmentalization among the levels of government (local/national/regional). The purpose of ICAM is to achieve intersectoral integration (e.g., among fisheries, tourism, offshore oil exploitation, and other activities); intergovernmental integration (among different levels of government); spatial integration (between the land area and the ocean side of the coastal zone); and the integration of science and management through more effective communication channels between managers and scientists; and, finally, international integration.

Nations vary with regard to the geographical extension of ICAM. Most states have yet to establish the landward boundaries of their ICAMs.With regard to the seaward boundary, some countries apply ICAM to their territorial sea, whereas others apply ICAM to their Exclusive Economic Zone (EEZ) as well. ICAM develops in stages that involve identification and assessment of issues; planning and preparation; formal adoption and funding; and implementation, operation, and evaluation. The turf battles among the institutions that may have overlapping jurisdiction over coastal areas can hamper the development of ICAM. The establishment of a coordinating agency often becomes a priority for the implementation of ICAM.

Other issues to be considered for sound integrated coastal zone management include the level of development in a specific country, the concentration of population in coastal zones, and the political regime under which decisions are made. For ICAM to become successful, integration must not be a goal in itself; it cannot replace sectoral management but only supplement it. ICAM has been endorsed by international instruments, such as Chapter 17 of Agenda 21. A number of international and regional organizations also have adopted ICAM, such as the World Bank, the OECD, the FAO, the UNEP regional seas program, the UNESCO, the GESAMP, and the IMO.

ICAM has been developed in different areas of the world. It is practiced by 447 global, national, and subnational entities in at least 95 developed and developing countries and semi sovereign states. An international survey of forty-three ICAM projects, however, has found that only 12 percent of these projects are fully implemented.

ICAM has been applied with mixed success within the Mediterranean Action Plan (MAP) regime. The Coastal Areas Management Programmes (CAMPs) in the Mediterranean region have been guided by the Priorities Action Programme (PAP).

In the European Union, ICAM is referred to as Integrated Coastal Zone Management (ICZM). The Community has engaged in efforts to develop an ICZM. The European Environment Agency (EEA) has defined ICZM as a “dynamic, multidisciplinary and iterative process to promote sustainable management of coastal zones.” Many of the elements of ICZM are still in the process of being defined.

A distinguishing element between coastal zone management and river basin management is that whereas rivers could be shared by many states, coasts are clearly under an individual state’s jurisdiction. Despite this technical matter, however, it would be difficult to separate coastal zone management from river basin management in areas where rivers end up in the sea and affect coastal zones. Coastal zone management has been associated more with land-use planning and marine resources management. River basin management has been associated with freshwater management. But coastal zone management and river basin management cannot be neatly segregated. The UNEP-Water Branch and Priority Actions Programme Regional Activity Center (PAP/RAC) that focuses on the implementation of the Mediterranean Action Plan is exploring the application of Integrated Coastal Area and River Basin Management (ICARM).

EVOLUTION OF INTERNATIONAL INSTRUMENTS

The international regime for the protection of the seas includes:

• A global “umbrella” convention that addresses pollution from all sources (the United Nations Convention on the Law of the Sea [UNCLOS]);

• Two international conventions concentrating on specific issues – sea dumping and pollution from vessels (London Dumping Convention and MARPOL Convention, respectively);

• A number of conventions concerned with the protection of regional seas;

• The Global Programme of Action (GPA)40 for controlling pollution from land based sources. The program is to help states to develop regional action plans and environmental impact assessments, but little specific action has been taken under the program.

Law of the Sea Convention

The UNCLOS was adopted in 1982 and entered into force in 1994. The convention concentrates both on the prevention of marine pollution and the protection of marine living resources. Part XII of the convention deals with the preservation and protection of marine environment but environmental provisions are dispersed all through the text of the convention. Some of the environmental provisions include granting to coastal states jurisdiction in matters relating to the protection of marine environment; the responsibility not to cause damage by pollution to other states and their environment; the need to prevent, control, and abate pollution according to each state’s capability; and particular sources of pollution with which states must be concerned, such as pollution from land-based activities, vessels, and the atmosphere. The convention provides that no dumping should take place in the territorial sea and the EEZ of a state without express authorization of that state and after deliberation with all other states that may be adversely affected.

