S.I. No. 435/2004 - European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004

Table of Contents

1.	Citation
2.	Interpretation
3.	Exclusions
4.	Amendment of section 10 of the Planning and Development Act 2000
5.	Amendment of section 13 of the Planning and Development Act 2000
6.	Amendment of section 19 of the Planning and Development Act 2000
7.	Amendment of section 23 of the Planning and Development Act 2000
8.	Amendment of section 168 of the Planning and Development Act 2000
9.	Requirement to carry out environmental assessment
10.	Timing of environmental report
11.	Scoping of environmental report
12.	Content and format of environmental report
13.	Consultations
14.	Transboundary environmental effects
15.	Decision-making
16.	Information on decision
17.	Monitoring

Schedule 1 Criteria for determining whether a plan or programme (or modification thereto) is likely to have significant effects on the environment

Schedule 2 Information to be contained in an environmental report

S.I. No. 435 of 2004.

EUROPEAN COMMUNITIES (ENVIRONMENTAL ASSESSMENT OF CERTAIN PLANS AND PROGRAMMES) REGULATIONS 2004.

The Minister for the Environment, Heritage and Local Government, in exercise of the powers conferred on him by Section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purposes of giving effect to Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (No. 2001/42/EC, O.J. No. L 197, 21 July 2001 P. 0030—0037), hereby makes the following Regulations:

Citation.

Interpretation.

• (2) In these Regulations, any reference to a sub-article, paragraph or sub-paragraph, which is not otherwise identified, is a reference to the sub-article, pargraph or sub-paragraph of the provision in which the reference occurs.

• (3) In these Regulations, except where the context otherwise requires—

“the Birds Directive” means Council Directive 79/409/EEC of 2 April 1979 (O.J. No. L103/1, 25 April 1979) on the conservation of wildbirds;

“the Commission” means the Commission of the European Communities;

“competent authority” means the authority which is, or the authorities which are jointly, responsible for the preparation of a plan or programme, or modification to a plan or programme;

“environmental assessment” means the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with these Regulations;

“the Environmental Impact Assessment Directive” means Council Directive 85/337/EEC of 27 June 1985 (O.J. No. L175/40, 5 July 1985) on the assessment of the effects of certain public and private projects on the environment, as amended;

“European site” means—

• (a) a site

• (i) notified for the purposes of Regulation 4 of the European Communities (Natural Habitats) Regulations, 1997 ( S.I. No. 94 of 1997 ), subject to any amendments made to it by virtue of Regulation 5 of those Regulations, or

• (ii) transmitted to the Commission in accordance with Regulation 5(4) of the said Regulations, or

• (iii) added by virtue of Regulation 6 of the said Regulations to the list transmitted to the Commission in accordance with Regulation 5(4) of the said Regulations,

but only until the adoption in respect of the site of a decision by the Commission under Article 21 of the Habitats Directive for the purposes of the third paragraph of Article 4(2) of that Directive,

• (b) a site adopted by the Commission as a site of Community importance for the purposes of Article 4(2) of the Habitats Directive in accordance with the procedure laid down in Article 21 of that Directive,

• (c) a special area of conservation within the meaning of the European Communities (Natural Habitats) Regulations, 1997,

• (d) an area classified pursuant to paragraph (1) or (2) of Article 4 of the Birds Directive;

“the Habitats Directive” means Council Directive 92/43/EEC of 21 May 1992 (O.J. No. L206/7, 22 July 1992) on the conservation of natural habitats and of wild fauna and flora;

“Member State” means any State, other than Ireland, which is a Member State of the European Communities;

“plans and programmes” means plans and programmes, as well as any modifications to them

• (a) which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

• (b) which are required by legislative, regulatory or administrative provisions;

“the SEA Directive” means Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 (O.J. No. L 197, 21 July 2001) on the assessment of the effects of certain plans and programmes on the environment.

Exclusions.

• (a) plans or programmes the sole purpose of which is to serve national defence or civil emergency, or

• (b) financial or budget plans and programmes, or

• (c) plans or programmes co-financed under the programming periods for Council Regulation (EC) No. 1260/1999 and Council Regulation (EC) No. 1257/1999.

