Department of Agriculture, Fisheries and Food,
Nitrates, Biodiversity and Engineering Division,
Johnstown Castle Estate,
Co. Wexford.
21 October 2011

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Submission on Department of Agriculture, Fisheries and Food Guidance document for public consultation: European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011) (SI 456 of 2011)

We welcome the fact that Ireland is taking steps to address the findings of the ECJ in case C-66/06. However, these steps are not adequate to produce a functioning EIA system in compliance with EU law.


The application process to DAFF for screening and consent for a restricted number of types of development is a stand-alone ad hoc system which omits many of the elements required to make it workable and to bring it into compliance with the EIA Directive as amended by the Public Participation Directive. In addition the establishment of a separate regulatory system is not an effective decision.

In particular the following major flaws are evident in the system being implemented:

The planning system is to be duplicated within the Department of Agriculture, Fisheries and Food for a small number of cases. This is flawed in a number of respects:

From a cost point of view, duplicating the planning system within DAFF is a waste of money. It will require the establishment of a system of administration/database management, expert advice to the Minister, inspection and enforcement, covering subject matters all of which are already successfully handled by local authorities and An Bord Pleanála.

We are concerned that in practice this duplication is unlikely to happen and that the system may simply be operated in a half-hearted and ineffectual manner.From an administrative point of view, giving the function to the Minister is contrary to current practice which is to vest such decision-making power in independent bodies.
Almost all other EIA decision-making functions are held by independent bodies established for the purpose of operating relevant consent systems. This approach is seen as best practice and is being extended. For example, The Minister for the Environment's power to grant foreshore licences is to be transferred to planning authorities. In this instance there is clearly a potential conflict with the Minister's other roles and responsibilities in relation to agriculture.

From the point of view of the farmer, it will involve checking developments against two sets of regulations rather than just one. Note that the making of a planning application need not be expensive; indeed the greatest cost for an application such as this is the purchase of OS maps which is a State-imposed cost which could easily be obviated.

The system being implemented in the Regulations and in the draft Guidelines entirely fails to integrate the administration of this EIA screening and consent process with GAEC and other agri-environment measures.

To take just one example, the removal of hedgerows is generally not allowed under GAEC. The guidelines however, discuss the conditions under which the removal of hedgerows requires screening and consent and make no reference to the fact. Given that this document is intended to give guidance to farmers and other landowners one would expect that this helpful information would be provided. (We note that DoECLG in its consultation document on wetlands gives this information.)

The Guidelines themselves are convoluted and hard to read.

A farmer seeking to know what (s)he needs to do should find in the guidelines a clear text and decision-making chart. Instead, (s)he is ultimately asked to make a evaluation of her/his proposed works based on Annex 3 where all (s)he will find are vague criteria.

There is no public notification of a screening application and no provision for inspection of the application. Therefore there is no public participation in the screening process.

It appears from the guidelines that the screening process does not require the submission of maps. If this is the case we do not see how an effective screening system can be operated.

There is no appeal of the screening decision other than judicial review.

In the analogous procedure under the Planning Act, (s.5 of 2000 Act) there is an appeal to An Bord Pleanála which considers the application de novo. Judicial review in Ireland is restricted to points of law; the system being introduced therefore allows no appeal as to the substance of the decisions taken under it. Citizens have the right to an independent review of administrative decisions which may affect them.


Public notification of the consent application and public participation in decision-making are likely to be inadequate.

Public notification of an application under the planning system is through a detailed process including site notice, inclusion on planning lists, internet availability of applications etc. For this procedure however, there is simply a provision for publication of a notice by the Minister in an unspecified manner and location. It is not clear what information is to be available to the public as to the decision once taken nor how it is to be available.

The Regulations simply say that the Minister will publish decisions and reasons without saying how they are to be published. Obviously unless a publicly accessible register of applications and decisions is maintained it is impossible for the public to check compliance or complain about non-compliance.

The requirement for site notices was introduced into the planning system because the experience taught that site notices which alert local people who have particular local knowledge is an important beneficial element of public notification. In the light of the Aarhus Convention and implementing Directives, we would expect that similar public notification would also be put in place.


There is no procedure for enforcement complaints.

Under the Planning and Development Acts non-compliance complaints are addressed through a formal system which requires a report within a specific period of time from the Local Authority. The failure to include such a provision in this legislation undermines public participation by rendering the requirements for considerations of representations unaddressed.

No indication has been given as to how the enforcement system is to operate.

This is a matter of considerable concern to us. Unfortunately, we are very familiar with the situation whereby an inadequacy in Ireland's transposition of EU law is addressed on paper but effective mechanisms to implement the provisions are not put in place. This has been the subject of significant judgements against Ireland in the ECJ, for example in relation to waste management.