The provisions for pollution control from land-based sources are not as specific. The convention provides that states must control pollution from land-based sources including rivers and pipelines. Statesmust minimize the release of toxic and harmful substances to the marine environment. More specific requirements are included to control pollution from vessels. States are not only to prevent and to control pollution from vessels but also to adopt routing systems that minimize the possibilities of accidents that cause pollution. States must adopt rules for ships that fly their flag in accordance with rules and standards that “at least have the same effect as that of generally accepted international rules and standards.” Because the convention does not define the international rules and standards, this clause remains somewhat indeterminate. Port states can adopt rules against pollution with regard to vessels that enter their ports or internal waters.

Coastal states are to combat vessel pollution from foreign vessels’ passage through their territorial seas, including vessels that exercise their right to innocent passage. States can adopt regulations, in accordance with international rules and standards, with regard to the protection of the environment in the EEZ area, as the convention has enlarged the jurisdiction of states to include the EEZ. Pollution from sea-bed activities is expressly recognized in the UNCLOS. At this point, pollution from sea-bed activities does not exceed 1 percent of the total pollution, but this may change in the future, depending on the intensity of seabed exploitation. States must prevent pollution of the marine environment arising from or connected with sea-bed activities under their jurisdiction and from artificial islands, installations, and structures under their jurisdiction. As mentioned in Chapter 2, sea-bed activities beyond the national jurisdiction of states are regulated by the International Seabed Authority. The Council of the International Seabed Authority must not approve sea-bed exploitation when substantial evidence indicates a risk of serious harm to the environment. In 2000, the International Seabed Authority adopted Regulations on the Prospecting and Exploration of Polymetallic Nodules, which include provisions on the protection of marine environment. In addition to the UNCLOS, other conventions concentrate on the protection of sea-bed, including the 1989 Protocol Concerning Marine Pollution Resulting from Exploration and Exploitation of the Continental Shelf in the Arabian Gulf Region56 and the 1994 Protocol Concerning the Protection of the Mediterranean Sea Against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (1994 Madrid Offshore Protocol).

Flag states play a primary role in enforcing the UNCLOS provisions. The enforcement power of flag states on ships that carry their flag is well recognized in international law, as ships are considered an extension of a state’s territory. The enforcement authority of the coastal state is a newer concept in international law. It emanates from the belief that an extension of a state’s jurisdiction (property rights) beyond its territorial sea would be beneficial for the protection of marine environment. Today, coastal states have significant enforcement powers in their EEZ when a violation results in a discharge causing a major damage or threat of damage to their coastline or related interests. In those circumstances, the coastal state can even arrest an offending vessel. But enforcement action by coastal states is subject to a number of safeguards. Because coastal states are often port states, it may be easier for such states to exercise their jurisdiction when ships are in their ports rather than to pursue them in the high seas.

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(20) Environmental Law

Naomi Klein explains "polluter pays"

What is the polluter pays principle?

What is the 'polluter pays' principle?

EL18

THE IRISH DEPARTMENT OF THE ENVIRONMENT

Policy priorities and future challenges

 De-coupling economic growth from environmental damage is a major challenge facing many countries, and environmental policies are continuously evolving to meet the challenge of appropriately balancing economic development and environmental protection. This challenge in Ireland has been made more immediate by the relatively recent economic surge here and must also be addressed against the background of increasing international obligations and the corpus of environmental legislation to which the country is now committed.

Environmental policy in Ireland will continue to be shaped by developments in European environmental law and policy. The EU’s 6th Environmental Action Programme identifies climate change, nature and biodiversity, environment and health and resource efficiency and waste management as key priorities.

The Department, in its current Statement of Strategy and in its review of national sustainable development policy, Making Ireland’s Development Sustainable, has adopted these as priority areas for Ireland.

Challenges for Ireland identified within the overall environmental and the wider sustainability agenda include:

(a) Reducing eutrophication of inland waters;

(b) Improving waste management;

(c) Protecting the urban environment;

(d) Controlling greenhouse gas and other transboundary emissions in accordance with international agreements; and

(e) Protecting natural resources.

