Energy, Environment and Planning Report Card

February 2016 39

Energy, Environment

and Planning

Report Card

by Michel Smih

he environment isn’t a vested inter-

est so it doesn’t rate in Ireland. Enda

Kenny argues for Irish exceptional-

ism on climate change and prevailed

in Europe which has now recognised

the special position of Irish agriculture in Euro-

pean climate-change policy. We’re not and we

do not deserve to get any exemptions at all.

We’re a wealthy country that emits twice as

much Green House Gas (GHG) emissions as for

example the Swedish, per head. If cattle

farming is noxious, the world needs to stop it,

not allow more of it to happen in Ireland which

does it marginally less noxiously than most

others.

The number of wild animals on Earth – ver-

tebrates - has halved in the past 40 years, yet

Ireland pursues food-production targets that

will devastate our wildlife.

The Department of the Environment isn’t too

keen on environmentalism so the new planning

bills are inert, any new national spatial

strategy will be toothless, there is no chance

of a binding Climate Change Act or the eleva-

tion of quality of life over GDP growth as the

benchmark of ireland’s success.

Most of all Ireland’s planning and environ-

mental regime remains discretionary and

unenforced, characterised by the use of terms

like “may: rather than “shall” and “shall have

regard to” rather than “shall be in compliance

with”. Our heart isn’t in it.

Energy

“We will legislate to support the geothermal energy

sector”.

There has been no legislation, so the only geothermal exploration company in Ireland, GT, has stopped

investing in Ireland, and moved to Manchester. GT says that 70-90 degree-centigrade-type reservoirs

occur across Ireland and are perfect for the purposes of district heating.

Patchy progress on bringing more renewable energy onto grid, stymied by rural backlash against both

turbines and pylons. No meaningful progress on ‘community energy’ approach so successful in Den-

mark, Germany.

Marine Energy

"We will provide efﬁcient foreshore licensing and leas-

ing process for marine energy".

The Maritime Area and Foreshore (Amendment) Bill 2013 aims to align the foreshore consent process

with the onshore planning system but has not been commenced.

Wind Farms

“We will ensure that future wind farms are built in

locations where wind regime is best and that they are

built in large numbers or in clusters to reduce cost of

connection to grid under new ‘plan-led’ Gate 4 pro-

cess, as opposed to the existing ‘developer led’

system”.

The Gate 4 process of allocating windfarm capacity multiannually is underway after many delays.

Environment Minister Alan Kelly's as yet unpublished guidelines would increase them minimum dis-

tance between wind turbines and towns and villages so resulting in the "end of onshore wind",

according to his Cabinet and party colleague Alex White who said proposals to introduce a set-back

distance of 1km would put jobs at risk and jeopardise the country's renewable-energy targets, in view

of the number of one-off houses countrywide.

Offshore Drilling

"We will incentivise and promote off-shore drilling and

streamline planning and regulatory processes for

bringing ashore these reserves and seek to maximise

the return to the Irish people".

The Finance Act 2015 provides for a Petroleum Production Tax with an increase in the maximum mar-

ginal tax take on a producing ﬁeld (combining corporation tax and petroleum production tax) from 40%

to 55%. However, investment in marginal drilling locations has collapsed with the price of oil.

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"D"

"two foolish Ministers for

the Environment merely

went throught the motions"

40 February 2016

Water

"We will create a new State company, Irish Water to

take over the water investment maintenance pro-

grammes of the 34 existing local authorities".

After a botched launch and numerous PR ﬁascos, Irish Water, mired in controversy, staggers on the

brink of insolvency. Incentive to conserve water, via pay-as-you-use metering, has disappeared.

Sustainable Waste Policy

"We will develop a national waste policy that will

adhere to the EU waste hierarchy and favours a coher-

ent approach to waste management that minimises

waste going to landﬁll, and that maximises the

resources that can be recovered from it".

National policy on waste management is set out in ‘A Resource Opportunity,’ published in July 2012

but it is unambitious compared to the 1998 policy, ‘Changing our Ways’. The EU waste hierarch of mini-

mize, reuse, reduce, recycle, recover and dispose has become code for allowing incineration.

