Environment & Planning
RECENT DOMESTIC JUDGMENTS
The High Court is considering referring a number of questions related to the grant of derogation licences to the Court of Justice of the European Union, following submissions from the relevant parties.
This case related to a request for an order quashing a derogation licence in respect of bats granted by the Minister for Housing to the developer of a number of residential units. The Court noted that the fact that no public participation is involved in the grant of a derogation licence does not mean that such a licence cannot be challenged, especially by a person affected. The Court has proposed referring a number of questions to the CJEU in relating to the timing for challenging a derogation licence, whether alternative measures such as alternative location or design must be considered before a derogation licence is granted, and whether a derogation licence must create some identified protection itself rather than through the mitigation measures adopted to compensate for the detriment that it creates.
The High Court is considering referring questions related to the submission of anonymous AIE requests to the CJEU.
The appellant identified a significant number of AIE requests of similar style, type and phraseology which were submitted under a variety of pseudonyms in March 2022. The OCEI declared that the appellant was not justified in treating the AIE requests as invalid in the absence of confirmation of the identity of the requester. The appellant challenged this decision. The Court proposes to ask the CJEU for clarification on whether domestic courts can refer questions to the CJEU which have already been determined by a higher domestic court, and whether an “applicant” under the AIE Directive and Regulations means a natural or legal person identified by their name and / or address, or whether it can mean an anonymous person. If the provision of a name and address is not required to submit a request, the Court proposes to ask whether a name and / or address may be sought for the purposes of verifying the applicant’s identity, rather than determining their interest in the matter, where there is a question over the identity of the applicant. The Court also proposes to ask whether the OCEI may seek an applicant’s name and address to determine whether a request is manifestly unreasonable considering the volume, nature and frequency of requests made by the same applicant.
The Court of Appeal found that An Bord Pleanála has jurisdiction to grant permission for strategic housing development in material contravention of a planning scheme in a Strategic Development Zone.
The Court of Appeal overturned the decision of the High Court, and confirmed that the Board does have jurisdiction under the Planning and Development (Housing) and Residential Tenancies Act 2016 to grant permission for strategic housing development in material contravention of an SDZ planning scheme.
The High Court issued two further judgments (Judgment No. 5 and Judgment No. 6) in the longstanding litigation relating to a foreshore licence granted to RWE Offshore Wind GmbH in 2022.
These judgments are among a number of judgments issued by Mr Justice Humphreys relating to a foreshore licence granted to RWE in 2022 for site investigation works for an offshore wind farm. A number of questions of European law have been referred to the CJEU, and in the No.5 judgment the judge requested that the CJEU apply the expedited procedure under Article 105 of the Rules of Procedure of the CJEU in relation to requesting a preliminary ruling. Mr Justice Humphreys made this request because the matter has a degree of urgency both from the perspective of national, European and international policy objectives and from the perspective of protection of the environment with a view to meeting Ireland’s renewable energy targets.
In the No. 6 judgment, the Court confirmed that the possibility of quashing the foreshore licence remained, and that the stay on the operation of the licence ought to remain in place.
LEGISLATION
The Planning and Development Bill 2023, as approved by Cabinet, has been published.
The Bill is intended to be a new and updated framework for planning in Ireland, and is the third largest Bill in the history of the State. Key reforms to be made by the Bill include:
- statutory timelines for decision-making, including for the first time, for An Coimisiún Pleanála;
- new strategic ten-year Development Plans for Local Authorities;
- reform of planning Judicial Review, including the introduction of a Scale of Fees and Environmental Legal Cost Financial Assistance Mechanism;
- new provisions for Urban Development Zones, underpinning key growth areas.
The Regulatory Impact Analysis Report relating to the Bill has also now been published and is available here and a guide to the Bill is available here.
The AIE Regulations are in the process of being revised.
The public consultation period in relation to the proposed amendments will remain open until 18 December 2023.
New Regulations have been introduced which set out the fees applicable to certain types of applications for maritime area consents.
The Maritime Area Consent (Certain Application Fees) (No. 2) Regulations 2023 specify the fees which shall be applicable to a section 77(1) application and a MAC grant application under the Maritime Area Planning Act 2021. They also specify that no fee shall be payable for non-material amendment to a MAC or surrender of a MAC and that MARA may waive the fee under certain circumstances.
New Regulations have been introduced in relation to licences granted under the Maritime Area Planning Act 2021.
