Environment & Planning
RECENT DOMESTIC JUDGMENTS
The High Court (Phelan J) granted an extension of time to bring judicial review proceedings, and set aside a decision of An Bord Pleanála to refuse planning permission for a residential development in Co Kildare, on the basis that the Applicant was denied fair procedures.
The Applicant brought a challenge (out of time) to the Board’s decision to refuse planning permission for a residential development. After the Applicant lodged its appeal to the Board, a variation to the County Development Plan was passed, which resulted in the proposed development materially contravening the Plan. The Board subsequently refused permission based on material contravention, without hearing from the developer Applicant on the question of the material contravention / variation. The Court, in finding for the Applicant, held that the Board ought to have exercised its discretion to request a further submission from the Applicant. The Court also extended time within which to bring the challenge, on the basis of three factors: first, that the Board did not publish the necessary documents on its website until after the leave application had been brought, secondly, that (following a request by the Applicant’s planning consultant) it took two weeks to receive a copy of the Inspector’s Report and the Board Direction was never furnished and, finally, the Covid-19 restrictions in place at the time.
The High Court (Phelan J) upheld the Board’s decision that a change of use from a car sales store to a Mr. Price retail store, without planning permission, was not an exempted development where the building did not conform to the original permission granted.
The Applicant, who is a tenant of the premises in question, challenged a decision of the Board under section 5 of the Planning Acts, which determined that the change in use from a premises for the sale or leasing of motor vehicles to use as a shop was not exempted development on the basis that the works development (that is, the building itself) had not been built out in compliance with its planning permission. A breach of planning permission (in this case condition 1 (compliance with plans and particulars)) ‘de-exempts’ an available class of exempted development. The Court upheld the decision of the Board.
The High Court (Humphreys J) refused to grant leave to appeal a previous decision where the Applicant unsuccessfully challenged the constitutional validity of a section of the Planning and Development Act 2000 and two guidelines made under that provision.
The Applicant sought a certificate for leave to appeal a decision of the High Court which had rejected an argument that section 28(1C) of the Planning Acts (which is the obligation on the local authority / Board to comply with SPPRs), was an unauthorised delegation of legislative power in that it conferred disproportionate power on the Minister to make binding policies, which restricted the powers of local authorities and the Board, without the necessary principles and policies in place to limit this power. The Court refused to grant leave to appeal on the basis that leave to appeal was not necessary in this case (because the Applicant could appeal without a certificate) as there is no statutory restriction on the right to appeal an order of the High Court regarding the validity of primary legislation. The Applicant also sought costs of the proceedings, but the Court made no order as to costs in circumstances where the Applicant was entirely unsuccessful. The facts of the case did not warrant a departure from the default rule.
The High Court (Humphreys J) dismissed a challenge to An Bord Pleanála’s decision to grant planning permission, but invites further submissions on the challenge to the grant of a bat derogation licence.
The High Court carried out a dual review of the Board’s decision to grant planning permission for the proposed SHD at the former Carmelite monastery at Delgany, County Wicklow, and of the Minister’s decision to grant a derogation licence. The Court dismissed the challenge to the planning permission, upholding the decision of the Board. The challenge to the derogation remains live, and further submissions on the challenge to the grant of a bat derogation licence have been invited in circumstances where: (i) several core grounds of challenge were not pursued; (ii) grounds founded on domestic law were not successful; and (iii) several submissions on EU law regarding the challenge to the derogation licence emerged late in proceedings.
The High Court (Humphreys J) heard submissions on a challenge to a foreshore licence for site investigation works granted to RWE, centred on two core grounds.
Following a hearing last month, the majority of the Applicants’ grounds were dismissed, with the remaining grounds relating to in-combination effects. At a hearing of these remaining issues, parties made submissions on whether the Court should decide one or both issues itself, and whether one or both issues should be the subject of a reference to the CJEU and, if so, on the basis of what potential relief. The Court will deliver a ruling on the in-combination effects and whether the stay currently in place on all works to be carried out under the licence by RWE is to be lifted or maintained. A judgment is expected in the coming weeks.
