European Legislation, the Protector of the Irish Landscape?

Good morning, I would specially like to thank Terry for once again giving people the
opportunity to discuss this much neglected issue of landscape per se in its own terms and it is
always interesting and exciting to listen to Terry speak so spontaneously on the subject.

But firstly I do wish to take issue with his comments about legislation. I am sure he expected
that I might.

I think the analogy with speeding is not really apt, because nobody applies for a permit to
speed at 90 mph, whilst in fact if you are going to build a house or a shopping centre you do
actually have to apply for a permit or planning permission and whilst not all landscape abuses
would be solved by legislation, its key role has to be acknowledged. I have said for a year
now that a few simple legislative principles could go a long way towards ending some of the
most egregious and indeed entirely unnecessary abuses of the Irish landscape today.

Secondly I was asked to talk today about European legislation and that's what I will do. I am
going to assume for purposes of this talk that there is not an awful lot in Irish legislation with
regard to landscape, though I know that some councils in preparing their development plans
are more active with regard to landscape than others. That's fine, I give those who are doing a
good job full credit.

On the other hand the legislative framework for Ireland is, I think, completely inadequate and
I have written about that elsewhere in the past.

Thirdly, it may be that the European framework is working better in other European
countries, but as you will hear, from my address, I don't think it's working particularly well in
Ireland.

So with all those points in mind I will begin.

I do tend to talk on too long and I am very passionate about this subject, so if you can't bear
any more, just tell me to finish. Also interrupt me if you would like to ask a question, I will
be delighted to be interrupted, where you feel it necessary.

There are huge changes evident in the Irish landscape as a result of the economic impact of
EC membership and I think that's obvious to everybody. But in fact there is no European
legal instrument as you well know, to deal specifically with landscape at European level.
Partly, this is because Article 130 of the European Treaty singles out town and country
planning as an area requiring unanimity for the production of European legislation and this is
a competence that I think has been jealously guarded by individual member states.

So this leaves landscape in a very ambiguous position within the European legal framework
and order. It is part of the environment and can be a very contentious issue when it comes,
for instance, to the environmental impact assessment directive, which I will be talking about
in a moment.

But it is very, very difficult to make a case at European level, for example, to try and stop
funding for an adverse tourism project in the west of Ireland. Based purely on landscape it
doesn't seem to be a legally operative concept on its own. However, there are several
European directives which directly and significantly indirectly do actually have a connection
with landscape and environmental groups have seized on these directives to try and salvage
what's left of the Irish landscape.

Now it has been my sad experience in the last couple of years that this process has been
problematic, difficult, convoluted and hasn't worked terribly well. But perhaps I am too
pessimistic in my assessment.

In this I am thinking primarily of the environmental impact assessment directive and the
habitats directive. (I know there are others relating to drinking water and the like, that I won't
deal with.) I think the E.I.A. habitats directives are the two principal ones that we might
agree could impinge most directly on landscapes.

I suggest that these instruments have proven to be too vague to be of much good to the
landscape. Perhaps environmental groups have had expectations of these directives that were
unacceptably high, partly because, to be blunt, the national authorities including, crucially, the
national courts have not been exactly enthusiastic, (to put it mildly,) concerning their
implementation. The directives have to be stringently applied at national level or they really
do not do much good.

On the positive side, these directives are very important hooks upon which to make
complaints to the European Commission. If you want to make a complaint about damage to
the landscape you have to have a European legal basis for that, and I find that our citizens
have naturally gravitated towards the habitats directive and the EIA directive when trying to
push the Commission to take action against the member states.

Funnily enough, especially in the Irish context, and again that's the context I know best, (it
might not be the same in other member states), but in a sense the very fact of an
environmental directive that's not specifically about landscape, being invoked by the
environmental groups to protect the landscape has the effect of getting the backs of many
people up in Ireland at official level. So sometimes in fact there's enormous resistance to see
the habitats directive as a protector of the landscape. So again it's not clear if we are doing
ourselves real favours by relying on these directives.

Let me talk a little bit about the environmental impact assessment directive. This is not an
exotic or novel idea, it's an old idea, it goes back to the so-called NEPA or National
Environmental Policy Act of 1970 in the United States.

EIA law is now common around the world, as I said it's not some exotic flower, it's not a
crazy idea, and it's normally treated in other jurisdictions as judicially reviewable. It puts a
procedural requirement on the national authorities and the courts ought to be able to review
whether or not an environmental impact assessment law is being properly implemented by the
national decision making authority.

Also, in theory, and as it's usually implemented, EIA law gives the public a right of
participation in the decision making process. Now I think that there is an illusion in this
country on the part perhaps of An Bord Pleanala, and certainly of late on the part of the courts
that the existing planning process is adequate. That is not true, the EIA directive as a standard
environmental directive adds something else. It tells the public that adverse effects on the
environment, because of a certain project, will be systematically identified. Then the public
will be shown these likely effects, and they can comment and the decision maker is bound by
law to take all of these factors, including public comment, into account.