An examination of the list above provides an indication of areas where future Departmental programs and policies may focus. In addition to ongoing policy development, addressing these challenges will require more effective implementation of existing environmental controls, an area which will be of particular focus in the near future. Further areas of focus will be the greater integration of environmental considerations into economic/fiscal and sectoral policies, providing information and raising awareness towards changing behavior and continuing to encourage a partnership approach and the concept of shared responsibilities in relation to environmental issues.

Agencies and semi-state bodies operating under the aegis of the Department of the Environment, Heritage and Local Government

An Bord Pleanála, the Planning

• Housing Finance Agency Appeals Board

• Irish Water Safety Association

An Chomhairle Leabharlanna

• Local Government Computer Services

The Library Council Board

• Building Regulations Advisory Body

• Local Government Management

• Comhar, The National Sustainable Services Board Development Partnership

• National Building Agency

• The Heritage Council

• Private Residential Tenancies Board

• Dublin Docklands Development

• Radiological Protection Institute of Authority Ireland

• Environmental Protection Agency

 • Rent Tribunal

• Fire Services Council

•Temple Bar Renewal

Met Éireann (the meteorological office) and the National Franchise and Electoral System also form part of the Department. Furthermore, certain functions relating to the construction industry fall under the Department’s remit.

Up until June 2002 the Medical Bureau of Road Safety, the National Safety Council, the National Roads Authority and the Dublin Transport Office fell under the Roads Division within the Department; however, these are now part of the new Department of Transport.

Key environmental policy principles

 Sustainable development

Sustainable development is at the heart of the Department’s mandate and mission. Generally, it is the activity which meets the needs of the present without compromising the ability of future generations to meet their own needs.

Sustainable development was the overarching theme of the EU’s 5th Environmental Action Programme as well as the worldwide Earth Summit in Rio De Janeiro in 1992. The principle was considered and applied in just about every piece of EU and, consequently, Irish legislation arising during the period covered by the 5th EAP. It is now engrained in environmental policy worldwide and has been taken forward as a premise in setting the environmental objectives and priorities of the EU’s 6th EAP, the Department’s Statement of Strategy 2003–2005 and the majority of other environmental policies existing at the EU and national level.

Best available techniques

Best available techniques, or BAT, essentially means applying technology which provides for the most effective prevention, minimisation or rendering harmless of polluting emissions and which is procurable by the industry concerned.

Available does not necessarily imply that the technology is widely used or locally available. Technology itself is taken as the techniques and the use of techniques, which include training and maintenance.

Polluter pays

This principle works on the premise that the cost of preventing or rectifying environmental damage should be borne by the one who causes it, ie, the polluter. This includes costs of administration, environmental agencies, repair/remedying of environmental damage and, to a certain and increasing extent, replacement of environmental services or amenities.

Precautionary principle

The precautionary principle acknowledges that it is not always possible to know what the environmental consequences are of a particular activity or process.

To cope with this level of uncertainty, applying the precautionary principle may require:

(a) Cautious progress until a process or activity is determined to be ‘innocent’;

(b) Ordinary progress until findings of guilt is made;

(c) No progress until intensive research has been completed and the innocence of the process is demonstrated.

Producer responsibility

Producer responsibility essentially takes the polluter pays principle a step further. Whereas polluter pays are somewhat of an ‘end of pipe’ principle, producer responsibility starts at the ‘front end’ of a product, making producers responsible for its environmental fate, even if it has left their control. This principle is applied largely in the context of waste legislation and is meant to encourage the use of Integrated Product Policy and application of ‘design for the environment’ in making and developing any product.

Integrated Product Policy (IPP)

IPP has been widely accepted as a principle; however, as an actual policy, it is still in a developing stage. There are ideas of what IPP is supposed to mean, but the definition is currently the subject of some debate, which is taking place largely in the context of proposals by the European Commission to formally create an EU Integrated Product Policy. The general aim of IPP in principle is to reduce the overall impacts of a product throughout its lifecycle. The ultimate objective of IPP is to negate the need to regulate products by encouraging ‘front end’ improvements, for example, taking into consideration factors such as materials use or manufacturing processes.

The legislative process

Where proposals for legislation relate to matters on which government/Department policy has not already been laid down, or where they involve a new development or a material departure from existing policy, the Department first submits proposals to the Government by way of a memorandum of a decision in principle. Following such a decision in principle, or where proposed legislation is in accordance with the general lines of the Department’s existing policies, the Department prepares a general scheme of the proposed Bill in numbered heads. Consultation with interested parties may take place at this stage.