The Maritime Area Usage (Licence Conditions) Regulations 2023 specify conditions (for the purposes of paragraph 18 of Schedule 8 of the Maritime Area Planning Act 2021) which may be attached by MARA to a licence granted under the Act.
The Wildlife (Amendment) Act 2023 has been commenced in its entirety.
This new Act provides for the review of bog habitats; further provides for making, amendment and revocation of natural heritage area orders; provides for arrangements concerning biodiversity; for those purposes amends the Wildlife (Amendment) Act 2000; and provides for related matters.
The European Communities (Birds Declarations) Regulations 2023 have been introduced to revoke and replace the European Communities (Wildlife Act 1976) (Amendment) Regulations 1986.
These Regulations were introduced to regulate the control of wild birds in certain circumstances. They transpose Article 9 of the Birds Directive (Directive 2009/147/EC on the conservation of wild birds). They empower the Minister for Housing, Local Government and Heritage to declare, where there is no other satisfactory solution and for reasons set out in Article 9 of the Directive, that specimens of particular species of wild bird may be captured or killed by specified means, arrangements or methods.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
The Environmental Protection Agency (EPA) published National By-Product Criteria for Site-Won Asphalt (road planings) from road developments.
These criteria allow for the classification of road planings as a by-product, meaning it is not waste. The by-product can subsequently be used or placed on the market in the same way as virgin material. These criteria support waste prevention and facilitate the reuse of materials in new construction projects, in line with the circular economy.
DECISIONS OF THE OFFICE OF THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION
The OCEI found that an appellant is entitled to seek internal review where they are not satisfied that all relevant records have been disclosed.
The Department refused to conduct an internal review pursuant to Article 11 of the AIE Regulations, on the basis that the request had not been “refused… in whole or in part”. The OCEI held that the scope of a “refused request” included a request that “has been inadequately answered” or “has otherwise not been dealt with in accordance with … the Directive”. The appellant was entitled to an internal review and the matter was remitted back to the Department for fresh consideration.
EUROPEAN REPORTS, CONSULTATIONS AND DECISIONS
The European Parliament and the Council have provisionally agreed their approach in relation to the Environmental Crime Directive, which aims to protect the environment through criminal law.
This Directive proposes to improve the effectiveness of criminal law enforcement and help to achieve European Green Deal objectives by targeting the most serious environmental offences. Once the new directive enters into force, Member States will be obliged to include greater precision on the definition of environmental offence categories in their criminal laws, as well as effective dissuasive sanctions for offenders. Breaches of environmental obligations, such as the illegal trade and handling of chemicals or mercury and illegal ship recycling will have to be treated as criminal offences in all Member States. Causing particularly serious damage to the environment will be treated as an aggravated offence, with higher sanctions. It is now for the Parliament and the Council to formally adopt the directive.
The European Parliament and the Council have provisionally agreed their approach to the proposal for a new Regulation on waste shipments.
This Regulation intends to ensure that the EU takes greater responsibility for its waste and to facilitate the increased use of waste as a resource. Under the regulation, the export of plastic waste to non-OECD countries will be prohibited, unless strict environmental conditions are met five years after the entry into force of the new rules. Other waste suitable for recycling will be exported from the EU to non-OECD countries only when it can be dealt with in a sustainable manner. It will also be easier to ship waste for recycling within the EU, using modern digitalised procedures. There will also be stronger enforcement and cooperation in fighting waste trafficking. The Parliament and the Council will now have to formally adopt the regulation, following which the Commission is preparing for the swift implementation of this regulation.
The European Parliament and Council have reached a provisional agreement to update the Industrial Emissions Directive, strengthening provisions for emissions from industry and large intensive rearing farms.
Once adopted and applied, the law will limit polluting emissions from industrial installations to a greater extent. The law will cover additional sources of emissions, make permitting more effective, reduce administrative costs, increase transparency, and support breakthrough technologies. The largest pig and poultry farms will be included under the updated directive, and the inclusion of cattle farms will be considered at a later stage. A lighter permitting regime will apply to farms than to industrial plants. The updated directive will also include governance mechanisms for the extraction of metals and the large-scale production of batteries.
The European Parliament and Council have issued a proposal for a regulation on a monitoring framework for resilient European Forests.
The proposed regulation would address the challenges of achieving climate neutrality and becoming resilient to climate change, reversing biodiversity loss, addressing risks related to forest health and fulfilling international commitments on biodiversity preservation and climate change. The regulation would involve the development of digitalised, accurate and comparable data on the state of EU forests, and would establish a forest monitoring system to be operated by the Commission and Member States.