S.I. No. 456/2011 - European Communities (Environmental Impact Assessment) (Agriculture) Regulations 2011

PART 1 Preliminary and General

1.

2.

3.

PART 2 Unauthorised Activities

4.

5.

6.

PART 3 Screening

7.

8.

PART 4 Consent

9.

10.

11.

12.

13.

14.

15.

PART 5 Activities affecting Member State

16.

17.

PART 6 Administration

18.

PART 7 Offences and Penalties

19.

20.

21.

PART 8 Miscellaneous

22.

23.

SCHEDULE 1

Part A Thresholds for screening applications under Regulation 7

Part B Thresholds for consent applications under Regulation 9

SCHEDULE 2 Criteria referred to in Regulation 8(1)

SCHEDULE 3 Information to be contained in an Environmental Impact Statement

S.I. No. 456 of 2011

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AGRICULTURE) REGULATIONS 2011

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 13th September, 2011.

I, SIMON COVENEY, Minister for Agriculture, Fisheries and Food, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Council Directive 85/337/EEC of 27 June 1985¹ (as amended by Council Directive 97/11/EC of 3 March 1997² and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003³ ), insofar as it applies to development consent in respect of certain proposed on-farm activities, hereby make the following Regulations:

PART 1 Preliminary and General

Citation

Interpretation

“activity” means—

• (a) restructuring of rural land holdings,

• (b) commencing to use uncultivated land or semi-natural areas for intensive agriculture, or

• (c) land drainage works on lands used for agriculture;

“applicant” means a person applying for screening under Regulation 7 or consent under Regulation 9;

“authorised officer” means a person appointed under Regulation 18;

“Birds Directive” means Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009⁴ ;

“consent” means the consent of the Minister with or without conditions made under Regulation 13;

“consultation body” means any of the following:

• (a) a Minister of the Government;

• (b) the Environmental Protection Agency;

• (c) the National Parks and Wildlife Service of the Department of Arts, Heritage and the Gaeltacht;

• (d) Inland Fisheries Ireland;

• (e) the relevant local authority (as defined under section 2 of the Local Government Act 2001 (No. 37 of 2001));

• (f) An Taisce — The National Trust of Ireland;

“EIA Directive” means Council Directive 85/337/EEC of 27 June 1985, as amended by—

• (a) Council Directive 97/11/EC of 3 March 1997,

• (b) Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003, and

• (c) Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009;

“EIS” means an environmental impact statement;

“European site” means—

• (a) a candidate site of Community importance,

• (b) a site of Community importance,

• (c) a candidate special area of conservation,

• (d) a special area of conservation,

• (e) a candidate special protection area, or

• (f) a special protection area

in the context of the Birds Directive or the Habitats Directive;

“Habitats Directive” means Council Directive 92/43/EEC of 21 May 1992;

“Minister” means Minister for Agriculture, Fisheries and Food;

“monument” means historic monuments or archaeological areas (within the meaning of section 1 (1) of the National Monuments (Amendment) Act 1987 (No. 17 of 1987)) recorded on the Register of Historic Monuments or a monument recorded under section 12 (1) of the National Monuments (Amendment) Act 1994 (No. 17 of 1994) or a national monument in the ownership or guardianship of the Minister for Arts, Heritage and the Gaeltacht or a local authority under the National Monuments Acts 1930 to 2004;

“Natura Impact Statement” has the same meaning as in section 177T(1)(b) of the Planning and Development Act 2000 (No. 30 of 2000) as amended by section 57 of the Planning and Development (Amendment) Act 2010 (No. 30 of 2010);

“nature area” means lands—

• (a) subject to an order under section 15 (2) of the Wildlife Act 1976 (No. 39 of 1976) as amended by section 26 of the Wildlife (Amendment) Act 2000 ,

• (b) subject to an order under section 16 (1) of the Wildlife Act 1976 as amended by section 27 of the Wildlife (Amendment) Act 2000 (No. 38 of 2000),

