National Directorate for Fire and Emergency Management Guide to Works and Development Consents for Repairing Infrastructure Damaged in Storms or other Emergency Events Document Title Guide to Works and Development Consents for Repairing Infrastructure Damaged in Storms or other Emergency Events Document Version: 1.4 Date 28/02/14 Prepared By: Document Status NC/ CO R Final Draft Approved for Issue: SH Date 4/3/2014 1
GUIDE TO WORKS AND DEVELOPMENT CONSENTS FOR REPAIRING INFRASTRUCTURE DAMAGED IN STORMS OR OTHER EMERGENCY EVENTS FEBRUARY 2013 Introduction The storms over the winter of 2013/14 had a seriously damaging effect on a range of infrastructure including: Roads and bridges; Piers and harbours; Seaside amenity areas; and Coastal defences and embankments. The Government has committed substantial aid in funds to enable local authorities and other public bodies in moving swiftly to repair the damage and enable local areas and communities to get back to normal. This Guide has been prepared with the inputs of relevant Government Departments and Offices to provide information on how necessary repair works can proceed in a way that takes account of legal requirements in relation to planning, watercourse management and biodiversity protection. This Guide has been prepared as a general overview and not as detailed legal advice. It is issued as a working draft and may be updated through feedback to the National Directorate for Fire and Emergency Management. Through the National Co-ordination Group on Severe Weather, the relevant Departments including the Department of the Environment, Community and Local Government, the Department of Arts, Heritage and the Gaeltacht, the Department of Transport, Tourism and Sport, the Department of Agriculture, Food and the Marine and the Office of Public Works have come together to provide advice in relation to the co-ordination of repair works and to ensure that people, property and nature are all protected in those repair efforts and in compliance with all legal requirements. The Department of Environment, Community and Local Government wishes to acknowledge the contribution of the relevant Departments and Offices to the production of this Guide. Emergency Works In broad terms, any emergency repair to damaged public infrastructure such as roads and bridges, car parks, piers and harbours and coastal defences on a like for like basis can and should proceed in line with legislative provisions that have been made for such situations. Emergency works are time-critical works that are necessary for dealing urgently with a situation which the relevant county/city Manager considers is an emergency situation calling for immediate action. Local authorities will be aware that under Section 179(6) of the Planning and Development Act 2000 as amended, the requirements under Part XI relating to development by local authorities do not 2
apply in respect of proposed development which is necessary for dealing urgently with any situation which the Manager considers is an emergency situation calling for immediate action. At the same time, the critical nature of these works should not prevent public authorities from keeping a documentary record of the relevant legislative provisions that they understand authorise the works. Having such a documentary record is considered important should any query or legal challenge arise afterwards regarding actions taken and the vires (legal powers) of a local authority to undertake them. Relevant provisions from the Planning and Development Act 2000 that authorise an array of statutory and non-statutory undertakers as amended are summarised in Appendix 1 to this Guide. Public authorities proposing to undertake or authorise emergency repair works need to form a view as to whether such works are likely to have significant effects on the environment. The nature of the works decided upon and the manner in which they are undertaken will often permit such effects to be avoided or mitigated. In some cases, expert advice may be required. The Department of Arts, Heritage and the Gaeltacht s National Parks and Wildlife Service will endeavour, within its resources, to provide appropriate ecological advice to local authorities in this situation. General Repair Where general repairs to infrastructure damaged in the storms are necessary, these are permitted where the repairs seek to restore the infrastructure to the condition it was in, before it was damaged. However, it is important to remember that if such repairs significantly alter the nature and/or extent of the infrastructure that was there in the first place, then relevant consents may require to be obtained. This is particularly important in those instances where it is proposed to put in place more extensive hard engineering coastal defences to protect the infrastructure to be repaired, and where significant in-stream works are proposed in repairing a bridge or other infrastructure in or