Compliance-checking and enforcement of applications across the country will constitute a significant extra administrative burden. Is it to be integrated with other compliance-checking carried out by DAFF?

On first reading it appears that the only sanction is to be stand-alone prosecution. The sanctions available under other agricultural provisions should be applicable to breaches of these regulations. In the absence of such provisions, it is very hard to believe that there is any intention to make this system work.

Archaeological risk

The reduction in farmer numbers, together with enlargement of farms to the scale necessary to maintain international competitiveness has resulted in the longstanding familial association with archaeological sites becoming significantly eroded. Teagasc's indicated in 2005 that the coming decade constitutes a ‘high risk period for Ireland's archaeological heritage', suggesting that ‘the rate of destruction of archaeological sites may be increasing in coastal areas, and especially in the commercial farming counties, due mainly to land improvements (removal of banks, ditches etc) associated with more intensive grassland farming'. The expertise necessary for identifying these sites is absent from this Department.


There is no legal provision for third party enforcement.

Such enforcement provisions are required by the Aarhus Convention which we understand Ireland is about to ratify.

Regulatory Impact Analysis

For some time now, the introduction of a new system of regulation such as that proposed has been accompanied by a Regulatory Impact Analysis (RIA). It is clear from the Regulatory Impact Analysis Guidelines published at www.betterregulation.ie that RIA should have been carried out for these Regulations.

We believe the significant problems with the current approach would have been highlighted by a RIA. At this stage we believe that an RIA can and should still be undertaken to address the issues we raise above, in particular the basic question as to the wisdom and practicality of introducing another separate regulatory system for a few types of development.
Given the overall responsibility of the Department of the Taoiseach for Better Regulation, we are copying this submission to them.

We are grateful for this opportunity to comment which we sought when we made many of the above points already in correspondence to yourselves to which we received no substantive reply. We attach a copy of that letter.

Yours, etc.,

Tony Lowes and Caroline Lewis
Directors.

COPY
Tony Reid,
Nitrates, Biodiversity & Engineering Division
Department of Agriculture, Fisheries and Food
Johnstown Castle Estate
Co. Wexford
Ireland
11 August 2011

RE - CASE NO. C-66/06 & European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011

By email only: This email address is being protected from spambots. You need JavaScript enabled to view it.

Dear Mr. Reid,

We refer to your email of 21 July 2011 and its attachment, ‘EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AGRICULTURE) REGULATIONS 2011; A Guide for farmers.'

WE UNDERSTAND THAT THIS REPRESENTS PART OF IRELAND'S RESPONSE TO A REFERRAL TO THE ECJ FOR DAILY FINES LODGED WITH THE ECJ ON THE 7TH OF JUNE 2011 SEEKING FINES AND FURTHER SANCTION FOR FAILURE TO ACT ON THE FINDINGS OF THE JUDGMENT OF NOVEMBER 2008 [CASE C-66/06] WITH A DEADLINE FOR A RESPONSE SET FOR THE 23RD OF JULY 2011.

These draft Guidelines outline the establishment of a wholly new separate consent system for ‘on-farm' developments through the proposed European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011 under the auspices of the Department of Agriculture, Fisheries and Food (DAFF).

While the thresholds for EIA consent are not specified in the copy made available to us, our initial view is that the approach being taken is wholly inadequate and cannot purport to satisfy the judgment of the ECJ in respect of this case. Our comments below are therefore by not exhaustive and represent our primary concerns at this time.

Of the greatest concern to us is that these proposed regulations have not been subject to formal public and stakeholder consultation and this must be initiated without delay. This Public Participation is required under the EIA Directive and this must be initiated without further delay.


FIE Comments
In the first instance, the proposed new separate consent system being established by DAFF to regulate on-farm development is presently only outlined in draft guidelines and no statutory instrument has been enacted, in spite of the Government's promise to make the Regulations ‘available to Committee members in advance of their discussion of the draft planning regulations to provide a broader picture of the legislative response' (Briefing for Chief Whip's Office, 22 June, 2011).

In this context you have clearly failed to comply with the 23rd of July 2011 deadline.

Furthermore, we would question the appropriateness of the establishment of a wholly new and separate consent system for on-farm development to be centralised within DAFF. While the arrangements to ensure implementation of an ECJ judgment is left to the member state, we do not consider that DAFF has the expertise, resources or the administrative independence to undertake this role effectively and impartially.

Giving this decision making power to the Minister for Agriculture, Fisheries and Food is contrary to current practice which is to vest such decision-making power in independent decision making bodies.

