Irish Package Meeting Minutes
Day 1 – 25 November 2021
The Commission explained that the traditional pre-meeting with the Irish environmental Non Governmental Organisations (eNGOs) had taken place the week before and some of the issues raised would be mentioned where relevant under the individual agenda items. The Commission welcomed Ireland’s Recovery and Resilience Plan (RRP) which put the Green Deal at the heart of its ambitions and underpinned the significant move away from peat extraction towards habitat restoration and rehabilitation. The Commission also welcomed the Irish Government’s commitment to designate 30% of its seas as Marine Protected Areas.
The Commission introduced the agenda as a mix of legal issues where there are questions and concerns, but also some policy questions. The Commission receives many complaints, petitions and parliamentary questions about the impacts of agricultural dairy expansion, peat extraction, forestry, aquaculture and windfarm developments in Ireland. Questions are also frequently asked about the adequacy and affordability of the means of national redress in the Irish courts. It is helpful for the Commission to understand the context of some of these concerns. The agenda therefore is a mix of infringements as well policy update requests.
Ireland referred to areas where progress has been made and to the good dialogue that exists between the Commission and the Irish authorities as shown in the Nature Dialogue in March.
1. Birds Directive (Article 260 TFEU) Infringement (1998)2290
The Irish authorities had explained in advance that an updated Programme of Measures (PoM) would not be available before 3 December 2021. The Commission welcomed the completion of the designation of the network of Special Protection Areas (SPAs). The aim now would be to verify whether the other aspects of the judgment had been met. The Commission has at least two outstanding concerns. The first relates to the implementation of aquaculture reforms where section 19A(4) of the Fisheries (Amendment) Act 1997 has still not been deleted. There is therefore a question whether the aquaculture activities existing since the time of the judgment have been assessed in line with the Directive. Secondly, there is a lack of clarity whether the actions required to protect birds in the wider countryside had been completed. The Hen Harrier Threat Response Plan (HHTRP) proposed by the Irish authorities in 2012 is still not adopted. Whilst there is some discussion as to whether this is a required deliverable under the judgment, action to protect the Hen Harrier is needed. At the Commission’s pre-meeting with the Irish eNGOs one of the biggest concerns raised was about the state of Ireland’s birds given that some are in a critical condition – in particular breeding waders and farmland birds.
The Irish authorities explained that with regard to aquaculture, action had been taken to implement the 2009 roadmap. Under this, 1251 applications for aquaculture licences had been made of which 266 had been refulsed. Appropriate assessments (AAs) under Article 6(3) of the Habitats Directive had been carried out for 37 bays and these AAs have been updated. With regard to the HHTRP this was still being consulted upon. A clear deadline for its adoption did not appear to be available. The Commission raised concerns that since its discussion in 2012 there had been continued activity in particular in forestry that would have needed a better policy underpinning, in particular in the wider countryside given that over half of the Hen Harrier population now appears to exist outside the SPA network. The Irish authorities explained that there had been no new forestry planted in any of the six Hen Harrier SPAs since 2013. However, the Commission remained concerned that forestry levels within these sites remained high and replanting policies still needed to be assessed. The Irish authorities explained that they had also met with the environmental NGOs to discuss concerns related to bird protection. The Commission reiterated its concerns that conservation objectives were still missing for sites and that whilst some of the plans adopted are good, declines in bird species have continued.
Action Points: Whilst the Irish authorities have subsequently provided an update on progress on 3 December 2021, the formally updated Programme of Measures will be provided by the Irish authorities by end January 2022 at the latest. This will be published as usual on the NPWS website so that eNGOs can also input into this process as has been the case previously. Compliance against the judgment will then be carefully assessed. It was proposed that this case should be discussed in detail at a meeting to be arranged before end February 2022.
2. Peat Bogs – Habitats Directive – Infringement (2010)2161
The Commission explained that this case had a long history. Since the case was initiated, significant action was taken in Ireland: management plans and restoration plans for the raised bog Special Areas of Conservation (SACs) have been drawn up and some restoration work has started; legislation was adopted to allow for more effective enforcement action against illegal peat digging e.g. powers to confiscate excavators; significant funds have been made available to buy out digging rights and to move people to less sensitive sites. As a result of these measures, the level of digging in the raised bog SACs has reduced from about 1,300 plots per year to just below 300 per year. However, this level is still significant and has not reduced in the last 5 years. It appears to the Commission that efforts to further reduce this activity have dwindled and this is concerning. It was also noted that no information has been provided for the 2021 digging season. Furthermore, from the information the Commission had available it appeared that only limited restoration work appears to had started and the delays in action risk further deterioration of the sites concerned.
With regard to blanket bog sites, the Commission noted that progress in ensuring compliance has been very slow, despite the fact that a major new LIFE Integrated Project (dealing with 60% of the SAC resource) is now underway and addressing a range of pressures affecting these sites. The extent to which peat extraction in EU protected blanket bogs SACs is compliant with Articles 6(2) and 6(3) of the Habitats Directive has not yet been adequately assessed by Ireland. The Commission further noted that it was difficult to justify the significant EU level investments in restoration if there was not more action to enforce against illegal activity as this undermines restoration efforts.