adjoining a river. Within the overall and necessary repair efforts, it is vitally important that works achieve the desired outcome and avoid creating new problems for land and property owners elsewhere, or contaminating or causing siltation of sensitive waters and the aquatic habitats of sensitive species, notably salmon and the freshwater pearl mussel. In the marine context, shorelines absorb wave energy through a variety of means including the redistribution of sediment. Interference with these natural dynamic processes (by attempting to slow down or stop them) can sometimes exacerbate erosion elsewhere in subsequent storm events. Therefore, while the natural inclination is to immediately repair any damage that may be caused by storm events, this may not be necessarily the most effective option, and so careful analysis leading to the selection of the best option is essential in responding to erosional events. New coastal defence works are not considered to be part of repair or emergency works as they will require detailed study and assessment to determine that they will achieve the intended goal and that any potential negative outcomes will be identified and mitigated. 3
The photograph above shows an instance of ad-hoc works that go beyond the nature and scope of the pre-existing, but now damaged, coastal protection infrastructure. Works of this nature are liable to result in further damage, including the acceleration of coastal erosion elsewhere. Issues of illegal dumping may also arise. To avoid well-intentioned but ultimately counter-productive interventions where homes and other private structures are under genuine threat, local authorities should monitor areas where such interventions might be likely and to work proactively with property owners giving advice on the most appropriate steps and relevant consent requirements. New Works Unfortunately, in some cases the storm damage to infrastructure such as coastal roads and footpaths, car parks, amenity areas and burial grounds has been so severe that they and the lands on which they stood were completely obliterated, damaged beyond repair or buried under significant amounts of shingle and sediment. In these cases, it may be some time before works can be undertaken to replace the lost infrastructure. Replacement of lost infrastructure requires careful evaluation with regard to the feasibility of its restoration, including the feasibility of re-locating the relevant facilities to a safer location in view of the possible recurrence of, and susceptibility of alternative sites to, future similarly severe storm events. In these cases, specific development consents will be required because they will probably involve land acquisition and also require new infrastructure projects such as in the case of relocation of a road further inland. Their potential impact on the environment, including on European sites, will require to be assessed as necessary. Biodiversity and European law Some of our coastal areas, rivers and streams are particularly sensitive and are within or near sites that have been selected for designation as Special Areas of Conservation (SACs) or Special Protection Areas (SPAs). Details of these areas can be found at www.npws.ie. 4
Many of these sites have experienced extensive changes as a consequence of the recent storm and flooding events. Because these changes are the result of natural, if extreme, processes, ecological evaluation over time of the resultant changes is necessary. Even where there has been apparent loss of habitats (such as mobile dunes) or species, that evaluation will be necessary to inform the management and regulation of interventions affecting sites so as not to jeopardise natural processes of succession and recovery, in the light of the sites conservation objectives. In some such areas, flooding of farmland or amenity lands has occurred as a result of exceptionally high groundwater levels and inundation from the sea; this is expected to resolve itself as water tables return to their normal levels, and it is unlikely that any immediate works would be necessary or appropriate. In some sites, removal of soil, mud, gravel, sand or minerals on a site may be an activity that requires NPWS consent. Local authorities should advise landowners and farmers that they should discuss proposed works with their local NPWS representatives before engaging in any significant works in, or that may affect, European sites, including notifiable actions such as in-stream works. Generally, the removal of debris such as recently-fallen trees that are impeding flow and causing localised flooding should not be a problem but it is recommended to check with NPWS for advice before works commence. Proposals for in-stream works such as dredging or channel modification that alter the flow of water permanently will normally require more detailed assessments from an environmental and or biodiversity/habitat perspective because