Under Directive 85/337EEC as amended by Directive 97/11/EC, the member States of the EU became obliged to ensure that certain development projects were subject to Environmental Impact Assessment. The assessment is conducted by the project-licensing authority.
Directives are addressed to member States and are not directed to individuals. Each member State is obliged to âtransposeâ? the Directive into national law. The national law then applies to individuals.
Ireland chose to transpose Directive 85/337EEC and Directive 97/11/EC by means of legislation on Planning. This was not done successfully; See HERE.
Member States failing to transpose or transpose fully or correctly a Directive are open to challenge in the European Court of Justice, as happened to Ireland.
Planning authorities are precluded from investigating environmental issues (although they may refuse a planning permission on an environmental ground). The assessment of environmental issues is the purview of the Environmental Protection Agency (âEPAâ?) (Section 99F (1) Environmental Protection Act 1992).
The EPA is precluded from investigating planning issues.
This division of responsibility has potential to show up a further failure by the State to correctly transpose Directive 85/337EEC and Directive 97/11/EC into Irish national law.
The issues are:
a) Under Irish planning law what a planning permission authorises is âdevelopmentâ?. This is defined in Section 3 of the Planning and Development Act 2000.
b) A planning permission granted in respect of a new rubber manufacturing factory would, for instance, carry authorisation of use of the factory for the stated purpose. Yet use is, essentially, an issue for the EPA.
c) Clearly, a planning permission to build a factory, where the use of the factory requires a licence from the EPA is not a useful permission in the absence of the EPA licence. Only on the issue of the EPA licence AND the planning permission is the âprojectâ? authorised.
d) Under Directive 85/337EEC and Directive 97/11/EC what is in question is the âprojectâ?. âProjectâ? is much more descriptive of what is involved in the situation referred to at c) than is a planning permission for âdevelopmentâ?.
e) In short, where there is a need to apply for, and receive, a number of regulatory consents, the âprojectâ? is not authorised until each and every one of the consents is obtained.
f) Planning permission is not, however, a âconsentâ?; it indicates an absence of opposition (by the planning authority) (See Section 34 (13) Planning and Development Act 2000). This is not how the issue of a planning permission is generally perceived, however. That perception validates action by a developer on receipt of a planning permission.
Under EU law, action and initiative by a developer must await the completion of assessment of the âprojectâ?. Member States are bound to retrain action, by an applicant, taken before the completion of an assessment and approval of the âprojectâ?. “Approval” can only mean the issue of the last of the requisite regulatory licences or consents.
In any particular case, the EPA licence might be the last of such licences, or the planning permission might be, or a Ministerial consent might be. Thus, only in the light of the knowledge of the requirements of the particular project is it possible to make the judgement as to whether action and development may proceed.
There are two possible outcomes for a developer in such a situation; either the developer may not proceed with development in the absence of ALL the regulatory consents (and be open to restraint by injunction restraining action in the absence of one or more licences), or the fact that the legislation ostensibly intended to transpose Directive 85/337EEC and Directive 97/11/EC has not done so correctly may result in the permissions granted being quashed on application to court by an objector.
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