The draft heads, when completed, are forwarded to the Department of Finance and every other Department concerned, as well as the Office of the Attorney General, which may have already been consulted during preparation of the draft scheme. Some legislative proposals are also submitted, upon request, to Oireachtas Committees for consideration.

When the Government has approved the general scheme of a Bill, the Department arranges for drafting by the office of the Parliamentary Counsel to the Government (within the office of the Attorney General). Consultations may, again, take place during this process, although the text of the proposal is not actually disclosed to third parties prior to approval by Government and presentation to the Houses of the Oireachtas. When drafting is completed, Government approval to publish the legislation is sought. Once obtained, the Bill is presented either in the Dáil (Lower House) or the Seanad (Upper House).

The Bill is accompanied by an Explanatory and Financial Memorandum outlining the provisions of the Bill, setting out the existing law and the changes therein, proposed by the Bill and providing information about the estimated Exchequer costs and staffing implications for the Department, State Bodies, local authorities, etc.

Key environmental and environment-related legislation

• Local Government (Water Pollution) Act 1977 (amended in 1990).

Associated Regulations include those relating to Nutrient Management Planning and Water Quality Standards.

• The Air Pollution Act 1987.

• The Environmental Protection Agency Act 1992 (as amended by the Environmental Protection Act 2003).

Associated Regulations include those relating to urban wastewater treatment, control of emissions to certain environmental media and Integrated Pollution Control (IPC) Licensing (soon to be amended to become fully in line with the EU Directive on Integrated Pollution Prevention and Control (IPPC)).

• The Waste Management Acts (comprising the Waste Management Act 1996, the Waste Management (Amendment) Act 2001 and the Environmental Protection Act 2003).

Associated Regulations include those relating to hazardous waste and movement of waste including transfrontier shipments and licensing and permitting of waste activities including waste collection.

• The Litter Pollution Act 1997 (as amended by the Environmental Protection Act 2003).

Repeals the Litter Act and associated amendments.

• The Planning and Development Act 2000.

Repeals the Local Government (Planning and Development) Act and associated amendments.

• The European Communities Act 1972 and subsequent amendments.

A number of environmental Regulations have been made under this Act including, but not limited to, those relating to Environmental Impact Assessment, access to information on the environment, drinking water quality, control of certain emissions and minor amendments to existing environmental legislation.

Other environmental Acts include, but are not limited to, those relating to:

• Forestry;

• Wildlife;

• Derelict sites

• Sea pollution, including specific Acts relating to fisheries, foreshores, oil pollution and dumping at sea;

• Radiological protection.

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(18) Environmental Law

Plastic Bags and the marine environment

IMO - Marine Environment

Marine environment

Marime

Marine Environment

State of Marine Environment

Pollution enters the marine environment through dumping, through discharges from the operations of ships, through land-based sources, and through the atmosphere (pollutants end up in the atmosphere from land-based sources). The GESAMP has determined that only 10 percent of marine pollution comes from dumping and 1 percent is a result of sea-bed activities. The main culprit of marine pollution (77 percent) is pollution coming from land-based sources.

Despite the plethora of national and international instruments devoted to the prevention and elimination of sea pollution, the results, in terms of environmental improvement, are mixed. According to a GESAMP study: Although there have been some notable successes in addressing problems caused by some form of marine pollution, and in improving the quality of certain coastal areas, on a global scale marine environmental degradation has continued and in many places has intensified.

The GESAMP report has placed emphasis on the increasing global problem of eutrophication, that is, the increased biological production in coastal and near shore waters, because of the input of nutrients from sewage and agricultural fertilizers.

According to the GESAMP, eutrophication is “among potentially the most damaging of all human influences on the oceans, in terms both of scale and consequences.” The GESAMP has warned that excessive nutrient inputs “can turn marine areas into wastelands.” The GESAMP has determined that sewage is a problem of high priority in all regional seas. After sewage, environmental issues that need to be addressed with urgency include sediment mobilization, Persistent Organic Pollutants (POPs), heavy metals, and physical alteration.

The sea disposal of low-level radioactive waste has become controversial. Although in the 1970s such practice was tolerated, in the 1990s the London Convention prohibited the dumping of low-level radioactive waste at sea.

