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Consequences for Decision Making

Overview
Legal Implications
Legal Obligations and Challenges
  Legally Protected Sites and Species
Policy Implications
Implications for Detailed Design and Implementation

Overview

7.1 This section considers the point at which the findings of the EcIA are applied by a competent authority to the decision-making process. By this stage the significant impacts and the value of the affected ecological features will have been determined. The purpose of this stage is for the competent authority to determine whether the mitigated project:

  • complies with legal requirements e.g. the need to obtain a licence for any work affecting protected species or, the implications of the findings in respect of the relevant country regulation of the Conservation (Natural Habitats, &c.) Regulationsa, b, c;
  • meets national and local policy goals and objectives; and
  • requires conditions and legal obligations attached to the consent that deal with aspects of the detailed design, implementation and monitoring of the project.

7.2 The scoping stage presents the first opportunity to make explicit the legal and policy context in which the EcIA process should take place. Everyone engaged in the process should be fully aware of, and constantly referring back to, the legal and policy context that applies to the area and issues being studied and should be constantly referring back to the context of the case. Failure to take account of the legal and policy context, and to provide sufficient information to comply with this, may at best lead to delay and can result in an application being refused or a decision challenged.

7.3 Table 1 and 2 of Annex 1 identifies many of the sources of relevant legislation and policies, and the development control tools available.

Legal Implications

7.4 The legal implications arising out of an EcIA should be made explicit in the EIS. Where an EcIA is undertaken as part of an EIA, it is also subject to the relevant EIA Regulations. If an EcIA is not carried out, as part of the EIA statutory process, then it does not carry the same requirements for notification or consultation periods. An EcIA is often a material consideration in the decision making process as many consents regimes recognise material considerations in the same way as the planning system.

7.5 The competent authority must be provided with all the information needed to assess and evaluate the likely significant environmental effects of a project before it reaches its decision regarding the determination of application for consent. For EIA development an EU judgementd confirmed that a competent authority cannot adopt a ‘wait and see’ approach or impose a condition requesting further work to identify the likely environmental impacts after permission has been granted.  It is therefore crucial that all information relevant to describing likely significant ecological impacts is collected prior to the submission of an ES, and presented clearly within the ES.

7.6 Where the competent authority considers that the information is insufficient it has the power to request further information, or evidence to verify the information already provided. Working closely with the decision-maker, statutory bodies and other consultees during the assessment process should help reduce the likelihood of the competent authority needing to exercise this power.

7.7 Where a project affects an international site (SAC, SPA, Ramsar Site) covered by the provisions of the EC Habitats Directive (either directly or as a matter of policy) a separate set of tests is required that have a bearing upon the structure and content of EcIA. It is for the competent authority to determine whether there will be a likely significant effect on the relevant interest features and on the integrity of a Natura 2000 site. They will normally take advice from the SNCOs and this may be possible at an early juncture. Once this is clear, and it has been determined that an appropriate assessment will be required, the proponent must supply sufficient information to inform the appropriate assessment and to do this in a form that is consistent with the need to take a view of the impacts in relation to the conservation objectives for the site. This will differ from the standard format of EcIA and normally takes the form of an annex ‘information to inform appropriate assessment’. It does not require a separate volume of similar proportions to the EIA.

Legal Obligations and Challenges

Legally Protected Sites and Species

7.8 The EC Habitats Directive lists animal and plant species of Community interest whose conservation requires the designation of SACs and Annex IV lists animal and plant species of Community interest in need of strict protection. The EC Birds Directive Article 4(1) states ‘…species mentioned in Annex I shall be the subject of special conservation measures concerning their habitat…member states shall classify...the most suitable…as special protection areas...’ and Article 4(2) ‘…take similar measures for regularly occurring migratory species not listed in Annex I…’  There is also a requirement under Article 4(4) that member states ‘...take appropriate steps to avoid pollution or deterioration of habitats...outside these protection areas…' In the UK, other species are protected under Schedules 1, 5 and 8 of the Wildlife and Countryside Act 1981 (as amended), the Wildlife (Northern Ireland) Order 1985, and the Nature Conservation (Scotland) Act 2004.

7.9 In the Republic of Ireland the EU Birds Directive was initially implemented by means of European Communities (Conservation of Wild Birds) Regulations, 1985 (S.I. No.291 of 1985). Subsequently, protection was extended under a number of additional statutory instruments and the Wildlife (Amendment) Act (2000). National legislation also provides the legal framework for the notification of sites for their nature conservation value including Marine Nature Reserves. The Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 came in to force on 21 August 2007. They ensure management of certain activities that have an effect on important species and habitats in the offshore marine environment of the Republic of Ireland.

7.10 Some mechanisms for legal protection or designation indicate what type of information is required to address ecological impacts (e.g. sites protected under the EC Habitats Directive). In all cases, legal and other guidance should be followed to determine whether a project will cause any contravention of legal status or protection, or have a significant effect on the integrity of a system, resource or feature.

7.11 There are international agreements and legislation that apply to certain species including CBD OSPAR and Ramsar. For example, the Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas (ASCOBANS; http://www.ascobans.org) was set up under the auspices of the Convention on Migratory Species of Wild Animals (CMS). This Agreement requires Member States to make efforts towards reducing pollution, by-catch in fishing nets and disturbance from recreational and seismic activities.