• (2) The provisions of articles 9 to 17 shall not apply to:

• (a) the making of a development plan pursuant to sections 9 to 12 of the Planning and Development Act 2000 , or

• (b) the making of a variation of a development plan pursuant to section 13 of the Planning and Development Act 2000 , or

• (c) the making or amending of a local area plan pursuant to sections 18 to 20 of the Planning and Development Act 2000 , or

• (d) the making of regional planning guidelines pursuant to sections 21 to 26 of the Planning and Development Act 2000 , or

• (e) the making of a planning scheme pursuant to sections 168 and 169 of the Planning and Development Act 2000 .

Amendment of section 10 of the Planning and Development Act 2000 .

• “(5) The Minister may, for the purposes of giving effect to Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (No. 2001/42/EC, O.J. No. L 197, 21 July 2001 P. 0030-0037), by regulations make provision in relation to consideration of the likely significant effects on the environment of implementing a development plan.”

Amendment of section 13 of the Planning and Development Act 2000.

• “(12) The Minister may, for the purposes of giving effect to Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (No. 2001/42/EC, O.J. No. L 197, 21 July 2001 P. 0030 - 0037), by regulations make provision in relation to consideration of the likely significant effects on the environment of implementing a variation of a development plan.”

Amendment of section 19 of the Planning and Development Act 2000.

• “(4) The Minister may, for the purposes of giving effect to Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (No. 2001/42/EC, O.J. No. L 197, 21 July 2001 P. 0030 - 0037), by regulations make provision in relation to consideration of the likely significant effects on the environment of implementing a local area plan.”

Amendment of section 23 of the Planning and Development Act 2000.

• “(3) The Minister may, for the purposes of giving effect to Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (No. 2001/42/EC, O.J. No. L 197, 21 July 2001 P. 0030 - 0037), by regulations make provision in relation to consideration of the likely significant effects on the environment of implementing regional planning guidelines.”

Amendment of section 168 of the Planning and Development Act 2000.

• “(3) The Minister may, for the purposes of giving effect to Directive 2001/42/EC of the European Parliament and Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (No. 2001/42/EC, O.J. No. L 197, 21 July 2001 P. 0030 - 0037), by regulations make provision in relation to consideration of the likely significant effects on the environment of implementing a planning scheme.”

Requirement to carry out environmental assessment.

• (a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications and tourism, and which set the framework for future development consent of projects listed in Annexes I and II to the Environmental Impact Assessment Directive, or

• (b) which are not directly connected with or necessary to the management of a European site but, either individually or in combination with other plans, are likely to have a significant effect on any such site.

• (2) A plan or programme referred to in sub-article (1) which determines the use of a small area at local level or a minor modification to a plan or programme referred to in sub-article (1) shall require an environmental assessment only where the competent authority determines that it is likely to have significant effects on the environment and, for this purpose, the competent authority shall make any necessary determination.

• (3) A competent authority shall determine whether plans and programmes other than those referred to in sub-article (1), which set the framework for future development consent of projects, are likely to have significant effects on the environment.

• (4) A competent authority shall, in determining on a caseby-case basis under sub-article (2) or (3) whether a plan or programme, or modification to a plan or programme, whould or would not be likely to have significant effects on the environment, take account of relevant criteria set out in Schedule 1 and any submission or observation received in response to a notice under sub-article (5).

• (5) Prior to making a decision under sub-article (2) or (3), a competent authority shall give notice in accordance with sub-article (6) to the following environmental authorities—

• (a) the Environmental Protection Agency,

• (b) where it appears to the competent authority that the plan or programme, or modification to a plan or programme, might have significant effects in relation to the architectural or archaeological heritage or to nature conservation, the Minister for the Environment, Heritage and Local Government,

• (c) where it appears to the competent authority that the plan or programme, or modification to a plan or programme, might have significant effects on fisheries or the marine environment, the Minister for Communications, Marine and Natural Resources.

• (6) A notice under sub-article (5) shall—

• (a) state that the competent authority proposes to prepare a plan or programme, or to modify a plan or programme,

• (b) state that the competent authority must decide whether the plan or programme, or modification to a plan or programme, would or would not be likely to have significant effects on the environment and that, in so doing, it must take account of relevant criteria set out in Schedule 1, and

• (c) indicate that a submission or observation in relation to whether the proposed plan or programme, or modification to a plan or programme, would or would not be likely to have significant effects on the environment may be made to the authority within a specified period which shall be not less than 4 weeks from the date of the notice.

