An Bord Pleanála
Adequacy of EIS and compliance with EIA Directive, Project Splitting, and Cumulative impacts
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- Mr. O’Flanagan
Adequacy of EIS and compliance with EIA Directive, Project Splitting, and Cumulative impacts(20/04/07) The first to speak was Mr. Sweetman on behalf of Teresa Kavanagh This was a development by emanation of the State and Irish Law was not relevant. The European Law had Direct effect, and absolute precedence. Referring to a number of Europan Court cases (C81/96 , C 287/98, C41/92) he submitted that projects must be subject to appropriate EIS and meet absolutely the mandatory requirements. In particular the projects must go systematic assessment irrespective of whether separate or added or had links with previous development. In this case every development within the blue line irrespective of whether they were completed prior to 1988, required a complete EIA. In this case developments such as the construction compound or the car parks were not included in the EIS. The main alternatives relevant to the Directive were not included in the EIS. Impact on human beings had to be taken into consideration. As required (under Article 4), the likely significant impacts arising from existing projects had to be taken into consideration. In this case the existence of an airport, including car parks needed to be taken into consideration. An EIA of the whole airport development was required.
Engine testing of additional aircraft and the noise it would generate was not assessed. Land based transport demand as a result of the proposed development not just for passenger and staff but also servicing of the increased facilities was not assessed. There was need to put forward a unitary proposal so that all of the impacts including cumulative impacts could be assessed. While some individual proposals had EISs others did not. He concluded that there was a haphazard, piecemeal and illogical approach taken to development of the airport. This amounted to complete subversion of the EIA Directive requirements, which required that everything must be assessed. Mr. Hayden for Ryanair stated that the EIS presented T2 as a stand alone concept, and purposely did not address what was going on at the airport as a whole. We had just seen some of the development permitted at the airport in the last 9-12 months. All these permissions had increased the capacity of T1 to 4800 passengers per hour. The minutes presented by the DAA indicated this as acceptable level of service, and not as sub-standard. The EIS did not take into account of the effects of these developments. In particular the area 14 and extension to T1 had to be taken into account as they increased capacity. The proposed T2 and northern runway were inextricably linked. You could not get more people out without the runway, and you could not get more people out without the terminal. It has been said that because of the terminal constraints the number of flights were restricted to 31. As T2 has been proposed to cater for 28 take-offs this would mean T1 would only cater for 3 take offs. There were other developments such as MSCP which would clearly have impact. The P&W report of 2005 had informed the planning authority LAP. he drew attention to the conclusion on page 10 appendix A. this showed the overall development the DAA intended to do. Complete changes and extensions to pier A, B, additional pier F. All these should have been part of the EIS. Referring to the Gateway 2 document (paragraph 9.1), he submitted that DAA knew what the total project would look like but were presenting only a portion of it in order to indicate a reduced impact. Bussing operations in the morning was not mentioned anywhere in the EIS, they needed extra apron space to cater for the capacity required, but there was no mention of it. Paragraph 9.3.2 was fundamental and example of project splitting. To cater for 49 narrow bodied aircrafts extended pier B, pier E and pier F were required. The 94 000 m2 building could not operate without pier F. York Aviation had already stated that phase 2 could not work without additional apron space. Extension to T1 was indicated in the P&W study as a capacity enhancement measure not as a triangular shopping area as presented in this hearing. In paragraph 8.9 of the gateway 2 study they had referred to 20 million residual capacity in T1 and how the overall would go beyond 35 to 40 million. The overall aim was to expand the capacity beyond was presented in an incremental manner. Referring to pages 13,14, 15 of P&W study he reiterated that all these development was already planned as being necessary for the capacity enhancement but they were not included in the EIS. They could not get the gate capacity for T2 unless all these additional facilities were put in place. The cumulative impact of all needed to be examined, as they were not, this was project splitting. He referred to pier G sometimes referred to as pier F, which was precisely what Ryanair was proposing to build at the northern section. While they were not allowed to talk about CIP (capital investment programme) the study was referring to it in appendix D. Referring to aircraft stand demand NBE and WBE (narrow body and wide body equivalent) and various numbers provided by DAA in their report he concluded using their figures and ratios, the proposed development would cater for 47 million passengers. The EIS simply did not present assessment of that ultimate figure. There was clear project splitting though incremental development. They knew what was going to happen, but was not putting it before the hearing. Mr. Harley (UPROAR) stated that he was not going to repeat what was said before. This was not a case of pure project splitting so that non of the individual projects are large enough to require an EIS, but a more subtle version of the same as there was a failure to identify the entire project. Rather, separate applications were being made by the same body, in the same location, and in quick succession. There was a general requirement to examine cumulative impacts altogether. He referred to the court case Arklow holdings v An Board Pleánala, and more importantly European Court case C227/01 where Spanish government had subdivided a railway project to 13.2 km long sections, where the European Court ruled that such an approach would compromise the effectiveness of the Directive. Mr. Byrne was looking at it from a lay person’s point of view. He did not know the legal consequences, but this was clearly project splitting. There were so many applications one after the other, some overlapping. This had clearly frustrated the community’s ability to keep up with all, and engage relevant consultants to understand and respond to different aspects. Especially in the runway appeal they were not allowed to discuss traffic and were told that the runway itself would not generate traffic on the road. They were critical of the role of the FCC as the guardian of the community. It must be obvious to them that there was a lot going on and this was project splitting. They needed to ask for an overall