Christian Nea

Examples of Environmental Regulatory Burden in Planning Proposed (National) Road

Developments.

Delivering Engineering Services in Local Government.

Local Government Division – Engineers Ireland

Athlone Springs Hotel

5th February, 2015

Environmental Regulatory Burden in Planning Proposed (National) Road Developments.

Contents of Presentation

• Who Plans Proposed Road Developments?

• How are Proposed Road Developments Planned?

• What Environmental Regulatory Obstacles are likely to be encountered in Planning Proposed Road Developments?


Who Plans Proposed Road Developments?



• Section 13(1) of the Roads Act, 1993, as amended, states:

‘[T]he maintenance and construction of all national and regional roads in a county or city is a function of the council of that county or city.’



• Section 19(2) of the Roads Act, 1993, as amended, states:

‘The Authority shall, as far as possible, arrange that [e.g. construction functions] shall be performed on its behalf by the relevant road authority but, in any case where the Authority considers that it would be more convenient, more expeditious, more effective or more economical that the function concerned should be performed by it, it may decide accordingly.’


How Are Proposed Road Developments Planned?





Phase 1 Scheme Concept & Feasibility Studies

Phase 2 Route Selection

Phase 3 Design

Phase 4 EIA/EAR & The Statutory Processes

Phase 5 Advance Works & Construction Documents Prep., Tender & Award

Phase 6 Construction & Implementation

Phase 7 Handover, Review & Closeout



Phase 1 Scheme Concept & Feasibility Studies

Phase 2 Route Selection

Phase 3 Design

Phase 4 EIA/EAR & The Statutory Processes

Phase 5 Advance Works & Construction Documents Prep., Tender & Award

Phase 6 Construction & Implementation

Phase 7 Handover, Review & Closeout

Plan

nin

g and

De

sign


What Environmental Regulatory Obstacles are likely to be encountered in Planning Proposed

Road Developments?


Environmental Regulatory Obstacles

European

•Directive 2011/92/EU (‘the current EIA Directive’);

•Directive 2014/52/EU (‘the new EIA Directive’);

•Directive 92/43/EEC (‘the Habitats Directive’) and Directive 2009/147/EC (‘the Birds Directive’);

•Directive 2008/98/EC (‘the Waste Framework Directive’);

•Directive 2000/60/EC (‘the Water Framework Directive’); and,

•Directive 2004/35/EC (‘the Environmental Liability Directive’).



The current EIA Directive

•Consent for certain projects can only be granted after an assessment of the likely significant environmental effects has been carried out; and,

•Promotes public participation in environmental decision making.



The new EIA Directive

•In force on the 15th of May, 2014;

•MSs have three years to transpose; and,

•Transitional arrangements apply to Annex I or II projects initiated or commenced prior to the 16th of May, 2017.



The Habitats Directive

•The aim of the Directive was: ‘[…] to contribute towards ensuring bio-diversity through the conservation of natural habitats and of wild fauna and flora […].’ Article 2.

Galway City Tribune 25th July, 2008

Corkman 29th May, 2008

Irish Examiner 9th August, 2007

Kildare Nationalist 14th January, 2000

Council have

change of heart on

Tullamore bypass

route

The snail’s pace progress

of Kildare’s ‘urgent’

bypass

Galway Independent 11th April, 2013

European

Court rules

against Bypass

plans

Irish Examiner 9th August, 2007




• Article 3(1) of the Habitats Directive provides for the establishment of a coherent ecological network, entitled Natura 2000, which is to be composed of:

• Special Protection Areas; and

• ‘[S]ites hosting the natural habitats types listed in Annex I and habitats of the species listed in Annex II.’

Annex I HD Habitat – Limestone

Pavement

Annex II HD Species – Freshwater Pearl Mussel

Annex I BD Species – Whooper Swan

Annex I BD Species – Hen harrier

Annex II HD Species – Atlantic Salmon




Special Protection Areas Candidate Special Areas of Conservation




“Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV (a) in their natural range, [...].’

Article 12(1) of the Habitats Directive

“Member States shall take the requisite measures to establish a system of strict protection for the plant species listed in Annex IV (b) [...].”

Article 13(1) of the Habitats Directive

Annex IV (b) HD Species – Killarney fern

Annex IV (b) HD Species – Marsh

saxifrage



Irish

•Roads Acts, 1993 to 2007;

•Planning and Development Act, 2000 to 2011;

•Planning and Development Regulations, 2001 to 2013;

•European Communities (Birds and Natural Habitats Regulations, 2011 and 2013;

•Waste Management Acts, 1996 to 2013;

•European Communities (Environmental Liability) Regulations, 2008 to 2011;

•Local Government (Water Pollution) Acts, 1977 to 2007;

•Inland Fisheries Acts, 1959 to 2010; and,

•Wildlife Acts 1976 to 2012.


