EUROPEAN PARLIAMENT
2009 - 2014
Committee on Petitions
27.11.2012
NOTICE TO MEMBERS
Subject:
1.
Petition 1453/2007 by Mr. Damien F. Cassidy (Irish), on behalf of the
Ringsend Irishtown and Sandymount Environmental Group, on breaches of
EC legislation in connection with the developments at Dublin Bay, Dublin
Port, Poolbeg, Ringsend and Northwall
Summary of petition
The petitioner objects to the infrastructure developments at Dublin Bay, Dublin Port, Poolbeg,
Ringsend and Northwall and maintains that the right of the citizens to be consulted would
have been breached. The petitioner argues that the local Planning Authority would have
circumvented the legislation in force granting the planning permissions for different
development plans, including a waste incinerator, without informing or consulting the
residents who will be directly affected. The petitioner also criticizes a recent decision to
increase the fee to be paid by individuals who would like to object to a plan from 20 to 1500
Euro fees. The petitioner asks the European Parliament to have the situation investigated.
2.
Admissibility
Declared admissible on 27 May 2008. Information requested from Commission under Rule
202(6).
3.
Commission reply, received on 26 September 2008.
The petitioner objects to the infrastructure developments at Dublin Bay, Dublin Port, Poolbeg,
Ringsend and Northwall and maintains that the right of the citizens to be consulted would
have been breached. The petitioner argues that the local planning authority would have
circumvented the legislation in force granting the planning permissions for different
development projects, including a waste incinerator, without informing or consulting the
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residents who will be directly affected. The petitioner also criticizes a recent decision to
increase the fee to be paid by individuals who would like to object to a plan from €20 up to €1
500.
The Commission recalls that, according to the principle of subsidiarity, Members States are
responsible for determining their own rules for land use management whilst respecting EC
environmental law.
Some of the individual projects mentioned by the petitioner are covered by Directive
85/337/EC as amended1 (the Environmental Impact Assessment or EIA Directive). The
incinerator at Poolbeg requires a mandatory EIA, falling under Annex I of the EIA Directive.
According to information available on the web, the Poolbeg incinerator has been subject to an
EIA and planning permission was issued by An Board Pleanála in November 2007. The
Commission has no further information as Member States are not obliged to report routinely
on EIAs carried out in their territories. Other projects such as the high-rise blocks could be
classified as urban development projects and hence fall under Annex II of the EIA Directive
thus needing to undergo a procedure called “screening”, to assess if the projects are likely to
have significant effects. If they are, an EIA is necessary. The proposed road bridge might fall
under Annex I or II depending on its scale.
The EIA process must also involve adequate consultation of the public and the competent
authorities. Regarding Annex II projects, the Member States have to ensure that the screening
determination made by the competent authorities is also made available to the public.
The Commission has taken note of the claim of the petitioner that the level of possible fees
has been raised. However, the level mentioned by the petitioner refers to fees paid by
developers and not by the public who is charged a limited amount.
With respect to the waste incineration in particular, the main Community legislation in the EU
comprises Directive 2000/76/EC2 on the incineration of waste and Directive 2008/1/EC3
concerning integrated pollution prevention and control. Directive 2000/76/EC sets out specific
Community minimum requirements for the incineration of waste, including emission limit
values for a number of pollutants, monitoring obligations, and procedures for waste handling.
The aim is to prevent or limit as far as practicable negative effects on the environment and
human health from waste incineration. Directive 2008/1/EC sets out a broad Community
framework for the permitting of a variety of industrial plants, including municipal waste
incinerators. Under this directive, integrated environmental permits must have been issued by
the competent authorities by October 2007 for plants already operating before 1999. The
permits must contain emission limit values and other conditions based on the “Best Available
Techniques” (BAT).
Based on the information provided by the petitioner, the Commission cannot identify any
breach of EC environmental law.
1
OJ L 175, 5.7.1985, p.40; OJ L 73, 14.3.1997, p.5; OJ L 156, 25.6.2003, p. 17.
OJ L 332, 28.12.2000.
3
OJ L 257, 10.10.1996.
2
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4.
Commission reply, received on 22 April 2010.
The Commission contacted the Irish authorities to request further clarification on the Section
25 Exemption Permits and on the different processes of public participation.
The information provided is two-fold: the "Section 25 Planning procedure" and the precise
case of the Poolbeg Incinerator.
Section 25 Planning Procedure:
The documents sent by the Irish Authorities explain that the procedure is part of an Act called
the "Dublin Dockland Development Authority" (DDDA) Act.