• (c) subject to an order under section 17 (9) of the Wildlife Act 1976 as amended by section 28 of the Wildlife (Amendment) Act 2000 ,

• (d) subject to a notice under section 16 (2) of the Wildlife (Amendment) Act 2000 ,

• (e) including a place, site or feature of ecological interest, the preservation, conservation or protection of which is an objective of a development plan or local area plan (within the meaning of the Planning and Development Acts 2000 to 2010), draft development plan or draft local area plan, or proposed variation of a development plan, for the area in which the development is proposed, and

• (f) including a place or site which has been included by the Minister for Arts, Heritage and the Gaeltacht in a list of proposed Natural Heritage Areas published on the National Parks and Wildlife Service website;

“NHA” means lands subject to a natural heritage area order under section 18 of the Wildlife (Amendment) Act 2000 (No. 38 of 2000);

“publish” means publishing on the internet website of the Minister or in such other manner as the Minister may direct;

“screening decision” means a decision taken under Regulation 8(1).

• (2) A word or expression that is used in these Regulations and is also used in the EIA Directive has, in these Regulations, the same meaning as in that Directive.

Application

• (a) restructuring of rural land holdings,

• (b) commencing to use uncultivated land or semi-natural areas for intensive agriculture, or

• (c) land drainage works on lands used for agriculture.

• (2) These Regulations apply to activities under paragraph (1) where—

• (a) the area of land exceeds the thresholds set out in Part A of Schedule 1,

• (b) the activity is likely to have a significant effect on the environment,

• (c) the activity is likely to have a significant effect on a European site,

• (d) the activity is likely to impact adversely on an NHA or a nature area, or

• (e) the activity is likely to damage a monument.

• (3) Notwithstanding paragraphs (1) or (2), these Regulations do not apply to any activities that are—

• (a) the subject of the Planning and Development (Amendment) (No. 2) Regulations 2011,

• (b) regulated under the Arterial Drainage Acts 1945 to 1995 as amended by the European Communities (Arterial Drainage) Regulations 2009 ( S.I. No. 388 of 2009 ), or

• (c) in an area that is subject to an Order under section 202 of the Planning and Development Act 2000 (No. 30 of 2000).

• (4) The Minister may issue guidance on any aspect of the implementation of these Regulations and a person carrying out an activity shall have regard to any such guidance.

PART 2 Unauthorised Activities

Carrying out an activity without screening or consent

Prohibition notice

• (a) to commence an activity in contravention of Regulation 4, or

• (b) to fail to satisfy a condition of a consent under Regulation 13.

Reinstatement

• (a) commenced an activity in contravention of Regulation 4, or

• (b) failed to comply with a condition of a consent under Regulation 13.

• (2) The Minister shall not be liable for any costs incurred in compliance with a notice under paragraph (1).

PART 3 Screening

Screening application

• (a) the area of land or length of field boundary involved exceeds the thresholds set out in Part A of Schedule 1,

• (b) the activity may have a significant effect on the environment,

• (c) the activity may have significant effect on a European site,

• (d) the activity may impact adversely on an NHA or a nature area, or

• (e) the activity may damage a monument.

• (2) An application under paragraph (1) shall contain—

• (a) the name and address of the applicant,

• (b) the location of the land, Land Parcel Identification System (LPIS) Number assigned by the Minister, townland and county to which the application relates,

• (c) the nature and extent of the proposed activity including the anticipated outcomes of the activity,

• (d) the name and address of the person who will perform the activity, and

• (e) any such other information as the Minister considers necessary.

• (3) The Minister may consult with any consultation body or make such enquiries as the Minister considers necessary for the purposes of deciding on the application.

• (4) The Minister may consider any representations made in relation to an application made under paragraph (1).

• (5) The Minister may refuse an application if the application is incomplete in any material detail.

