Environment & Planning
RECENT DOMESTIC JUDGMENTS
The High Court clarified confidentiality requirements under the Freedom of Information Act 2014 for the Commissioner for Environmental Information.
Hyland J held that reliance on the Freedom of Information Act 2014 under Regulation 8(a)(iv) of the AIE Regulations was only available to public authorities which were separately subject to the FOI Act. As Coillte was not subject to the FOI Act, the Court held it could not rely on exemptions from disclosure under the FOI Act by virtue of the reference to the FOI Act under Regulation 8(a)(iv).
The High Court confirmed the form of order to be made when quashing a decision to zone lands in a Development Plan.
The High Court previously ruled that the zoning under the Development Plan was to be quashed, noting that there were live planning applications pending in respect of the lands. The Court heard from the parties on the form of order to be made, and ultimately decided to make an order under section 50A(9A) (the section dealing with directions on remittal), rezoning the lands “White Lands”, without prejudice to the entitlement of the Council to formally vary the zoning by way of variation.
The High Court refused to grant leave to appeal a decision quashing permission for a SHD.
The developer sought leave to appeal to the Court of Appeal in respect of three points of law relating to protected structures, the standard to be applied in judicial review in respect of exercise of planning judgment and the threshold for reasons to be given by a decision maker. The Court declined to grant leave, on the basis that the questions were moot, as the permission was quashed on other grounds and the appeal could not overturn the decision to quash the permission and the questions posed could be answered by the Planning Acts and existing judgments of the appellate courts. The Court suggested that the public interest would be better served by a fresh application under the law as it now stands rather than a prolongation of the current process.
The High Court held that the special costs rule does not apply to compulsory purchase orders.
The High Court held that the special costs rules in planning matters do not apply to CPO matters on the basis that CPOs fall outside of the scope of all Irish and EU legislative measures (including the Aarhus Convention). The Court held that merely making a submission on environmental grounds within the CPO process was insufficient to trigger costs protection.
The High Court granted a certificate for leave to appeal on three points of law relating to the parameters within which the Court can remit an SHD to the Board.
The Crofton case (in which the High Court ruled that an oral hearing could be convened in the context of an SHD remittal to address potential deficiencies in the underlying planning documentation) will now be the subject of an appeal to the Court of Appeal. The Court granted the certificate on the following questions:
(1) When granting remittal of a decision, to what extent, if any, can the Court direct the Board to go outside the powers normally available under statute in relation to the processing of that application.
(2) When granting remittal of a decision, to what extent, if any, can the Court make directions for the processing of that application to include the exercise of powers which are available under the statutory scheme but are varied to facilitate remittal or are powers which supplement those statutory powers in the interests of justice.
(3) When granting remittal, can the Court oblige the Board to convene an oral hearing where the statute confers on the Board an absolute discretion as to whether and/or what manner it may exercise such power.
The High Court upheld planning permission for a Strategic Housing Development granted by the Board.
This is one of only five SHDs that has withstood judicial review. The case focused on protected structures. The High Court held that issues relating to protected structures need to be raised during the planning process, not raised for the first time during a judicial review. The Court also devised a nine-stage test for determining the curtilage of a protected structure. Also, for the purposes of the legal effect of the Record of Protected Structures, a change in use, function or layout after the legally relevant time does not change the extent of protection, unless the wording of the RPS also changes in some material way.
The High Court upheld planning permission for a Strategic Housing Development following a decision of the CJEU.
The High Court upheld a grant of permission for an SHD. The Court applied the decision of the CJEU (which clarified (i) that a non-binding masterplan does not come within the scope of the SEA Directive, and (ii) that the EIA Directive does not preclude national legislation which requires planning authorities to act in accordance with guidelines – in this case the Building Height Guidelines) to the Applicants’ grounds of challenge, and concluded that the Applicants’ case must be dismissed.