For example, the Minister for the Environment, Community and Local Government's power to grant foreshore licenses is to be transferred to planning authorities and An Bord Pleanála.

It is hard to see how this proposed consent function would sit comfortably with the Minister's other roles and responsibilities in relation to agriculture (e.g. expanding agricultural production through the enlargement of farms to the scale necessary to maintain international competitiveness) and is likely to be subject to political interference at a time of increasing risk for Ireland's biodiversity and archaeological.

Notwithstanding the above, the draft guidelines produced by DAFF lack clarity and detail as to the proposed consent process and it is not evident as to whether critical mandatory components of the EIA Directive will be incorporated in the proposed Regulations including, inter alia, appropriate public notification, public participation (including for EIA screening), third party right of appeal, expert advice to the decision maker, public availability of decision files and enforcement.

For example, the proposed use of the DAFF national website for public notification for development proposals would be likely to disenfranchise local stakeholders, there is no clarity as to whether there would be an automatic third party right of appeal to a higher review body, and whether stakeholders with an interest in the preservation and protection of the environment would be notifiable bodies.

It is clear that in order to satisfy the mandatory requirements of the EIA Directive the proposed new DAFF system will need to be analogous to the current Irish planning system.

This begs the question why the existing tried and tested legislative structures are not being utilised and are being retained only in the case of wetland drainage. From a cost point of view, duplicating the planning system within DAFF will be a waste of money.

From the point of view of the farmer, it will involve checking development proposals against two sets of regulations rather than just one. In addition, as the Commission will be aware, Ireland operates an extremely lax enforcement regime and it is unclear how the addition of a new consent process and a separate enforcement authority and potential overlapping jurisdictions will improve matters.

The effectiveness of the proposed new system will depend largely on the threshold levels selected. The proposed draft DAFF Guidelines include no clarity on this issue and no thresholds indicated; however we understand the proposed screening thresholds being considered as follows:

• Area of lands to be restructured by removal of field boundaries - Above 15 hectares
Length of field boundary to be removed - Above 1 kilometre
Infilling of earth (within farm-holding) - Above 2 hectares
Use of uncultivated or semi-natural land for intensive agriculture - Above 15 hectares
Drainage works for agriculture - Above 15 hectares

Thresholds of this scale would in effect make the application of the proposed regulations a dead letter as they are far divorced from the scale on which activities occur in practice, especially in sensitive areas of the countryside.

A further difficulty is that for sub-threshold development it is the farmer who, in the first instance, is required to make the determination as to whether the proposed development is likely to have a likely significant effect on the environment. While a farmer can apply to DAFF for a screening decision for any scale of activity, it is clear that in practice this approach can only work where ‘de minimis' thresholds are set which reflect the scale at which these activities occur in practice. It is implausible that every farmer would have the skill set or be of a mind to commission advice to evaluate the potential effects on the environment of, say, the removal of 700m of hedgerow or the use of 10 hectares of species rich grassland for intensive agriculture.

In the case of wetland drainage this class of activity has been retained within the planning system. It is therefore unclear as to why the other classes of on-farm development have not also been retained within the planning system. While wetlands are of undoubted habitat importance, hedgerows, for example, are of equal conservation importance in the Irish context (particularly for habitat connectivity) and their protection is an objective in all local authority development plans.

There are clear anomalies within the proposed regulations and potential for confusion within the two parallel consent processes. For example, while drainage of wetlands is regulated by the 0.5 hectare threshold, land reclamation works and infilling of earth within farm holdings is exempted development for the purposes of the planning code and regulated by potentially different thresholds (currently unknown) within the proposed DAFF system.

This could possibly allow for wetlands to be simply infilled rather than drained without any consent and result in the provisions of the regulations being circumvented. Furthermore, while it is the clear that the intention of the DAFF regulatory system to cover all agricultural restructuring, hedgerows are explicitly excluded from the definition in Article 8D of the P&D Regulations 2011 which is likely to result in confusion as to whether hedgerow removal requires planning permission or DAFF consent.

The definition of wetlands inserted by the Article 3 of the new P&D Regulations 2011, as confirmed in the draft DAFF guidelines, also includes peatlands (bogs, wet heaths and fens). However the extraction of peat (which is defined in the P&D Regulations 2001 to specifically include related drainage) is governed by Article 17 of the P&D Regulations 2001 where a 10 hectare threshold for a requirement for planning permission and a 30 hectare EIA threshold are set. This lacuna would potentially allow for a specific class of wetland to be afforded lesser protection. In the Irish context the conservation of peatlands are of prime importance and the subject of considerable pressures from exploitation.

We would be grateful if you assured us that are comments will be considered before these Regulations have statutory status.

Yours etc.,

Tony Lowes

 

 

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