Screening decision

• (a) to have significant effects on the environment,

• (b) to have significant effects on a European site,

• (c) to impact adversely on an NHA, or a nature area, or

• (d) to damage a monument,

he or she shall inform the applicant that the activity may proceed within such period as the Minister may specify in his or her decision.

• (2) Where the Minister considers that the proposed activity is likely to have a significant effect on the environment the activity may not proceed without a consent.

• (3) Where the Minister considers that the proposed activity is likely to have a significant effect on a European site the activity may not proceed without a consent.

• (4) Where the Minister considers that the proposed activity is likely to have a significant effect on an NHA, the Minister shall consult with the Minister for Arts, Heritage and the Gaeltacht prior to making a decision on the application and shall consider any views of that Minister, following which the Minister may decide that the activity may not proceed without a consent.

• (5) Where the Minister considers that the proposed activity is likely to have a significant effect on a nature area, the Minister may consult with the relevant consultation bodies prior to making a decision on the application and shall consider any views of such bodies, following which the Minister may decide that the activity may not proceed without a consent.

• (6) Where the Minister considers that the proposed activity would be likely to damage a monument, the Minister shall consult with the Minister for Arts, Heritage and the Gaeltacht prior to making a decision on the application and shall consider any views of that Minister, following which the Minister may decide that—

• (a) subject to Regulation 23, the activity may proceed subject to any modifications that the Minister considers appropriate, or

• (b) the activity may not proceed.

• (7) The Minister shall inform the applicant of his or her decision under paragraphs (2), (3), (4), (5) and (6) and give reasons for such decision.

• (8) The Minister may publish a decision made under this Regulation.

PART 4 Consent

Consent application

• (a) exceeds the thresholds set out in Part B of Schedule 1,

• (b) is, in the opinion of the Minister, likely to have a significant effect on the environment,

• (c) is, in the opinion of the Minister, likely to have a significant effect on a European site, or

• (d) is, in the opinion of the Minister, likely to have a significant effect on an NHA or a nature area.

• (2) An application for consent shall contain—

• (a) the name and address of the applicant,

• (b) the location of the land, Land Parcel Identification System (LPIS) Number, townland and county to which the application relates,

• (c) the nature and extent of the proposed activity including the anticipated outcomes of the activity,

• (d) the name and address of the person who will perform the activity,

• (e) in the case of an application made under—

• (i) paragraph (1)(a), (b) or (d) it shall be accompanied by an EIS in accordance with Regulation 10,

• (ii) paragraph (1)(c) it shall be accompanied by a Natura impact statement, and

• (f) any such other information as the Minister considers necessary.

• (3) A person shall submit an application in a format acceptable to the Minister.

• (4) The Minister may refuse an application if the application is incomplete in any material detail.

EIS and Natura Impact Statement

• (2) In advance of submitting an EIS, an applicant or a person intending to apply for consent may seek the opinion of the Minister on the information that is to be supplied under paragraph (1).

• (3) The Minister may consult the applicant and the relevant consultation bodies before giving his or her opinion on an EIS.

• (4) Nothing in this Regulation shall preclude the Minister from, at any stage—

• (a) rejecting an EIS, or

• (b) seeking further information.

• (5) A Natura impact statement required under Regulation 9(2)(e)(ii) shall contain all relevant information on the effects of the proposed development on the European site.

Notice to consultation body

• (a) the environment,

• (b) a European site,

• (c) a NHA or

• (d) a nature area,

the Minister shall issue a notice in writing to one or more consultation bodies that the Minister believes may have an opinion on the proposed activity.

• (2) A notice issued under paragraph (1) shall include a copy of the application, any EIS or Natura impact statement which accompanied the application, a map of the site on which the activity is proposed and other information that the Minister considers relevant.

• (3) Without prejudice to paragraph (1), the Minister may carry out such consultation in relation to an application that he or she considers appropriate.

