Introduction

Elements within the minerals industry operating in Northern Ireland have long enjoyed a relatively free hand to engage in unauthorised and environmentally damaging extraction activities, in the knowledge that after-the-event regularisation would be forthcoming from a complicit Department of the Environment (hereafter referred to as DOE Planning). Formal enforcement action against such activities has been rare. This is borne out by the fact that an estimated 153 planning applications submitted to regularise unauthorised mineral extractions between 2002 and 2012 were granted planning permission retrospectively, whilst only 9 stop notices were served on unauthorised extraction activities over a corresponding period. [1] In 2013, the Minister of the Environment confirmed that of 55, yet to be approved, minerals-related planning applications being processed, at 33 (60%) of the sites operations had already been carried out. [2]

The extent of DOE Planning’s systemic failure to exercise proper planning control over unauthorised minerals extraction has been brought sharply into focus by a series of questions posed by the Leader of the Green Party in Northern Ireland, Steven Agnew MLA in the Northern Ireland Assembly.

In the case of Lough Neagh, unauthorised mineral extraction is taking place on a regionally significant scale, reinforcing that it is a serious potential, environmentally harmful problem facing Northern Ireland. And it seems evident that for decades DOE Planning was not only prepared to countenance unauthorised development (sand extraction) taking place from the bed of the lough, but that it did so in the knowledge that planning and European Union environmental law were being systemically breached.

Lough Neagh

Lough Neagh is the largest fresh water body in the United Kingdom with a surface area of approximately 41,188 hectares. It is a Special Protection Area (SPA) [3] designated for its important overwintering populations of birds and is considered to be one of the most important non-estuarine sites for overwintering wildfowl in the British Isles. [4] The site qualified for SPA status under Article 4(1) of Wild Birds Directive [5] by regularly supporting internationally important numbers of wintering Bewick’s swan, whooper swan and common tern. Lough Neagh also qualifies for SPA status under Article 4(2) of that Directive as a wetland of international importance, by regularly supporting over 20,000 waterfowl in winter and providing an important assemblage of breeding birds. [6]

 Oxford Island National Nature reserve, Lough Neagh

Significant decline in bird populations

In the late 1980s and early 1990s Lough Neagh is recorded as hosting diving duck numbers in excess of 100,000 birds. [7] However, by the winter of 2003/04 these populations had declined dramatically. Some of the species protected under Annex II of the Habitats Directive, and for which the lough was designated a SPA in 1998, suffered particularly badly. This included a decline of 80% of pochard (40,000 to 8,000), 71% of Goldeneye (14,000 to 4,000), 70% of tufted duck (30,000 to 9,000) and 48% of Scaup (5,000 to 2,600). [8] Indeed, the Royal Society for the Protection of Birds suggests that, in 2009, the populations of these diving ducks had dropped to under 10,000, and are still decreasing. [9]

Tomankova also identifies a significant and corresponding decline of 66-67% in the density and biomass of benthic macro-invertebrates in Lough Neagh, the main food source of diving ducks, between the period 1997/98 and 2010; leading her to conclude “…that a major shift in the Lough Neagh ecosystem coincident with the changes observed in overwintering bird communities” was likely taking place.[10] This important European nature conservation site is currently considered to be in “unfavourable condition”. [11]

Lough Neagh is also an important habitat for native and migratory fish species including the river lamprey, Atlantic salmon, and European eel, with lamprey and salmon being Annex II Habitats Directive protected species. The European eel is currently placed on the critically endangered list of the International Union for Conservation of Nature, and protected by European Council Regulation 1100/2007, [12] which strives to establish urgent measures for the recovery of this species. Although designated as an Area of Special Scientific Interest (ASSI) some 22 years ago, including for its fresh water and estuarine fish, [13] Lough Neagh has never been designated a Special Area of Conservation (SAC) under the Habitats Directive, [14] despite being an important habitat for protected species of fish, including the recognition as an “…European stronghold…” for river lamprey. [15]

Protection under EU Law

Article 2 of the Wild Birds Directive requires a Member State to take the requisite measures to maintain the populations of protected species “…at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements…” Article 4(4) requires, in respect of SPAs that “…Member States shall take appropriate steps to avoid pollution or deterioration of habitats, or any disturbance affecting birds, in so far as these would be significant having regard to the objectives of this article.” Importantly, the European Court of Justice (ECJ) made clear that the ecological requirements imposed by Article 4 were of imperative importance, where economic influence does not enter into consideration. [16]

In relation to the Habitats Directive, Article 3 provides for the “…creation of a coherent European ecological network…” of European sites, [17] which includes SPAs classified under the Wild Birds Directive. And Article 6(3) imposes the strictly precautionary requirement for projects that are likely to significantly affect a Natura 2000 site to be subject to Appropriate Assessment. [18] However, it is acknowledged that due to the nervousness of Member States over the ECJ’s strict interpretation of Article 4 of the Wild Birds Directive, Article 6(4) of the Habitats Directive was formulated to “soften the blow,” [19] permitting derogation in instances of “…imperative reasons of overriding public interest.” (IROPI) [20] However, by no stretch of the imagination does IROPI extend to the turning of a blind eye to unauthorised development and systemic breaches of planning and European Union environmental law.

