Kieran Cummins
Law and the Environment Conference 2015,
University College Cork, 23rd April 2015
Multi-Agency Cooperation in the Enforcement of Planning and
Environmental Law
Conference theme: ‘Informed Decision-Making for Environmental Law, Policy and Regulation’
SUMMARY
1.
2.
3.
4.
5.
6.
7.
8.
9.
Case law
Prescribed authorities
De Facto Enforcement Authorities
Comparison…between prescribed and de facto authorities
Communications --- within planning section as between planners/ administrators /
enforcers
Communications --- as between the various departments within a planning authority
Communications --- as between planning authorities and other statutory agencies
Modern Detection Methods
Informed decision-making
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1. CASE LAW
EC law: C-50/09 – Commission v Ireland [2011-03-03]
Findings: –
–
–
–
by failing to transpose Article 3 of Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private projects on the environment, as
amended by Council Directive 97/11/EC of 3 March 1997 and by Directive 2003/35/EC
of the European Parliament and of the Council of 26 May 2003;
by failing to ensure that, where Irish planning authorities and the Environmental
Protection Agency both have decision – making powers concerning a project, there will
be complete fulfilment of the requirements of Articles 2 to 4 of Directive 85/337, as
amended by Directive 2003/35; and
by excluding demolition works from the scope of its legislation transposing Directive
85/337, as amended by Directive 2003/35, Ireland has failed to fulfil its obligations
under that directive;
Orders Ireland to pay the costs.
Excerpt from Judgement: ‘16. The Environmental Protection Agency Act 1992 (‘the EPAA’) introduced, among other
things, a new system of integrated pollution control under which many industrial activities
require a licence granted by the Agency. Where the activity is new and/or involves new
construction, it must also obtain planning permission as provided for by the PDA.’
‘17. Section 98 of the EPAA, which precluded planning authorities from taking into consideration
aspects connected with pollution risks in considering an application for planning permission,
was amended by section 256 of the PDA to the effect that, whilst it precluded planning
authorities from including any pollution control conditions in planning permissions for activities
also requiring a licence from the Agency, they could nevertheless, where appropriate, refuse to
grant planning permission on environmental grounds. Section 98 of the EPAA, as amended,
provides that planning authorities may ask the Agency for an opinion, in particular on an
environmental impact statement. However, the Agency is not required to respond to such a
request.’
‘40. However, that obligation to take into consideration, at the conclusion of the decisionmaking process, information gathered by the competent environmental authority must not be
confused with the assessment obligation laid down in Article 3 of Directive 85/337. Indeed, that
assessment, which must be carried out before the decision-making process (Case C-508/03
Commission v United Kingdom [2006] ECR I‑ 3969, paragraph 103), involves an examination of
the substance of the information gathered as well as a consideration of the expediency of
supplementing it, if appropriate, with additional data. That competent environmental authority
must thus undertake both an investigation and an analysis to reach as complete an assessment
as possible of the direct and indirect effects of the project concerned on the factors set out in
the first three indents of Article 3 and the interaction between those factors.’
‘48. As regards the concepts of ‘proper planning’ and ‘sustainable development’ to which
Ireland also refers, it must be held that, even if those concepts encompass the criteria referred
to in Article 3 of Directive 85/337, it is not established that they require that those criteria be
taken into account in all cases for which an environmental impact assessment is required.’
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2. Prescribed Authorities
Often various prescribed authorities will be circulated with planning documentation for a
proposed development. However, there is currently no obligation on that authority to make
comment and in many cases there is no one with the requisite planning expertise in that
authority. Furthermore, I ask the question as to whether the list of prescribed authorities as
specified in the Planning and Development Regulations are adequate. In my experience it has
been necessary to deal with many other authorities with an enforcement function. I have listed
hereunder the prescribed authorities under the planning and development regulation and
further listed some agencies, which I regularly deal with regarding enforcement matters.
Authorities prescribed under section 24 of the Act.