The High Court (Holland J) dismissed an application for judicial review of An Bord Pleanála’s decisions to grant planning permission for a data centre and grid connection in Meath.
The Applicants challenged two separate planning permissions for a data centre and its associated grid connection, largely on EIA grounds relating to climate and project splitting, ECHR and Constitutional rights to life, bodily integrity, a healthy environment consistent with human dignity, and the Board’s revisions to the application (removal of the energy centre) at the request of the Applicants. The Court rejected the challenge. The Court held that both the data centre and grid connection were subject to the required EIA. In respect of the Applicants’ human rights-based arguments, the Court reiterated that while personal environmental rights have been recognised by the European Court of Human Rights, there is no relief available for general environmental degradation, and Applicants must show specific harm to themselves. It was also noted that inter party litigation is not a suitable vehicle for addressing issues requiring a wide societal, long term, complex and nuanced response requiring policy decisions. The Applicants were unable to provide concrete evidence of imminent, clear and adverse effects on themselves and so were unsuccessful.
The High Court (Sanfey J) ordered a windfarm owned by SSE Renewables to pay compensation to a landowner whose land was trespassed on when cables were laid in the grass verge along a public road. The windfarm was not required to remove the cables.
The case related to grid connection cables laid in the Defendant’s land in or around 2009. Following an ongoing dispute with the Defendant, in 2021 the Plaintiff brought proceedings to restrain the Defendant from removing or interfering with the cables. The Court had to determine whether to make the order requested by the Plaintiff (in which case the Plaintiff accepted that monetary compensation would be payable) or an order for the removal of the cables (which the Plaintiff argued would result in it incurring a wholly disproportionate loss in circumstances where the cables do not interfere with the Defendant’s present use of the land in any material way). The Court held that no order should be made directing the plaintiff to remove the cables, noting that: (a) the Plaintiff appeared to be unaware it was trespassing when the cables were laid in 2009, (b) the Defendant’s primary aim was to extract maximum compensation, rather than serious concerns about safety, (c) the Defendant could not point to any interference with his lands, and (d) disproportionate consequences for the Plaintiff. The Court held that appropriate orders should be made with a view to establishing the compensation to be paid to the Defendant by the Plaintiff for its admitted trespass.
The High Court (Humphreys J) refused an extension of time and leave to apply for judicial review in three separate cases where Mr Paul Hyde made up the Board which granted permission for telecommunications masts to be constructed.
In the three cases, the Council refused permission for the construction of telecommunications masts in three locations, each of which was appealed to the Board by the respective developer. In each appeal, the Board's Inspector recommended refusal of permission, which the Board disagreed with, granting the permission. The composition of the Board which made the decision included Paul Hyde, the former deputy chair. Proceedings were initiated in the three cases following an analysis of mast decisions made by the Board, communications with the media and publication of several articles outlining Mr Hyde’s involvement in Board decisions which resulted in his resignation. Each Applicant submitted there was good and sufficient reason to grant an extension of time to bring the judicial review, and that the circumstances, resulting in delays of between a year and 18 months, were outside their control. They each sought to quash the Board’s decision to grant the permission, an investigation into the file allocations within the Board and an investigation into the circumstances leading to the resignation of Mr Hyde. The Court refused the applications, outlining that the potential merits of the important points raised by the Applicants were not sufficient to overcome the criteria for extending the time limit. To extend time would be unfair to the commercial interests involved. The judgments can be read here, here and here.
The High Court (Humphreys J) refused leave to apply for judicial review with respect to a grant of planning permission by Clare County Council on the basis that the requirement to have exhausted all other remedies had not been satisfied, but granted leave with respect to the decision of An Bord Pleanála on the same matter.
Leave was sought in respect of both a decision to grant permission made by the local authority for a service station, and the subsequent decision of the Board to grant permission on appeal. The applicant had not appealed the decision to grant to the Board. Instead, it had been appealed by other parties. The leave applications were heard together, and the Court refused to grant leave to apply for judicial review in relation to the Council’s decision as all other remedies had not been exhausted. There was no legal irregularity that justified by-passing administrative appeal. Leave to judicially review the decision of the Board was granted in part.