What Environmental Regulatory Obstacles are likely to be encountered during Phase 2 – Route

Selection?



Route Selection (Phase 2)

The current EIA Directive

•Article 5(3) of Directive 2011/92/EU (‘the current EIA Directive’);

•Section 50(2)(d) of the Roads Act, 1993, as amended, states:

[An environmental impact statement shall contain] an outline of the main alternatives studied by the road authority concerned and an indication of the main reasons for its choice, taking into account environmental effects. [Emphasis added.]



Route Selection (Phase 2)

The new EIA Directive

•Article 5(1)(d) of Directive 2011/92/EU (‘the current EIA Directive’), as amended by Directive 2014/52/EU (‘the new EIA Directive’);

[The information to be provided by the developer shall include at least:] a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment; [Emphasis added.]



Route Selection (Phases 2)

The Habitats Directive – ‘Absence of Alternative Solutions’ Test

•Article 6(4) of Council Directive 92/43/EEC (‘the Habitats Directive’) states:

If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest [...] the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected.





Strict Interpretation

“The alternative put forward for approval, is the least damaging for habitats, for species and for the integrity of the Natura 2000 site, regardless of economic considerations and that no other feasible alternatives exists that would not adversely affect the integrity of the site.”

(European Commission, 2007)





Moderate Interpretation

“Among the alternatives short-listed in that way, the choice does not inevitably have to be determined by which alternative least adversely affects the site concerned.” (Opinion of AG Kokott in Case C-239/04 Commission v. Portugal [2006] ECR I-10186 [44] (‘Castro Verde’))





Moderate Interpretation

“The decisive factor is […] whether imperative reasons of overriding public interest require the implementation of specifically that alternative or whether they can also be satisfied by another alternative with less of an adverse effect on the SPA.” (Opinion of AG Kokott in Castro Verde [46])





Galway City Transport Project


What Environmental Regulatory Obstacles are likely to be encountered during Phase 3 – Design

and Phase 4 – Environmental Impact Assessment/Statutory Process?



Design (Phase 3) and EIA/Statutory Processes (Phase 4)

Appropriate Consent Procedure/

Screening for Local Authorities

Does the national road proposed development require an Environmental Impact Assessment?

Yes No

Apply to An Bord Pleanála for approval under Section 51(2) of the Roads Act, 1993, as amended.

Does the national road proposed development require an Appropriate Assessment?

Yes No

Must the national road proposed development satisfy the statutory procedures set out in Section 179 of the Planning and Development Act, 2000, as amended?

Apply to An Bord Pleanála for approval under Section 177AE of the Planning and Development Act, 2000, as amended.

Yes No

Progress national road proposed development under Part XI PDA 2000.

Apply best practice.




Screening for Local Authorities

• Screening decisions should be:

• made in writing;

• reasoned;

• made available to the public; and,

• made formally via properly delegated authority or a manager’s order.




Screening for Local Authorities • Changes to Screening brought about by the new EIA Directive:

• Annex IIA specifies the information that a developer must provide to the competent authority to inform a screening determination for sub-threshold development. Article 4(4)

• The information may also include measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment. Article 4(4)

• Screening determination must be made ASAP and within 90 days, but this may be extended in exceptional circumstances. Article 4(6)

• The determination, stating the main reasons, should be made available to the public. Article 4(5)




Environmental Impact Assessment •Changes to Environmental Impact Assessment brought about by the new EIA Directive:

•The developer shall ensure that the Environmental Impact Assessment report is prepared by competent experts. Article 3(a).

•The consent decision shall incorporate, where appropriate, monitoring measures. Article 8a(1)(b).

•EIA report must include an assessment of a wider range of factors, including population and human health, biodiversity, land and climate, and the risk of major accidents and disasters. Article 3.

•Legislative penalties for infringements. Article 10a.




Appropriate Assessment

•Article 6(3) of the Habitats Directive states:

“Any plan or project […] likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site […] the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”




Appropriate Assessment

•The ECJ in Case C-127/02 Waddenzee stated [at paragraph 61]:

“[...] The competent national authorities, taking account of the appropriate assessment of the implications of [the project] for the site concerned in the light of the site’s conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.”