• (4) A consultation body to which a notice under paragraph (1) is sent may submit a submission or observation on the application in writing to the Minister within 4 weeks of the issue of the notice or whatever longer timeframe is set out in the notice and, if additional information is received by the Minister and forwarded to the consultation body, within 4 weeks from the date on which the last information is forwarded.

• (5) Where a consultation body to whom a notice or further information is sent under this Regulation fails to make a submission or observation within 4 weeks from the date of the notice or such longer timeframe set out in the notice or further information, the Minister may make a decision without further communication with that body.

Public consultation

• (2) A notice under paragraph (1) shall state—

• (a) the reference number of the application,

• (b) the location, townland and county to which the application relates,

• (c) the nature and extent of the proposed activities,

• (d) the nature of possible decisions or, where there is one, the draft decision,

• (e) that any person may make a submission or observation to the Minister within 4 weeks from the date of the notice or whatever longer timeframe appears on the notice,

• (f) where and when the application and documents may be viewed,

• (g) any other details of public participation, and

• (h) any other information that the Minister believes relevant to the application.

• (3) The Minister shall make the application, including the EIS or Natura impact statement, available for inspection to the public free of charge, or for purchase at a fee not exceeding the reasonable cost of doing so, a map showing the location of the proposed activity and any other information or documentation relevant to the application that the Minister has in his or her possession.

• (4) The public may make submissions or observations in writing concerning the application to the Minister within 4 weeks from the date of publication or whatever longer timeframe is set out in the notice, and where additional information is published, at least 4 weeks from the date of the publication of that information.

Consent decision

• (a) any information relating to the application furnished by the applicant;

• (b) any written submission or observation received under Regulation 11 or 12 or Part 5;

• (c) any relevant environmental guidelines made by a Minister of the Government;

• (d) any relevant policy of a Minister of the Government;

• (e) any acts of the institutions of the European Union;

• (f) the requirements of these Regulations;

• (g) any other legal requirements;

• (h) any other matter that the Minister considers relevant, including the capacity of the applicant to carry out the activities.

• (2) In the case of an application accompanied by an environmental impact statement, the Minister shall carry out an assessment of the proposed activity, including consideration of the environmental impact statement, before making a decision on the application.

• (3) In the case of an application accompanied by a Natura impact statement, the Minister shall carry out an assessment of the proposed activity including consideration of the Natura impact statement and shall not grant consent for the proposed activity unless he or she is satisfied that it would not have an adverse impact on the integrity of the site

• (4) The Minister may grant consent, refuse consent or may attach such conditions to a consent as he or she considers necessary.

• (5) The Minister shall refuse consent if, in his or her opinion—

• (a) the EIS or Natura impact statement, as the case may be, is inadequate,

• (b) the proposed activity—

• (i) fails to comply with any of the matters specified in paragraphs (1)(c) to (h),

• (ii) is likely to have an adverse impact on human health, or

• (iii) is likely to have significant adverse impact on—

• (I) animal or plant health, or

• (II) water quality.

Notification of decision

• (2) When informing a person of his or her decision under paragraph (1) the Minister shall also inform the person of the procedure for seeking a review under Regulation 15 of the decision.

• (3) The Minister may dispense with the requirement to notify persons other than the applicant under paragraph (1) where—

• (a) a large number of submissions or observations are made as part of an organised campaign,

• (b) the submission or observation made is, in the opinion of the Minister, frivolous or vexatious, or

• (c) it is not possible to readily ascertain the name and address of any person who made a submission or observation.

• (4) The Minister shall publish the decision and make available to the public the matters referred to in paragraph (1).

Review of decision

• (2) An application to review a decision shall be made by way of application for judicial review under Order 84 of the Rules of the Superior Courts ( S.I. No. 15 of 1986 ).

• (3) The High Court shall not grant leave in such an application unless the applicant—

• (a) has a sufficient interest in the matter, or

• (b) is a consultation body.