The Irish authorities explained that there had indeed been progress since 2010. Furthermore, and contrary to the introduction from the Commission, the Irish authorities were of the opinion that significant restoration action had been undertaken in recent years. The Irish authorities explained that over 75% of Raised Bog SAC sites were now protected from digging. The Commission expressed its concern about the 25% where action was still missing. Ireland furthermore explained that it had accelerated significantly its programme of restoration for raised bog SACs and Natural Heritage Areas (NHAs) in recent years. From 2018 to date, with increased funding and resources, through NPWS programmes restoration measures have been completed across a project restoration area of 3,100 hectares of raised bog SACs and NHAs with many more sites in active preparatory and planning phases.
The Irish authorities explained that they would not be proposing to apply to the Commission under Article 6(4) of the Habitats Directive to justify digging in any of the sites as had been considered previously. The Commission welcomed this announcement.
The Irish authorities explained that certain areas would undergo a formal process under Article 6(3) of the Habitats Directive where the technical assessments showed that this was feasible. Covid restrictions have meant that town hall style meetings with local communities to increase engagement have not been possible. The Commission reiterated that public consultation in this process would be important given that a decision to formalise the right to dig could be controversial within these sensitive sites.
The Irish authorities suggested that moving this case to the next legal stage would not be helpful. More time was needed to bring local communities along. The Commission reiterated its concern that little enforcement action appeared to be being taken over the last years and national legal actions started in 2014 remained blocked in the national courts which was not reassuring. The Commission asked for an update on national enforcement actions taken to date. The Commission also signalled that it will consider moving this case further in the infringement process. The Commission asked the Irish authorities to act on illegal digging before the next season starting in March 2022.
Action points: The Commission asked to be provided with an update on enforcement action taken and progress made on restoration for both the raised bog and blanket bog SAC sites. The Commission also asked Ireland to provide information on action taken to reinforce compliance for the forthcoming cutting season before end March 2022 with an assessment of the effectiveness of this action to be provided before end June 2022.
3. Marine Natura 2000 Designations – EU Pilot (2015)7653
The Commission explained that it remained concerned that Ireland has only designated 2.4% of its marine area (as compared with an EU average of over 9%), despite its extensive marine area. There are gaps under both the Habitats Directive (e.g. for reefs) and the Birds Directive (for areas of concentration of marine waterbirds and seabirds at sea). Progress appears to be very slow.
The Irish authorities explained that the additional reef site assessments had been completed and that boundaries were being finalised. For marine SPAs, assessments are in hand, in particular through the Observe II process. The Irish authorities also explained that the ambition is to have 30% of the seas designated as Marine Protected Areas (MPAs) by 2030. An expert group was set up in 2019 to progress this. The aim is to look beyond the Birds and Habitats Directives to species deemed important by OSPAR. The MPAs will also embrace cultural and heritage areas. The Irish authorities explained that the aim is to progress with an ambitious offshore renewables roll out allowing Ireland to move to 80% renewable energy by 2030.
The Commission reiterated its concern that progress on the identification and designation of sites under the Habitats Directive and in particular feeding/forgaging areas for seabirds under the Birds Directive is too slow, in particular in the light of Ireland’s offshore ambitions. These two ambitions appear to be on a collision course and it is unclear how sites for development in the marine area can be adequately assessed under Article 6(3) of the Habitats Directive if so few are actually designated or even identified. The Commission asked to be provided with a roadmap to show how the roll out of these economic ambitions will be aligned with the speedy identification of environmental sensitive areas under the Habitats and Birds Directives, in particular for seabirds.
The Commission explained that the speed of action proposed for developing in the offshore areas and the slowness of action on designation has been raised as a key concern by the Irish NGOs. Particular concerns included failures to carry out acoustic surveys for deep diving cetaceans and the lack of funding for seabird tracking. The eNGOs had also raised concerns about the lack of action taken to mitigate against noise from survey vessels in the offshore areas which had resulted in annual beachings of cetaceans. The NGOs furthermore raised concerns that the lack of available data called into question the positive assessment of status under Ireland’s Marine Strategy Framework Directive report.
Action points: The Irish authorities to provide an update on progress under this EU pilot file including with a road map showing how the ambitions for offshore development currently being discussed under the Marine Bill will be aligned with Ireland’s obligations to identify, designate and protect marine Natura 2000 sites, in particular for seabirds.
4. Derrybrien Wind Farm Article 260 Infringement (2000)4384
The Commission outlined concerns about the process being undertaken for a remedial environmental impact assessment (EIA) for the Derrybrien windfarm and ancillary works to answer the judgment of the Court in case C-261/18. The Commission explained it is concerned about the thoroughness of the assessment carried out the the developer ESB, in particular with regard to soil stability and site monitoring. This is why the Commission had felt it necessary to order an additional study to verify these concerns. It was unfortunate that this was deemed necessary. Furthermore, numerous complaints have been received by the Commission both directly and through written questions from the European Parliament about the lack of clear information provided to enable adequate public consultation, in particular in explaining the role of the public with regard to the second consultation which was launched this year to remedy errors in the substitute consent regime. Claims were also made that some of the essential documentation was not made accessible in a timely fashion. The Commission asked for clarification and also assurances that these concerns have been or will be addressed before a final decision is taken. The Irish authorities explained that the decision maker is an independent body and that as such it would not be appropriate to comment at this stage until the decision had been taken.
