Legislation, the Protector of the Irish Landscape?
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."
I would specially like to thank Terry for once again giving people
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.
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
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
I have written about that elsewhere in the past.
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
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
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
So this leaves
landscape in a very ambiguous position within the European legal
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
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
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
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,)
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.
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
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
After the Lancefort
decision in which you probably know I was involved as a legal advisor
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
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,
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
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,
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
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
As I said these
likely effects, identified in architectural or archaeological heritage
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 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
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
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.
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
The E.I.A. process
seems to have worked rather well in regard to some controversial
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
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
directive was supposed to create a coherent ecological network for
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.
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
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.
sad that environmentalists have been pitted against farming people
communities which is exactly the opposite of what I would like to
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
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
As with the
environmental impact assessment directive, if you can get the Commission
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.
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
I am not clear
as to whether these objections are being limited to scientific grounds,
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
the appeals body is not necessarily limited to people with bio-diversity
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?
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.
as you probably know a massive golf course development has been
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
Dr. Sara Dillon
is a Lecturer in Law in NUI Dublin, a very active environmentalist,
member of An Taisce, and Dublin City Planning Group.
visionaries of the new urban colossus assume that the natural
well as human populations, should be subdued and managed,
and that endless
development is sustainable. The Los Angeles river is cemented
mountain-sides are sub-divided, open space is redefined as
The Mall, and even
the beaches are artificial constructs of dredged sand. The
original beauty of the
place is reduced to background, a skyline here or a sunset
there, a view of the
natural landscape that once inspired natives and settlers
alike. An engineered
synthesis overtakes the natural order. In the inner city there
is nothing natural
left at all. The environment is seen as an external place,
which one visits on the
a centralised bureaucracy manages people and resources, the
loses any sense of neighbourhood or community with ties to
the land. With the
loss of nature and community there is inevitably a loss of
imagination, as well.
This culture or frenzied growth causes a spiritual emptiness
or stress. Los
Angeles generates many sensations, including ambition, pleasure,
greed, fear, and loathing, but is rarely mentioned as a great
intellectual centre (or a "city of angels").
'The Lost Gospel of the Earth'
A call for renewing nature, spirit and politics. Wolfhound,