European court ruling may force change in planning laws


THE GOVERNMENT could be forced to amend planning laws following a landmark ruling by Europe’s highest court that found its existing rules fail to protect the environment.

The European Court of Justice in Luxembourg yesterday found that weak Irish planning legislation was responsible for the major landslide at Derrybrien, Co Galway, in 2003 that killed 50,000 fish and badly scarred a peat landscape.

It also ruled that a failure to mandate environmental impact assessments before projects begin and a commonly used planning mechanism to grant retention for projects with no planning permission, break EU law.

The ruling by the European Court of Justice dealt with a specific complaint lodged by the European Commission over Ireland’s failure to carry out a proper environmental impact assessment at the wind farm project at Derrybrien. It also considered a wider complaint from Brussels that the Government’s existing planning rules, regarding impact assessments and retention permission, fail to protect the environment adequately.

Yesterday environmental campaigners in a range of cases said the judgment would refer to the development of a large number of quarries across the State, as well as pig-rearing, peat-extraction and wood-processing enterprises; a hotel in Co Kildare, which received retention permission only after it was built, and a convention centre in west Dublin, where work began without proper planning approval.

Noel O’Connor, a senior executive with the Construction Industry Federation, said the ruling was being studied by his members and the federation executive.

In an initial reaction, he said he believed the ruling appeared to relate only to cases of retention. He said builders’ approaches to environmental impact assessments had changed significantly since Derrybrien, and so the impact may not be widespread.

There was an issue about retention “where restoring a site might not be the best solution” to a problem. In some cases, an application for retention was lodged because it was in the best interests of the site, he said, adding that each project was complex with a different set of circumstances.

Ian Lumley of An Taisce said there was now a significant issue about environmental impact assessment in relation to infrastructure which should be addressed by An Bord Pleanála.

“I am concerned it is ongoing,” he said, adding that residents’ groups and community associations across the State may apply to the courts to have planning decisions rescinded and, if appropriate, have compensation made.

The court dismissed arguments advanced by the Government last year that poor construction work by the contractor was to blame for the incident and the size of the wind farm meant an environmental impact assessment was not required.

In its ruling, the court noted that the installation of 46 wind turbines, which at the time represented Ireland’s largest wind farm and was one of the biggest in Europe, required an environmental impact assessment under EU law.

The European Commission cited several examples where no environmental assessment had been carried out before construction work began, or where a developer was granted retention permission after starting work without any planning permission.

The “common” use of retention permission may have the effect of “encouraging developers to forgo ascertaining whether intended projects satisfy” EU law. The court ordered Ireland to pay case costs.

If the Government does not amend its legislation to comply with the court’s ruling, the commission could apply to the European Court of Justice to have hefty fines levied on the State.