The Commission secondly raised concerns about proposed changes being planned to the substitute consent regime through the Planning and Development (Amendment)(No.2) Bill of 2021. The Commission had followed the discussions on this Bill in the Joint Committee of the Oireachtas. Whilst it seemed reasonable to simplify the current two stage process to make this a one stage procedure ensuring full public participation, the Commission raised concerns about other elements of proposed amendments which make the substitute consent process easier. The whole point of the substitute consent process is that it is supposed to be an unattractive option for developers. The Commission has concerns about proposals to amend section 34(12) of the Planning and Development Act which appear to allow developments that should have been screened under EIA and/or Habitats Directives now to apply for the easier retention permission process. Furthermore, the Commission is concerned that allowing substitute consent applications to be combined with proposals for new development consents will reward developers who have broken the law. It also appears that an additional ground is being proposed for granting substitute consent under “any other grounds that the Board thinks” which appears not to fall into a clear “exceptional” category. It would be necessary to fully understand these proposed amendments to ensure that such changes do not undermine Ireland’s compliance with the first part of the original Derrybrien judgment in C-214/06.
The Irish authorities maintained that they were of the view that the legislation on substitute consent required streamlining. Ireland explains that there is no ‘benefit’ to the developer in the proposal to allow a simultaneous planning application to be made at that same time as a related substitute consent application as this does not in any way affect the outcome of the substitute consent application. The risk remains that permission for the unauthorised development will be refused, in which case, and as a consequence, the simultaneous planning application would no longer proceed .
Ireland further explained that the proposed amendments to the legislation, which remove one step in the process, will not affect the outcome of a process. An applicant/ developer will still be exposed to enforcement throughout the process, with the risk that regularisation of an unauthorised development will not be permitted, in which case the applicant/developer would still be exposed to remediation obligations or enforcement action, or both as the case may be.
The Commission echoed many of the concerns raised by deputies in the Joint Committee hearing on these proposals about the lack of enforcement generally being taken in Ireland against breaches of planning law. This is a core concern. This concern had also been shared by the environmental NGOs at the recent pre-meeting and various complaints received by the Commission regarding quarrying activities. It appears that a pattern has developed in Ireland whereby developers will start judicial review proceedings against local authorities that try to enforce. This process is extremely slow and in the interim the developer is allowed to continue the activity as the local authority cannot afford to request interim measures where developers usually counter claim for compensation guarantees. The eNGOs also raised concerns that local community groups who try to enforce are increasingly being targeted with aggressive legal action – SLAPP suits, defamation claims, contact taken with employers and intimidation. In this climate, making life easier for developers who have evaded the law does not seem wise. The Commission noted that the Joint Committee had requested background information on substitute consents previously granted. It would be of assistance for the Commission also to receive this information. The Commission would also like to understand what action is being taken to strengthen the enforcement of planning laws and whether there has ever been a successful enforcement action where an illegal developer has been required to cease activities and has had to restore the site (other than in the waste sector). The Irish authorities agreed that the information that had been provided to the Joint Committee of the Oireachtas could also be made available to the Commission.
Finally, the Commission asked to be provided with information on a complaint it had received concerning a recent landslide at the site of a windfarm (19 turbine) built on peat bog in Meenbog, Co Donegal in November 2020 (CHAP (2020)03412).The Commission would like to understand why lessons from Derrybrien still appear not to have been learnt. Given the lack of adequate assessment of soil stability in the remedial EIA carried out for Derrybrien it is of concern that this process still appears to lack rigour. The Commission would like to understand if the EIA that was carried out was deemed adequate for assessing soil stability? The Irish authorities explained that this windfarm had been given consent in 2018 and that an EIA had been carried out. An interagency group has been tasked to look into this event and impacts on the River Finn SAC where the first phase of restoration has been implemented. Ireland stated that as this investigation is ongoing it is not possible to discuss this matter in detail in case any such discussions could prejudice any proceedings that may ensue.
Action Points: With regard to Derrybrien Windfarm, the Irish authorities to provide an update that concerns raised about the EIA process have been taken into account once the decision on the remedial EIA application has been taken. With regard to the Planning and Development (Amendment)(No.2) Bill, the Irish authorities will provide additional details of how the existing substitute consent process has been applied to date and to which developments. The Irish authorities to provide a written update on the action taken to ensure that its assessment and decision making process for windfarms on peat soil is fit for purpose with regard to tackling soil stability and potential landslides. Written details regarding the situation and follow up given to the 2020 landslide in Meenbog to be provided.
5. Environmental Impact Assessment (EIA) – Infringement (2017) 0368
The Commission stressed that more than 4 years after the expiry of the transposition deadline, Ireland is still missing elements of transposition for Directive 2014/52/EU in this infringement concerning the non transposition of this amending Directive into national law. Considering that the last update on the progress was provided in March 2021, the Irish authorities were called to provide a new update. The Irish authorities explained that the Directive has been now transposed into the main national legal acts, covering the vast majority of the project categories to which the Directive applies. The Irish authorities stressed that the remaining sectors awaiting transposition, such as dumping at sea, prisons and railways, are not very significant as there is rarely any EIAs carried out in those. The Commission requested that the Irish authorities complete transposition for the legislation swiftly, in particular with regard to the legislation regulating railway projects. One of the conditions of approval for the railway upgrade project in Cork under the Recovery and Resilience Plan was that the EIA legislation was applied to any assessments in the form amended by Directive 2014/52/EU. The Commission reiteriated that whilst it is up to each Member State to chose its method of transposition, the method chosen here to integrate the obligations into numerous pieces of sectoral legislation made an assessment of the completeness of the transposition very difficult to track.
Action points: It was agreed that the Irish authorities would provide a new updated table on transposition progress. Further, it was agreed that the Irish authorities will provide the Commission with details on which national legal acts regulate the EIA procedure and issuance of a development consent for each individual category of projects listed in Annex I and II of the EIA Directive. The Commission also requested that the Irish authorities verify their notifications in the MNE data base and notify any missing legislation and explanatory documents, such as legislation covering the sectors of agriculture and minerals.
