Colleen Theron and Deirdre Lyons, from LexisPSL, on the ECJ decision to allow the Northern Ireland Department of the Environment to consult with the country's environment agency
The European Court of Justice (ECJ) has ruled that it is lawful, in principle, for Northern Ireland’s Department of the Environment (DOE) to consult with the Northern Ireland Environment Agency (NIEA) when preparing environmental assessments of its own land-use plans and programmes.
EU Directive 2001/42/EC, commonly known as the strategic environmental assessment (SEA) Directive, requires an environmental assessment to be carried out on certain plans and programmes that are likely to have a significant effect on the environment. The Directive was transposed into law in Northern Ireland by the Environmental Assessment of Plans and Programmes Regulations (NI) 2004, commonly known as the SEA Regulations.
In 2005, legal proceedings were brought by a number of parties, including Seaport (NI), Magherafelt District Council and FP McCann (Developments), who argued that the NIEA, as an agency of the DOE, could not give an independent assessment of the draft area development plans prepared by the DOE for the Northern and Magherafelt regions, and, therefore, could not fulfil the Directive’s requirements on SEAs. Basically, the SEA Regulations did not properly transpose the Directive.
The High Court judgment in 2007 stated that when the DOE is responsible for a development plan or programme, it cannot consult under the SEA Regulations too. It also said that the absence of appropriate timeframes in the Regulations meant they did not properly transpose the SEA Directive.
The DOE appealed and the Court of Appeal sought a preliminary ruling from the ECJ (case C-474/10). The ECJ stated that article 6(3) of the SEA Directive does not require another authority to be consulted, provided that within the authority designated as responsible for undertaking consultation on environmental matters, a functional separation is organised, so that “an administrative entity internal to it has real autonomy … meaning, in particular, that it is provided with administrative and human resources of its own and is thus in a position to fulfil the tasks entrusted to the authorities to be consulted”.
The ECJ ruling will now be forwarded to the Northern Ireland Court of Appeal for a final ruling.
Although the DOE has continued to progress a number of plans, including the Magherafelt, Northern and Belfast Metropolitan area plans towards adoption, it is hoped that the final ruling of the Court of Appeal will assist the department as it brings forward a range of plans to be adopted in the future.
