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Ministers secure agreement on EIA Regulations for On-Farm Developments

Minister Phil Hogan TD, Minister for the Environment, Community and Local Government, and Minister Simon Coveney TD, Minister for Agriculture, Food and the Marine today announced a package of reforms to address the adverse findings of the European Court of Justice (ECJ) in respect of certain categories of farm development and activities and to bring Ireland’s implementation of environmental impact assessment (EIA) in line with the requirements of the EU Directive.

In making these regulations, Minister Hogan welcomed the progress of this matter and the collaborative effort of the two Departments and the European Commission in identifying and introducing appropriate and balanced reforms. The Minister said "Our ambition is to meet our compliance requirement with the EU Directive and to facilitate reasonable activities by farmers in these areas, while also protecting our valuable environmental heritage".  He went on to say "Inaction by the previous government has brought us to this point.  So called environmentalists in government failed to engage meaningfully with the Commission and it has been left to this Government to get the best deal for Ireland in the short time available, while making sure we meet our environmental obligations."

Minister Coveney stated "My focus throughout the summer has been to avoid the probability of very significant fines in this case while introducing a system that does not overburden farmers and is easily accessible and understandable.  While this issue has primarily been the responsibility of the Department of the Environment, I have been keen to engage with the Commission to avoid a negative impact on farms and ensure the agreement took the needs of practical farming into account. I am satisfied that we have brokered a compromise which recognises those needs and delivers a workable solution for farmers.

He added, "While the Court may ultimately impose a fine for the legacy of inaction, the shared understanding that we have secured here with the Commission should spare us from the imposition of daily fines of €33,000 per day (or up to €12.5 million per annum)"

Minister Coveney further outlined that he is satisfied that the regulations now proposed are workable, will minimise the administrative burden on farmers and keep the application process outside of the planning system.

Both Ministers have outlined that consultation and engagement will now take place with relevant stakeholders and the Commission on the guidelines that will support these regulations.

Notes for the editor

The EIA Directive requires Member States to provide that an environmental impact assessment must be carried out in respect of certain categories/levels of developments, set out in Annex I of the Directive, before consent is given for the project to proceed.  The Directive also requires EU Member States to determine through (a) a case-by-case examination, or (b) the setting of national thresholds or criteria (which Ireland has done) whether projects below the mandatory thresholds set out in Annex I above need to have an EIA carried out prior to a decision as to whether consent should be given.  Where a case-by-case examination is carried out or thresholds or criteria are set, as in Ireland's case, relevant selection criteria (e.g. character, size, location, accumulated impacts, proximity to sensitive sites) must be taken into account.

The European Court of Justice ruled in November 2008 in respect of Case C-66/06, which related to the implementation of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (generally known as the EIA Directive), that Ireland's system of Environmental Impact Assessment (EIA) screening for certain categories of agriculture and aquaculture related projects:

  • projects for the restructuring of rural land holdings
  • the use of uncultivated land or semi-natural areas for intensive agricultural purposes, and
  • water management projects for agriculture, including irrigation and land drainage projects was over-reliant on size thresholds and did not take other relevant criteria (such as the cumulative impacts of development, the location of the development or activity relative to sensitive sites etc.) into account.

While the Commission referred this case back to the European Court of Justice in June to seek the imposition of both lump sum fines and daily fines for failure to act on the findings of the judgment of November 2008 and for continued non-compliance with the Directive, following intensive discussions with the European Commission, the two Ministers are introducing new regulations - the Planning and Development (Amendment) (No.2) Regulations 2011 and the European Communities (Agricultural Environmental Impact Assessment) Regulations 2011 - to give effect to these new provisions and procedures, which are now considered to be compliant with the principles and requirements of the Directive.

In response to the Court's finding, the new Planning (Amendment) Regulations, which were discussed at the Joint Committee on the Environment, Transport, Culture and Gaeltacht in July and subsequently approved by both Houses of the Oireachtas, are transferring responsibility for most of the activities covered by the judgment, such as the re-structuring of fields and removal of boundaries, the use of uncultivated land or semi-natural areas for intensive agriculture and normal field drainage works, to a new separate consent system to operate under the aegis of the Minister for Agriculture, Fisheries and Food.

The only element of the judgment being retained within the planning system is on-farm development activity that impacts on wetlands, which are highly environmentally sensitive areas and merit screening of potential impacts of works on the environment.  The new regulations propose a exempted development threshold (i.e. the threshold above which a planning permission, and screening for EIA, is required) of 0.1 hectare, thus allowing minor works such as access works to take place on wetlands without having to seek planning permission.  The mandatory threshold for EIA of drainage of wetlands from 20 hectares to 2 hectares, in line with the UK and Northern Ireland thresholds.  In addition, planning permission accompanied by an environmental impact statement may be required even in respect of drainage below the 0.1 threshold in cases where the drainage would have a significant effect on the environment.

The new Department of Agriculture Regulations cover the following categories:

  • the restructuring of farm holdings;
  • the use of uncultivated land or semi-natural areas for intensive agriculture; and
  • land drainage works on lands used for agriculture, excluding the drainage and reclamation of wetlands and propose a new system of screening, to be undertaken by the Department of Agriculture, for environmental impact above certain thresholds for different types of agricultural activity, and the requirement for mandatory EIA to be carried out on such projects at a higher level.  The table below sets out the new thresholds:
Category of activity Threshold for EIA screening Threshold for consent and mandatory EIA

Re-structuring of rural land holdings

  • Length of field boundary to be removed

 

500 metres

 

4 kilometres

 

  • Re-contouring (within farm-holding)
2 hectares 5 hectares
  • Area of lands to be restructured by removal of field boundaries
5 hectares 50 hectares
Commencing to use uncultivated land or semi-natural areas for intensive agriculture 5 hectares 50 hectares

Land drainage works on lands used for agriculture (excluding drainage or reclamation of wetlands)

15 hectares 50 hectares

Additional considerations must be given to activities that impact on certain sites such as designated Natura 2000 areas, recorded monuments, natural heritage areas and proposed natural heritage areas and other nature reserves, given their environmental and heritage sensitivities.

Date Released: 07 September 2011