6. Agriculture Policy and Impacts
The Commission explained that numerous complaints have been received with regard to the negative environmental impacts of Ireland’s dairy and beef expansion policies. Two of these complaints – CHAP(2020)2004 and CHAP(2020)2721 – were forwarded in advance of this meeting. The Commission’s main concern is that the increased pressure from this expansion seems to be showing up not only in climate data, but also in a decrease in water quality and increased pressure on biodiversity. Complaints about afforestation policies in Ireland are also frequently linked to the need to counter negative climate impacts from farming intensification. In particular, DG Environment would like to understand how these pressures are being addressed. The Irish authorities explained that a Climate Action Plan had been adopted on 4 November which aimed to reduce greenhouse gas emissions by 51% with specific targets for the agricultural sector. This focuses on fewer inputs and more efficient farming methods. It was also explained that cattle expansion is no longer happening and that cattle numbers have been stable over the last three years.
The Commission further asked about claims in Ireland’s recent draft CAP Strategic Plan that additional measures have been adopted since Ireland’s updated National Air Pollution Control Program (from February 2021) so that Ireland is now confident in meeting the ammonia reduction targets. The Commission explained that it would be useful to understand in more detail what those measures are, how likely they are to solve the ammonia problem under the National Emission Ceilings Directive (eg margin of compliance) and by when? The Commission also asked when Ireland is proposing to ratify the Gothenburg Protocol of the UNECE Air Convention?
Action points: Ireland has provided details of the action being taken to on ammonia emissions under the NEC Directive by email on 13 December 2021, explaining that the full impact of all these measures on Ireland’s current and projected ammonia emissions will be incorporated into the national emissions inventory and projections report by early 2022. An update on progress is therefore requested by 1 March 2022. With regard to the ratification of the Gothenburg Protocol, the Commission would like to request an update by 1 May 2022 taking into account Ireland’s review of its position foreseen for March 2022.
7. Forestry Policy and Impacts
The Commission explained that it had received numerous complaints with regard to forestry practices in Ireland. As was discussed at the last package meeting, file CHAP (2015)00331 had raised concerns that there had been only one environmental impact assessments carried out since the Directive came into force. Further concerns were outlined in an exchange of letters between the Irish authorities and DG Environment (lead by unit D.1 within DG Environment). The Commission thanked the Irish authorities for their latest reply received on 24 November 2021. This would be assessed.
The Commission explained that it would be helpful to see what action is being taken nationally to address some of these concerns. As already discussed earlier in the day, there are concerns that forestry activities within designated SACs and SPAs are still being allowed to impact negatively on these sites – in particular with regard to Freshwater Pearl Mussel and Hen Harrier.
The Commission explained that it would also be helpful to understand how climate change assessments are being progressed looking at whether historic afforestation on deeper peat soils can be counted towards climate goals and how this will be addressed in the new forestry and peatland strategies currently being drafted.
Furthermore, concerns were raised again by the eNGOs about the lack of transparency for forestry licences, in particular when a large block of licences is applied for in one go (reference was made to 1800 coillte felling and restocking applications made in a single application in 2021 with each application being subject to a 30 day deadline for comment). The Commission was interested to understand how EIA and Appropriate Assessment screening is taken account of, in particular with regard to the cumulative impact, when such a large volume is decided in one go?
The Irish authorities explained that significant investments in expertise had been made over the last two years with the recruitment now of 27 ecologists (mixture of full time and contract) working on forestry issues. Furthermore, it was not correct to say that there had been no EIAs carried out. There was one in 2012 for a proposal which was refused permission. There had also been nine EIAs carried out between 1990 and 2000. Currently 2 EIA scoping opinions provided and awaiting submission of an application for 250 hectares of native woodland (which will be accompanied by EIAR).
With regard to transparency, the Irish authorities explained that applications are advertised and site notices are erected. Public consultation period is opened for thirty days from the date the application is received. This is notified to the public via lists published on the DAFM website, three times weekly. Decisions are advertised and can be appealed. The Irish authorities referred to Statutory Instrument S.I 293 of 30 June 2021. This appears to be an amendment of the Regulations implementing the Habitats Directive: The European Union (Birds and Natural Habitats)(Amendment) Regulations 2021, changing public consultation from discretionary to mandatory. The Irish authorities referred to the Forestry Licence Viewer (FLV) which has already been mentioned as a new project at the last package meeting in 2019. This viewer has been up and running since December 2020 and shows applications advertised since January 2018. Application documents have been made available in the FLV for applications received from 11th January, 2021 (from that date notice given to applicant their info will appear in FLV). . The problem for data which is older is that it needs to be redacted to comply with GDPR with personal information removed so this is not directly available. Since SI293, documents associated with applications awaiting decision that have a NIS or AAR are being advertised in a redacted format. . With regard to the complaint that 1800 licences were applied for in one go, the Irish authorities explained that these were all published in the viewer. These cover the activities that the State Forestry Company, Coillte, proposes to carry out over the next 2 years, both thinning and clear felling. Whilst the Irish authorities also received complaints it was felt that it is easier to get a full overview of the planned activities if this is presented as one complete package.
With regard to the development of a new forestry strategy – Project Woodland – the Irish authorities explained that a public consultation is being launched. This matter will also be addressed by a citizen assembly. Proposals should become available in mid 2022. The peatlands strategy will also be taken into account. However, given that 40% of Ireland’s forestry is currently on peat, in particular in western Ireland, it is difficult for Coillte to radically deforest.