• (7) As soon as practicable after making a determination under sub-article (2) or (3), the competent authority shall—

• (a) make a copy of its decision, including, as appropriate, the reasons for not requiring an environmental assessment, available for public inspection at the offices of the competent authority during office hours, and

• (b) notify its decision to any environmental authority which was notified under subarticle (5).

• (8) In the case of—

• (a) a plan or programme, or modification to a plan or programme, which requires an environmental assessment pursuant to sub-article (1),

• (b) a plan or programme, or modification to a plan or programme, which a competent authority has determined, under sub-article (2) or (3), would be likely to have significant effects on the environment, or

• (c) a review of a master plan for the Dublin Docklands Area under section 20 (1)(a) of the Dublin Docklands Development Authority Act 1997 ,

an environmental assessment shall be carried out by the competent authority of the plan or programme, or modification to a plan or programme, in accordance with the requirements of these Regulations.

• (9) Subject to sub-article (10), the requirement to carry out an environmental assessment under this article applies to a plan or programme, or modification to a plan or programme, the first formal preparatory act of which occurs on or after 21 July 2004.

• (10) Subject to sub-article (11), where the first formal preparatory act occurs before 21 July 2004 and the plan or programme, or modification to a plan or programme, is unlikely to be adopted before 20 July 2006, an environmental assessment shall be carried out of the plan or programme, or modification to a plan or programme, in accordance with the requirements of these Regulations.

• (11) The requirement to carry out an environmental assessment under sub-article (10) shall not apply where the competent authority decides that the carrying out of an environmental assessment would not be feasible and notice of any such decision shall be published in at least one newspaper with a sufficiently large circulation in the area covered by the plan or programme or modification to a plan or programme.

Timing of environmental report.

Scoping of environmental report.

• (2) A notice under sub-article (1) shall—

• (a) state that, as part of the preparation of a plan or programme, or modification to a plan or programme, the competent authority will prepare an environmental report of the likely significant effects on the environment of implementing the plan or programme, or modification to a plan or programme,

• (b) state that the environmental report is required to include the information that may reasonably be required taking into account—

• (i) current knowledge and methods of assessment,

• (ii) the contents and level of detail in the plan or programme, or modification to a plan or programme,

• (iii) the stage of the plan or programme, or modification to a plan or programme, in the decision-making process, and

• (iv) the extent to which certain matters are more appropriately assessed at different levels in the decision-making process in order to avoid duplication of environmental assessment, and

• (c) indicate that a submission or observation in relation to the scope and level of detail of the information to be included in the environmental report may be made to the competent authority within a specified period which shall be not less than 4 weeks from the date of the notice.

Content and format of environmental report.

• (a) contain the information specified in Schedule 2,

• (b) take account of any submission or observation received in response to a notice under article 11(1), and

• (c) be of sufficient quality to meet the requirements of these Regulations.

• (2) An environmental report shall include the information that may reasonably be required taking into account

• (a) current knowledge and methods of assessment,

• (b) the contents and level of detail in the plan or programme, or modification to a plan or programme,

• (c) the stage of the plan or programme, or modification to a plan or programme, in the decision-making process, and

• (d) the extent to which certain matters are more appropriately assessed at different levels in the decision-making process in order to avoid duplication of environmental assessment.

• (3) The environmental report can either form part of the draft plan or programme, or modification to a plan or programme, or comprise a separate report.

Consultations.

• (a) send notice and a copy of the draft plan or programme, or modification to a plan or programme, and associated environmental report to the environmental authorities specified in article 9(5), as appropriate, and state that a written submission or observation with respect to the draft plan or programme, or modification to a plan or programme, and associated environmental report made to the competent authority within a specified period of not less than 4 weeks from the date of the notice will be taken into consideration before the finalisation of the plan or programme, or modification to a plan or programme, and

• (b) publish notice, in accordance with sub-article (2), of the preparation of the draft plan or programme, or modification to a plan or programme, and associated environmental report in at least one newspaper with a sufficiently large circulation in the area covered by the plan or programme, or modification to a plan or programme.

• (2) A notice under sub-article (1)(b) shall state that—

• (a) a copy of the draft plan or programme, or modification to a plan or programme, and associated environmental report may be inspected at a stated place or places and at stated times during a stated period of not less than 4 weeks from the date of the notice (and the copy shall be kept available for inspection accordingly), and

• (b) a written submission or observation with respect to the draft plan or programme, or modification to a plan or programme, and associated environmental report made to the competent authority within the period referred to in paragraph (a), or such period as may be specified in law in respect of the draft plan or programme, or modification to a plan or programme, will be taken into consideration before the finalisation of the plan or programme, or modification to a plan or programme.

