Environment
and Planning
Irish developments
Supreme Court grants leave to appeal on interpretation of section 146B of the Planning and Development Act 2000
The Supreme Court has granted leave to appeal in Rural Residents Wind Aware and Environmental Group & Ors v An Coimisiún Pleanála [2026] IESCDET 114 (PDF, 177 KB) and [2026] IESCDET 113 (PDF, 193 KB). The case involves two sets of judicial review proceedings brought by local residents challenging a windfarm development at the Carlow-Kilkenny border. The High Court had dismissed the judicial review challenges and refused leave to appeal to the Court of Appeal. The residents group sought leave to appeal to the Supreme Court.
The Supreme Court has agreed to hear the appeal on the meaning of the phrase “alter the terms of the development” in section 146B and the test to be used to determine whether an alteration is or is not a material alteration. The Supreme Court declined to grant leave on a separate ground concerning shadow flicker and noise impacts, noting that the High Court judgment was grounded in well-settled law.
Commencement of Planning and Development Act Provisions
The Planning and Development (Amendment) Act 2026 (Commencement) Order 2026 (S.I. No. 414 of 2026) (PDF, 135 KB) appointed 12 August 2026 as the day on which a number of provisions of that Act came into operation. One notable commencement is the insertion of new section 303A into the Planning and Development Act 2024 (the “2024 Act”), which brings judicial review challenges to decisions made under the Planning and Development Act 2000 (the “2000 Act”) under the 2024 Act procedure. It should be noted that the litigation costs rules in section 50B of the 2000 Act will still apply to judicial reviews of 2000 Act decisions. In practical terms, this only applies to procedures under the 2000 Act initiated on or after 12 August 2026. For example, a planning application would need to be lodged on or after 12 August for any subsequent judicial review proceedings to be governed by the 2024 Act.
New Draft Planning Regulations
A significant package of Draft Planning and Development Regulations under the 2024 Act was also published earlier in September. Collectively, the drafts provide important detail on the operation of the new planning code, including development management procedures, environmental impact assessment processes, retrospective consent, imperative reasons of overriding public interest (IROPI) requests, and engagement with prescribed bodies. These Regulations (still in draft) will be a key component of the implementation of the 2024 Act.
Licensing of events
New rules on the licensing of events have also come into force on 9 September, under the 2024 Act and associated regulations. These changes were brought about by the Planning and Development (Licensing of Outdoor Events) Regulations 2026, Planning and Development (Amendment) Act 2026 (Commencement) (No. 2) Order 2026 (PDF, 256 KB) and Planning and Development Act 2024 (Commencement) (No. 2) Order 2026 (PDF, 135 KB).
Habitats Directive: Minister for Housing, Local Government and Heritage designates new offshore and coastal Special Areas of Conservation
A batch of twelve statutory instruments made under the European Communities (Birds and Natural Habitats) Regulations updated the formal designation of twelve sites as Special Areas of Conservation (“SACs”) in accordance with Article 4 of the Habitats Directive.
The sites include four offshore sites, namely:
- The Codling Fault Zone SAC (S.I. No. 423 of 2026) (PDF, 672 KB)
- The Belgica Mound Province SAC (S.I. No. 428 of 2026) (PDF, 493 KB)
- The South-West Porcupine Bank SAC (S.I. No. 429 of 2026) (PDF, 479 KB)
- The Porcupine Bank Canyon SAC (S.I. No. 430 of 2026) (PDF, 495 KB)
Together with a number of coastal and island sites:
- St. John's Point SAC (S.I. No. 419 of 2026) (PDF, 833 KB)
- Gweedore Bay and Islands SAC (S.I. No. 420 of 2026)
- Lough Swilly SAC (S.I. No. 421 of 2026) (PDF, 1.2 MB)
- Lambay Island SAC (S.I. No. 422 of 2026) (PDF, 614 KB)
- Inishmore Island SAC (S.I. No. 424 of 2026) (PDF, 671 KB)
- West Connacht Coast SAC (S.I. No. 425 of 2026) (PDF, 1.3 MB)
- Bunduff Lough and Machair/Trawalua/Mullaghmore SAC (S.I. No. 426 of 2026) (PDF, 1.1 MB)
- Hook Head SAC (S.I. No. 427 of 2026) (PDF, 756 KB)
These sites had all been designated previously, but the new statutory instruments formally amend the protections for the sites. For example, new qualifying interests (protected species such as Harbour Porpoise / Phocoena phocoena) are included, and additional activities require the consent of the Minister (for example, acoustic surveys and recreation).
New High Court practice direction on the use of generative artificial intelligence takes effect
Practice Direction HC142, on the responsible use of Generative Artificial Intelligence (“GenAI”) in Court Documents, came into operation on 1 September 2026. It applies to pleadings, submissions, affidavits, witness statements and expert reports filed in the High Court. The Practice Direction requires the person responsible for a Court Document to independently verify any GenAI-assisted material before use and provides that using the same or another GenAI tool to check accuracy is not sufficient verification.
With effect from 1 September 2026, a specific declaration must be included in one of the opening paragraphs of High Court affidavits and witness statements intended to stand as evidence, confirming that GenAI has not been used to generate the substantive content of the document (including by altering, embellishing, strengthening, diluting or rephrasing the evidence) unless the Court otherwise directs. The Practice Direction imposes parallel declaration and disclosure requirements on expert reports.