Action Points: The Commission to assess the recent written reply provided by the Irish authorities on 24 November 2021. Follow up to the questions raised in these exchanges will be given once this assessment is completed. The Commission will assess the question of transparency and take bilateral contact with the Irish authorities to verify how the forestry licence viewer works in practice as was offered
Day 2 – 26 November 2021
8. Urban Waste Water Treatment Directive – Infringement (2013) 2056
Ireland provided a 4th update on progress with the judgment in case C-427/17 on 3 September 2021. The Commission thanked the Irish authorities for providing such a helpful and clear reply. The Irish authorities explained that good progress had been made since the judgment and that 18 out of the 28 agglomerations found to have been in breach are now compliant. The Commission raised concerns that despite progress, significant delays are predicted in achieving full compliance with the judgment. This is now not likely before end 2025 at the earliest. The Irish authorities explained that some of the delays were due to covid restrictions in particular with regard to the Ringsend plant serving Dublin. The Commission explained that with judgments such as this requiring significant investments and construction to be undertaken to comply, it is usual for the Member State to be given additional time. Normally Member States are given a 3 year grace period after which the Commission restarts the infringement process under Article 260 of the Treaty on the Functioning of the EU (TFEU). The Commission will need to verify compliance in the next year given that three years will have elapsed since the judgment in March 2022. In particular, more details may be needed to agree which agglomerations are indeed now fully compliant. For this, the Commission usually asks to be provided with 12 months of consistent and compliant monitoring data when assessing compliance with Articles 4 and 5 of the Directive. With regard to the agglomerations where claims were upheld by the Court with regard to excessive spills from stormwater overflows, the Commission would need to be provided with data per overflow on annual spill frequency and quantities. If compliance is still not ensured by end 2022, the Commission is likely to issue a letter of formal notice under Article 260 TFEU.
The Commission sought clarification on Ireland’s policy on stormwater overflows, particularly in relation to stormwater monitoring, assessment and policy development. The Commission noted that at the last meeting which took place in June 2019, the Irish authorities had indicated they would be reviewing their stormwater overflow policy. The Commission raised concerns that the policy paper attached to Ireland’s latest reply was very out of date and set the criteria for breach at levels that were far too high e.g. storm water overflows are only treated as being “of concern” if they produced significant pollution or operated when there was no rain. As a result, there is also a question mark over Ireland’s latest reply where in some areas it is indicated that spills are acceptable, but without sufficient information on the frequency or quantity of the annual spills. The Irish authorities explained that they were looking for additional guidance on storm water overflow standards from the future revision of the Directive and that such clarification was necessary. In Ireland the Environmental Protection Agency is the authority responsible for monitoring storm water overflows and an increased monitoring programme is being implemented.
On the issue of guaranteed funding, the Irish authorities reassured the Commission that significant budgets have been set aside to fund urban waste water upgrades in Ireland.
The Commission explained that it did not receive many complaints about the implementation of this Directive except at a very local level. Further legal action may be likely in the coming period to follow up on additional agglomerations that have been reported to be in breach but are not covered by this judgment. An assessment will also look at the structure for regulating Independent and Appropriate Systems (IAS) or septic tanks. This is an action that the Commission has taken against numerous Member States. The Irish authorities explained that they have a robust regulatory regime in place for IAS which was put in place subsequent to a previous judgment of the Court of Justice.
Action points: Ireland to provide additional details on compliance in the next update report in early spring 2022. This should cover details of 12 months monitoring data for agglomerations now deemed to be in compliance and details of the annual spill frequency and quantities for those agglomerations where breaches were found for storm water overflows.
9. Water Framework Directive – Conformity – Infringement (2007) 2238
The Commission requested an update on progress on the legislative implementation plan that had been announced by the Irish authorities in their reply of 30 December 2020 to the additional reasoned opinion. The Commission also explained that the concerns raised both in the additional letter of formal notice and additional reasoned opinion about transposition by reference as a transposition method where not a blanket concern but individually argued concerns where this method left the reader of the legislation unclear about the obligations and how they applied in national law. The Commission also indicated concerns that there are areas where the Irish authorities do not appear to be ready to make changes e.g. to the scope of the definition of water services which currently does not cover abstraction, hydromorphology and is limited to activities performed by Irish Water, thus excluding wide ranging water services provided by group schemes.
The Irish authorities gave an update on the transposition process and stated that they are close to addressing some of the main concerns outlined in the additional reasoned opinion. The Irish authorities explained that significant resources had been made available to Irish Water and for the funding of upgrades in water services, but there were resourcing constraints with the administration at present to deliver the changes in legislation and process required to answer the additional reasoned opinion. It was explained that the Abstraction Bill is progressing, but there are some issues to be addressed where these rules interact with other requirements, in particular requirements on environmental impact assessment and where these touch on existing water rights. The Irish authorities further explained that work has been undertaken on hydromophological assessments and this is reflected in the draft 3rd River Basin Management Plan which is now out for consultation. This shows increased ambition. Ireland is also looking to develop a common framework for land drainage and arterial drainage. Actions are also being taken to improve mobility within rivers for fish, in particular with new fish passes in the Shannon river scheme.
With regard to the question of the implementation of a charging regime for excessive use by domestic users, the Irish authorities explained that the roll out had been delayed due to the covid pandemic. The implementing Regulations for the scheme have been drafted and will be brought into force in 2022.