RECENT SUPREME COURT DETERMINATIONS
The Supreme Court granted leave for a leapfrog appeal in ‘Kerins’.
A certificate for leave to appeal to the Court of Appeal had already been granted to the applicants, and both the Notice Party developer and the applicants sought a leapfrog appeal. The Notice Party used the new provisions under section 50A(13) of the Planning Acts, allowing parties to an appeal to seek a leapfrog appeal where a certificate has been granted. The matter is listed for case management on 3 October 2023.
The Supreme Court granted leave for a leapfrog appeal in ‘Crofton’.
The case concerns the possibility of remitting a strategic housing development application back to An Bord Pleanála for a fresh permission, where additional information is required to make a fresh decision (for example, due to a change in Development Plan) and whether such additional information can be submitted by way of an Oral Hearing. The Board in its submissions noted that the outcome of these proceedings will likely govern some ten other proceedings involving challenges to the validity of planning permissions given in respect of SHDs. The matter is listed for case management on 4 October 2023.
The Supreme Court granted leave to appeal in ‘Ballyboden’, on the question of whether a Notice Party developer may continue to defend a judicial review, where certain grounds were been conceded by the Respondent, An Bord Pleanála.
The Applicant argued that this was in direct conflict with the decision made in Protect East Meath v An Bord Pleanála, as the High Court did not make it clear how the rights of a Notice Party should be balanced against the other factors identified in the judgment, such as court resources. The applicant relied on the fact that other proceedings raising the same point had been commenced in the High Court to demonstrate that the matters raised are of systemic importance. The notice party developer opposed leave, arguing that an inherent judicial discretion to grant an order to a notice party to defend proceedings was identified in Protect East Meath v An Bord Pleanála. The Court granted leave.
Leave to appeal to the Supreme Court was refused because the pertinent legal question had effectively been resolved by a new judgment of the CJEU and so could no longer be considered to be of general public importance.
The substantive action was dismissed by the Court of Appeal primarily on the basis that the Applicant failed to exhaust alternative remedies in advance of commencing the application for judicial review. In its application for leave to appeal to the Supreme Court, the Applicant challenged this by asking whether, absent an express requirement under the AIE Regulations, an Applicant must exhaust domestic remedies before seeking judicial review type orders and, whether, if such a limitation exists, it is compatible with EU law and/or may be seen as a limitation on the right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union. In its determination, the Court held that it was “well-established” that judicial review could only be sought where all other remedies had been exhausted. Right To Know CLG had not exhausted all available remedies prior to appealing to the Supreme Court.
LEGISLATION
A number of provisions of the Circular Economy and Miscellaneous Provisions Act 2022 are commenced.
In summary, the sections include those establishing the Circular Economy Fund and the new Environment Fund.
A number of sections were commenced on 29 June 2023 and 1 July 2023. These amend the Waste Management Act 1996, including by introducing a new waste recovery levy to apply to waste sent for recovery, such as incineration, in Ireland or abroad and allowing for the regulation of end-of-waste and by-product notifications to the EPA and determinations or decisions following such notifications.
A number of provisions of the Maritime Area Planning Act 2021 have been commenced by statutory instrument.
Arguably the most significant development is the commencement of Part 5, which regulates “Licences authorising certain maritime usages in Maritime Area”. Transitional provisions (for certain foreshore authorisations and certain unauthorised maritime usages) have also been commenced. Other points of note are the commencement of provisions dealing with judicial review of maritime area consents and provisions which repeal certain sections of the Foreshore Act 1933 and the Planning and Development Act 2000.
Maritime Area Regulatory Authority
17 July 2023 is designated as the establishment day for MARA for the purposes of the Maritime Area Planning Act 2021.
A number of provisions of the Planning and Development, Maritime and Valuation (Amendment) Act 2022 have been commenced by statutory instrument.