Dublin’s €600m Poolbeg Incinerator is set to come into operation by the end of 2017 – almost two dec-

ades after it was ﬁrst earmarked for a Sandymount site.

The project will see the construction of a facility that has the capacity to burn 600,000 tonnes of waste

per year, much of which would be diverted from recycling.

Waste management plans for the three new regions of Southern, Eastern-Midlands and Connacht-

Ulster were published in May 2015.

Waste Reduction Programme

“We will drive a waste reduction programme through

extension of producer responsibility initiatives and a

levy on packaging after appropriate consultation with

industry”.

In 2013 then Environment Minister, Phil Hogan, said he would not be introducing any packaging levy as

it would be “likely to generate a number of costs – to the legislative process, to public administration,

to business – with few identiﬁable additional environmental beneﬁts”.

In Ireland, we generate nearly 20 million tonnes of waste each year, of which 1 million tonnes is food

waste. Much of this waste is preventable, reusable, repairable or recyclable. The EU is issuing new

guidelines and recycling targets for all Member States looking for 70% recycling level for all municipal

waste by 2030.

Environmental Crime

“We will clamp down on environmental crime, such as

illegal dumping and grafﬁti and noise pollution by

allowing for on the spot ﬁnes, and providing for medi-

ation between neighbours”.

The government established new waste enforcement structures at regional and national level and

introduced range of on the spot ﬁnes for offences under the Waste Management Acts.

Aarhus Convention

“We will complete ratiﬁcation of the Aarhus Conven-

tion on access to information, public participation in

decision-making and access to justice in environmen-

tal matters”.

The Aarhus Convention is an ambitious agreement providing a means of democratic participation in

environmental matters. Ireland did not ratify the Convention until 2012, some 14 years after it was

adopted.

The ﬁrst two strands have not been legislated for: the right of everyone to receive environmental infor-

mation that is held by public authorities within one month of the request, to say why it is required; and

the right to participate in environmental decision-making.

The third has been badly implemented: Ireland has altered the legal-costs rules from the prevailing

English Rule (losing litigant pays winner’s costs) to the American Rule (each side pays their own costs)

for legal actions that relate to an EU directive implementing certain Aarhus compliance measures.

Ostensibly, the special costs regime (SCR) means that a party could at least represent herself, without

being threatened with a huge adverse legal costs bill, if she failed in her legal action. However, there is

a Catch 22 in the SCR. To determine that a civil action falls under the ambit of the SCR, the applicant

must risk an adverse legal costs award in making the application for such a declaration. The High Court

said this “acts in such a way as to nullify the State’s efforts to comply with its obligation to ensure that

costs in certain planning matters are not prohibitive”.

Biodiversity

There is no reference to biodiversity (species protec-

tion) in the Programme for Government.

Targets under the Department of Agriculture’s Food Harvest 2020 will contribute dramatically to spe-

cies loss and have not even been strategically assessed.

The wildlife-unfriendly Heritage [sic] Bill 2015 provides for managed hedge-cutting in August and con-

trolled burning in March, for the ﬁrst time.

Site Valuation Tax

"The government will consider introduction of a site

valuation tax"

The government is not to pursue the much-lauded and fasionable site-value tax though it might con-

duce to orderly development.

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Energy, Environment and Planning Report Card

2016 ELECTION

February 2016 41

Peat

"We will allow an exemption for domestic turf cutting

on 75 National Heritage Area sites subject to the intro-

duction of agreed national code of environmental

practices".

These NHAs, of national signiﬁcance, are being sacriﬁced as peat-extraction sites without reference to

the biodiversity, landscape and climate implications.

"We will establish an independent mediation between

all relevant stakeholders with speciﬁc objective of

facilitating resolution to 55 Special Area of Conserva-

tion designated bogs.

We will establish an independent mediation to resolve

outstanding issues associated with turf cutting on

blanket bogs".

The cross-sectoral Peatlands Council is paying displaced turfcutter claimants up to €1500 or moving

them to less sensitive boglands.