• (4) In this Regulation—

“decision” means—

• (a) any decision or purported decision made or purportedly made,

• (b) any action taken or purportedly taken, or

• (c) any failure to take any action;

“sufficient interest” is not limited to an interest in land or other financial interest.

PART 5 Activities affecting Member State

Activities affecting Member State

• (a) a description of the proposed activity and any available information on its possible effects on the environment in that State including the EIS or Natura impact statement (if any), and

• (b) relevant information about the nature of the decision that may be taken in respect of the proposed works,

and shall allow that Member State 4 weeks or such time as agreed between the Minister and a Member State, to indicate whether it wishes to make submissions or observations on the proposed activity.

Application of regulations to public of Member State

• (a) the Minister shall apply Regulation 12 in respect of the public of that Member State, and

• (b) Regulation 14 shall apply to any submissions or observations received from a Member State or the public of that state, with any necessary modifications.

• (2) Where Regulation 16 applies and a decision is subsequently made to approve the application, Regulation 15 shall apply in respect of the public of that Member State with any necessary modifications.

PART 6 Administration

Authorised officers

• (2) An authorised officer shall be issued with a warrant of appointment and shall, when exercising or seeking to exercise any power under these Regulations, if requested by any person affected, produce the warrant to that person for inspection.

• (3) An authorised officer may enter on and survey any land for the purpose of—

• (a) ascertaining whether it is suitable for an activity,

• (b) inspecting activities, or

• (c) ensuring compliance with these Regulations.

• (4) The Minister may terminate an appointment under paragraph (1), whether or not the appointment was for a fixed period.

• (5) An appointment as an authorised officer ceases—

• (a) if it is terminated under paragraph (4),

• (b) if it is for a fixed period, on the expiry of that period, or

• (c) if the person appointed is an officer of the Minister on that person ceasing to be such an officer.

• (6) Nothing in paragraph (5) is to be construed so as to prevent the Minister from reappointing as an authorised officer a person to whom paragraph (5) relates.

• (7) A person shall not obstruct or interfere with an authorised officer in the exercise of any function conferred on him or her by these Regulations.

PART 7 Offences and Penalties

Offences and penalties

• (a) Regulation 4,

• (b) a notice issued under Regulation 5 or 6,

• (c) a condition attached to a consent under Regulation 13(4), or

• (d) Regulation 18(7)

commits an offence and is liable—

• (i) on summary conviction, to a Class A fine, or

• (ii) on conviction on indictment, to a fine not exceeding €250,000.

• (2) Having regard to any relevant public notice issued, it shall not be a defence to proceedings under these Regulations in respect of activities carried out to a monument, NHA, nature area or a European site for a person to state that he or she was unaware that the object or land upon which the activity was carried or was being carried out was a monument, NHA, nature area or European site.

Prosecution of offences

Offence by body corporate

PART 8Miscellaneous

Costs in certain civil proceedings

National Monument Acts 1930 to 2004

Regulation 3

SCHEDULE 1 Part A — Thresholds for screening applications under Regulation 7

Type of on-farm Activity	Type of on-farm Activity	Screening Required
Restructuring of rural land holdings	Length of field boundary to be removed	Above 500 metres
	Re-contouring (within farm-holding)	Above 2 hectares
	Area of lands to be restructured by removal of field boundaries	Above 5 hectares
Commencing to use uncultivated land or semi-natural areas for intensive agriculture	Commencing to use uncultivated land or semi-natural areas for intensive agriculture	Above 5 hectares
Land drainage works on lands used for agriculture	Land drainage works on lands used for agriculture	Above 15 hectares

Part B — Thresholds for consent applications under Regulation 9

Type of on-farm Activity	Type of on-farm Activity	Consent Required Mandatory Environmental Impact Assessment
Restructuring of rural land holdings	Length of field boundary to be removed	Above 4 kilometres
	Re-contouring (within farm-holding)	Above 5 hectares
	Area of lands to be restructured by removal of field boundaries	Above 50 hectares
Commencing to use uncultivated land or semi-natural areas for intensive agriculture	Commencing to use uncultivated land or semi-natural areas for intensive agriculture	Above 50 hectares
Land drainage works on lands used for agriculture	Land drainage works on lands used for agriculture	Above 50 hectares