of the potential impact of such works on protected habitats or species. Where EIA or AA is required, planning consent will be necessary. Landowners in European sites have been notified of the requirement to obtain the consent of the Minister for Arts, Heritage and the Gaeltacht before undertaking certain works. This is generally achieved through contacting their local NPWS official. NPWS will endeavour to deal with such requests promptly. Arterial Drainage Works The OPW will be liaising closely with local authorities in relation to the performance of various rivers and watercourses in the recent floods. Local authorities have drawn up existing river basin catchment management plans. The OPW has developed a Catchment Flood Risk Assessment and Management (CFRAM) Programme, which is being delivered through the CFRAM Studies. The CFRAM Studies are comprehensive catchmentbased studies through which detailed flood maps are produced and flood risk management measures are assessed and taken to outline design. These measures will be prioritised and set out in a Flood Risk Management Plan (FRMP). The Local Authorities and the OPW are working together on the preparation of these flood risk management plans. In line with the National Flood Policy Review, the OPW is the lead authority in relation to the national programme for flood defences and also operates the Minor Works Scheme, whereby the OPW can provide funds to Local Authorities to undertake flood relief works (including channel clearance, where appropriate) to reduce flood risk. The national flood protection works programme, and the minor works scheme are focused on 5
reducing flood risk and are subject to the normal planning and environmental consents requirements. Further Information Any further queries in relation to this note should be directed, as appropriate, to: Planning Section, Department of the Environment Community and Local Government Custom House Dublin 1, Tel (01) 8882000; National Parks and Wildlife Service, Department of Arts Heritage and the Gaeltacht, Ely Place Dublin 2, Tel (01) 8882000 Office of Public Works Areterial Drainage Section, Hatch Street Dublin 2, Tel (046) 9426000 Feedback on the Guide should be addressed to the National Directorate for Fire and Emergency Management, Department of the Environment Community and Local Government Custom House Dublin 1, Tel (01) 8882000; 6
Appendix 1: Relevant Provisions of the Planning and Development Act 2000, as amended and Relevant Regulations made thereunder. (subject to corrections and update) Planning Legislation Relevant to Storm/Flood Damage Repair Measures and Reconstruction Exempted Developments General Planning legislation provides exemption from the requirement to apply for planning permission for local authorities, statutory bodies, statutory undertakers and private citizens and landowners in some measure across a broad spectrum of types of development. Section 4 of the Planning and Development Act provides general exemption for certain developers with regard to particular types and classes of development set out in Regulations. Exempted Developments Local Authorities Section 4 of the Planning and Development Act provides general exemption for works carried out by local authorities with one notable caveat: where a development requires environmental impact assessment (in accordance with the EIA Directive) or appropriate assessment (in accordance with the Habitats Directive). Section 4 provides exemptions for construction, maintenance or improvement of roads; sewers, mains, pipes, cables, overhead wires or other apparatus and including the excavation of street or other land for that purpose subject to conditions and limitations set out in Regulations, and subject to restrictions that may be imposed by a planning authority under article 9 of Regulations. Section 179 of the Act provides that a local authority may carry out development in accordance with the relevant Regulations (contained in Part 8), either on its own behalf or by an undertaker acting on behalf of, or in partnership with the local authority in accordance with procedures set out for public consultation and approval by the elected members by resolution; however, 179(6)(b) provides that the procedures may not apply where development is necessary for dealing urgently with any situation which the manager considers is an emergency situation calling for immediate action. Local Authority Developments: EIA and AA Section 175 of the Act provides that works carried out by the local authorities or an undertaker acting on its behalf of a type, scale or intensity that exceed the thresholds set out in Schedule 5 of the Regulations require the preparation of an EIS. The authority or undertaker is required to make an application for approval to the Board. Prior to this, the authority or undertaker is required to advertise the fact that an EIS has been prepared, that it intends to seek approval from the Board, will notify a transboundary State where there is any likelihood of significant effects on that State, and will invite submissions to the Board regarding the proposed development. Similarly, section 177AE provides that where local authority works require Appropriate Assessment the authority or undertaker is required to make an application for consent to the Board. It should be noted that the agreed text of the draft recasting of the codified EIA Directive provides that: 7
