Mr. Peter Carvill:

I thank the Chairman. I thank the committee for its kind invitation to the Department of Arts, Heritage and the Gaeltacht to contribute to its work on the proposed maritime area and foreshore (amendment) Bill. My name is Peter Carvill and I am from the legislation and EU compliance unit in the national parks and wildlife area of the Department. I am accompanied by my colleague, Dr. Eamonn Kelly, who advises on science and biodiversity matters, including nature, and also by my colleague Mr. Johnny Gorman.

The Department of Arts, Heritage and the Gaeltacht has engaged with our colleagues in the Department of the Environment, Community and Local Government in the preparation of these heads and will continue to do so as the drafting process advances. The principal focus of our engagement is helping to ensure that the proposed legislation is consistent with obligations under the EU and national law relating to nature protection sites and to certain vulnerable species of animals and birds that occur in marine areas.

The birds directive and the habitats directive oblige Ireland to protect endangered habitats and species. This is achieved through the designation and conservation of specific sites.

Ireland has 153 special protection areas, SPAs, for the protection of birds and 429 special areas of conservation, SACs, for the protection of endangered habitats and species of animals. Some 100 SPAs and 150 SACs are either totally or partially within the marine area.

As members of the committee can see from the maps provided, considerable stretches of Ireland’s coastline are included within such sites. Development is not prohibited within these sites and many of them host multiple activities. Any public authority considering whether to adopt or give consent to a plan or project affecting such areas is, however, bound by the requirements of the habitats directive, in particular Article 6. These requirements include that proposals for development or for activities that could have a significant effect on the site be subject of a detailed ecological assessment called an appropriate assessment. The outcome of such an assessment prescribes whether the project may proceed. A project that could have an “adverse impact on the integrity of a site”, to use the words of the directive, cannot be consented to unless strict criteria allowing derogation can be met.

Responsibility for compliance with the habitats and birds directives devolves on all agencies of the State in the development and implementation of their policies as well as in the exercise of their statutory powers and functions. Our discussions with the Department of the Environment, Community and Local Government will focus on how these requirements of EU law will be met in regard to consents to be given under this legislative scheme.

Certain species, such as cetaceans, namely, whales, dolphins and porpoises, and otters are also afforded strict protection by EU law wherever they occur. The Minister for Arts, Heritage and the Gaeltacht is responsible for the administration of this system of strict protection, but the impact of proposals for development in the marine environment which could affect these marine species is also considered in environmental impact assessments, under the EIA directive.

Ireland has been found to have fallen short of the requirements of the habitats and birds directives in a number of cases brought by the European Commission to the European Court of Justice. Most recently, in 2007, two separate cases found failures in transposition and implementation of both directives, including how the State dealt with consents affecting protected areas. As a result of those judgments, the European Communities (Birds and Natural Habitats) Regulations 2011 and changes to the planning and development Acts were made. The Irish Authorities and the European Commission are continuing to work together to address all aspects of these cases to allow for their closure.

A lack of compliance with EU legal requirements can lead to infringement cases against the State and can also provide an avenue for judicial review of consents. Such litigation can result in great cost and delay, that may arise for a plan or project before the legal process is completed. This can also impact entire sectors and undermine confidence in consent regimes.

Arising from those experiences, the Department of Arts, Heritage and the Gaeltacht is eager to ensure Ireland’s legislative framework will facilitate informed policy and decision-making processes that will give certainty to all parties. Robust legislation will help to avoid litigation and economic constraint. We are actively engaged with our colleagues in the Department of the Environment, Community and Local Government to assist them in ensuring this legislation will meet those requirements.

Dr Kelly and I are happy to take any questions the committee may have.