AQW 9965/11-15

Mr Steven Agnew
Green Party
North Down

Tabled Date: 22/03/2012
Answered On Date: 11/04/2012
Priority Written: No

To ask the Minister of the Environment, in light of the announcement by the Republic of Ireland’s Minister Hogan that, following the European Court of Justice ruling C-125-06, he is introducing legislation that will no longer allow developers to apply for retention planning permission when an Environmental Impact Assessment (EIA) is required under the Environmental Assessment Directive 85/337/EEC, for his assessment of the implications that the judgement will have on the many retrospective applications for EIA development currently in the planning system.

Part 7 of the the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2012 provide for the consideration of EIA for development which is the subject of a planning enforcement notice. Where such development requires EIA, it is referred to as unauthorised EIA development. A failure to enforce where a development is unauthorised EIA development would be in breach of the Directive.
In Ardagh Glass v Chester City Council, the High Court held, on 8 April 2009, that retrospective planning permission could lawfully be granted for EIA development as long as the competent authorities paid careful regard to the need to protect the objectives of the EIA Directive.
This was upheld by the Court of Appeal on 29 January 2010 for three reasons -
i)Common sense - It would not make sense to require all unlawful EIA development to be removed. At one extreme, development causing serious environmental damage with flagrant disrespect for the Directive should be the subject of removal. However, at the other extreme, there might have been an inadvertent failure to comply with the Directive, and the development may not be causing environmental harm and may actually be enhancing the environment. In such circumstances the Court of Appeal held that it would be an affront to common sense to require its removal.
ii)Disproportionate - It is a fundamental principal of European Community law that any measures taken are proportionate. A prohibition on the grant of retrospective permission for EIA development, regardless of the circumstances and the environmental consequences thereof, would be wholly disproportionate.
iii)The Ireland case - The Court of Appeal accepted passages from the Court of Justice of the European Union case (ECJ) in Commission v Ireland (a case relied upon by both sides in the High Court) to the effect that, subject to certain conditions, there may be exceptional circumstances in which a retrospective permission may be granted for EIA development.
Having considered both the Ireland case and the Ardagh Glass Ltd ruling, I am content that the acceptance of retrospective applications is not in itself a breach of the EIA Directive and that there are no implications for cases to arise from past decisions as a result of the acceptance of such applications.