After the Lancefort decision in which you probably know I was involved as a legal advisor on
the European Law points, it may well be that EIA law in Ireland is meaningless. I would dare
to say, (and I think there is good evidence for this from other jurisdictions), that if EIA law is
not capable of invalidating a permission, that is if the Court cannot look and say EIA law was
not followed, and the planning permission involved is defective, then it doesn't work, it
doesn't add anything to the process, it's just treated as a side issue.

It seems extraordinary to me that those persons who were attempting to take a perfectly
legitimate case involving EIA law were actually treated as so called vigilantes in the popular
and even unpopular press.

What does the directive say? I will be very brief on this.

Article 2 of the directive, (and those of you who have read it , know it very well so just bear
with me), creates an obligation on all relevant national authorities, local authorities, An Bord
Pleanala, the national courts crucially as well, obviously the EPA, to ensure that all projects
likely to have significant effects on the environment, and that could be because of size, the
nature of the project, or its location are subject to the assessment I have mentioned before.

The Court of Justice has made crystal clear that this obligation has direct effect, and that
means that people, citizens, ordinary folk can rely on the provisions of the directive and go to
their national court.

Article 4 discusses the kinds of project that are covered by the directive. Annexe 1 projects
always require an assessment. They are of a nature that they must have an assessment.
Annexe 2 projects require assessment where member states consider that their characteristics
so require, and that is also I think capable of review.

In any event, Annexe 2 includes landscape related development, holiday complexes, hotels,
urban developments. The directive is not just about pollution, it's also about landscapes. The
directive requires identification of the adverse effects, free access by the public as I said and a
plan to mitigate adverse effects.

Factors to be considered: the directive clearly states that the following be considered -
human beings, fauna, flora, soil, air, water, climate and landscape. Also material assets and
the cultural heritage and in Annexe 3 material assets are further defined as including
architectural and archaeological heritage. These phrases, archaeological heritage,
architectural heritage, were left off the Irish implementing regulations. That is important. I
would like to know why, I wanted the Supreme Court to find out why. Did it make a
difference in An Bord Plean la's decision making process. The issue simply wasn't resolved
by the court because that particular case was talked out on locus standii.

As I said these likely effects, identified in architectural or archaeological heritage or the
landscape, must set the EIA process in motion. Also an EIS, that is the environmental impact
statement or study, upon which the EIA is based, has to be adequate. Courts in America look
at the adequacy of an EIS. Irish courts to date simply have not done that. I think what's
happening is that the Irish courts are treating the EIA directive as non-reviewable: they
appear to say it's none of our business. We have a planning process, let the Bord decide how
the directive should be implemented, and I would suggest that this is erroneous.

The problem is as follows, - underlying the European environmental law system there is a
fundamental weakness. The court should either resolve the issue or refer it to the court of
justice, if the national court chooses not to do that there is nothing anyone can do about it.
You are stuck if the national court does not resolve the issues you raise.

In the U.S., by way of contrast, even the conservative court, even the court that had no
interest in the environment or environmental protection, would not find it radical to invalidate
a permission that ought to have had an E.I.A. and failed to provide same. And all that means
is that this permission process has to be gone through again and one aspect that has not been
understood in the Irish courts is that these are separate questions. There is the question of the
decision making process and there is the question of the ultimate permission, yea or nay.

An E.I.A. does not mean that ultimately the decision maker will say no to the project and
that's a very important point I think. The E.I.A. process does not guarantee you the outcome
you want, but it can certainly help shed light on possible problems associated with it.

E.I.S. is implemented in Ireland because it is required under the European legislation. Unlike
some other jurisdictions the E.I.S. in Ireland is produced by the developer. Bear in mind that
the local authority does the assessment not the developer, but the developer provides the
initial E.I.S. that identifies the problems. These have tended to degenerate into self-serving
documents as to why the project is so brave and wonderful, and I think the authorities, the
local authorities and the Bord ought to be sending these documents back to the developer and
saying 'give us a good E.I.S., something that we can base an assessment on'.

The E.I.A. process seems to have worked rather well in regard to some controversial projects,
for instance in the Ventry Strand development (you may have followed that case), I think
that this was purely due to the herculean efforts of local people, especially those who were
interested in Irish language use in that area. However, again that was not a matter of the court
applying the directive. I think the directive has had no impact whatsoever on the continuing
horrible problem of ribbon development, especially in the west of Ireland, nor with bad
tourism development, eating up the landscape, replacing pastures with holiday homes and
there is the continuing loss of the architectural heritage, which has not been addressed
effectively by the directive.

Maybe the most recent planning controversy in Cong where another bunch of holiday homes
is about to gobble up what's left of the Lough Corrib landscape will prove a test-case with
regard to E.I.A., because I know that the Galway An Taisce is emphasising that point, that
there ought to be an E.I.A. carried out and to date there has not been.

