Brian Stanley (Laois-Offaly, Sinn Fein)
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383. To ask the Minister for Housing, Planning, and Local Government if a European citizen can seek remedies under section 160 of the Planning and Development Act 2000 to implement the legislation transposed into Irish law by the Houses of the Oireachtas under section 3 of the European Communities Act 1972, to give effect to the CJEU judgements against Ireland in Cases C-50/09 and C-215/06; if not, if he must transform further legislation to ensure compliance with Articles 2 to 4 of the EIA Directive, as amended by the Public Participation Directive 2003/35; and if he will make a statement on the matter. [16685/24]

Darragh O'Brien (Dublin Fingal, Fianna Fail)
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Section 160 of the Planning and Development Act (the Act) provides that a planning authority or any other person can apply to the High Court for an injunction in relation to an unauthorised development. This provision of the Act also sets out what the Court can specify in its orders and other detailed procedural matters.

No further legislative provisions are required to transpose the EIA Directive, as the EIA Directive is fully transposed in the planning code via Part X of the Act and Parts 10 and 19 of the associated Planning and Development Regulations 2001 - 2024

The objective of the Environmental Impact Assessment (EIA) Directive, is to ensure a high level of protection of the environment and of human health through the establishment of minimum requirements for the environmental impact assessment of projects. The EIA Directive therefore ensures that certain public and private projects that are likely to have significant effects on the environment may only be granted consent after an assessment with regard to their effects on the environment has been carried out. As the Deputy is aware, there have been a number of European Court of Justice rulings in relation to the implementation of the EIA Directive, including Case-215/06, Case -50/09 and Case – 261/18.

Case C-215/06 was taken against Ireland for failure to ensure full implementation of Directive 85/337/EEC (the EIA Directive). The judgment in this case had two grounds:

- firstly that Ireland failed to ensure that projects likely to have significant effects on the environment by virtue of their nature, size or location, are made subject to an environmental impact assessment (EIA), before development consent is granted,

- secondly that by failing to ensure the development consents granted for the Derrybrien Wind farm development were preceded by an EIA, Ireland failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of the EIA Directive.

The first ground in the judgment of case C-215/06 was addressed by amending national legislation via the Planning and Development (Amendment) Act 2010, which, amongst other things, introduced a legislative process known as substitute consent to provide for the potential regularisation of development consents that had previously been granted permission in breach of the EIA Directive. In effect, this is like retention permission for a development that had required an EIA, but proceeded without one.

The second ground resulted in a further referral to the CJEU. This case C-261/18 concerned the regularisation of the Derrybrien wind farm development from an EIA perspective. An Bord Pleanála made a decision on the substitute consent application for the Derrybrien Wind Farm in County Galway in 2022. In their decision, the Board refused to grant substitute consent for ESB’s wind farm, which ends the statutory process seeking to retrospectively regularise the environmental impact assessment status of the wind farm, (the subject matter of the EU court judgment in case C-261/18).

The decision of the Court of Justice of the European Union (CJEU) in case C50/09 found that Irish legislation was not fully in conformity with the EIA Directive (2011/92/EU). Specifically, the Court found that in a case where a project requiring EIA required both planning permission and an Integrated Pollution Prevention and Control (IPPC) license, the fact that Irish legislation did not prevent the Environment Protection Agency from making a licensing decision before the planning permission application was decided, and therefore before the EIA was completed, meant that part of the overall consent for the project (i.e. the license) was being decided without an EIA being first carried out, contrary to Articles 2 and 4 of the EIA Directive.

In order to comply with the Court ruling it was necessary to make amendments to the Environmental Protection Agency Act, 1992 and the Planning and Development Act, 2000 in relation to the assessment of projects which require both a consent under the Planning and Development Act 2000 and an IPPC license. These amendments were made in the European Union (Environmental Impact Assessment) (Integrated Pollution Prevention and Control) Regulations 2012, which came into effect on 30 September 2012 (new application for IPPC licenses) and the European Union (Environmental Impact Assessment) (Integrated Pollution Prevention and Control) (No.2) Regulations 2012, which came into effect on 15 November 2012 (IPPC license applications on hands).

Ireland is now in compliance with the both of the CJEU judgments referred to in this question (C-50/09 and C-215/06). I consider that the planning code is now fully compliant with the Environmental Impact Assessment Directive.