The assessments required under Article 6 of the Habitats Directive must be construed against a background of restoring or maintaining the sites to a favourable conservation status as defined in the following articles.

Article 2(2) requires the member states to ‘maintain at or restore to’ a favourable conservation status, natural habitats and species ‘of community interest’. Article 6 (2) requires the member states to “take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated”. [21]

Lough Neagh SPA has been acknowledged as being of European importance and there is therefore a requirement on the Department to ensure that it achieves the highest possible conservation status. Before granting any license or permission for any project likely to impact a Natura 2000 site the Department must undertake a Habitat Regulations Assessment (HRA), as required by Article 6(3) of the Directive. Article 6(3) states that “the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned”. The requirements of these assessments have been tested in court numerous times. The most recent summary of the requirements of a HRA can be found in European Court of Justice Case C‑258/11 (Sweetman vs. An Bord Pleanala). Paragraph 44 of this case outlines the requirements for appropriate assessment in that “it cannot have lacunae and that an assessment must contain complete, precise and definitive findings and conclusion capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned (see, to this effect Case C-404-09 Commission v Spain, paragraph 100 and the case law sited)”. [22] This and other case law clearly shows that a license, or permission, can only be issued where the Department is convinced that there will be no adverse effect on the integrity of the site concerned. [23]

In the case of Lough Neagh SPA, there simply is no HRA or Environmental Impact Assessment, [24] due to the fact that the department responsible for environmental protection, repeatedly and persistently neglected to bring this unregulated extraction activity under planning control.

Unauthorised mineral extraction from Lough Neagh SPA.

It is estimated that Lough Neagh provides some 20-25% of Northern Ireland’s annual sand production. [25] In 2013, the scoping study, Potential for bringing Lough Neagh into public ownership, indicated that the volume of sand extracted from the bed of the lough may be up to 1.7 million tonnes per annum. [26]

 Extraction on Lough Neagh (Dean Blackwood)

Yet on 25 March 2014, the Minister of the Environment informed the Northern Ireland Assembly: “there is currently no planning permission for sand extraction on the lough. In relation to controls, permissions and regulations I can advise that planning permission and assessment under the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2012 is required. In addition, in assessing any application that would impact on Lough Neagh Special Protection Areas, a Habitats Regulation Assessment is also required.” [27]

The Department has attempted to downplay and justify its continuing failure to initiate formal enforcement action on the basis that there is no proven direct link between the unauthorised sand extraction and the decline of protected bird populations or damage to the habitat. [28] That purported justification is seriously wrong on a number of grounds. First, as noted, the EU Directives require that appropriate and well-established assessments (an EIA and HRA) are undertaken to determine whether the action, here extraction of sand, will impact the protected site before allowing the development. The competent authority cannot fail or refuse to undertake the required environmental assessments that would determine any impacts from the development and then argue there is insufficient evidence of any harm. Second, the argument displays a worrying ignorance of the precautionary principle, which underpins the Wild Birds and Habitats Directives. Here, it is established in law that, “…the triggering of the environmental protection mechanism follows from the mere probability that the development will have a significant effect on the site concerned”, [29] something the Minister, by recognising the need for EIA and HRA, has already confirmed to be the case. [30]

The Minister’s Department is the organisation within government responsible for ensuring that the requirements of the Environmental Impact Assessment, Habitats and Wild Birds Directives are correctly transposed, implemented and monitored. This same organisation is also responsible for regulating development, including granting development consents for minerals extractions, or enforcing where no development consents exist. In administering these responsibilities, it must comply with European Union environmental law. Yet the Minister was now confirming that the biggest minerals extraction operation, by far, taking place in Northern Ireland, does not have planning permission, and requires, but has never been subject to EIA or Habitats Regulation Assessment. That this unauthorised EIA development was being permitted to take place with a European site, designated since 1998, does not seem to have raised concerns within the Department charged with implementing the aforementioned Directives, even after former Minister of the Environment, Alex Attwood MLA, informed the NI Assembly in March 2012 that “a failure to enforce where a development is unauthorised EIA development would be in breach of the (EIA) Directive.” [31]

Having already confirmed the requirement for, but absence of planning and environmental regulation, the current Minister subsequently advised on 14 March 2014 that a recent enforcement case had now been opened, but implied that this process required “…multiple inspections, background investigations and detailed consideration before formal action is taken.” [32] In essence, this may take a while. Without elaborating, he guided the Assembly to DOE Planning’s approach to enforcement of planning control as set out in PPS9. [33]

It is worth dwelling on this approach, as section 9.0 singles out unauthorised minerals operations as posing particular problems for enforcement because of the often irreparable nature of extraction and the speed at which significant environmental harm can be caused, [34] thus requiring swift enforcement action. So this immediately begs the question why has the Department ignored its own planning policy and neglected to enforce for decades?

