Tuesday 11 October 2011

Why do I need to know anything about appropriate assessment?

I have spent a couple of days trying to think of the best way of explaining a recent addition to the list of hurdles which must be jumped before making a planning application. The new addition is called ‘Appropriate Assessment’ (AA) and while the name can be pilloried as unnecessary alliteration, unduly vague, and a little too confident (this, sir, is an ‘appropriate’ assessment …), it is nonetheless something about which anyone with a toe in the water of planning must become familiar. No matter how much you may want to: it cannot be ignored.

What am I talking about? Simply put, the promoter of any proposed development that is within or near to a Special Area of Conservation (SAC) or a Special Protection Area (SPA) is now required by law to carry out an AA of the effects on the European site.

AA was originally required under the European Communities (Natural Habitats) Regulations, 1997 (which were required under Article 6(3) of the EU Habitats Directive), but it has now been included within PART XAB of last year’s Planning and Development (Amendment) Act 2010. It now carries statutory weight.

AA is therefore now a standard legal requirement for all plans and projects likely to have a significant impact on European sites. If this was a lecture a student would put up their hand at this point and ask (probably after four years of lectures on the subject), what are SACs and SPAs? The lecturer would then wearily respond:

A Special Area of Conservation (SAC) is defined in the European Union's Habitats Directive (92/43/EEC) . They are to protect the 220 habitats and approximately 1000 species listed in the directive. SACs are therefore areas of land which are designated on the basis of the presence of an important unique habitat or species within it. These species include Petalwort, Lesser Horseshoe Bat, Grey & Common seal, Marsh Fritillary, White clawed Crayfish and Kerry Slug, amongst others. 16 priority habitat types have been identified in Ireland for which SAC designations have to be made. Some examples of these are Limestone Pavement in The Burren, blanket bogs in the Wicklow Mountains, Yew Woodlands in Killarney and (for those who think Dublin might be exempt) South Dublin Bay as far as DĂșn Laoghaire is a Special Area of Conservation (SAC). This is an extensive area of intertidal mudflats which is a very important habitat for Green Algae, Eelgrass and waterfowl (Oystercatcher, Redshank, Ringed Plover, Dunlin, Common Gulls and Black-headed Gulls). To date, Ireland has transmitted 381 sites to the European Commission as candidate Special Areas of Conservation. These cover an area of approximately 10,000 square kilometres.

 Special Protection Areas and SACs together form a network of protected sites across the European Union called Natura 2000. These sites are primarily areas of importance for birds and are designated under the EU Birds Directive (79/409/EEC). To date, 110 SPAs have been designated. A further 25 sites have been notified to landowners. Approximately 25 SPAs are also designated SAC.

So informed, the student may express surprise at not having realised the extent of these SAC and SPA areas. You may be surprised at this yourself. Such areas exist across the country and before making a planning application in the future, you will now need to become very familiar with any which are located close to your site.

AA is a scientifically based assessment of whether, in view of the conservation objectives of the site, a plan or project, alone or in combination with other plans and projects, may have an adverse impact on the integrity of the site. This is usually linked to the important habitats and species for which the SAC or SPA was designated.

This means that if you are proposing to make a planning application, you will need to carry out a screening exercise to identify if your project could impact on an SAC or SPA. If it might, the project will need to be appropriately assessed. Screening must establish beyond reasonable scientific doubt that a plan or project will have no significant effect. Otherwise AA is required.

Based on two short AA conferences I have recently attended, organised by the Irish Planning Institute and the Royal Town Planning Institute, during which presentations were made by the Department of the Environment, Community and Local Government and planning authorities, it is clear that actual AA screening requirements currently differ across the country. This will be addressed over time as guidance is introduced and the process becomes more standardised, but as things stand, my advice is that every planning application lodged in the country will need a screening exercise carried out. In the vast majority of cases (house extensions, etc.), a full AA will not be required, but you will need to submit the reasons why with your planning application. For those whose project requires Environmental Impact Assessment (EIA) or Strategic Environmental Assessment (SEA), AA will form part of these assessments.

I offer this advice because there are already examples emerging whereby planning applications have been refused because AA screening details were not submitted and Further Information requests now commonly ask for AA screening or AA. To avoid refusals or Further Information requests which could lead to refusals through inadequate AA screening, please carry out AA in a pre-emptive manner. What is the point in spending money on making a planning application, only to find out that as your project may impact on Freshwater Pearl Mussels, it is to be refused?

For you to have any chance of obtaining planning permission, you must establish beyond reasonable scientific doubt that there will not be an impact on an SAC or SPA if the plan or project is to proceed. If the assessment fails to establish that a plan or project will not adversely affect the integrity of the site, the plan or project cannot be permitted unless there are no alternative solutions (which must be demonstrated) and imperative reasons of overriding public interest require it to proceed. And, in most cases of private development, it will be difficult to pass these tests.

For advice on Appropriate Assessment, please contact an Irish Planning Institute (www.irishplanninginstitute.ie) registered planner as issues arising from these requirements are complicated and you need to be properly informed.

Brendan Buck
Irish Construction Magazine


No comments: