Environment & Planning
EU
European Council agrees to 2040 climate target
The European Council has agreed to a proposal to set a binding target of a 90% reduction in net greenhouse gas emissions compared to 1990 levels by 2040. The target would be introduced by way of an amendment to the EU Climate Law. Under new terms agreed to by the Council, countries will be permitted to claim a further 5% of the target through international carbon credits under certain circumstances. The target will be reviewed every two years. The Council has also introduced a provision postponing the application of the EU emissions trading system for buildings and road transport (ETS2) by one year, from 2027 to 2028. The EU Parliament must now adopt its position on the proposal.
European Commission proposes amendments to the Deforestation Regulation
The Deforestation Regulation bans the import of commodities such as palm oil, cattle, coffee and cocoa and derived products including meat, chocolate and glycerol. The ban does not apply to products that are “deforestation free”, that is produced in accordance with the legislation of the country of production and covered by a due diligence statement to confirm this. The implementation of the regulation was delayed by one year in December 2024.
Under the Commission’s proposal in relation to the Deforestation Regulation, initial obligations for large and medium entities will enter into effect on 30 December 2025, with provisions on checks and enforcement entering into effect six months later. For small and micro-entities, obligations will apply from 30 December 2026. The proposal also simplifies reporting obligations, particularly for small primary operators in countries that are considered low risk, including the US, Canada, India and China. Due diligence obligations will be reduced for companies in the downstream part of value chains, such as retailers that distribute products once they have been imported into the EU. The European Parliament and Council must adopt the proposed regulation in order for it to enter into effect. Further information on the Deforestation Regulation is available here.
One substance, one assessment chemicals package adopted by EU Parliament
The adopted package is part of the EU chemicals strategy for sustainability, intended to introduce environmental protections in chemical law. The one substance, one assessment package streamlines chemical safety assessments by establishing a common data platform with access to chemicals data compiled under EU legislation. The data relates to hazards, physico-chemical properties, presence in the environment, emissions, uses and environmental sustainability. The database will contain information on chemicals present in products as well as on safer alternatives to substances of concern. Once adopted by the European Council, the package will be published in the EU Official Journal and will enter into force 20 days later.
MATTERS BEFORE THE CJEU
Opinion of Advocate General Emiliou on the interpretation of the Seveso Directive
This case relates to an Italian company operating a hazardous and non-hazardous waste treatment facility. The Italian authorities considered that the facility fell within the scope of the Seveso-III Directive on the basis of its capacity to treat and store dangerous substances. The Directive imposes strict obligations on establishments where dangerous substances are present above particular thresholds. The company disagreed, arguing that its stock management system ensured that the legal thresholds were never exceeded, so the plant should not be classified as a Seveso establishment.
The key question was: how should the “presence of dangerous substances” (specifically, “anticipated presence”) be interpreted under the Seveso Directive? Should it be based on the plant’s maximum permitted capacity, or actual, constantly monitored quantities?
The Advocate General emphasised a risk-based approach. The term “anticipated” is not defined in the Directive, but was interpreted as meaning a reasonable likelihood. If the law meant “maximum capacity”, it would have said so. The Directive’s purpose is to prevent major accidents, not to regulate every possible risk. If an operator has a reliable, continuous monitoring system that ensures thresholds are not exceeded – and can intervene promptly if there is a risk – then the plant may fall outside the scope of the Seveso Directive. The system must keep records so authorities can verify compliance at any time. Although this opinion is not binding on the CJEU, it will be influential. The CJEU will make a determination (likely in the next four to six months).
DOMESTIC DEVELOPMENTS
Provisions of Planning and Development Act 2024 commenced
Certain provisions of the Planning and Development Act 2024 and the Planning and Development (Amendment) Act 2025 came into operation on 2 October 2025. Commencements relate to plans and policies as well as enforcement procedures.
Provisions related to the National Planning Framework, ministerial guidelines (now National Planning Policy Guidance) and regional spatial and economic strategies are commenced. Additionally, provisions relating to the appropriate assessment of plans (but not development) are in effect. Provisions related to development plans and urban, priority and coordinated area plans have not been commenced. In terms of enforcement, provisions related to the designation of local authorities as regional enforcement authorities and their power to bring enforcement proceedings without receiving a complaint are in effect. Section 396, which governs the service of orders, notices and warning letters, has also been commenced.
Department of Housing responds to questions on the Renewable Energy Directive III (“RED III”)
The Department of Housing has published a response document addressing queries received from the County and City Managers Association on the Irish transposition of RED III. The document was “prepared for information purposes and ease of reference only, it is not a legal document”. It may be updated in the future.
It is a useful guide to the Department’s stance on the interpretation of RED III. One point to note is that the Department does not consider the time limits for decisions on applications for RED III development, introduced by the European Union (Planning and Development) (Renewable Energy) Regulations 2025, to apply to planning appeals. Our briefings on the Regulations are available here – Renewable Energy: Update on Permit-granting Procedures in Ireland and here - Renewable Energy: Permit-granting Procedures – new site notice form.
DOMESTIC JUDGMENTS
Application to appeal High Court decision on climate grounds fails
This case relates to a challenge to a planning decision for Tesco’s retail development in Cavan (that also had a petrol station), where one of the issues was whether the project’s climate impacts were properly assessed. Justice Humphreys summarised the current steps for assessing emissions-causing projects:
- Identification of Net Emissions: Quantify net GHGs attributable to the project, including scope 3 emissions, mitigation, and offsets, compared to a baseline scenario.