DOE Planning has been, and is currently, presiding over unauthorised mineral extraction on a monumental scale, for all of the period that Lough Neagh has been designated an ASSI (1992) and a SPA (1998); some twenty-two, and sixteen years respectively. Indeed, the Minister has confirmed to the Northern Ireland Assembly that the Department considered bringing this unauthorised extraction under regulation as far back as 1991, although he was unclear what decisions were made over the pursuit of potential enforcement action at that time.[35] What is clear is that no formal enforcement action was initiated between 1991 and 2014. [36] Furthermore, there is a categorical admission that the matter of unauthorised extraction was raised in previous years, “…but the decision at the time was taken not to pursue enforcement action…” [37]

Clearly, there was a decision by government not to regulate what is likely the largest unauthorised development in Northern Ireland. Just as clearly, the decision makers would not have been ignorant of the fact that such inaction was in breach of the European Directives pertaining to this internationally important nature conservation designation.

Undoubtedly designation as a SAC would have drawn further unwelcome focus on the likely environmental impacts from the unregulated sand extraction that was being tolerated by the Department charged with implementing the requirements of European Union environmental law. It is surely no coincidence that this process of “selective conservation” [38] has seen the international conservation importance of Lough Neagh sacrificed in order that private economic interests can be protected. And it is against this background that sand extraction, on a scale of regional significance, is being permitted to continue from Lough Neagh SPA, with neither planning permission, environmental assessment, nor regulation.

It should be welcomed that the Minister has now clearly stated on 5 November 2014 that it is his “…policy that all unauthorised extractive and waste operations require the most rigorous and prompt enforcement action. It is not acceptable that mineral extraction activities be allowed to continue without first having been through relevant assessments and obtained appropriate planning approval.” [39] However, this is tempered by the fact that despite officials having opened an enforcement case in March, and issued warning letters between 25 September and 10 October 2014 (sixteen years after Lough Neagh became a SPA) advising the operators to cease unauthorised extraction, [40] evidence indicates that these unauthorised activities have continued unabated at the time of drafting this article in late November 2014.

The history of this site, and the systemic failure of the planning authority over decades, has placed the UK Member State in an indefensible position against any infraction proceedings, if initiated by the European Commission. All the more so, as there is nothing to suggest that the Department charged with protecting our most important nature conservation sites, had any intention of addressing these serious and persistent breaches of European Union environmental law, had the matter not been exposed in the Northern Ireland Assembly.

End Notes

[1] NI Assembly. 2012. AQW12163/11-15. URL: aims.niassembly.gov.uk/questions/writtensearchresults.aspx?&qf=1&qfv=2&ref=AQW%2012163/11-15 [Accessed: 25 January 2014].

NI Assembly 2012. AQW12165/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=136585 [Accessed: 20 August 2014].

NI Assembly AQW27411/11-15. URL: aims.niassembly.gov.uk/questions/writtensearchresults.aspx?&qf=1&qfv=2&ref=AQW%2027411/11-15 [Accessed 20 August 2014].

[2] NI Assembly. 2013. Assembly Question AQW26973/11-15. URL: aims.niassembly.gov.uk/questions/writtensearchresults.aspx?&qf=0&qfv=1&ref=AQW%2026973/11-15 [Accessed: 13 January 2014] (for confirmation of extent of current retrospective minerals applications)

[3] SPA – A strictly protected site classified in accordance with Article 4 of Directive 2009/147/EC (Wild Birds Directive) URL: jncc.defra.gov.uk/page-162 [Accessed: 10 August 2014].

[4] I Tomankova, The cause of diving duck populations decline on Lough Neagh, Northern Ireland (Queens University, Belfast, 2013) 18.

[5] Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (codified version of 79/409/EC, as amended). Available at: eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32009L0147 [Accessed 5 August 2014].

[6] Department of the Environment for Northern Ireland, The Register of European Sites in Northern Ireland: Lough Neagh and Lough Beg Special Protection Area (1998).

[7] See endnote 4, p18.

[8] Ibid. p7.

[9] Royal Society for the Protection of Birds, What is Lough Neagh telling us? (2009) URL: www.rspb.org.uk/news/details.aspx?id=tcm:9-209334 [Accessed: 26 August 2014].

[10] See endnote 4, p111.