The GESAMP has determined, however, that low-level radioactive wastes do not present as high a risk as other wastes, especially toxic wastes. The GESAMP results are based on a 1993 IAEA study that evaluated the comparative risks of ingesting chemical carcinogens versus those of ingesting radionuclides through seafood consumption. The study was prompted by a need to see the risks associated with the disposal of low-level radioactive waste in the appropriate context.

The IAEA study concluded that the incremental risk associated with the contamination of seafood from the sea disposal of low-level radioactive waste is three or four orders of magnitude lower than the risk posed by what are considered toxic chemicals. The study examined the environmental effects of reprocessing plants located in Sellafield (United Kingdom), La Hague and Marcoule (France; now shut down), Trombay (India), and Tokai-Mura (Japan). It was concluded that nuclear power reactors discharge small quantities of radioanuclides, that they are generally well regulated, and that they should not be a source of concern. The GESAMP recognizes, however, that the use of nuclear power is an emotive issue and that public opinion on this topic is unlikely to change.

Although low-radioactive waste is not an issue of concern, the dumping of nuclear waste that comes from the decommissioning of nuclear weapons, nuclear military installations, and obsolete nuclear vessels, is. The GESAMP has singled out Russia for the illegal disposal of high-level radioactive waste at sea, which is in violation of the London Dumping Convention that banned such practice since its adoption.

The dumping activities of Russia, especially those involving the dumping of reactor assemblies containing spent fuel and of entire nuclear submarines, are of concern. The GESAMP has insisted that the difficulties involved in the decommissioning of military vessels, and particularly of nuclear submarines of the Russian North Fleet, suggest that such activities pose threats to the marine environment. There have been a number of accidents involving nuclear-powered and nuclear-armed vessels.

The GESAMP has identified several sources of marine pollution: sewage treatment plants, development activities that lead to discharges of sediments, and mariculture facilities. Diffuse sources of pollution include agriculture, wide scale forestry, and development activities that lead to increased mobilization of the soil. In terms of contaminants, substances of concern include mercury and lead, POPs, and what has been called the “dirty dozen.”13 The GESAMP has concluded that most metallic compounds should be of concern at a local level and only exceptionally at a regional scale.

Salt discharged from desalination plants in high volumes and concentrations has adverse effects on regional areas, for instance, the Persian Gulf and the Red Sea. Heat discharges have detrimental effects on small and poorly flushed water bodies. Pollution from vessels is caused by the operational discharges from ships, for instance from cleaning of tanks or discharges following accidents. Although vessels contribute a small percentage of marine pollution (12 percent of the total), they are usually perceived as one of the main contributors to marine pollution because of the large publicity that oil spills generate. The GESAMP has concluded that the releases of hydrocarbon compounds from routine operations, such as oil exploitation and exploration and shipping, are relatively well regulated (through the MARPOL Convention 73/78).Large oil spills create problems but are of “limited significance” on spatial and long-term scales. Oil is not the worst pollutant of the seas.

Heavy metals (lead, mercury, and cadmium), however, are potent pollutants. Nitrates and phosphates from agriculture could cause a significant amount of eutrophication and should become an issue of priority.

Other contaminants include polycyclic aromatic hydrocarbons (PAHs), which are likely to increase because of the increasing exploitation of the sea-bed and remain troublesome because of their appearance in seafood. Litter and sediment mobilization are likely to be issues of primary concern at the local and regional levels. Physical alteration of coastlines, as a result of cumulative impacts, is an issue on which the GESAMP has focused its attention. The GESAMP has warned for action to be taken to prevent impacts on coastlines from increased sediment, excavation works, forestry, agriculture, beach development, and construction of hotels and marinas.

Habitat destruction, dredging, and infilling operations are considered major problems, especially in the Red Sea/Gulf of Aden. Sand and gravel extraction from the sea-bed is also a concern in the North East Atlantic and the Irish Sea. The GESAMP study has emphasized that certain marine environments are more sensitive to pollution than others and, thus, require special attention, such as coral reefs, sea-grass beds, coastal wetlands, mangrove forests, shallow coastal waters, and small islands.Polluted groundwater can affect the marine environment adversely. Slow but persistent seepage of groundwater takes place along most of the world’s coastlines and eventually may lead to pollution.

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