- Evaluation Against Targets: Determine if net emissions fit within available national and sectoral headroom under climate policy instruments.
- Practicability of Compliance: If emissions exceed available headroom, assess whether non-compliance is justified by practical considerations (for example, energy security).
The Court refused leave to appeal, finding that none of the climate points were properly pleaded or argued during the original proceedings. The applicant’s case evolved only after the judgment. The Court acknowledged that there were other cases before it in which these climate points may be addressed in substance.
High Court finds solar farms are not EIA projects and clarifies the definition of a road for EIA purposes
This case relates to a challenge against the grant of permission for the second phase of a solar farm in County Waterford. One of the primary grounds of challenge was that an EIA screening was required for the proposed development. The applicants cited 2024 guidelines published by the EU Commission, which state that solar installations fall under the category of “industrial installations for the production of electricity, steam and hot water” under the EIA Directive. The Court rejected this ground: “On the facts, this is a solar farm which is not an EIA project – something that has been emphasised numerous times in the case law.” The Court declined to make a reference to the CJEU on this point.
The applicants also contended that an EIA screening was required for circa 3.5 km of private roads within the development. Justice Humphreys stated that not every access track or path within a development qualifies as a road for EIA purposes. He found that the term ”road” in Schedule 5 of the Planning and Development Regulations 2001 takes its meaning from the EIA Directive as opposed to the Roads Act 1993. For EIA purposes, a road is “a way (in one or more directions) over land for the independent movement of persons, animals or vehicles (whether mechanically propelled or otherwise), constructed by and finished with modern and more-than-rudimentary methods, and including ancillary infrastructure”. The nature and standard of the construction of an access track are determinative in assessing whether it is a road.
The Court also rejected an argument that the Commission should not have regard to the cost of financing a project when determining its operational life, emphasising the RED III obligation to facilitate renewable energy development. The Court found the economic viability of a project is a relevant consideration when assessing the duration of a permission. The second module of this case is yet to be heard.
High Court refuses to quash grant of permission for wind farm on the basis of a technical legal error
The applicants challenged the grant of permission for a 21-turbine wind farm in County Kilkenny. The primary ground of challenge in this module related to the applicants’ contention that certain provisions of a previous development plan, adopted in 2014, continued to apply to the site of the proposed development due to a ministerial notice. In making its decision, the Board failed to have regard to those parts of the plan.
The High Court noted that this point was highly technical, and that the applicants did not plead that any actual environmental damage would be caused by the non-compliance. Furthermore, the Board was not obliged to go through any procedure to contravene or materially contravene the development plan, as it is a strategic infrastructure development. Lastly, Justice Humphreys emphasised that renewable energy policy has “changed beyond recognition” in Ireland, Europe and internationally since the 2014 development plan was adopted. This affects the exercise of judicial discretion in challenges against renewable energy developments: “Overall, we need to bear in mind the urgent need – recognised in international, European and domestic law – for renewable energy infrastructure in the context of the climate emergency as a strong factor affecting discretion.”
Justice Humphreys also expressed a reluctance to grant declaratory relief for minor errors, noting they may be seized on as relief to warrant costs. All grounds raised in this module failed. The final module of this case will be heard in late November.
High Court quashes grant of permission for supermarket due to material contravention of development plan
Aldi was granted permission for a discount food store on a mixed-use site in Moyross, County Limerick. The applicant operates the Watch House Cross Shopping Centre in the area. The challenge alleges, inter alia, a breach of the local development plan and the Retail Planning Guidelines for Planning Authorities (2012). The objective in question, LCC06, states that the preferred location for new retail development, where “practicable and viable”, is within existing Town Centres (including District or Village Centres). Watch House Cross Shopping Centre is a designated District Centre.
The developer’s Retail Impact Assessment stated that there was no suitable space in the shopping centre. Although the applicant submitted to the Board that there was in fact a suitable unit for Aldi, the developer failed to address this. Justice Humphreys found the Board wrongly considered that the proposed development complied with Objective LCC06. The only evidence before the Board was that there was a suitable unit in the Centre, as the developer failed to provide any information to the contrary. The Court emphasised that it was not for the applicant to demonstrate that the unit was suitable; the burden of justification rested on the developer. The Board failed to consider whether locating the store in the District Centre was “practicable and viable”, as required by the objective. The Court quashed the grant of permission.
This decision emphasises the importance of assessing all potential locations for a development in accordance with the relevant development plan objectives.
High Court refers questions on the AIE Regime and principle of equivalence to the CJEU
The applicants challenged the lawfulness of a €15 fee charged by Coillte for providing access to environmental information requested under the European Communities (Access to Information on the Environment) Regulations 2007.
The applicant argued, inter alia, that the fee was unlawful given that a fee cannot be charged under the Freedom of Information Regime where costs are less than €101. Environmental information can be accessed under the FOI Act, which is a national law regime. It was alleged this breaches the principle of equivalence. The principle provides that the level of protection in a national law based on EU rights must not be less favourable than the protection of individual rights under national law.
Mr Justice Humphreys agreed to refer a question to the CJEU on this matter. This will highlight differences in the AIE and FOI regimes, including their separate purposes, varying points of detail and procedure, and the fact that Coillte is not an FOI body. This referral is expected to be made in early November, and it will likely take at least 18 months for its determination by the CJEU.
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