Environment and Planning
EU
COUNCIL AGREES ON UPDATES TO LIST OF WATER POLLUTANTS
The European Council has formally adopted the Directive on updating the list of pollutants affecting surface water and groundwater. The list includes pesticides, pharmaceuticals, PFAS and bisphenols. The new rules will introduce a requirement to assess the cumulative risk of combined substances. Effect-based monitoring will be introduced for surface water, and Member States will be permitted to use remote sensing and earth observation technologies for their monitoring.
The European Parliament is expected to hold the final vote on the Directive by the end of March 2026. Member States will have until 2039 to comply with the new standards for surface water and groundwater. The earlier deadline of 2033 applies to substances with more stringent environmental quality standards in surface water.
CONSULTATION OPENS ON REVISION OF THE WATER FRAMEWORK DIRECTIVE
The European Commission opened a call for evidence until 14 April 2026 on its proposal for a targeted revision of the Water Framework Directive. The revision is intended to simplify the Directive and to promote circularity.
European judgments
COURT OF JUSTICE OF THE EU CLARIFIES THE EXTENT OF THE PROHIBITION ON THE DELIBERATE DISTURBANCE OF BIRDS UNDER THE BIRDS DIRECTIVE
This case concerns a challenge by environmental associations against consent to construct a 1.69km dual carriageway in Austria. The Birds Directive applies to all species of naturally occurring birds in the wild, in contrast to the Habitats Directive, which applies only to specific endangered species. The judgment confirms that disturbance within the meaning of Article 5(d) of the Birds Directive only occurs where the conservation status of a species is unfavourable. It also provides important clarification on the assessment of mitigation measures and the evidential requirements to prove their effectiveness.
The referring court asked the CJEU to clarify the scope of the prohibition, laid down by Article 5(d) of the Birds Directive, on deliberately disturbing birds in a significant manner. This is in a context where the project provided for various measures to limit the impact on birds.
At the outset of its decision, the CJEU noted that the effect of a disturbance under Article 5(d) is assessed by reference to the population of the bird species concerned. This contrasts with the prohibitions on the deliberate killing or capture of birds, and the deliberate destruction or damage to their nests or eggs under Articles 5(a) and (b). Population is irrelevant in applying these articles.
The CJEU ruled that deliberate disturbance within the meaning of Article 5(d) cannot occur where mitigation measures prevent any significant effect on the population level of the relevant species. Mitigation measures are taken into account when determining whether a disturbance is likely to occur. Derogation licences are only required where significant effects cannot be mitigated.
The CJEU also found that, where the reasoned assessment of a court expert is based on the most reliable scientific data available, and on the most recent results of international research, this is sufficient to prove the effectiveness of mitigation measures for the purposes of Article 5(d). Proof of effectiveness in the form of scientific documentation is not required, as this documentation may not necessarily be available. The CJEU also noted that it must not be unreasonably difficult to prove that a disturbance does not have significant effects.
Domestic judgments
SUPREME COURT MAKES ORDER AND DECIDES COSTS IN COOLGLASS
The Supreme Court has published an order following its decision in Coolglass, which we covered in last month’s horizon scanner. The substantive appeal was in respect of the High Court’s decision to quash An Coimisiún Pleanála’s (the “Commission”) decision to refuse permission for a wind farm in Laois. The Supreme Court upheld the High Court’s decision on the basis that the Commission erred in law in failing to consider whether it was required by section 15(1) of the Climate Action and Low Carbon Development Act (the “Climate Act”) to consider granting permission in material contravention of the development plan. This was the only ground on which the applicant succeeded, but it was the most important feature of the case.
Therefore, Coolglass was awarded 50% of the costs of both the High Court proceedings and the Supreme Court appeal, against the Commission only. This reflects the fact that, although Coolglass won on the most important point, it lost in substance on the other live grounds. These grounds added to the complexity and length of the appeal.
The Supreme Court remitted the matter to the planning application process directly after the original Inspector’s Report was furnished, preceding the Commission’s decision. The Commission will be able to arrange for a supplemental Inspector’s Report addressing whether it should grant permission in material contravention of the development plan. The Supreme Court declined to give specific directions regarding the procedure the Commission must follow.
HIGH COURT UPHOLDS GRANT OF PERMISSION FOR DATA CENTRE DEVELOPMENT
The applicants challenged the grant of permission for a data-centre development and 110kV substation in Co. Clare. The central claim was that the Commission failed to act consistently with its section 15 obligations under the Climate Act. Section 15(1) of the Climate Act obliges public and prescribed bodies to “in so far as practicable, perform [their] functions in a manner consistent with” specified climate plans and policies. Justice Humphreys adjourned proceedings pending the Supreme Court’s decision in Coolglass, which clarified the scope of obligations under section 15(1).
