Habitats Directive Assessments for Natura 2000 sites The Provisions of the new Planning and Development Act

1. Habitats Directive Assessments for Natura 2000 sites The Provisions of the new Planning and Development Act Sharon Casey Cork County Council October 2011

2. overview • natural heritage legislation – protection of natural heritage • intro to habitats directive assessment • how requirements for protection of natural heritage are provided for in the new p and d act • issues arising….

3. legislation Council Directive 92/43/EEC on the conservation of natural habitats and of wild flora and fauna – the Habitats Directive Council Directive 79/409/EEC on the conservation of wild birds – the Birds Directive European Communities (Birds and Natural Habitats) Regulations, 477 of 2011

4. sites Special Protection Areas (SPAs) (sites designated for birds – sites that host large numbers of birds such as estuaries and sites that support the breeding or feeding habitats of particularly rare species) Special Areas of Conservation (SACs) (sites designated for habitats and / or for plant and animal species) Natura 2000 network

5. qualifying features Habitats Directive Annex I Habitats (eg Blanket Bog, Lagoons, Old Oak Woodland) Annex II Species (eg Lesser Horseshoe Bat, Otter, Freshwater Pearl Mussel, Killarney Fern) Annex IV Species that are strictly protected outside Natura 2000 sites (eg all bat species, otter). Birds Directive Annex I bird species for which SPA is designated

6. how are these sites managed and protected? • conservation management plans • management agreements • farm plans and reps • regulation of potentially damaging activities

7. legislation article 6: Conservation and Management of Natura 2000 sites 6 (3) Anyplan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In light of the conclusions of the assessment … … the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public

8. plans - for planners this means rpgs, plans for sdzs, development plans, variations, laps, town plans projects - for planners this means activities regulated under P & D Act likely to have a significant effect appropriate assessment - a process which involves the assessment of any plan or project, before a decision is made to allow these to proceed, to determine the nature conservation implications on the Natura 2000 network conservation objectives – objectives set out by NPWS in relation to the protection and management of each Natura 2000 site competent national authorities – the authority designated with carrying out appropriate assessment for a particular activity

9. whatsinvolved in HDA

10. whats involved in HDA 4 possible stages: determining whether plan/project is likely to have significant impacts on Natura 2000 sites (screening) determining whether plan/project is likely to affect integrity of Natura 2000 sites (appropriate assessment) assessment of alternative solutions assessment where no alternative solutions exist and where adverse impacts remain

11. stage 1 screening involves: describing the proposed plan/project identification of Natura 2000 sites which might be impacted by the proposed plan/project identification of the potential impacts on the Natura 2000 network arising from the proposed plan/project and consideration as to whether these are likely to be significant possible outcomes: potential for significant impacts identified or uncertainty remains…proceed to stage 2 of AA significant impacts ruled out..plan/project may be authorised

12. stage 2 appropriate assessment more detailed investigation of potential impacts of proposed plan/project on conservation objectives of Natura 2000 site. Involves collection, collation and analysis of relevant scientific data to enable assessment of impacts to be made. involves collecting information on site and plan/project identifying possible negative impacts assessing whether impacts will adversely affect conservation objectives of the site assessing any mitigation proposed to minimise/cancel adverse impacts possible outcomes adverse effects on integrity of site cannot be ruled out – proceed to stage 3 adverse effects on integrity of site are ruled out – plan/project can be authorised

13. stage 3 assessing alternative solutions Before a development or plan that will have adverse effects on a Natura 2000 site can proceed, it must be objectively concluded that no alternative solutions exist; that all reasonable alternatives have been considered and assessed, and that the least damaging option has been selected.