Appropriate Assessment •The ECJ in Case C-258/11 Sweetman stated [at paragraph 48]:

“[...] Article 6(3) of the Habitats Directive must be interpreted as meaning that a plan or project [...] will adversely affect the integrity of that site if it is liable to prevent the lasting preservation of the constitutive characteristics of the site that are connected to the presence of a priority natural habitat whose conservation was the objective justifying the designation of the site [...].”

Annex I* HD Habitat - Active Raised Bog

Annex I* HD Habitat – Alluvial Forests

Annex I* HD Habitat – Turlough




Other Miscellaneous Issues

Regulation 49 of the Birds and Natural Habitats Regulations 2011

• Save in accordance with a licence, any person who ‘plants, disperses, allows or causes to disperse, spreads or otherwise causes to grow’ any specified plant shall be guilty of an offence (Reg. 49(2)).





• Plants specified include (Part 1 of the Third Schedule):

• giant hogweed (Heracleum mantegazzianum);

• giant knotweed (Fallopia sachalinensis);

• giant-rhubarb (Gunnera tinctoria);

• Himalayan balsam (Impatiens glandulifera);

• Himalayan knotweed (Persicaria wallichii); and,

• Japanese knotweed (Fallopia japonica).

Japanese knotweed

Giant hogweed





• It is a defence to a charge to prove that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence (Regs. 49(3) and 49(4)).

• A person who commits an offence under Regulation 49(2) is liable:

• Class A fine and/or term ≤ 6 months (on summary conviction); or,

• Fine ≤ €500,000 and/or term ≤ 3 years (on conviction on indictment).





N86 Dingle to Annascaul and Gortbreagoge to Camp Road Improvement Scheme




Regulations 51, 52 and 54 of the Birds and Natural Habitats Regulations 2011/Articles 12-16 Habitats Directive

• Regulation 51(2) makes it an offence for a person, save under licence, in respect of the species referred to in Part 1 of the First Schedule, to, inter alia:

• deliberately disturb these species particularly during the period of breeding, rearing, hibernation and migration; or,

• damage or destroy a breeding site or resting place of such an animal.





• Species referred to in Part 1 of the First Schedule, include, inter alia:

• European otter (Lutra lutra);

• Natterjack toad (Bufo (Epidalea) calamita);

• Kerry slug (Geomalacus maculosus); and,

• All species of bat.

Kerry Slug (Geomalacus maculosus)

Lesser Horseshoe Bat (Rhinolophus

hipposideros)

European Otter (Lutra

lutra)




Regulations 51, 52 and 54 of the Birds and Natural Habitats Regulations 2011/Article 12-16 Habitats Directive

• Regulation 52(2) makes it an offence for a person, save under licence, to, inter alia, deliberately pick, collect, cut, uproot or destroy any specimen of plant species referred to in Part 1 of the First Schedule.

• Plant species listed include Killarney fern (Trichomanes speciosum) and marsh saxifrage (Saxifraga hirculus).

Killarney fern (Trichomanes speciosum)

Marsh saxifrage (Saxifraga hirculus)





• A person who commits an offence under Regulation 51(2) or 52(2) is liable:

• Class A fine and/or term ≤ 6 months (on summary conviction); or,

• Fine ≤ €500,000 and/or term ≤ 3 years (on conviction on indictment).





“Any person may apply to the Minister […] for a derogation licence from complying with the requirements of the provisions of Regulations 51, 52 and 53.”

Regulation 54(1).





• Regulation 54(2) provides:

“(2) Where there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species to which the Habitats Directive relates at a favourable conservation status in their natural range, the Minister [...] may grant such a derogation licence to one or more persons, where it is—

[...] (c) in the interests of public health and public safety, or for other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment, […].”

Local authority compliance with Articles 12 and 16 of the Habitats Directive - The N18 Ennis Bypass

Disturbance of Old School House at Knockanean

Demolition of three barns at Knockaskibbole


Local authority compliance with Articles 12 and 16 of the Habitats Directive - The Ennis Bypass – Works timed to avoid disturbance


Local authority compliance with Articles 12 and 16 of the Habitats Directive - The Ennis Bypass – Construction of a replacement roost at Knockaskibbole


Local authority compliance with Articles 12 and 16 of the Habitats Directive - The Ennis Bypass – Refurbishment of Old School House are Knockanean



Summary of Presentation

• Who Plans Proposed Road Developments?

• How are Proposed Road Developments Planned?

• What Environmental Regulatory Obstacles are likely to be encountered in Planning Proposed Road Developments?


Thank you for listening!

Christian Nea

Chartered Engineer

Environmental Engineer

Environmental Policy and Compliance Unit

National Roads Authority

[email protected]