The habitats directive was supposed to create a coherent ecological network for Europe. I
remember being at conferences several years ago where people were saying that with the
habitats directive, the European law is going to lay it on the line, sensitive landscapes in
Ireland, were to be totally protected. Again, NGOs said 'yes, this is what we have been
waiting for' and jumped on the habitats directive. Well I think the habitats directive, (I don't
know if there is anyone from Parks and Wildlife here,) has been surrounded by confusion,
acrimony, debate, dissension and all kinds of bad vibrations.

The intention was that in special areas of conservation, damaging activities, that is activities
damaging to protected habitats as defined in the directive would be stopped. Overgrazing was
going to be stopped; tourism developments that would harm sensitive habitats were supposed
to be stopped; mountains, bogs, lake areas were going to be protected; coastal areas in the
west were going to be protected. But I don't think the original expectations have been met,
partly again because the directive is very unclear as to how it's going to enforced, who is
going to enforce it?

This is anecdotal - I can't prove it, but I have been told by people in the farming community
that government authorities presented the advent of the habitats directive to them in a very
apologetic tone, hand-wringing, 'oh we are so sorry but you are going to have to put up with
this' and 'we can't help it either, we are being told to do this by Europe'. I think that was the
attitude, but perhaps somebody in the government can correct me, maybe that was not the
way they see the directive at all and maybe I got bad information, but if that is in any sense
the case, I think that preconditioned a response, especially on the part of farmers who say
'wait a minute, this is something bad for us', whereas I think it should have been presented as
something that could serve the interests of the local community and of environmentalists.

It's terribly sad that environmentalists have been pitted against farming people and
communities which is exactly the opposite of what I would like to see.

The European Commission has been talking for ages about the need for a new directive
involving penalties for ecological damage including damage to habitats. I don't know where
that is, I don't know if it's ever going to come about, but obviously that would need to come
together with the habitats directive to make enforcement of the habitats directive meaningful.

The basic structure of the directive involved a list prepared by the member states of relevant
sites, this list was to have been sent to the Commission by 1995. In Ireland it's in a very
ambiguous state at the moment. This candidate list of European sites will be agreed with the
Commission, the Commission might request changes in the boundaries, but this is not terribly
clear.

As with the environmental impact assessment directive, if you can get the Commission to take
a case against a member state, the European Court of Justice, (as in the Wild Birds directive)
is going to say a lot of wonderful things about member state obligations. But you try, as a
citizen, to do something about a member state activities and the activities of the national
authorities in your own country and I doubt if you are going to get very far in the national
court, at least not in Ireland.

What is the situation in Ireland? There was a list transmitted, an initial list of habitats, special
priority habitats in April of 1997. However, in the meantime the national authority says 'well
wait a minute, that's just an indicative list, that's not our real list'. I find that people I have
talked with in the Commission are not clear about the Irish situation. I am certainly unclear
about the status of legal protection for that list.

Interestingly under the Irish implementing regulations, persons who do not like the fact that
their land or the land they are using, has been included on the list, can object, but only on
scientific grounds.

I am not clear as to whether these objections are being limited to scientific grounds, but it
seems to me that development interests are also desperately trying to get boundaries changed.

There is an appeals body being set up to deal with these problems, but my impression is that
the appeals body is not necessarily limited to people with bio-diversity and scientific
qualifications. How can this be? Legally does it make sense?

I will try to abbreviate my last few remarks on the habitat directive:

There is an obligation in the directive not only to maintain relevant sites, but to restore sites.
How do Parks and Wildlife people in this country feel about restoring sites, what are the plans
to restore sites?

Evidence of degradation of sites in Ireland, even when the activity ought to have been stopped
by the national authorities, seems to indicate an attempt to juggle with boundaries and I think
we may be seeing that in the Doonbeg Golf Course controversy, which is still unresolved.

About Doonbeg, as you probably know a massive golf course development has been proposed
for Doonbeg in County Clare. Shannon Development is supporting the development which is
attempting to access two and a half million pounds of European funding to be paid to a
company set up by American businessmen and the development (which is massive!) will be
partly on and partly adjacent to a very important sand dune system. Now, we are hearing
from the national authorities that it has been partly degraded. Partly degraded by sand
extraction which ought to have been stopped a long time ago. This site was on the list sent to
the European Commission in April 1997, now we hear that it isn't fully protected after all.

I am saying that there are many examples of this, people who work with bogs and lakes and
forests will tell you of many sad stories. I think this is all leading to bitterness and
divisiveness and I don't think that should be the case. I think part of this would be solved if
the courts would do their duty and fully enforce the directive, but I think the national
authorities ought to display an enthusiastic willingness to apply and enforce that which is
already provided for in the existing European legislative framework in relation to dimensions
of landscape.

Dr. Sara Dillon is a Lecturer in Law in NUI Dublin, a very active environmentalist, a
member of An Taisce, and Dublin City Planning Group.