Regulation 8

SCHEDULE 2 CRITERIA REFERRED TO IN REGULATION 8(1)

The characteristics of the activity must be considered having regard, in particular, to the following:

• (a) the size of the activity;

• (b) the cumulation with other activities;

• (c) the use of natural resources;

• (d) the production of waste;

• (e) pollution and nuisances;

• (f) the risk of accidents, having regard in particular to substances or technologies used.

The environmental sensitivity of geographical areas likely to be affected by the activity must be considered, having regard, in particular, to the following:

• (a) the existing land use;

• (b) the relative abundance, quality and regenerative capacity of natural resources in the area;

• (c) the absorption capacity of the natural environment, paying particular attention to the following areas:

• (i) wetlands;

• (ii) coastal zones;

• (iii) mountain and forest areas;

• (iv) nature areas and parks;

• (v) areas classified or protected under the legislation of the State or another Member State;

• (vi) special protection areas designated by the State or another Member State pursuant to the Habitats Directive or the Birds Directive;

• (vii) areas in which the environmental quality standards laid down in European Community legislation have already been exceeded;

• (viii) densely populated areas;

• (ix) landscapes of historical, cultural or archaeological significance.

The potential significant effects of activities must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to the following:

• (a) the extent of the impact (geographical area and size of the affected population);

• (b) the transfrontier nature of the impact;

• (c) the magnitude and complexity of the impact;

• (d) the probability of the impact;

• (e) the duration, frequency and reversibility of the impact.

Regulation 10

SCHEDULE 3 INFORMATION TO BE CONTAINED IN AN ENVIRONMENTAL IMPACT STATEMENT

• (b) The data necessary to identify and assess the main effects which that activity is likely to have on the environment.

• (c) A description of the likely significant effects, direct and indirect, on the environment of the activity, explained by reference to its possible impact on the following:

• (i) human beings;

• (ii) flora;

• (iii) fauna;

• (iv) soil;

• (v) water;

• (vi) air;

• (vii) climate;

• (viii) the landscape;

• (ix) the interaction between any of the foregoing;

• (x) material assets;

• (xi) the cultural heritage.

• (d) Where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce, and, if possible, remedy those effects.

• (a) the physical characteristics of the proposed activity, and the land use requirements during the construction and operational phases;

• (b) the main characteristics of the production processes proposed, including the nature and quantity of the materials to be used;

• (c) the estimated type and quantity of expected residues and emissions (including pollutants of surface water and groundwater, air, soil and substrata, noise, vibration, light, heat and radiation) resulting from the proposed development when in operation;

(d)(in outline) the main alternatives (if any) studied by the applicant, appellant or authority and an indication of the main reasons for choosing the development proposed, taking into account the environmental effects;

• (e) the likely significant direct and indirect effects (including secondary, cumulative, short, medium and long term, permanent, temporary, positive and negative effects) on the environment of the proposed activity which may result from the following:

• (i) the use of natural resources;

• (ii) the emission of pollutants, the creation of nuisances, and the elimination of waste.

• (f) the forecasting methods used to assess any effects on the environment about which information is given under subparagraph (e);

• (g) any difficulties, such as technical deficiencies or lack of knowledge, encountered in compiling any information mentioned in this paragraph.

GIVEN under my Official Seal,

8 September 2011.

SIMON COVENEY,

Minister for Agriculture, Fisheries and Food.

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 facilitate compliance with the Environmental Impact Assessment (EIA) Directive (85/337/EEC) as amended insofar as it applies to certain categories of on-farm activities, by providing for a statutory screening and consent system for these activities and also providing for EIA for such development if it is likely to have a significant effect on the environment.

Footnotes