[Planning and Development Regulations 2001 as amended by S.I.2011-262]
13. The prescribed authorities for the purposes of sections 11, 12 and 13 of the Act shall be—
(a) the Minister,
(b) the Board,
(c) the Minister for Agriculture, Fisheries and Food,
(d) the Minister for Arts, Heritage and the Gaeltacht,
(e) the Minister for Communications, Energy and Natural Resources,
(f) the Minister for Defence,
(g) the Minister for Education and Skills,
(h) the Minister for Transport, Tourism and Sport,
(i) An Chomhairle Ealaíon,
(j) the Commissioners,
(k) Dublin Airport Authority,
(l) in the case of a planning authority any part of whose functional area is affected by the DTI
Strategy, the Dublin Transportation Office (or any body that replaces that office),
(m) ESB (Electric Ireland),
(n) Forfás,
(o) Fáilte Ireland,
(p) the Health Service Executive, (q) the Heritage Council,
(r) the Health and Safety Authority, (s) Inland Fisheries Ireland,
(t) the National Roads Authority,
(u) in the case of a planning authority any part of whose functional area is situated within the
functional area of the Shannon Free Airport Development Company Ltd., that Company,
(v) An Taisce — the National Trust for Ireland,
(w) any planning authority whose area is contiguous to the area of the planning authority that
prepared the draft,
(x) any local authority, including town councils, and any city and county development board in
the area to which the draft relates, and
(y) the regional authority or regional assembly within whose region the functional area of the
planning authority is situated, and any regional authority whose region is contiguous to the
region of the first-mentioned authority.”.
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3. De Facto Authorities
1. Local Authorities – Planning Departments
2. Local Authorities – Environmental Departments
3. Gardai: road traffic, noxious weeds, explosives, larceny, overweight trucks,
4. Department of Agriculture – Tree felling licences.
5. Department of Agriculture – Nitrates
6. Department of the Environment – Derelict Sites Act: s.12.
7. Bord Gais (Ervia)
8. Director of Corporate Enforcement
9. Environmental Protection Agency
10. Health and Safety Authority
11. National Parks and Wildlife Service
12. National Roads Authority
13. Ombudsman
14. Revenue – Customs: Enforcement: DIESEL colour (Marked diesel), Registration of
Imported Vehicles.
15. RSA: Road Safety Association: Taccograph.
16. Waterways Ireland
Appellate Agencies
17. European Commission
18. UN – Aarhus Compliance Committee…no retrospective powers.
4. Comparison…Prescribed v de facto authorities.
From my experience, one of the more significant authorities with a regulatory function is that
of the RSA (Road Safety Authority). They are responsible for weights, Tachograph compliance,
Roadworthiness, etc. In theory ‘out of hours’ activity should be easily ascertained on
examination of the Tachograph records. It would be most helpful therefore, if firstly
Tachograph records were examined on a regular basis by the RSA and secondly that the
planning authorities were obliged to consult with the RSA re past compliance, on foot of a fresh
planning application or on foot of enforcement obligations as the case may be.
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5. Communications --- within planning section as between planners/
administrators / enforcers
I will look at both Macro and Micro co-operation within the planning authorities.
– Firstly let me examine briefly the issues surrounding the micro-cooperation/ obligations
within the planning / enforcement authorities. In addition to my own experience in this
area and in order to be as objective as possible, I have also consulted with an
enforcement officer and canvassed their views on the issues. We both agreed: o that there is a need for obligatory consultation between the planners on the one
hand and the authorities enforcement officers on the other, to ascertain what
the situation is as regards enforcement regarding a given developer in
circumstances where that developer or a related company has submitted an
application to extend a planning permission; this may be an extension in terms
of area or an extension in terms of time.
– As it stands, where a developer submits an application for a new development, this
planning application is looked at in isolation to all previous developments. In fact it has
been argued that to do so [look at compliance in other developments] would be untra
vires and so even if the authorities were minded to do so, they are in fear of Judicial
Review if in fact they did. This is a bizarre and wholly unacceptable situation.