10. Water Framework Directive – 2nd River Basin Management Plan (RBMP) – EU Pilot (2021)9913
The Commission asked for clarification on Ireland’s reply to the EU pilot with regard to classification, monitoring and the justification of exemptions. The Commission requested an update on works and timing: (1) for the adoption of type-specific reference conditions for benthic invertebrate fauna in lakes (pressure: eutrophication) and rivers (pressure: acidification); and (2) for the adoption of type-specific conditions for hydromorphological conditions.
The Commission asked for clarification on the explanation in Ireland’s reply that stated that ecological status monitoring to check all biological quality elements is only carried out “where possible”. It was requested that Ireland provide explanations on why it is considered sufficient to only apply surveillance monitoring of chemical status (once every six years, during one year) and not operational monitoring (throughout the six year cycle, for bodies at risk), and how can this be reconciled with the obligation for operational monitoring under Annex V.1.3.2. of the Directive and Article 3(4) of the Environmental Quality Standards Directive.
The Commission asked Ireland to explain how the third RBMP will take into account the requirements for justification of exemptions under Articles 4(4), 4(5) and 4(7) of the Directive and how it will also include a brief overview and explanations of all projects that were subject to an ‘applicability assessment’ prior to concluding that no deterioration would occur.
The Irish authorities explained that the monitoring of ecological status was sometimes impossible for practical reasons and that only a small number of sites is concerned. The Irish authorities agreed to provide more information on the precise sites if needed. With regard to hydromorphology, the Irish authorities explained that they will work on the improvement of the methodology.
Action points: The Commission asked Ireland to provide an update on the questions outlined above. These will also be put to the Irish authorities via the EU Pilot as an additional question for the sake of clarity.
11. Recovery and Resilience Plan
The Commission requested information on the level of restoration/rehabilitation Ireland is aiming at and how the success of the investment will be measured. The Commission would like to better understand how Ireland is setting and reporting on the milestones for its peat rehabilitation investment. The Irish authorities explained that each bog is subject to an Integrated Pollution Control (IPC) licence issued to Bord Na Mona. These licences require the Bord to carry out the initial remediation works to meet the licence requirements. These are paid for by the Bord. It is only once this has been completed that the additional Recovery and Resilience Fund monies can be used. The Bord will submit a remediation methodology plan to the regulator, the National Parks and Wildlife Service (NPWS). These need to be approved and the Environmental Protection Agency is required to be consulted to ensure that the IPC licence requirements have been met. Each plan will in turn be made subject to public consultation.
The Commission wondered how this investment fits into Ireland’s wider Peatland Strategy, in particular in delivering on climate goals and how this will be measured. The Irish authorities explained that funds have been set aside to monitor carbon savings on a number of sites. The aim will be to save 3.2 million tonnes of carbon with the full investment. The Irish authorities further explained that the Peatlands Strategy is undergoing a review and that a timetable for this could be provided.
The Commission asked how compliance with the Habitats Directive will be achieved. The Irish authorities explained that each plan will be screened before authorisation can be given and for each bog there will be aims to achieve in terms of biodiversity gains. The Commission asked how these gains will be protected into the future e.g. though legal land designations for nature protection? The Irish authorities implied that it was too early to consider this but that an undertaking had been given in the context of state aid discussions with DG Competition that the land would not be put into economic use post remediation. However, the Commission remained unclear how this will provide the bogs with adequate protection to bank the biodiversity gain in the longer term. The Commission raised concerns that by following this path, Bord Na Mona may appear to be bypassing the remedial substitute consent process for those bogs where extraction commenced after the EIA Directive came into force. This might be acceptable for land that will be remediated and the biodiversity gain protected, but it would be less acceptable if the land was in future released from the contract for economic activity.
Given that there is a concern that there is no danger of double funding, as was already expressed during the discussions on the draft RRP, it would be helpful for the Commission to receive a list of the bogs which will be remediated shown on a map and with information that can then easily distinguish these from other restoration investments that have been undertaken with EU Funds. Such a table was already provided showing funds used for bogs in the context of Ireland’s reply in infringement (2010) 2161 as an Annex to Ireland’s reply of 17 September 2020.
Action point: The Irish authorities to provide a table (possibly similar to the one annexed to the 17 September 2020 reply in case (2010) 2161) to enable the Commission to verify more easily that there is no double funding. The Commission would also welcome additional clarification on the biodiversity aim of the restoration works and the consideration that will be given to ensuring a longer term protection of these sites through legal nature protection designations (not necessarily EU level). The Commission also asked for details of the individual bogs and when digging in each site commenced. The Irish authorities to provide a timetable and details for the Peatlands Strategy Review
12. Lack of EIA for Peat Extraction – Infringement (2019)4007
The Commission asked for a further update on the case as had been promised at the last discussion in April 2021. The Irish authorities explained that the dual consent regime requiring peat extractors to apply first for planning permission and EIA and then an environmental permit was the regime that would remain in place. A working group had been set up to look at the situation for existing activities and a report is expected before the end of the year. The Commission raised concerns that there were press reports of a Bill being proposed that would allow some peat extraction for horticulture to restart by passing the dual consent regime. The Irish authorities explained that this was not a Government sponsored Bill and that they would not be proposing to make any changes to the consenting regime or allow extraction activities to recommence and bypass this regime.
The Commission asked for details of how the substitute consent process is being applied now to peat extraction projects, if at all.
Action Points: The Irish authorities to provide a further written update outlining the actions of the peat working group and details of any substitute consents for peat extraction that are being processed.