The DDDA was created to lead and coordinate a major project of physical, social and
economic regeneration in the East city centre area of Dublin. The authority has prepared a
Master Plan for the area which was put on public display and which included the Section 25
Planning Schemes that guide and manage the actual implementation of developments. The
Planning Scheme sets out detailed policies for specific zones and involves extensive public
consultation.
In accordance with Section 26 of the DDDA Act (as amended), an environmental impact
statement is required where a Section 25 planning scheme includes development which requires
an environmental impact assessment (EIA1) and only a very limited range of EIA type
developments can be included in a DDDA planning scheme (i.e. industrial-estate developments,
urban development projects, and sea water marinas).
Poolbeg Incinerator:
The DDDA Master Plan 2008-2013 includes an objective to establish a planning scheme for
the Poolbeg Peninsula. The draft Poolbeg Planning Scheme is currently being finalised and
the approvals of the DDDA Advisory Council and of the Minister of Environment and
Natural Heritage are expected. The drafting process facilitated extensive public consultation,
with copies of the draft Planning Scheme and the related Environmental Impact Statement
made available for public inspection with submissions invited.
As mentioned above, a development proposal involving any other type of development
requiring an EIA could not be included in a planning scheme and would be subject to the
normal planning permission requirements. So the Section 25 procedure was not used in the
case of the incinerator as it excludes developments that require en EIA.
As already mentioned in the previous communication, the Poolbeg Incinerator has been
subject to an EIA (which involved public consultations) and planning permission was issued
by An Board Pleanála in November 2007.
Conclusions
1
Directive 85/337/EEC, OJ L 175, 5.7.1985, p. 40-48.
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With respect to the above petition and on the basis of the information provided, the
Commission does not detect any breach of Community legislation as proper public
consultations were duly conducted.
However, the Commission has concerns that the Irish implementing legislation for the EIA
Directive does not fully reflect the provisions of the directive in relation to projects requiring
both planning permission and an integrated pollution prevention and control licence from the
Irish Environmental Protection Agency. The Poolbeg Incinerator does not specifically feature
in any legal action against Ireland but incinerators are amongst the categories of projects
addressed by such an ongoing legal action. The case (C-50/09) has been referred to the
European Court of Justice where a decision is still pending.
5.
(REV II) Commission reply, received on 30 September 2011.
As a follow up to its previous communications, the Commission can now report that the
European Court of Justice (ECJ) has delivered its judgment in Case C-50/09, on 3 March
2011. The Court held that the Irish legislation was incompatible with the Environmental
Impact Assessment (EIA) Directive (Directive 85/337/EEC1 on the assessment of the effects
of certain public and private projects on environment, as amended by Directives 97/11/EC2,
2003/35/EC3 and 20009/31/EC4).
One of the issues was that the Irish implementing legislation for the EIA Directive does not
fully reflect the provisions of the directive in relation to projects requiring both planning
permission and an integrated pollution prevention and control licence from the Irish
Environmental Protection Agency (Agency). Under Irish legislation, an authority responsible
for licensing a project may take its decision without an EIA being carried out. This situation,
possibly leading to a project being undertaken without an environmental assessment, was
considered by the Court, as violating the directive. In paragraph 81 of its judgement, the Court
stated: "It is, therefore, not inconceivable that the Agency, as the authority responsible for
licensing a project as regards pollution aspects, may make its decision without an
environmental impact assessment being carried out in accordance with Articles 2 to 4 of
Directive 85/337."
The Irish authorities have informed the Commission that they intend to adopt new legislation
to comply with the Court's judgment.
The judgment is accessible to the petitioner directly via the website of the Court,
http://curia.europa.eu/.
6.
Commission reply (REV. III), received on 27 November 2012.
In its previous communication, the Commission reported that the Irish authorities had
informed the Commission that they intended to adopt new legislation to comply with the
1
OJ L 175, 5.7.1985, p. 40.
OJ L 73, 14.3.1997, p. 5.
3
OJ L 156, 25.6.2003, p. 17.
4
OJ L 140, 5.6.2009, p. 114.
2
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European Court of Justice's judgment in Case C-50/09.
However, in view of Ireland's continued failure to comply with the Court's judgment, the
Commission decided on 21 June 2012 to refer the case back to the Court of Justice. Since
then, new legislation aimed at implementing the Court's judgment has been adopted by
Ireland. The Commission is currently analysing this legislation and is in close contact with
the Irish authorities on this matter.
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