Justice Humphreys dismissed the challenge on all grounds. He found that, although decision makers can operate on the presumption that other plans and programmes (such as development plans) have been adopted in line with climate duties, the applicant can rebut this presumption. To do so, he or she must demonstrate that the plan falls outside the spectrum of possible outcomes which are consistent with the section 15 objective. The applicants failed to discharge this burden here.
The Court also stated that, for the purposes of the Climate Act, a conclusion regarding impacts “must be viewed by reference not to the gross emissions involved but the net impacts as conditioned, mitigated and offset.” Operating within the range of options available to them, decision-makers may have regard to net emissions rather than gross emissions. In this case, the applicants failed to take account of the mitigation effects which would result from the corporate power purchase agreements required by the permission.
COURT OF APPEAL DISMISSES CHALLENGE AGAINST THE CLIMATE ACTION PLAN 2023 (“CAP23”)
The subject of this appeal is an unsuccessful judicial review by Friends of the Irish Environment (“FIE”), challenging the validity of CAP23. FIE alleged that the respondents failed to quantify, justify and explain the measures included in the plan sufficiently to show that the anticipated reductions in greenhouse gas emissions were achievable and sufficient to meet Ireland’s statutory objective.
FIE argued that the word “ensure” in section 4(2)(a) of the Climate Act required the Minister to make consistency with the carbon budget programme virtually certain. The Court rejected this, holding that proposed measures must have a realistic evidential foundation and be capable, if fully implemented, of producing reductions at or close to projected levels, but that this does not amount to proof in a legal sense, and does not preclude measures that depend on ongoing research with a realistic prospect of success. The appeal was dismissed on all grounds.
HIGH COURT FORMULATES QUESTION ON CONSERVATION MEASURES FOR MIGRATORY BIRDS
The project at the centre of this dispute is a seven-turbine wind farm in Carlow and Kilkenny. This is the second module in a challenge against the Commission’s decision to permit the alteration of the positions of two wind turbines. The applicants alleged the Minister for Housing failed to establish necessary conservation measures for the golden plover in the River Barrow and River Nore Special Areas of Conservation (“SACs”), and for the grey heron and mallard in the River Nore Special Protection Area (“SPA”). Justice Humphreys found the argument that there was a failure to establish bird-related objectives or measures in the SACs was “a massive re-writing” of the Habitats Directive, which is not intended to apply to birds. This ground was dismissed.
Article 4(1) of the Birds Directive obliges Member States to establish special conservation measures for Annex I species. Article 4(2) requires “similar measures” to be taken for “regularly occurring migratory species not listed in Annex I”. The complaint that conservation measures had not been established failed on an evidential basis, given that the applicants could not establish that the grey heron and mallard were going to be affected.
Justice Humphreys identified one aspect of the challenge which may merit declaratory relief. He has invited submissions from the parties on whether Article 4 of the Birds Directive relieves Member States from the obligation to establish objectives/measures for a regularly occurring migratory bird species other than an Annex I species for which the SPA is designated. This is in a situation where there is a lack of surveys or of data on the extent of the presence of the migratory species in the SPA, such that the Member State does not consider the criteria for significance to have been met. This outstanding question will be left over to a third module. All other grounds were dismissed. Declaratory relief only may follow from the third module.
HIGH COURT CLARIFIES RULES ON DESIGN FLEXIBILITY FOR WIND TURBINES
This case concerned a challenge against the grant of permission for a seven-turbine wind farm in Tipperary, with a grid-connection cabling route in Offaly. The applicants raised an argument that the application was invalid as it contained flexible turbine dimensions. Justice Humphreys rejected this ground. Design flexibility is not precluded where it is within reasonable bounds that do not create a genuinely substantive planning issue.
The applicants failed to demonstrate that this limitation had been breached. Some flexibility is required in a permission for practical reasons, due to technological and market changes between the date of the application and date of purchase of the turbine equipment.
The applicants also challenged the permission on the basis that turbine blades would hang over a public road, interfering with a public right of way and public safety. This ground failed because it was not evidentially established that the overhang would cause any actual inconvenience, obstruction, nuisance or danger to any of the applicants. This would be the position even if the applicants could assert a breach of public rights of way. Justice Humphreys noted that the assessment of public safety is a matter for statutory decision-takers, and the council did not see a safety issue here.
Mitigation measures required under certain conditions attached to the permission were to be carried out on third-party lands. Justice Humphreys found it is permissible for decision-makers to impose such a condition where compliance with the condition can be “envisaged.” Absolute certainty is not required.