assessment. They could only conclude that this was not done so either because of incompetence or there was acquiescence to allow this to happen. Mr. O’Flanagan (Counsel for the Planning Authority) stated that as a matter of Law he deemed the EIS to be adequate. Under EIA there was a fundamental obligation that public consultation is carried out prior to decision making. The overriding issue was the public consultation, identification of main environmental effects and mitigation measures before the decision maker makes the decision. All the case law in relation to avoidance primarily concentrated on lack of public discussion prior to such a decision. Turning to domestic law he argued that while Mr. Hayden had eloquently expressed his concerns regarding capacity before the Board. His (Mr. Flanagan) assessment of the adequacy of the EIS was predicated on the ‘up to 35 million’ figure identified in the application before the Board and put forward by the developer. In making their decision and imposing conditions (which were in effect mitigation measures either proposed by the developer and refined by them or imposed by them) their concern was that the significant adverse effects on the environment of a throughput of 35 million people have been adequately assessed. Their main focus was what would happen if you put 35 million people in the eastern campus. With regard to individual piers etc which may happen two years down the line, the case law was that you did not look at each and very effect but to the significant effects (wood for the trees). He continued: “as a matter of Irish Law, lets not loose the plot regarding cumulative effects”. The obligation to provide an EIS and the mandatory information to be contained in the EIS was provided under article 94 of the Regs and not under Schedule 6. The paragraph 1 of schedule 6 referred to mandatory information while paragraph 2 of Schedule 6 required in to be provided on a qualified basis having regard to current knowledge and methods of assessment. In this regard information regarding cumulative impacts came under paragraph 2 where amplification by way of qualification and clarification of mandatory information was required. They took the view that the mandatory information was adequately set out in the EIS and there was adequate amplification. The developer had looked at cumulative impacts of putting through 35 million passengers. In his view physical aspects were not the test of cumulative impacts. The fundamental objective for the planning authority and for An Board Pleánala was to identify significant environmental impacts and more importantly for the consenting authority what it considers to be mitigation measures appropriate for the development before it. These were now all ventilated before the hearing and he leave it up to Board to ventilate and seek the information so that if they are satisfied with the proposal appropriate conditions are imposed. He differed from the others in that he considered EIS to be an appropriate start of the process, not the start and end of it. They had not sought further information partly because the LAP had identified environmental issues at macro level. In relation to water issues they had asked further information in the case of the runway appeal. Same mitigation measures applied in this case. Physicality of the development itself was not the sole function of the EIS or decision making. They had a full understanding of the area as there were significant amount of development. He drew attention to Article 111 of the Planning and Development Regulations, 2001 which required the Board to consider the adequacy of the EIS and seek further information if necessary. The Board was not precluded from seeking further information afterwards or during hearing. The fundamental issue was that they were ventilated in advance of the decision making, and that the inspector and ultimately the Board was satisfied with the adequacy of the information. They were happy that all the issues were being ventilated at this hearing. In his view adequacy of the EIS was not a guillotine. The views of the third parties needed to be heard. The case law had established that EIS must form an appropriate basis for the process. At this junction EIS was a template for discussion, thorough ventilation of issues. Mr O’Donnel (Counsel for the DAA) started by stating that he did not understand Mr. Hayden’s submission as there was no reference to the Directive, to Irish Law or to the EIS. The concept of project splitting clearly outlined in Yvonne Scannell’s book referred to avoidance of obligation to prepare an EIS, which could not be the primary concern in this case. In this case the primary concern was that there were two separate applications for the runway and the terminal, but both were accompanied by an EIS. Therefore the issue of project splitting did not arise either as matter of fact or law. Secondly Mr. Flanagan was quite correct to distinguish obligations under Irish Law. The Irish legislative scheme required EIS to be prepared to comply with Schedule 6 of the 2001 Regs. There was no equivalent under the Directive to prepare a statement. Therefore the adequacy of the EIS must be judged under Irish Law. He had to agree with Mr. Flanagan that it was a starting point for the process. The critical issues was that EIA proceeds from that point. In this case the assessment was carried out first by the planning authority then by the An Board Pleánala. In the case of Arklow Holidays v An Board Pleánala Mr. Justice Clark had ruled that EIA was a process. What was relevant was that. In that case the EIS had not addressed a number of critical issues, but the defects were cured by being raised indirectly at the hearing, and considered and assessed during the process. So Mr. Flanagan was correct in stating that the process was critical. Yvonne Scannell in her book (2006) referred to a number of cases and eligibility for EIS and fragmentation. In a German case where the road was split into parts the European court had ruled that it was perfectly acceptable to provided assessment of different segments of the road project. The Board had adopted a similar approach in previous cases. Therefore there was precedence at both levels. In this case T2, associated site development, direct and indirect effects were identified in the EIS, and cumulative impacts have been clearly considered. The entirety of the project was predicated on the basis of 35 million throughput. The EIS had identified all relevant issues such as traffic, surface water, air emissions etc which would be discussed in detail later in the process. The applicant had embraced the process as an opportunity to provide information, which has already been discussed in detail, criticised and praised. Nobody was unaware of the context in which the application was being considered. This was a process for testing it. An Board Pleánala had the final word in determining the adequacy of the process. In their view both requirements of both the Irish legislation and the Directive have been complied with. 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