14. stage 4 imperative reasons of overriding public interest In the absence of alternative solutions..the competent authority must establish whether or not the plan or project can be considered to be necessary for imperative reasons of overriding public interest (IROPI). For some sites these reasons can be of a social or economic nature Where priority habitats or species are affected, these reasons may only be related to human health, public safety or beneficial consequences of primary importance for the environment If IROPI do not exist then planning permission cannot be granted for a project

15. where IROPI have been accepted where a development is being permitted for imperative reasons of overriding public interest, compensatory measures necessary to ensure the overall coherence of the Natura 2000 network must be in place before the plan/project can proceed… compensatory measures must compensate for the expected impact on the site eg providing substitute habitat of the same habitat type that will be damaged or lost.. minister must be consulted and must agree any such measures

16. legislation article 6 (4) If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried our for imperative reasons of overriding public interest, including those of a social or economic nature, the Member State shall take all compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected. It shall inform the Commission of the compensatory measures adopted. Where the site concerned hosts a priority natural habitat type and/or a priority species, the only considerations which may be raised are those relating human health or public safety, to beneficial consequences of primary importance for the environment or, further to an opinion from the Commission, to other imperative reasons of overriding public interest.

17. P + D (Amendment) Act 2010 AA provisions appropriate assessment provisions • New act fully integrates requirements for aa in the planning code (section 57, Part XAB); • PA required to take appropriate steps, in the performance of its functions, to avoid significant impacts or impacts on the integrity of the Natura 2000 network.

18. who carries out the assessment Act defines ‘competent authorities’ for assessing land use plans and proposed development PA is the competent authority for assessing impacts of • planning applications • development plans ABP is the competent authority for assessing developments subject to appeal and SIDs PA is competent authority for screening LA own development but ABP is competent authority where full AA is required in relation to development as defined in P and D act,

19. who carries out the assessment for Planning Applications: PA makes the assessment, but may ask applicants for information to assist it to make the appropriate assessment - this should be presented in a Natura Impact Statement. for LA own developments and land-use plans: PA must both compile the necessary information to assist in decision making (in a Natura Impact Report) and make the appropriate assessment. for plans and projects..the decision based on assessment is recorded by PA in AA Conclusion Statement

20. Other provisions of P and D Act, 2010 relating to AA • Exempted development (section 5): new classes of development no longer considered exempt..forestry roads, drainage and reclamation of wetlands. • Activities that require EIA or AA are not exempt, but Minister can make regs to make such activities re exempt de exempted activities? • Default permissions (section 23): Default permissions do not apply to applications for development which require EIA or AA • Retention (section 23): Retention permission is not permissable in circumstances where a development required EIA or AA

21. Other provisions of P and D Act, 2010 relating to AA • Extensions of duration (sections 28 and 29): Can only be granted if PA is satisfied that EIA or AA, if required, was carried out before permission was granted. • Substitute Consent (section 57): provides for introduction of Part XA which allows for substitute consent to be granted in exceptional circumstances. • Quarries (section 75): provides for a substitute consent process for certain quarries.

22. some issues for consideration for PAs who within the organisation carries out screening (planning applications, part 8 work, waste permit applications) and how? who within organisation carries out appropriate assessment? do the Planning Authorities have the competence to be the competent authority to carry out appropriate assessments? in relation to AA of plans, the PA both prepares the NIR and the conclusion statement…is there a conflict here?

23. screening options… • mapping solution - identification of potential impact zones for Natura 2000 sites • generic questionnaire/checklist • site specific checklist

24. some issues for consideration generally.. • repetition between what is contained in EIS/NIS and NIR/Environmental Report (SEA regs).. • issues relating to extensions of duration, if impacts on Natura 2000 sites were assessed previously in an EIA or EcIA but not presented in a Natura Impact report..where does that leave them? • consultation with NPWS is recommended under guidelines, but cant always be achieved given pressures on individuals within that organisation..

25. some issues for consideration generally • assessing impacts of higher level policies and strategies • assessing cumulative impacts • monitoring impacts of changes made to plans arising from AA process • requirements under AA to protect annexed habitats and species outside designated sites..screening/aa? • communication of all this with the wider public

26. (my) AA Conclusion Statement There is a need for guidance, support and training to be provided for plan/project proponents and their agents, for competent authorities and for ecologists, engineers and planners working in the private sector.. There is a need for the development of more detailed guidance in relation to particular issues.. Can a forum be developed to allow the discussion of issues and the resolution of problems…

27. biodiversity outside Natura 2000

28. www.npws.ie http://ec.europa.eu/environment/nature/natura2000 sharon.casey@corkcoco.ie Go Raibh Maith Agaibh