Complaint in relation to non-implementation of the EIA Directive 85/337 in relation to urban developments in Ireland.
FRIENDS OF THE IRISH ENVIRONMENT
8 February 1999
Mr. G. Kremlis,
Dear Mr. Kremlis,
We wish to draw your attention to a serious flaw in Irish implementation of the EIA directive.
The planning system in Ireland operates by the drawing up of a Development Plan for the local authority area. This plan makes the fundamental decisions in relation to development in an area. All planning applications received by a local authority are then considered in the context of this plan.
The zoning for development of land in a Development Plan (or in what is termed a Variation of the Plan) creates a legal entitlement on the part of the landowner to obtain planning permission for development of a type or types permitted in the relevant zoning. In effect, therefore, the decision whether or not to permit a particular development (e.g a large urban development on greenfield land) is made not at the planning permission stage but at the Development Plan stage.
Ireland has implemented Directive 85/337 by requiring that certain applications for planning permission will be accompanied by an Environmental Impact Statement and that a form of E.I.A. is carried out by the planning authority who receive the application (although it is clear that in many cases this does not happen due to, inter alia, a lack of relevant expertise on the part of the planning authority).
Article 2 of the Directive which requires that
"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment ... are made subject to an assessment with regard to their effects."
Article 1 of the Directive specifies that
"'development consent' means the decision of the compent authority or authorities which entitles the developer to proceed with the project."
It is clear from the situation as set out above that Article 2 of the Directive is not being complied with in the case of many developments in Ireland. Many developments are approved without EIA at Development Plan stage and then required to go through a formal EIA process when a legal entitlement to consent has already accrued to the landowner. (In the case of others, the development is carried out piecemeal by means of multiple planning applications and no EIA is ever carried out.)
We would draw your attention in particular to the case of Santry Demesne, an old demesne containing parkland and woods of considerable ecological value and enormous amenity value and potential which is the last green space between the densely populated areas of Santry and Ballymun, which latter district includes areas of serious social deprivation, and the motorway to the north of Dublin. It lies at the Southern edge of the Fingal County Council area, while most of the residents of Santry and Ballymun are within the Dublin Corporation area.
Fingal County Council resolved in May 1998 to rezone most of the Demesne, in particular the western part near Ballymun for industrial and residential use. This decision was made as a stand-alone amendment to the existing Development Plan, at the request of a development consortium who had acquired interests in the land.
An alternative procedure available to the developer would have been to have submitted a planning application and requested the approval by the Council of a "Material Contravention" of the Plan. However, that approach would, because of the way the EIA Directive has been implemented, required the Council to carry out an EIA on the proposal before the developer received a legal entitlement to develop the land.
No EIA was carried out on the proposal before the decision was made (although one is now being carried out as part of the planning permission process). Indeed the decision was made with no analysis whatsoever of the impact on the neighbouring areas of Santry and Ballymun and the effect on the human environment for the communities of those areas. This failure or indeed refusal to consider them went as far as the maps which were considered by the Council which showed the areas to the south of the Demesne as blank space - because they were in another local authority area. The official documentation supplied as advice to councillors will substantiate this, and the then Cathaoirleach of the council advised the councillors that the areas of Santry and Ballymun in the Corporation jurisdiction were irrelevant to the decision. We raised these (and other) issues with the Council before it rezoned the land.
For your information, and so that you are aware of the complexity and importance of the issues raised, we attach a copy of the bound volume of public comments made in relation to the rezoning, containing our letter as objection 579.
We also enclose a copy of the 5-page report supplied to the councillors at the meeting where they decided to make the rezoning. It makes clear that in the absence of a formal requirement for EIA there is effectively no meaningful consideration of the environmental impact of the development before the decision is made.
We should point out that there has now been a planning application, including an EIS. However, we have no faith in this process, as under Irish law the Council is effectively now obliged to grant permission.
We would appreciate it if you could treat this complaint as a matter of great urgency. It is of real and serious importance for the sustainable development of Dublin and its hinterland. Further rezoning proposals by Fingal County Council are going through formal public consultation at the moment. Major rezoning proposals amounting to thousands of hectares in total are included in this new draft Development Plan. No EIA has been carried out and the Council is likely to be making decisions on this draft Plan in March or April 1999.
The protection given the environment by the EIA Directive is only a procedural protection. In that context it is vital that proper environmental impact analysis is made of these major decisions and proposal in relation to the urban form of Dublin, and of similar proposals in other areas. Under the current Irish legislative provisions, EIA after the zoning decisions have been made in the case of new urban developments is effectively meaningless.