7.12 The approach described in paragraphs 4.21 et seq should be used to evaluate the biodiversity value of a feature in order to provide advice on the policy implications of any impacts. In addition to this approach, EcIA must demonstrate how the project under consideration will be taken forward such that the legal requirements will be met.

Policy Implications

7.13 All parties engaged in EcIA should be familiar with the international, national and local policies that apply to a project e.g. Assessment of plans and projects significantly affecting Natura 2000 sites and methodological guidance on the provisions of Article 6(3) and (4) of the Habitats Directive 92/43/EECe. Key national policy documents that should be considered during EcIA can be found on the relevant government web sites; local policy documents are also often available on the web (e.g. on sea fisheries committee web sites).

7.14 The EcIA should be prepared with this national and local policy context in mind. It should aim to provide sufficient information to enable a full and adequate determination to be made in light of these policies. Advice on how to do this is given, for example, in Appropriate Assessment of Plans and Projects in Ireland Guidance for Planning Authoritiesf.

7.15 If the project being assessed has emerged from the process of preparing a development plan for which an SA or SEA has been undertaken, the results of the SA/SEA may be relevant to the EcIA, particularly in the context of any consideration of alternatives to the project. These results should be taken into account along with any mitigation measures, recommendations and monitoring.

Implications for Detailed Design and Implementation

7.16 Conditions and legal agreements are often needed to enforce the implementation of offsetting measures (see Chapter 6). These obligations must be enforced by the competent authority. This can be particularly challenging when the obligations were developed with one organisation but a different organisation then implements the consent, such as when a ‘design and build contract’ is let to implement an outline permission.

7.17 It is very important for all parties engaged in the EIA process to understand fully the actions they need to take during the implementation stages of a project that has been subject to EcIA. This will mean identifying and designing in detail the measures necessary to compensate and mitigate for negative impacts, and also any measures necessary to achieve enhancements.

7.18 The proponent of a project needs to demonstrate commitment to a package of measures. Experience has shown that considerable uncertainty can be removed by entering into an appropriate legal agreement.  The agreement should include a detailed explanation of what is to be done, how it will be achieved, where and when it is to be carried out, and who is responsible for ensuring that works are undertaken as proposed (e.g. in an CMMA). More specifically, the information provided might include:

  • details of how funding for the implementation of the proposed measures will be secured;
  • location and extent of the proposed measures shown on appropriate scale plans;
  • a timetable for implementation of design options and integration with various phases of development, e.g. construction, operation, habitation, decommissioning, restoration;
  • expertise of persons responsible for implementing design options;
  • availability and security of land to implement successfully the design options;
  • a description of all other necessary resources required to implement the design options;
  • a statement of how design options will be secured within the planning process or consent process;
  • details of proposed liaison with people with local expertise (by the consultant and/or applicant) and the means by which local people can feed their ideas into any solutions;
  • a monitoring scheme for mitigation measures;
  • remedial measures in the event that mitigation measures are unsuccessful or there are unforeseen impacts; and
  • proposed auditing/reporting and publication procedures.

7.19 Where an EcIA is included within the consents process or as part of a legal document it is legally binding. This is particularly the case for monitoring and further actions arising from monitoring.

7.20 Best practice calls for all details to be provided within the EcIA. Only in exceptional circumstances should it either be provided as a further submission prior to the decision-maker granting approval, or be made a condition of the approval (requiring submission within a specified period after approval).

7.21 A clear audit trail should be maintained to explain the rationale behind the adoption of particular conditions, offsetting measures and monitoring. This is of particular importance where the final project is completed under a ‘design and build contract’, or where there is the possibility that there may be a successor body inheriting these responsibilities. Further delays can occur because the successor or design/build contractors challenge the original conditions and seek to get them overturned.


a. Statutory Rule 1995 No. 380 The Conservation (Nature Habitats, etc.) Regulations (Northern Ireland) 1995 http://www.opsi.gov.uk/sr/sr1995/Nisr_19950380_en_1.htm

b. Scottish Statutory Instrument 2004 No. 475 The Conservation (Natural Habitats, &c.) Amendment (Scotland) Regulations 2004 http://www.opsi.gov.uk/legislation/scotland/ssi2004/20040475.htm

c. Conservation (Natural Habitats, &c.) Regulations 1994 http://www.opsi.gov.uk/si/si1994/uksi_19942716_en_1.htm

d. R v Cornwall County Council ex parte Jill Hardy [2001 JPL 786]. Note on environmental impact assessment directive for local planning authorities http://www.communities.gov.uk/planningandbuilding/planning/ sustainabilityenvironmental/environmentalimpactassessment/noteenvironmental/

e. Management of Natura 2000 sites:  Guidance Article 6 - Managing and protecting Natura 2000 sites
http://ec.europa.eu/environment/nature/natura2000/management/guidance_en.htm

f. Comhshaol, Oidhreacht agus Rialtus Áitiúil Environment, Heritage and Local Government (2009)
Appropriate Assessment of Plans and Projects in Ireland Guidance for Planning Authorities