Tuesday, 7 October 2008

New law to tackle unauthorised developments

LEGISLATION IS being drafted to ensure that planning authorities do not grant retrospective permission for unauthorised developments in cases where an environmental impact assessment (EIA) is required.

This follows a judgment by the European Court of Justice (ECJ) last July, in which the court invalidated Irish law allowing local councils and An Bord Pleanála to grant retention for developments that failed to comply with the EU's directive on EIAs.

Among the schemes that would be affected by the court's judgment are several major quarries and the proposed convention centre at the Citywest Hotel complex in Saggart, Co Dublin, for which the appeals board recently granted retention.

The board wrote to Citywest developer Jim Mansfield on September 15th last, spelling out the implications of the judgment and saying he should "take legal advice before acting on the planning permission" in these circumstances.

Minister for the Environment John Gormley is warning the local authorities that any current retention applications that should have been subject to prior EIA must now be returned to developers, on the basis that they are invalid.

They are also being told by the Minister that developers who had already received retention permission in similar cases since July 3rd - the date of the European Court judgment - should be "advised not to act upon the permission" on legal grounds.

These developers "must be informed that as a result of the judgment the permission granted is in breach of Community law as it was granted under a legislative system that the ECJ found was inconsistent with the EIA Directive", the circular says.

Referring to the proposed amending legislation, Mr Gormley said: "My aim is to remove the possibility of retention for unauthorised development which would otherwise have been subject to EIA, other than in exceptional circumstances."

A spokesman for the Minister could not say what these circumstances might be as the legislation has yet to be drafted, but he made it clear that Mr Gormley intended to take a "zero tolerance" approach to the retention of such unauthorised developments.

However, he emphasised that the amending legislation would only apply to major developments above the thresholds at which an EIA would be required.

"It's not about going after people who might have built domestic extensions without permission".

The Minister said he envisaged that the legislation would also revoke the current seven-year time limit within which enforcement action may be taken in respect of all unauthorised developments, whether or not they would require a prior EIA under EU rules.

A spokesman for An Taisce said the Minister was the competent authority for ensuring compliance with EU directives and he should use his power under Section 44 of the 2000 Planning Act to direct local authorities to revoke non-compliant permissions.

The ECJ judgment related to a wind farm at Derrybrien, Co Galway, where the construction of a service road caused a major landslide on the blanket bog.

Earlier this year, there were two further "bogslides" at wind farm development sites in Kerry and Leitrim.

A coalition of environmental groups, including An Taisce, Birdwatch Ireland and Friends of the Irish Environment has called for a moratorium on wind farm construction involving blanket bog sites until "best practice guidelines" were adopted.

"Peat landslide hazard and risk assessments must be undertaken", a spokesman for the groups said.

"No further developments can be permitted to proceed until this process is complete and guidelines similar to those in other countries are in place," the group said yesterday.

The Irish Times


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