13. Access to Justice – Infringement (2012)4028
The Commission explained that progress on providing improved access to environmental justice in Ireland appeared to have stalled since 2011. The Commission recalled that Ireland is the Member State with the highest litigation costs in the EU. The situation remains one where there is still no clarity on the scope of the rules on costs or when they apply or to what elements of claims. It is therefore impossible for environmental litigants to know in advance what amount they may need to pay for the process. And the margins are huge. An action against a decision of An Bord Pleanala can cost 100,000 Euros in cases without cost protection (not counting own lawyers costs). This is doubled where the developer decides to intervene. The latest judgment from the Court of Appeal in the Heather Hill case has changed to process again and this impacts on pending cases where different advice may have been appropriate. This is problematic as even the legal costs of determining the likely costs of planned litigation can be substantial. The Commission has been provide with details of one case where the substantive litigation was progressed before cost protection scope was decided.
Furthermore, the delays in legal action are significant and enforcement action against developers seems to be too limited. Many of the cases that the Commission is discussing and has discussed with Ireland in the past relate to failure by the state to enforce environmental laws. In the past this concerned illegal landfills and quarries, today we discussed continued illegal digging of raised bogs within protected SACs and complaints continue to come in with regard to illegal quarrying activities. Enforcement action finally taken against illegal bog digging appears to have been stuck in the national courts since 2014. Substitute consent and remedial EIA with regard to Derrybrien was only ordered after a second Court judgment with fines. In this context, the talk only of “streamlining” or speeding up of procedures as was presented earlier in this meeting (under the discussions on substitute consent) appears lopsided.
[IE comment: IE requests correction of the text of the draft minutes above to reflect the following : The General Scheme was not discussed earlier in the meeting/ during the first day so the streamlining reference does not apply to the General Scheme which was discussed during the second day under this particular item 13. It relates solely to substitute consent, therefore the reference to the General Scheme here should be deleted. ]
More disturbing is the recent rise in aggressive behaviour towards environmental litigants with developers issuing SLAPP suits and threatening other aggressive actions such as defamation actions and damages. This is particularly the case for quarry developments it seems: A developer may start or expand operations without the appropriate permission, the local authority takes enforcement steps, the developer threatens judicial review and the process is stuck in the Courts. The local authority cannot afford to request interim measures because the developer will cross claim in damages and in the interim the illegal activity continues. Local communities that try to step into the breach are in turn threatened and intimidated.
It appears that there is no system in place to draw such actions to the attention of the judge in the main procedures which the developers in question are trying through intimidation to halt. This is the first time such serious concerns have been raised with the Commission with evidence of multiple events by the environmental NGOs. Also of concern is the aggressive stance taken against even a main stream environmental group such as An Taisce which appears to have had Government Ministers publicly proposing to punish the organisation and remove its public funding because of its legal action on dairy expansion.
The Commission raised strong concerns that despite evidence of a lack of enforcement for environmental breaches and intimidation of environmental litigants, the only information being provided by the Irish authorities is for action to speed up and streamline existing court processes to better facilitate development.
At the last package meeting in 2019, the Commission was assured that a consolidating Aarhus Bill would be presented. The Irish authorities explained that the Aarhus Bill was again delayed and that it would now need to await the outcome of the Attorney General’s Planning law review.
The Irish authorities explained that they are strong supporters of the Aarhus Rapid Response System which was agreed at the last Meeting of the Parties under the Aarhus Convention. The Commission indicated an interest in understanding how this was applied for tackling aggressive tactics being used by developers in Ireland and what advice should be given to Irish individuals who find themselves on the wrong end of such threats. There is a strong interest by the Commission lead by DG Justice in ensuring Member States take action again SLAPP suits to ensure that this is not allowed to interfere with actions in defence of the rule of law.
[IE comment: IE does not agree with the text of the draft minutes and requests the change as set out in tracked changes, below, to reflect correctly its submission at the meeting.]
The Irish authorities explained that the General Scheme would be proceeded with in early 2022 (starting with pre-legislative scrutiny of the General Scheme by Parliamentary Committee) once separate legislation relating to new planning arrangements for large scale residential developments (LRDs), and which is restoring decision making to local authorities with right of appeal to An Bord Pleanala, is enacted before end 2021. It is hoped that the new LRD arrangements will facilitate better public participation and greater transparency in the planning system while also hopefully reducing the number of judicial review challenges taken against such development proposals. A significant proportion of the judicial review challenges in recent years have related to such large-scale housing developments due to the only appeals mechanism being through the Courts but, as indicated, it is hoped that the number of such challenges will decrease further to the commencement of the new LRD arrangements when decision making is restored to local authorities with right of appeal to the Board. In response to the Commission remarks regarding lack of enforcement on environmental breaches, the Irish authorities explained that the Office of the Planning Regulator has been mandated to look more generally at enforcement issues in the area of planning, including the practices and procedures operated by local authorities and to make recommendations on how they might be improved and made more effective. This is in line with one of the core statutory functions of the Regulator i.e. to review the systems and procedures operated by planning authorities in performing their statutory planning functions.
Action points: The Commission asked for the Irish authorities to explain how environmental litigants in Ireland can obtain any clarity in advance of their maximum likely costs exposure before the proceedings begin. Furthermore, to explain how environmental litigants can know in advance which grounds are cost protected so that this does not become a lottery at the end of the litigation. The Irish authorities to provide information on Ireland’s policy to prevent SLAPP suits and on existing mechanism that enable the attention of the main judge in the proceeedings to be drawn to such acts of intimidation to ensure that perpetrators are deterred.
