EU Infraction Proceedings Looming
08 June 2020
EU infraction proceedings against the UK now look more likely due to the
recent failings of Fermanagh and Omagh District Council Planning (FODC) in
respect of Cavanacaw goldmine. The EC's Pilot Case 7640/15/ENVI -
"Environmental Enforcement in Northern Ireland" is now only one
step away from proceedings being instigated, if the Department for Infrastructure
cannot convince Europe that it has addressed unauthorised environmental
impact assessment issues (EIA), as well as the issue of granting retrospective
permissions (mostly for quarries).
The recent Justice Humphries High Court judgment in
respect of my Cavanacaw Goldmine challenge emphasises how the FODC planning
system is still circumventing the EIA Directive, and will likely continue to do
so, in particular:
· 1. A lax approach to planning enforcement (criticised
by the judge) :
· 2. Planners' wide use of discretion as to whether
enforcement proceedings will be initiated:
· 3. Unauthorised developments allowed to become immune
from enforcement action, avoiding the need for EIA screening for those
breaches of planning that fall within Schedule 2 and 3 of the EIA Regulations.
Like Justice Humphries’s scathing
comments on FODC’s neglectful approach to enforcement, any failure to satisfy
the European Commission should also be of grave public concern, given
that it has previously been confirmed in the Northern Ireland Assembly that District Councils may be required to pay some or all of a fine imposed by Europe where
they have caused or contributed to the imposition of the sanction.
As
the NI Audit Office is currently conducting a review of planning and another of lessons that need to be learned from
judicial reviews, the judge’s comments
might be of interest to it also.
Below is an
extract from minutes of the Strategic Planning Group of Sept 2018, the group is
chaired by DfI Chief Planner and attended by all councils Heads of Planning.
Subsequent to the judge’s scathing comments of council planners in the
Cavanacaw judgment, the bottom paragraph is key! Over a year and a half
after these minutes, a High Court Judge is essentially saying this is not being
achieved at FODC.
Planning Group minutes Sept 2018
Also
exploring the possibility of accredited environmental qualifications for
council (and departmental) planning staff.
.
The
most significant challenge involves an ‘EU Pilot’ which has been ongoing since
2015 following a complaint to the EC alleging that there has been a systemic
failure by NI government to pursue enforcement action against unauthorised
developments, particularly minerals and waste developments, which should have
been subject to the requirements of the EIA process.
.
The
EU is looking for real evidence that things have improved on the ground in
terms of how these unauthorised EIA cases are handled, and that the region is
putting measures in place – strategically and operationally – to ensure that
the statutory framework, capacity and expertise exists to enable us to fulfil our
environmental obligations.
.
A
key element of this work, then, is assurance on effective enforcement action in
relation to unconsented EIA development.
.
As a first step, the department will be
looking at council enforcement strategies, particularly in light of the new
regulatory requirement in the 2017 EIA Regs to exercise enforcement action in
such a way as to secure compliance with the objectives and requirements of the
EIA Directive (Reg32).---------------------------------------------------------------------------------------------------------------------------------
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.
Judge blasts planning authorities for lack of enforcement action against mining firm despite 'repeated breaches'
A High Court judge has dismissed a legal bid
to instigate planning enforcement action against a mining operator, but
has expressed "grave concern" over the lack of enforcement action by
planning authorities against the firm despite its "repeated breaches of
planning control".
Mr Justice Humphreys was highly critical
of the Northern Irish planning authorities' apparent reliance on
complaints from the public before deciding whether or not to take
enforcement action against Omagh Minerals Limited.
The company, a subsidiary of a major Canadian mining concern, was in 1995 granted planning consent to extract gold, silver and other minerals from an open cast pit at Cavanacaw, Omagh.
A further planning permission was granted in 2015, enabling underground mining and associated surface works, subject to various conditions.
One of those conditions was that a neighbouring 21-hectare blanket bog would be kept free from works associated with the mine and fenced off to protect its flora and fauna.
Local campaigner, William Donnelly, unsuccessfully challenged the 2015 planning permission through the Northern Irish courts.
Omagh Minerals had sunk exploration boreholes without planning permission in 2012, but that position was regularised by a retrospective grant of permission in 2016.
In November 2018, Donnelly wrote to Fermanagh and Omagh District Council complaining that more boreholes had been drilled into the bog in breach of the 2015 planning condition.
The council at first said it was satisfied that no unauthorised works had been carried out on the blanket bog, the High Court in Northern Ireland heard.
And only in March this year did it accept that two boreholes had been sunk in the area of the blanket bog, in clear breach of the 2015 condition.
The council nevertheless decided not to take enforcement action against Omagh Minerals. It cited the passage of time - the boreholes had been drilled in 2015 - and the absence of any evidence of physical damage to the bog.
Donnelly mounted a judicial review challenge to that decision, arguing that, unless some enforcement action were taken, "Omagh Minerals would continue to flout the law and breach the conditions attached to its planning permission".