Transboundary environmental effects.

• (a) where the competent authority considers that implementation of the plan or programme, or modification to a plan or programme, is likely to have significant effects on the environment of such Member State, or

• (b) where a Member State, likely to be significantly affected, so requests.

• (2) Where a Member State is sent a copy of a draft plan or programme, or modification to a plan or programme, and environmental report under sub-article (1) and it indicates that is wishes to enter into consultation before the adoption of the plan or programme, or modification to a plan or programme, the competent authority shall—

• (a) enter into consultations with the State concerned in relation to the likely transboundary environmental effects of implenting the plan or programme, or modification to a plan or programme, and the measures envisaged to reduce or eliminate such effects, and

• (b) agree with the State concerned—

• (i) a reasonable timeframe for the completion of the consultations, having regard to any statutory or other timeframes for the adoption of the plan or programme, or modification to a plan or programme, and

• (ii) detailed arrangements to ensure that the authorities referred to in article 6(3) of the SEA Directive and the public referred to in article 6(4) of the SEA Directive in the Member State concerned are informed and given an opportunity to forward their opinion within a reasonable timeframe.

• (3) Where, in response to a request to a Member State or otherwise, a competent authority receives from a Member State, either directly from the Member State or communicated by the responsible Minister, a draft plan or programme, or modification to a plan or programme, and associated environmental report in relation to such State, or part thereof, the competent authority shall, as soon as may be following receipt of such documentation—

• (a) enter into consultations with the State concerned in relation to the likely transboundary environmental effects of implementing the draft plan or programme or modification to a plan or programme, and the measures envisaged to reduce or eliminate such effects,

• (b) agree with the State concerned—

• (i) a reasonable timeframe for the completion of the consultations, having regard to any statutory or other timeframes for the adoption of the plan or programme, or modification to a plan or programme, and

• (ii) detailed arrangements to ensure that the authorities referred to in article 6(3) of the SEA Directive and the public referred to in article 6(4) of the SEA Directive in the area likely to be significantly affected are informed and given an opportunity to forward their opinion within a reasonable timeframe,

• (c) publish a notice in accordance with sub-article (4) in at least one newspaper with a sufficiently large circulation in the area likely to be significantly affected by the plan or programme, or modification to a plan or programme, and

send notice of, and a copy of, the draft plan or programme, or modification to a plan or programme, and associated environmental report to the environmental authorities specified in article 9(5), as appropriate, indicating that a submission or observation in relation to the draft plan or programme, or modification to a plan or programme, and associated environmental report may be made in writing to the authority within a specified period which shall be not less than 4 weeks from the date of the notice.

• (4) A notice under sub-article (3)(c) shall state that—

• (a) a draft plan or programme, or modification to a plan or programme, and associated environmental report have been received from a Member State,

• (b) the draft plan or programme, or modification to a plan or programme, has potential transboundary effects,

• (c) a copy of the draft plan or programme, or modification to a plan or programme, and associated environmental report are available for inspection at a stated place or places and at stated times during a specified period which shall be not less than 4 weeks from the date of the notice (and the copy shall be kept available for inspection accordingly), and

• (d) a submission or observation in relation to the draft plan or programme, or modification to a plan or programme, and associated environmental report may be made in writing to the competent authority within the specified period.

• (5) As soon as practicable following receipt of any submission or observation referred to in sub-article (3) or (4), or where the competent authority otherwise considers it necessary, the relevant competent authority shall consult with the State concerned in relation to the likely transboundary environmental effects of the draft plan or programme, or modification to a plan or programme, and the measures envisaged to reduce or eliminate such effects.

Decision-making.

• (a) the environmental report,

• (b) any submission or observation made to the competent authority in response to a notice under article 13, and

• (c) any consultations under article 14, during the preparation of the plan or programme, or modification to a plan or programme, and before its adoption.

Information on decision.

• (a) send notice of adoption of, and a copy of, the plan or programme, or modification to a plan or programme, and a copy of the statement referred to in sub-article (2)(b) to the environmental authorities specified in article 9(5), as appropriate, and

• (b) publish notice of the adoption of the plan or programme, or modification to a plan or programme, in at least one newspaper with a sufficiently large circulation in the area covered by the plan or programme, or modification to a plan or programme.

