Maureen O'Sullivan (Dublin Central, Independent)
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Question 161: To ask the Minister for the Environment, Heritage and Local Government if he will close the loophole which permits a local authority to screen projects for Environmental Impact Assessment post-ante construction when screenings for Environmental Impact Assessments must always be ex-ante construction. [32689/09]

John Gormley (Dublin South East, Green Party)
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Part X of the Planning and Development Act 2000, as amended, deals with EIA. The corresponding secondary legislation is part 10 of the Planning and Development Regulations 2001, as amended.

Pursuant to the provisions of section 176 of the Act and of Part 10 of the Regulations, an environmental impact statement (EIS) and an environmental impact assessment (EIA) is mandatory in respect of the projects specified in Schedule 5 to the Regulations where the thresholds specified are exceeded. The EIS must be submitted with the planning application and is subject to public consultation.

Under Section 173 of the Act, a planning authority is required to have regard to the EIS in making its decision on an application for planning permission.

In addition, pursuant to Article 103(1) of the Regulations, where a planning application is submitted in respect of sub-threshold development which is not accompanied by an EIS, the planning authority will require the application for planning permission to submit an EIS if it considers that the development would be likely to have significant effects on the environment.

Further, where a planning application for sub-threshold development is not accompanied by an EIS and the development would be located on an ecologically sensitive area, Article 103(2) of the Regulations requires the planning authority to decide whether the development would or would not be likely to have significant effects on the environment of the site. In making that decision, the planning authority is required to have regard to criteria specified in Schedule 7 to the Regulations.

In respect of applications for permission for the retention of unauthorised development, and in light of a ruling by the European Court of Justice in Case C215-06 made in July 2008, where such development should have been subject to mandatory EIA, planning authorities have been advised, through Circular Letter PD6/08 issued in October 2008, to return such applications as invalid, on the basis that there is no jurisdiction to grant retention planning permission in those circumstances.

In respect of applications for permission for the retention of unauthorised sub-threshold development, planning authorities were advised to proceed to decide whether the project should have been subject to EIA. If the project would not have required an EIA, then the planning authorities were advised to proceed to deal with the application in the normal course. If, conversely, the planning authority decided that an EIA would have been required the Circular advised that the application be returned as invalid.

I will bring forward Committee stage amendments to the Planning and Development Bill 2009 to give effect to the ECJ judgment. This will withdraw the possibility of making an application for retention permission in relation to a range of projects. The exact scope of the amendments remains to be finalised.