HIGH COURT REITERATES THAT INTERNAL ACCESS TRACKS ARE NOT ROADS
This case concerned a challenge against a 103.64 hectare solar PV energy development with battery storage in Kilkenny. The applicants characterised internal access tracks in the development as roads, arguing this meant the development required EIA. The Court rejected this argument, noting that it failed in previous cases.
Internal access tracks with stone or crushed stone finish will not be characterised as roads requiring mandatory EIA, even where they utilise modern construction methods (geogrid layers, compacted stone subbase, etc.) However, Justice Humphreys commented: “If the roads were fully finished in road-like manner to withstand ongoing vehicular movement rather than being for intermittent access only then the fact that they were internal would not exclude them from being roads.”
The Commission requested an EIA report under section 132 of the Planning and Development Act 2000. The developer responded to explain why an EIA report was not required. The submission was circulated to the interested parties, and the Commission effectively adopted the position that an EIA report was not needed. Justice Humphreys clarified that the Commission retains discretion to reconsider whether an EIA is required and can lawfully determine an appeal without insisting on an EIA report where clarifications from a developer demonstrate that EIA is not legally required. The proceedings were dismissed.
HIGH COURT FINDS WASTEWATER CONNECTION CHALLENGES CAN QUALIFY FOR COSTS PROTECTION UNDER THE ENVIRONMENT (MISCELLANEOUS PROVISIONS) ACT 2011
FIE sought a protective costs order in its challenge to a wastewater connection agreement between Uisce Éireann (“UÉ”) and a developer, Mr McDonagh. The immediate question before the Court was not the validity of the agreement, but whether FIE was entitled to an order confirming that sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 (the “2011 Act”) apply to these proceedings.
UÉ has already conceded to the order, but Mr McDonagh resists it. In the substantive proceedings, FIE’s claim is that the agreement should be quashed because connecting a planned motorway service station to an already overloaded treatment plant would worsen unlawful pollution of the River Fergus and associated European sites.
Justice Holland confirmed that costs protection under section 4(1)(a) of the 2011 Act turns on two questions: (i) the purpose of the proceedings; and (ii) any causative relationship between that purpose and any prospect of environmental damage. In order to satisfy the first limb of the test, the purpose of proceedings must be to ensure compliance with, or enforcement of, a statutory requirement. These proceedings satisfy that requirement, being for the purpose of ensuring compliance with the requirements of the Water Services Act 2007.
Justice Holland found a sufficient practical and proximate link between the agreement and increased loading on the local wastewater network. A decision to grant a protective costs order only requires a stateable case as to the issue of causation. The connection agreement will cause discharges to the UÉ network, and therefore there is a stateable case that it will cause environmental damage. As both statutory criteria were satisfied, the Court granted FIE a protective costs order in accordance with section 3 of the 2011 Act.
COURT OF APPEAL TO REFER QUESTIONS ON THE ENVIRONMENTAL ASSESSMENT OF PLANS AND PROJECTS TO THE CJEU
This appeal concerned a challenge by Friends of the Irish Environment CLG to the making of Food Vision 2030 (“FV2030”), a 10-year strategy for the agri-food sector. The central question was whether FV2030 was legally required to undergo a strategic environmental assessment (“SEA”) and/or an appropriate assessment (“AA”). The State respondents carried out these assessments, but contended they were not legally required. They conceded that, if AA was in fact required, their assessment did not satisfy Article 6(3) of the Habitats Directive, and certiorari should be granted.
The Court rejected the argument that an SEA was required for FV2030, finding that it does not come under the scope of the Directive. The Court of Appeal had regard to the Supreme Court’s decision in FIE’s challenge against the National Planning Framework. However, Justice Butler found that, while she was minded to agree with the trial judge that FV2030 is incapable of being the subject of a meaningful AA in practical terms, and falls outside the scope of a plan or project under the Habitats Directive, the position is not clear cut.
The Court has therefore referred questions to the CJEU which, broadly, are:
- whether a high-level strategic policy can constitute a “plan or project” within the meaning of Article 6(3) of the Habitats Directive,
- if yes, can such a policy be a plan or programme within the meaning of Article 6(3) if its measures are not adequately specific to allow them to be quantified and assessed and it is not possible to identify specific Natura 2000 sites which may be affected, and
- if yes, is it sufficient for the AA to identify generally the environmental risks posed by activities coming within the sector covered by the policy, and the effects they might have generally on protected habitat types and species in Natura 2000 sites in Ireland, without identifying specific risks that might impact individually identified sites?
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