John Gormley (Dublin South East, Green Party)

There are two aspects to the judgment of the European Court of Justice delivered on 3 July. First, the compatibility with the requirements of Directive 85/337/EEC on Environmental Impact Assessment, as amended, of Irish legislation under which permission may be granted for the retention of unauthorised development and, second, whether appropriate environmental impact assessments were carried out in respect of the development of a windfarm at Derrybrien, County Galway, which was the subject of a number of planning applications between 1998 and 2003.

With regard to retention permission, the court noted that while Community law cannot preclude applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the condition that it does not offer the persons concerned the opportunity to circumvent Community rules or to dispense with applying them, and that it should remain the exception. The court found, however, that under Irish law, there is the possibility of the grant of retention permission in cases lacking any exceptional circumstances.

With regard to the Derrybrien development, the court found that the development consents given for, and the execution of, the wind farm development and associated works at Derrybrien were not preceded by environmental impact assessments which conformed to the requirements of Directive 85/337/EEC.

This very recent judgment is being studied in detail to determine the appropriate response. I have already been examining legislative options for removing or minimising the possibility of retention for unauthorised developments that would otherwise have been subject to environmental impact assessment under Directive 85/337/EEC and these will be further developed in light of the court's judgment.

The position remains that under Part 10 of the Planning and Development Act 2000 and Part 10 of the Planning and Development Regulations 2001, a planning application in respect of a development or class of development falling within the scope of Directive 85/337/EEC, as amended, must be accompanied by an appropriate environmental impact statement. The carrying out of unauthorised development is an offence under the Act.

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