These new requirements will be relevant to technical experts routinely retained in environmental and planning litigation, such as environmental scientists, ecologists, noise and air quality consultants, and planning experts.
Birds Directive: High Court refuses to strike down Minister’s decision removing birds from open season list
In Butler and Anor v Minister for Housing, Local Government and Heritage and Ors [2026] IEHC 558, the High Court (Barr J) rejected a judicial review challenge brought by a hunting organisation to the Wildlife (Wild Birds) (Open Seasons) (Amendment) Order 2023, which had removed four species of duck from the list of species that may lawfully be hunted under the principal 1979 Open Seasons Order. The applicants argued that the Minister was obliged by section 11(2)(bc) of the Wildlife Act 1976 (which transposes Article 2 of the Birds Directive) to have specific regard to the ecological, scientific, cultural, economic and recreational requirements relevant to hunting policy before amending the Order.
Applying the principles of statutory interpretation in Heather Hill Management Company CLG v An Bord Pleanála [2024] 2 IR 222, the Court held that sections 8 and 24 of the 1976 Act confer broad powers to make, revoke or amend open season orders without any express requirement to consider the section 11(2)(bc) criteria and, in any event, found that the Minister had in substance had regard to those matters based on scientific evidence of population decline and extensive public consultation. It was also noted that the default position under the Birds Directive is a prohibition on killing wild birds, rather than a permission to hunt.
The Court also endorsed the Minister's reliance on the precautionary principle as an independent basis for restrictive measures notwithstanding scientific uncertainty, citing the opinion of Kokott AG in Land Niederösterreich (Case C-131/24) that ecological and scientific requirements are decisive and that “Cultural, economic and recreational requirements, on the other hand, can be taken into account only after and insofar as the long-term conservation of the species has been ensured”. The Court also held that Article 2 of the Directive had to be read in light of Article 14, which provides that Member States may introduce stricter protective measures than those provided for under the Directive.
Further case law reiterates that EIA is not needed for Solar
Humphreys J in the Irish Planning & Environment Court has once again stated that EIA is not needed for solar farms. This led to judicial review challenges being dismissed in the cases of Tom Milner and Claire Milner Applicants and An Coimisiún Pleanála [2026] IEHC 627 (PDF, 444 KB) and Leamlara Preservation Group and Califf Delaney v An Coimisiún Pleanála [2026] IEHC 631 (PDF, 485 KB).
EU developments
Advocate General Kokott recommends annulment of extended producer responsibility provisions of the Urban Wastewater Treatment Directive
Advocate General Kokott delivered her Opinion on 3 September 2026 in Case C-193/25, Poland v Parliament and Council, recommending the annulment of Article 9(1)(a) and Annex III of the revised Urban Waste Water Treatment Directive (EU) 2024/3019 (“UWWTD”), which require producers of pharmaceuticals and cosmetics to fund at least 80% of the cost of the new "quaternary treatment" stage for removing micropollutants from urban wastewater.
Poland’s challenge contended that the EU legislature had failed to justify its decision to single out the pharmaceuticals and cosmetics industries and had underestimated the share of micropollutants attributable to other product groups, thereby imposing a disproportionate and discriminatory extended producer responsibility (“EPR”) burden on the pharmaceutical and cosmetics sectors. The AG accepted that the EU legislature enjoys a broad margin of discretion in complex scientific and socio-economic assessments, but found that there was reasonable doubt as to the accuracy of key toxicity-weighting values and of the attribution of certain substances (including permethrin and fatty acids) to the cosmetics sector, vitiating the assessment by a manifest error and undermining the related proportionality analysis where the EU legislature had failed adequately to address these doubts.
The AG nonetheless upheld the underlying legitimacy of applying the polluter-pays principle to fund quaternary treatment through an EPR mechanism directed at producers, rejecting arguments that responsibility should instead fall on prescribing physicians or consumers. If the Court of Justice follows the Opinion, the EU legislature will need to reexamine the scientific basis for allocating EPR costs under the UWWTD, a matter of direct relevance to pharmaceutical and cosmetics producers and to wastewater infrastructure operators and funders planning for quaternary treatment obligations.
RTÉ is (probably) not a relevant public authority for the Access to Information on the Environment Directive
On 10 September, the Court of Justice of the EU delivered its judgment in the case of Raidió Teilifís Éireann (RTÉ) v Commissioner for Environmental Information C-330/25.
This case relates to information requests made to RTÉ by an NGO, Right to Know CLG. RTÉ refused to provide certain information, but the Commissioner for Environmental Information annulled that decision on appeal. RTÉ appealed to the Irish High Court, and the High Court referred a question to the CJEU as to whether RTÉ was a public authority within the scope of the EU Directive on public access to environmental information (the “AIE Directive”).
The CJEU held that, while ultimately the Irish Court would have to make the final decision, “a legal person governed by public law that is created by the state pursuant to a statute and which can be dissolved only by the state, the members of whose board are appointed by the Government, which is funded by both public monies and commercial revenue, and which mainly carries out broadcasting and journalistic activities, all while remaining independent in the exercise of its functions and benefiting from the protection linked to freedom of expression, but which does not organically form part of the public administration or executive of the State, cannot be classified as a ‘public authority’” within the meaning of the AIE Directive.
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