Notably, provisions allowing for judicial review of maritime spatial plans and designated maritime area plans have been commenced. Also commenced was a provision amending section 131(1) of the Maritime Area Planning Act 2021 by substituting the phrase “point of law” for “question of law” (in the context of judicial review). The statutory instrument also brought about the commencement of provisions amending Schedule 8 of the 2021 Act, which deals with licencing conditions under the Act.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
The first Designated Maritime Area Plan (DMAP) for Offshore Renewable Energy has been published.
This signals Ireland’s first step into the plan-led development of offshore wind. This first DMAP is to be located off the South Coast of Ireland, and proposes a geographical area within which Phase 2 offshore renewable energy development may take place.
Peter Mullan has been appointed as the new Interim Chairperson of An Bord Pleanála.
Mr Mullan will take up his post on 2 September 2023 when the current interim Chairperson, Ms. Oonagh Buckley, moves to her new role as Secretary General of the Department of Environment, Climate and Communications.
DECISIONS OF THE OFFICE OF THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION
The Commissioner directed the Irish Aviation Authority (IAA) to carry out a fresh decision-making process where it failed to provide records requested, and instructed that appropriate measures to ensure proper engagement with the Office of the Commissioner for Environmental Information in relation to AIE appeals.
The IAA responded to a request from an individual in relation to the sightings of unknown aerial objects, stating that it was unable to locate records relevant to the request. This was appealed to the Commissioner, who wrote to the IAA on four separate occasions over a six-month period without receiving a response. The Commissioner described the lack of response as “both disappointing and unacceptable” and set out that the IAA must comply with the Access to Information on the Environment (AIE) Regulations.
The Commissioner found that the Department of Agriculture, Food and the Marine had not complied with its obligations under the AIE Regulations as it failed to provide environmental information to the appellant in the form or manner requested.
The Appellant requested access to mapped and tabular data relating to afforestation and felling licences approved by the Forest Service, refused on the basis that the information is publicly available on the Department’s website. It was held that there was no evidence to suggest that the information was publicly available in an easily accessible form or manner. The Commissioner found that the Department failed to deal with the Appellant’s request in a way that could be deemed consistent with the provisions of the AIE Regulations. However, the Commissioner stopped short of directing the Department to compile and provide the information in the exact form and manner requested, because of uncertainty as to the Department’s ability and technical capability to do this. The Commissioner welcomed what was identified as a recent “shift” in the Department’s approach to these matters “from one of a blanket approach to refusing access to information in a certain form or manner, to a notable display of effort and indeed willingness to offer assistance in accessing specific information”. However, it was highlighted that the Department’s continued failure to provide any reasoning in these cases is “problematic”.
The Commissioner found that the Department of Agriculture, Food and the Marine had not complied with its obligations under the AIE Regulations as it had failed to provide environmental information to the appellant in the form or manner requested.
A request sought all environmental information on a decision to reduce the timeframe for lodging an appeal regarding a project affecting a European site from 28 days to 14 days (as set out in Circular 10/2021). The Department decided to part-grant the information requested.
In annulling the decision, the Commissioner found that the request was not dealt with in accordance with the AIE Regulations, as the Department: (a) failed to provide the appellant with information relevant to the request; and (b) provided no evidence that it conducted an adequate and reasonable search to enable it to identify and locate information relevant to the request. The Commissioner criticises the schedule provided by the Department, noting that it contained no list of each record granted, part-granted or refused. She remarked that it was therefore “difficult to know whether the Department’s partial withholding of some records relates only to information that has been released, or if it also covers information that has not been released”. She emphasised that, where public authorities provide schedules of documents in response to AIE requests, these should be full, meaningful schedules.
EUROPEAN REPORTS, CONSULATATIONS AND DECIONS
The proposed Nature Restoration Law was narrowly passed by the European Parliament at a vote on 12 July 2023.
If agreed, this law will place recovery measures on 20% of the EU’s land and sea by 2030, rising to cover all degraded ecosystems by 2050. The proposed text can now move to trialogue negotiations between the Commission, Council and Parliament.
