Ireland will have to significantly strengthen its legislative protection of natural sites, following a ruling yesterday by the European Court of Justice.
The court found that the Republic, in transposing an EU directive into Irish law, had overstepped its discretionary powers by exempting small sites under 70 hectares from the requirement for environmental assessment before permission was given for new uses.
The ruling should mean a substantial increase in the number and sort of development projects requiring formal environmental assessment procedures.
The decision arises from a complaint by the European Commission to the EU's Luxembourg-based court in 1996 following extensive correspondence with Dublin, and it confirms the non-binding opinion given last December by the Advocate General of the Court, Mr Antonio la Pergola.
The latter accepted evidence from the Commission of significant damage to the Burren, to some 60,000 hectares of land over-grazed by sheep, and to potentially irreversible damage to bogs and waterways through conifer afforestation, drainage and peat extraction. The damage to Lough Conn, Dunragh Loughs, the Pettigo plateau and the Ballyduff-Clonfinane bog in Co Tipperary were specifically cited.
In each case the Commission contended that developments such as intensive grazing should have been subject to prior assessment but had been exempt in Irish law.
Mr la Pergola accepted that scientific evidence of the detrimental effects on the environment of afforestation of peatlands was considerable, as was evidence of the effects of mechanised peat extraction on natural ecosystems.
"Such operations may constitute - according to the Commission, and I see no reason to disagree - one of the most serious threats to the integrity of the environment, particularly in the case of the peatlands at issue," he said in December.
The case arose from the requirement on all member-states to transpose EU directives, in this case a 1985 law on the assessment of the effects of public and private projects on the environment.
Specifically, the member-state is required to ensure that "before consent is given, projects likely to have a significant effect on the environment by virtue, inter alia, of their nature, scale or location be the subject of an assessment with regard to their effects."
These essentially concern three classes of project: use of uncultivated land or semi-natural areas for intensive agricultural purposes; initial afforestation or land reclamation; and peat extraction.
To give effect to the directive, the Government set thresholds below which assessments would not have to be made, thresholds so high, the Commission insists, they undermined the purpose of the regulation.
The Commission maintained that Ireland had failed to distinguish between areas which are of importance for nature conservation and areas which are not, and disregarded the fact that areas where conservation is important are often small in relation to the physical area of projects.
Likewise, the Commission alleged, the authorities did not take due account of the environmental damage projects may cause over time or of the cumulative effect of small projects in adjoining areas.
The Government argued that the Commission had failed to prove the damage that it claimed and that theoretical damage was not sufficient to make the use of such thresholds unlawful. It rejected the notion that sheep grazing constituted intensive agriculture and insisted that there was no evidence that afforestation on peatland has any significant detrimental effects.
The court found that the issue at stake was not the effect of the application of the Irish law but the way in which it had been transposed. The onus was not on the Commission to prove damage to the environment, but to show defective wording in legislation.
The crucial point, the court said, was that the member-states, in using their discretion in transposing the legislation, should not use only size of project as a criterion for a requirement for impact assessment. The nature and location of a project or the cumulative effects of several projects also had to be considered.
Costs were awarded against Ireland.