Rejecting his case, Mr Justice Humphreys said the council enjoyed a wide discretion as to whether to instigate enforcement action against the company.
He told the court: "It must be recognised that the law affords a margin of appreciation, or latitude, to the decision-maker.
"I am satisfied in this case that the council took into account all material considerations and that the decision not to pursue enforcement action was a proportionate one in all the circumstances.
"Mr Donnelly has not adduced any evidence that the boreholes in question have caused any physical damage to the blanket bog.
"Given that the unlawful drilling took place over four years ago, and has not occurred since, and the lack of any physical damage to be remedied, it is difficult to see what purpose an enforcement notice would serve."
However, the judge went on to say: 'It should be a matter of grave public concern that the mining works at this site have been characterised by repeated breaches of planning control which have resulted in no enforcement action taken by the relevant authorities."
There had, he said, been "unauthorised removal of ore from the site in the late 1990s which constituted unlawful EIA development".
According to the court judgment, between 2008 and 2009, half a million tonnes of rock was unlawfully removed from the site and a government ombudsman later found "that the failure to take enforcement action had completely failed to protect the public interest".
Mr Justice Humphreys added: "It is now apparent, almost five years after it occurred, that Omagh Minerals Limited was guilty of a further breach of planning control which did not result in any timely enforcement action.
"It would seem, despite a well-known history of flouting planning requirements, first the department and now the council rely on complaints being raised by members of the public before considering whether or not to take enforcement action."
He concluded: "The court is not satisfied that an approach which relies upon complaints from the public, and evidence produced by them, could properly be seen as compliant" with the planning authorities' legal obligations.
In the Matter of an Application by William Donelly for Leave to Apply for Judicial Review. Case Number: HUM11243
The company, a subsidiary of a major Canadian mining concern, was in 1995 granted planning consent to extract gold, silver and other minerals from an open cast pit at Cavanacaw, Omagh.
A further planning permission was granted in 2015, enabling underground mining and associated surface works, subject to various conditions.
One of those conditions was that a neighbouring 21-hectare blanket bog would be kept free from works associated with the mine and fenced off to protect its flora and fauna.
Local campaigner, William Donnelly, unsuccessfully challenged the 2015 planning permission through the Northern Irish courts.
Omagh Minerals had sunk exploration boreholes without planning permission in 2012, but that position was regularised by a retrospective grant of permission in 2016.
In November 2018, Donnelly wrote to Fermanagh and Omagh District Council complaining that more boreholes had been drilled into the bog in breach of the 2015 planning condition.
The council at first said it was satisfied that no unauthorised works had been carried out on the blanket bog, the High Court in Northern Ireland heard.
And only in March this year did it accept that two boreholes had been sunk in the area of the blanket bog, in clear breach of the 2015 condition.
The council nevertheless decided not to take enforcement action against Omagh Minerals. It cited the passage of time - the boreholes had been drilled in 2015 - and the absence of any evidence of physical damage to the bog.
Donnelly mounted a judicial review challenge to that decision, arguing that, unless some enforcement action were taken, "Omagh Minerals would continue to flout the law and breach the conditions attached to its planning permission".
Rejecting his case, Mr Justice Humphreys said the council enjoyed a wide discretion as to whether to instigate enforcement action against the company.
He told the court: "It must be recognised that the law affords a margin of appreciation, or latitude, to the decision-maker.
"I am satisfied in this case that the council took into account all material considerations and that the decision not to pursue enforcement action was a proportionate one in all the circumstances.
"Mr Donnelly has not adduced any evidence that the boreholes in question have caused any physical damage to the blanket bog.
"Given that the unlawful drilling took place over four years ago, and has not occurred since, and the lack of any physical damage to be remedied, it is difficult to see what purpose an enforcement notice would serve."
However, the judge went on to say: 'It should be a matter of grave public concern that the mining works at this site have been characterised by repeated breaches of planning control which have resulted in no enforcement action taken by the relevant authorities."
There had, he said, been "unauthorised removal of ore from the site in the late 1990s which constituted unlawful EIA development".
According to the court judgment, between 2008 and 2009, half a million tonnes of rock was unlawfully removed from the site and a government ombudsman later found "that the failure to take enforcement action had completely failed to protect the public interest".
Mr Justice Humphreys added: "It is now apparent, almost five years after it occurred, that Omagh Minerals Limited was guilty of a further breach of planning control which did not result in any timely enforcement action.
"It would seem, despite a well-known history of flouting planning requirements, first the department and now the council rely on complaints being raised by members of the public before considering whether or not to take enforcement action."
He concluded: "The court is not satisfied that an approach which relies upon complaints from the public, and evidence produced by them, could properly be seen as compliant" with the planning authorities' legal obligations.
In the Matter of an Application by William Donelly for Leave to Apply for Judicial Review. Case Number: HUM11243
2012 Ombudsman’s Cavanacaw Report Blog