– Moreover, the issue of Separate legal identity is repeatedly used by directors to avoid
liability for other companies with which they may have been the de facto manager.
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6. Communications --- as between the various departments
I now turn to macro-level cooperation within planning authorities. By this I mean as between
departments such as between Planning / Environmental/ Roads/ Finance and so on.
Without being employed by such an authority, I can only pose questions based on my own
experience as regards planning applications and enforcement.
As you all know, practically all planning consents come with obligations. Often these will consist
of licensing obligations, which are managed by the environmental department within the same
planning authority. As with the previous discussion, on the face of it, I pose some questions: 
whether there is adequate cooperation as between say the planning and environmental
departments. Does one department systematically inform the other of its enforcement
decisions?

Going further, does one department inform the other when in circumstances where
there is an abject failure to lodge monitoring results? Many of you will be familiar with
the concept of ‘self-policing’!

Further still and similar to the above, does the planning department ask the searching
questions of the other department in circumstances where there is a fresh planning
application, be they for a new development or extension of an existing development?
In the absence of affirmative answers to these questions, it would be helpful if they were
mandated to do so.
Similar questions can be asked regarding communications with its finance department as
regards whether certain specified amounts have been discharged by a given applicant pursuant
to the financial conditions laid down in the planning consents.
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7. Communications --- as between planning authorities and other
statutory agencies
We have already taken a cursory look at the RSA and explored some useful ideas.
There are many more agencies, where we might look at communications. Typically these may
include the Gardai, the HSA and the Director of Corporate Enforcement to name but a few.
The Gardai are responsible for weighing trucks and also for administering explosives used in the
extractive industry. In addition they also police road closures and road traffic accidents.
As before, I pose the question of cooperation as between the planning authorities and the
gardaí both in their enforcement function and in respect of their planning functions. One might
ask whether the Gardaí are consulted regarding compliance re use of explosives and so on.
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8. Modern Detection Methods.
We have thus far concentrated on the issue of cooperation between various departments and
other authorities. It would be remiss of me not to look at ‘Modern Detection Methods’ when
examining the theme of ‘Informed Decision-Making for Environmental Law, Policy and
Regulation’.
I have touched on some useful methods above, specifically as with the RSA and the possible
interrogation of its Tachograph records.
I will now focus on the issue of other modern methods of detection. This might include CCTV, a
technology that has significantly evolved in the last decade or two and a technology that can be
interconnected to telephone and cell phone handsets. I need cite but one example to best
illustrate my point.
Example: When dealing with ‘out-of hours’ activity in a situation where large trucks were
operating in the early hours of the morning from a quarry and causing untold nuisance to local
residents. On pursuing the matter with the planning authority concerned, they repeatedly
declined to use CCTV even in circumstances where appropriate sites were offered to it as a
community partnership and curiously went as far as to say that it wouldn’t legally stand up.
They insisted that one of its officers would have to stand at the gate of the offending facility
and snap the truck as it left. It goes without saying that no lorry driver would in his right mind
run such an obvious gauntlet and indeed where this was apparently tried, the operatives
remained inside the premises and didn’t oblige by leaving the facility.
9. Informed decision-making:
To conclude, alluding to the foregoing issues raised, there is one more crucial issue, which
needs to be addressed to properly inform decisions made by a planning/ enforcement
authority. That is the use of and consultation with appropriate professionals such as
hydrologists, ecologists, and so forth. It has been my experience that decisions are frequently
made by planning authorities without recourse to such professionals. It is utterly essential that
such people are consulted with, both in terms of their planning function and also in terms of its
enforcement function. How else can an enforcement officer be expected to know the
difference between a settlement lagoon for example and a significant breach of the water
table?
Thank You
Kieran Cummins ©
http://www.kierancummins.com