14. EU Pilot on Windfarm Interconnectors (2016)8398
The Commission had requested an update on progress towards compliance with the EIA Directive and the Habitats Directive to ensure that grid connections link to wind farm development are assessed as part of the overall project.
The Commission explained that the latest update by Ireland is understood as a two-stage permitting procedure where the wind farm element will be assessed and permitted separately from the grid connection element. The Commission emphasised the importance of assessing the cumulative effects of the entire project and ensuring that the grid connection will not be exempted or screened out under such schemes. The Commission also asked for more information on the planned legislative amendments. In addition, the Commission expressed concerns that grid connections are still being considered as exempted developments in practice, despite the judgement in the case O’Grianna & Ors. v An Bord Pleanála.
In addition, the Commission requested information on the regularisation of existing grid connections that have not been assessed and whether any remedial actions were planned. The Commission pointed out that guidance on remedial EIA had been deleted from the latest version of the draft Guidelines on wind energy developments. The Commission also asked for clarifications on how compliance with Article 6(3) of the Habitats Directive will be achieved.
The Irish authorities explained that new legislation and revised guidance are currently being worked on. Where the grid connection is not covered by the application for planning permission for a wind farm, the EIA must still include information on the grid connection and sufficient information about the proposed corridors. Where planning permission for a wind farm only is being granted, it must include a condition that works on the wind farm element of the project must not commence until the consent for the grid connection route has been obtained. Progress on the revision of Guidelines on Wind Energy Developments has been slower than anticipated. Delays have occurred due to noise aspects and the revision is expected to be finalised in the second half of 2022. New legislation is expected to be enacted in early 2022 (Q1) by way of legislative amendments. The Irish authorities stated that the judgement in O’Grianna & Ors. v An Bord Pleanála is well known to and followed by wind energy developers.
With regard to the regularisation of existing grid connections, the Irish authorities confirmed that the section on remedial EIA for grid connections of constructed wind farms has been left out of the latest version of the draft Guidelines. The Commission voiced concern about such a deletion and urged Ireland to reinstate the section on remedial EIA. Ireland confirmed that the relevant section will be reinstated.
With regard to appropriate assessment requirements, Ireland explained that compliance is achieved by section 4 of the Planning and Development Act which provides that exempted developments shall not be exempted if an appropriate assessment of the development is required in accordance with EU legislation. The Commission expressed its doubts about whether provisions referred to by Ireland adequately solve the issue.
Action Points: The Irish authorities to provide an update on legislative amendments and the revision of Wind Energy Developments Guidelines by end March 2022.
Commission Closing Remarks
The Commission thanked the Irish authorities for their engagement both in preparing and delivering such a well attended package meeting. The discussions have drawn out some issues of concern that will need to be addressed. In the water sector, there remains significant work to do. About 50% of Ireland’s urban waste waters are still not collected and treated, leakage rates are one of the highest in Europe, drinking water supplies are still facing non-compliance in parts of the country. The Water Framework Directive is also still not fully transposed or implemented with more recent trends in water quality showing that pressures have increased, in particular from agricultural sources.
Serious challenges exist in the nature sector. Designations in the marine environment need to proceed swiftly but action is also needed to protect threatened bird species on land. Many species are in serious decline and there is even a serious risk of extinction of breeding species such as the Curlew, a concern that has been especially highlighted in the meeting with NGOs. Urgent action is needed to address concerns about breeding waders and farmland birds.
On EIA there is also significant work to be done. Ireland is the only Member State that has still not fully transposed Directive 2014/52/EU. Despite peat extraction and afforestation being key economic activities in Ireland, no EIA has been carried out for any peat projects to date and only 1 has been carried out for afforestation. Given the fact that there still appear to be significant developments which have proceeded without permission or EIA there is concern about proposals now to streamline the substitute consent processes given this should be a rare exception. Of concern is the fact that many of the complaints the Commission receives relate to failures to carry out EIA by publicly owned bodies such as the ESB, Bord Na Mona and Coillte.
And last, but definitely not least, the Commission has concerns about governance issues. The high cost litigation environment in Ireland means that the uncertainty over costs needs to be addressed. The case law of the national courts has meandered through different interpretations leaving environmental litigants unable to predict with any certainty their costs exposure. Many have accumulated significant costs simply litigating the question of costs clarity itself. A particular concern for the Commission is the increasingly aggressive stance being taken against environmental campaigners in Ireland –not only through SLAPP suits, but also of aggressive and negative reporting in main stream media and even from politicians. The rule of law and its respect, especially where protection of the environment is concerned, is one of the biggest priorities of this Commission.
Followup:
Following on from the 24 November 2021 letter from DAFM to DG ENV
I am contacting you under the European Communities (Access to Information on the Environment) Regulations 2007 – 2018
I refer to the letter dated 24 November 2021 from DAFM to DG ENV. For your assistance, I attach a copy of this letter
On 24 November 2021, DAFM informed DG Environment in relation to Freshwater Pearl Mussel, that; ‘further changes are expected (arising from further engagement with Coillte and the experts), based on the appropriate application of each option on a site-by-site basis, …’
For the period from 24 November 2021 to today, please provide, by email, all information relating to engagement by DAFM with (a) Coillte and (b) ‘the experts’ on the freshwater pearl mussel.
Original reply and IR reply dated today – information does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. It appears as if no further engagement has occurred on this matter since 24 November 2021.