A new Special Protection Area designated under the EU Birds Directive will be Ireland’s largest ever protected area for birds.
The new North-West Irish Sea SPA will cover more than 230,000 hectares of important marine waters for a range of bird species throughout the year. It increases the percentage of Ireland’s marine waters protected under the EU Birds and Habitats Directives to over 9%.
The Commission proposes the ban of all remaining intentional uses of mercury in the EU.
The Commission adopted a proposal to revise the Mercury Regulation to protect EU citizens and the environment from toxic mercury. The revised Mercury Regulation would target the last intentional remaining uses of mercury in a variety of products in the EU in line with commitments set out in the EU’s Zero Pollution Ambition. The revision will fully prohibit the use of dental amalgam, which currently uses 40 tonnes of mercury in the EU annually. It will also prohibit the manufacture and export of certain products containing mercury, such as lamps.
RECENT EU COURT DECISIONS
The CJEU ruled that the European Investment Bank’s avoidance of environmental scrutiny of its financing decisions was in breach of EU law.
ClientEarth requested EIB to carry out an internal review of its decision to grant a €60 million loan for the construction of a Spanish biomass plant, relying on provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters to Community institutions and bodies. EIB rejected this request and ClientEarth challenged this before the General Court of the EU, which ruled in favour of ClientEarth, annulling EIB’s decision. EIB appealed this decision to the CJEU arguing that there were errors of law in the assessment of the EIB’s independence in the sphere of its financial operations, in the interpretation and application of the Aarhus Convention and in the interpretation of the relevant Regulation. The CJEU dismissed the appeal and ordered EIB and the Commission to bear their own costs and to pay the costs incurred by ClientEarth. There is no possibility for EIB to further appeal.
The CJEU determined that Irish law (the Birds and Natural Habitats Regulations 2011) is not in breach of EU law (the Habitats Directive).
The Court held that the derogation procedure under Article 16 of the Habitats Directive (transposed in Regulation 54 of the Birds and Natural Habitats Regulations 2011 – 2023) is not required under EU law to be integrated into the procedures for granting development consent to EIA projects. It was set out that there was no need to ascertain whether, and under what conditions, members of the public derive a right under the Aarhus Convention to participate in the derogation process, because the dispute at hand did not concern a derogation under Regulation 54. The question of admissibility of the reference to the CJEU was also raised. The CJEU noted that, where questions submitted by the national court concern the interpretation of EU law, the CJEU is, in general, bound to give a ruling as questions relating to EU law enjoy a presumption of relevance. However, a reference will not be admissible where the problem raised is hypothetical, where the CJEU does not have the factual/legal material needed to give a useful answer, or where the interpretation of EU law sought is unrelated to the facts of the action. The CJEU decided that none of these exceptions applied here and so a ruling on the questions referred was given, in which the validity of the 2011 Regulations was upheld.
The CJEU held Portugal that infringed the Directive on ambient air quality and cleaner air for Europe.
The Court made a declaration that the annual limit values for NO2 in ambient air were consistently exceeded in three zones between 2010 and 2020, and that Portugal did not take appropriate measures to ensure that the period of exceedance was as short as possible. Portugal disputed the arguments based on quality checks being carried out in particular locations, but this was dismissed, as the location of sampling points had been set out in previous case law. The Court awarded costs in favour of the Commission.
The CJEU clarified that Spanish legislation providing for a tax on coal used for electricity generation is compatible with EU legislation which exempts energy products used to produce electricity from taxation.
It was considered whether the environmental aim was given concrete expression in the domestic legislation and achieved simply by reason of the fact that taxes were imposed on certain non-renewable energy products and that no tax is levied on the use of such products where they are considered to be less harmful to the environment. The CJEU held that national legislation providing for the taxation of coal used for the production of electricity meets the conditions that the tax must be introduced ‘for reasons of environmental policy’, that there is a direct link between the use of the revenue and the purpose of the tax in question, and the tax is designed in such a way that it influences the behaviour of taxpayers to ensure better protection of the environment.