• (2) A notice under sub-article (1)(b) shall state that

• (a) a copy of the plan or programme, or modification to a plan or programme, is available for inspection at a stated place or places and at stated times and a copy shall be kept available for inspection accordingly, and

• (b) a statement is also available for inspection which summarises—

• (i) how environmental considerations have been integrated into the plan or programme, or modification to a plan or programme,

• (ii) how

• (I) the environmental report prepared pursuant to article 12,

• (II) submissions and observations made to the competent authority in response to a notice under article 13, and

• (III) any consultations under article 14,

have been taken into account during the preparation of the plan or programme, or modification to a plan or programme,

• (iii) the reasons for choosing the plan or programme, or modification to a plan or programme, in the light of the other reasonable alternatives dealt with, and

• (iv) the measures decided upon to monitor, in accordance with article 17, the significant environmental effects of implementation of the plan or programme, or modification to a plan or programme.

Monitoring

SCHEDULE 1

Article 9

Criteria for determining whether a Plan or Programme (or Modification thereto) is likely to have significant effects on the Environment

— the degree to which the plan or programme, or modification to a plan or programme, sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources,

— the degree to which the plan or programme, or modification to a plan or programme, influences other plans including those in a hierarchy,

— the relevance of the plan or programme, or modification to a plan or programme, for the integration of environmental considerations in particular with a view to promoting sustainable development,

— environmental problems relevant to the plan or programme, or modification to a plan or programme,

— the relevance of the plan or programme, or modification to a plan or programme, for the implementation of European Union legislation on the environment (e.g. plans and programmes linked to wastemanagement or water protection).

— the probability, duration, frequency and reversibility of the effects,

— the cumulative nature of the effects,

— the transboundary nature of the effects,

— the risks to human health or the environment (e.g. due to accidents),

— the magnitude and spatial extent of the effects (geographical area and size of the population likely to be affected),

— the value and vulnerability of the area likely to be affected due to:

• (a) special natural characteristics or cultural heritage,

• (b) exceeded environmental quality standards or limit values,

• (c) intensive land-use,

— the effects on areas or landscapes which have a recognised national, European Union or international protection status.

SCHEDULE 2

Article 12

Information to be contained in an environmental report

The following information shall be contained in an environmental report—

• (a) An outline of the contents and main objectives of the plan or programme, or modification to a plan or programme, and relationship with other relevant plans or programmes;

• (b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme, or modification to a plan or programme,

• (c) the environmental characteristics of areas likely to be significantly affected;

• (d) any existing environmental problems which are relevant to the plan or programme, or modification to a plan or programme, including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to the Birds Directive or the Habitats Directive;

• (e) the environmental protection objectives, established at international, European Union or national level, which are relevant to the plan or programme, or modification to a plan or programme, and the way those objectives and any environmental considerations have been taken into account during its preparation;

• (f) the likely significant effects¹ on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors;

• (g) the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme, or modification to a plan or programme;

• (h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know-how) encountered in compiling the required information;

• (i) a description of the measures envisaged concerning monitoring of the significant environmental effects of implementation of the plan or programme, or modification to a plan or programme;

• (j) a non-technical summary of the information provided under the above headings.

	GIVEN under the Official Seal of the Minister for the Environment, Heritage and Local Government, this 14th day of July, 2004.
	MARTIN CULLEN, T.D., Minister for the Environment, Heritage and Local Government.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these Regulations is to transpose into Irish law Directive 2001/42/EC of 27 June 2001 (O.J. No. L 197, 21 July 2001) on the assessment of the effects of certain plans and programmes on the environment — commonly known as the Strategic Environmental Assessment (SEA) Directive.

The Regulations cover plans and programmes in all of the sectors listed in article 3(2) of the Directive except land-use planning. The only land-use plan which will be covered by these Regulations is the review of the master plan for the Dublin Docklands area under the Dublin Docklands Development Authority Act 1997 .

These Regulations also amend certain provisions of the Planning and Development Act 2000 to provide the statutory basis for the transposition of the Directive in respect of land-use planning. (Transposition in respect of the land-use planning sector is contained in the Planning and Development (Strategic Environmental Assessment) Regulations 2004 ( S.I. No. 436 of 2004 )).

These Regulations come into operation on the date of their signing and will, in the main, apply to plans and programmes (or modifications thereto) whose first formal preparatory act occurs on or after 21 July 2004.

Footnotes