[11] Department of the Environment for Northern Ireland, Neagh Bann River Basin Management Plan: Water Dependent Features of Natura 2000 Sites (SACs & SPAs) in Neagh Basin District. (2009) 14. URL: www.doeni.gov.uk/niea/natura2000_nb.pdf [Accessed: 26 August 2014].

[12] European Council. 2007. Council Regulation (EC) No. 1100/2007 of 18 September 2007. URL: eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2007:248:0017:0023:EN:PDF [Accessed: 26 august 2014].

[13] Department of the Environment for Northern Ireland. 1992. Citation: Declaration of Area of Site of Special Scientific Interest at Lough Neagh. URL: www.doeni.gov.uk/niea/lough_neagh_assi_citation.pdf [Accessed: 29.04.14].

[14] Northern Ireland Assembly. 2014. AQW34830/11-15. URL: aims.niassembly.gov.uk/questions/writtensearchresults.aspx?&qf=0&qfv=1&ref=AQW%2034830/11-15 [Accessed: 26 August 2014].

[15] Inger, R., et al. 2010, para.2 “Do non-native invasive fish support elevated lamprey populations?” Journal of Applied Ecology, 47, 121-129. URL: www.academia.edu/298262/Do_Non-Native_Invasive_Fish_Support_Elevated_Lamprey_Populations     [Accessed: 26 August 2014].

 [16] Case C-355/90 Commission-v-Spain [1993] ECR I-4221, (Santano Marshes) paras.16-18.

 [17] Council Directive 92/43/EEC of the European Parliament and of the Council of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, Article 6(3). Available at: eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31992L0043 [Accessed 5 August 2014].

 [18] S Tromans, Environmental Impact Assessment, (2nd Edition, Bloomsbury Professional Ltd., 2012) 349, para.9.12.

 [19] G Jones, The Habitats Directive: A Developer’s Obstacle Course? (Hart Publishing 2012) 171

 [20] See endnote 17, Article 6(4).

 [21] Northern Ireland Environment Agency. 2014. Planning consultation (River Faughan – A/2012/0553/F) Ref: 21324-1

 [22] Case C-258/11 Sweetman-v-An Bord Pleanala [2013] EUECJ

 [23] See endnote 21

 [24] Northern Ireland Assembly. 2014. AQW32333/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=195065 [Accessed: 21 December 2014]. See also endnote 27.

[25] C Mills. A review of waste disposal at the Mobuoy site and the lessons learnt for the future regulation of the waste industry in Northern Ireland. (DOENI, 2013) 53.

[26] Northern Ireland Assembly Cross Departmental Working Group. Potential for Bringing Lough Neagh into Public Ownership: A Scoping Study. (Northern Ireland Assembly, 2014) para.4.3.

[27] Northern Ireland Assembly. 2014. AQW31750/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=193007 [Accessed: 26 August 2014].

[28] Northern Ireland Assembly. 2014. AQW35852/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=205946 [Accessed: 20 December 2014].

[29] Weatherup, j. Sandale Developments Ltd-v-DOENI [2010] NIQB43, para.39.

[30] See endnote 27.

[31] Northern Ireland Assembly. 2012. AQW9965/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=130709 [Accessed 20 December 2012]

[32] Northern Ireland Assembly. 2014. AQW32085/11-15. URL: aims.niassembly.gov.uk/questions/writtensearchresults.aspx?&qf=1&qfv=2&ref=AQW%2032085/11-15 [Accessed: 27 August 2014].

[33] Planning Service, Planning Policy Statement 9: the Enforcement of Planning Control, (DOENI, 2000) 12-13.

[34] Ibid., p12, para.9.1.

[35] Northern Ireland Assembly. 2014. AQW34826/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=202707 [Accessed: 27 August 2014].

[36] Northern Ireland Assembly. 2014. AQW31750/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=193007 [Accessed: 26 August 2014].

[37] Northern Ireland Assembly. 2014. AQW33401/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=198473 [Accessed: 2 September 2014].

[38] M Wigan. The Salmon (William Collins Publishers, 2013) 311

[39] Northern Ireland |Assembly 2014. AQW38304/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=212965 [Accessed: 10 December 2014].

[40] Northern Ireland Assembly 2014. AQW38306/11-15. URL: aims.niassembly.gov.uk/questions/printquestionsummary.aspx?docid=212671 [Accessed 10 December 2014].

Dean Blackwood’s commentary has been adapted from his thesis “Systemic failure of Northern Ireland’s planning development management system: a collision course with the European Commission?” as part of his Masters in Environmental Law at Queens University, Belfast, for which he was awarded the 2014 Environmental Planning and Law Association of Northern Ireland (EPLANI) prize. Dean has just accepted a 3-year PhD research project at Queens to undertake an investigation into the ethical behaviour of planners and politicians.