Member States may decide, on a case-by-case basis and if so provided under national law, not to apply this Directive to projects, or parts of projects, having as their sole purpose defence or projects having as their sole purposes, the response to civil emergencies, if they deem that such application would have an adverse effect on these purposes. Exempted Developments Statutory Bodies/Undertakers While section 4 of the Act provides generally for exemptions for statutory bodies and undertakers acting on their behalf, the Regulations set out particular classes of development with conditions and limitations imposed. These include: Office of Public Works; The ESB or other electricity undertakers; Bord Gais; Telecoms undertakers under Class 31 of Part 1, Schedule 2 of Regulations; Waterways Ireland; and Harbour Authorities. Exempted Developments Landowners Exemptions exist for landowners for general agricultural works under section 4. Landowners may also be subject to conditions and limitations provided for by articles: 8 (works specified in a drainage scheme), 8A (initial afforestation), 8B (field drainage for agriculture), 8C (land reclamation works), 8D (removal of field boundaries), 8E (works in Special Amenity Areas), 8F (replanting of forests or woodlands), and 8G (forest roads). Exempted developments in a European nature site may require the consent of the Minister for Arts, Heritage and the Gaeltacht under Regulation 30 of the European Communities (Birds and Natural Habitats) Regulations 2011. Where the Minister determines that Appropriate Assessment is required in relation to an exempted development, the matter will be referred to the planning system and planning permission will be required. Protected Structures Under section 59, where protected structures are endangered the planning authority may issue notice for specified works to be carried out to restore the structure within a period of not less than 8 weeks of the issue of the notice. Such a notice may be appealed to the District Court. 8
Legislation Potentially Relevant to Various Repair Works Affected Body/Agent Roads Bridges Piers/Harbours Coastal/River Defences Dredging/clearance of waterways Buildings/Houses Works on Land Local Authority S.4 (1) Note s.4(4) re EIA S.179 Regs Part 8 Note s.4(4) S.179 Regs Part 8 S.175 S.176 Part XAB S.53 Act Fifth Sch Regs a.8 Note s.4(4) S.179 Regs Part 8 S.53 S.175 S.176 Part XAB Act Fifth Sch Note s.4(4) S.179 Regs Part 8 S.175 S.176 Part XAB Act Fifth Sch Sch2/P3/Class3 Note s.4(4) S.179 Regs Part 8 S.175 S.176 Part XAB Act Fifth Sch Note s.4(4) S.58 S.59 S.79 S.252 Sch2/P1/Class50 Note s.4(4) S.252 Sch2/P1/Class36 /40/41/46/47/4 8 Sch2/P3/Class3 OPW Regs Part 9 Sch2/P1/Class51 Regs Part 9 Sch2/P1/Class5 1 Regs Part 9 Sch2/P1/Class5 1 Regs Part 9 Sch2/P1/Classes35/5 1 Regs Part 9 Sch2/P1/Classes35/5 1 Regs Part 9 Regs Part 9 Sch2/P1/Classes 36/51 9
Landowner S.58 S.59 S.79 S.7 S.4 Regs a.8/8a/8b/ 8C/8D/8E/8F/8G /9 Sch 2/P1/Class34 Sch2/P3/Classes 3/11/17/20 ESB Sch2/P1/Class26/ 27/28/29 Sch2/P1/Class 26/27/28/29 Sch2/P1/Class 26/27/28/29 Sch2/P1/Class 26/27/28/29 Sch2/P1/Class 26/27/28/29 Bord Gais Sch2/P1/Class25 Sch2/P2/Class 25 Sch2/P1/Class25 Sch2/P1/Class25 10
Telecoms undertaker Sch2/P1/Class31 Sch2/P1/Class31 Waterways Ireland Sch2/P2/Class35 Sch2/P2/Class35 Education Regs Part 9 S.4 (ref. Regs Sch 2/P1/Classes 20B/20C/57) Railway undertaker Sch2/P1/Class 23 Harbour Authorities Sch2/P1/Class 24 EPA S.7 Sch2/P1/Class46 /47 11
Dept. of Arts, Heritage and the Gaeltacht (NPWS) S.I. No. 477 of 2011, Reg. 27, 28, 29, 30, 42, 43 and 44. S.I. No. 477 of 2011, Reg. 27, 28, 29, 30, 42, 43 and 44. S.I. No. 477 of 2011, Reg. 27, 28, 29, 30, 42, 43 and 44 (where it is an exempted category of development and likely to require only a Notifiable Action consent or consent to an Activity Requiring Consent under the Regulations). 1 S.I. No. 477 of 2011, Reg. 27, 28, 29, 30, 42, 43 and 44. S.I. No. 477 of 2011, Reg. 27, 28, 29, 30, 42, 43 and 44. 1 An exempted development or an on-farm development that requires ARCs or Notifiable Activities consent is considered by D/AHG (NPWS) staff, and if it is determined that either EIA or Appropriate Assessment is required, then planning permission or the consent of the Minister for Agriculture, Food and the Marine must be sought if it is proposed to proceed with the works. Otherwise NPWS will provide consent for the proposed works. 12
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