99% of the actively growing raised bog in Ireland has gone, with one third of the remaining 1% lost in

the last 10 years As to private turf cutting, which involves tens of thousands of individuals in 128 desig-

nated sites around the country, the government introduced the “Cessation of Turf Cutting Scheme” in

1999. Under the voluntary scheme, domestic cutters were given 10 years notice to cease cutting turf

and make new arrangements for their fuel supply. The 10 years notice or derogation applied to 32

raised bog SACs designated in 1999, with cessation of turf cutting in 2009.

Planning

"We will seek to better coordinate national, regional

and local planning laws in order to achieve better and

more coordinated development that supports local

communities instead of the current system that

favours developer led planning".

"We will improve local transport access by making

local transport plans an integral part of local Develop-

ment Plans. We will force all local authorities to

develop a transport plan in conjunction with their

County/City Development Plans, and Local Areas

Plans".

"We will make the planning process more democratic

by amending the 2010 Planning and Development Act

to allow for detailed public submissions on zoning,

and to rebalance power towards elected

representatives".

"We will abolish the position of County Manager and

replace it with that of Chief Executive, with a limited

range of executive functions. The primary function of

the Chief Executive will be to facilitate the implemen-

tation of democratically decided policy".

"A democratically-decided Regional or City Plan will

replace the present top-down Strategic Planning

Guideline model".

"We will give councillors a legal power to seek reports

from, and question in public, all providers of public

services in their area. And we will also empower them

to question private sector service Providers".

"New Chief Executive positions have been established

to replace the roles of City and County Manager and

there has been a feeble rebalancing of powers

between elected councillors and management. There

remains no sign of elected mayors".

Flooding

Local authorities will be required to carry out a ﬂood

risk report in the preparation of their City and County

Development Plans, and will also be legally required

to manage ﬂood risk through sustainable planning

and development.

Ireland will miss the deadline for lodging plans with the European Commission on how to best prevent

ﬂooding and manage areas when they are ﬂooded.

The OPW, responsible for drawing them up, said they will be ﬁnalised in 2016, but they should have

been completed in December 2015 and submitted by March 2016.

By 2016 the government was talking about

“Planning Legislation to Support the Construc-

tion Sector”:

The Urban Regeneration and Housing Act 2015

introduced a number of reforms in relation to Part

V (housing supply) regulations, the dubious ret-

rospective application of reduced development

contributions and the introduction of a vacant

site levy, which together are aimed at putting in

place structural reforms that will support an

increase in the output of housing to meet needs.

Updated statutory Planning Guidelines on Apart-

ment Standards, issued by the Minister for the

Environment under Section 28 of the Planning

Act in December 2015 will boost supply of new

apartments in city centre locations by pandering

to CIF lobbyings to reduce minimum sizes to 45

square metres for one-bedroom apartments.

Three Regional Assemblies have been estab-

lished in place of 10 previous regional structures

to prepare (nebulous) new Regional Spatial and

Economic Strategies.

New Local Community Development Committees

have been established to ensure a more coherent

and integrated approach to local and community

development.

There is no apparent intention to coordinate

National Transport and Planning policies.

The very belated Planning and Development

(Amendment) (No 2) Bill 2015, which had no

chance of being implemented under the current

Government, will implement some of the recom-

mendations from the ﬁnal report of the Mahon

Tribunal. It will provide for the creation of an

independent Ofﬁce of the Planning Regulator "to

maintain a constant watch over the general sys-

tems and procedures employed by planning

authorities including An Bord Pleanála though it

is not clear whether the independence extends to

being allowed to mandate changes to regional

and local plans if the Environment Department

objects. It will provide for a new National Plan-

ning Framework, which will succeed the 2002

National Spatial Strategy and will be published in

draft form later in 2016.

The current Government announced the scrap-

ping of the National Spatial Strategy in February

2013 citing implementation failures and has yet

to replace it with a promised new Strategy for

Development in Ireland.

Rory Mulcahy SC is to look into allegations of

planning corruption in Donegal made by former

senior planner, Gerard Convie. The terms of ref-

erence for a ‘review report’ allow the Minister not

to publish its ﬁndings, and itt is not clear if it will

address impropriety or just ‘bad practice’’

Minister Alan Kelly rescinded the 80% tax on

Windfall Proﬁts from Land Rezoning.

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