In a subsequent judgment, the High Court went on to grant a certificate for leave to appeal to the Court of Appeal on grounds relating to the interpretation of public open space obligations under the Dublin City Development Plan 2016 – 2022. Unusually, in doing so, rather that focusing solely on the statutory test for an appeal under section 50A(7) of the Planning Acts, the Court suggested that, from an appeal perspective, the issue that should be considered is not whether the Court was correct, “but whether there is a plausible argument that [it] was wrong such that doubt could arise warranting appellate clarification.”
The Supreme Court has accepted a leapfrog appeal from the High Court.
The Court considered whether a solar farm was a “project for the restructuring of land holdings” which required EIA screening. This solar farm development required the removal of a significant length of hedgerow. The Court outlined that significant issues as to the transposition of the EIA Directive were raised and, while solar farms are not, per se, a category of project listed in the EIA Directive, the proposed development here is such that it may be likely to have significant effects on the environment. The Court was of the view that it is in the public interest that these issues should be clarified.
"The Government approved commencement of the process to revise the National Planning Framework (NPF) and publish the Roadmap for this First Revision."
LEGISLATION
Maritime Area Planning Act 2021 (Commencement of Certain Provisions) Order 2023
This Order appoints 15 May 2023 as the date on which Part 2 (with the exception of Chapter 9) of the Maritime Area Planning Act 2021 (No. 50 of 2021) comes into operation. Part 2 provides for the preparation and publication of Maritime Spatial Plans; for the designation of public bodies who may make Designated Maritime Area Plans; and for the preparation and publication of Designated Maritime Area Plans. The Part also provides for judicial review of Maritime Spatial Plans and Designated Maritime Area Plans and for compliance by public bodies with the National Marine Planning Framework. The first draft DMAP is due to be published in June 2023.
Sea Pollution (Ballast Water Management Convention) Regulations 2023
These Regulations implement the International Convention for the Control and Management of Ships’ Ballast Water and Sediments. They set out the requirements for shipowners to ensure there is a Ballast Water Management Plan in place, that ballast water exchange is undertaken in line with the Convention, and that any ballast water operations are recorded and that such records are maintained. The Regulations also set out the survey and certification requirements and the powers of inspectors.
PENDING LEGISLATION
Urban Tree Protection and Sites Locally Important for Ecology Bill 2023
This is a Bill to establish a new designation for the protection of nature sites, the Sites Locally Important for Ecology Order; to improve protection for trees under the existing Tree Preservation Order; to provide for an appeals process for when the decision regarding a Tree Preservation Order or a Site Locally Important for Ecology Order has been made; and to provide for the replacement of trees that have been cut down. The Bill is before Dáil Éireann, Second Stage.
Historic and Archaeological Heritage Bill 2023
This Bill proposes to repeal and replace the National Monuments Acts 1930 to 2014 and give effect to the EIA and Habitats Directives. The bill is currently before Dáil Éireann, Third Stage/Committee Stage.
Climate Action and Biodiversity (Mandates of Certain Organisations) Bill 2023
This Private Members Bill (which originated in the Seanad) proposes amendments to the Turf Development Act 1946 and the Forestry Act 1988 in order to reflect obligations regarding climate action and the protection and enhancement of biodiversity in the mandate and functions of the organisations established under those Acts. This Bill has completed Seanad Éireann, Second Stage.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
Supplemental zoned-land maps for Residential Zoned Land Tax are published
The Supplementary Residential Zoned Land Tax Maps have now been published by a number of local authorities as part of the implementation of the Residential Zoned Land Tax (RZLT).
Report on the Pre-Legislative Scrutiny of the Draft Planning and Development Bill 2022
The Joint Oireachtas Committee on Housing has published its pre-legislative scrutiny report, which makes over 150 recommendations.
New EPA Online portal will provide greater transparency and easier public access to environmental enforcement information
The EPA provided improved access to environmental enforcement information with the launch of Phase 1 of a new online portal (LEAP Online). The public will be able to access site visit reports, licensees’ responses to those reports, licensee requests for approval from the EPA, monitoring results and site updates. All communications between the EPA and licensees will be available online with the launch of Phase 2 later in 2023.
Department of Housing Circular on the Time Limited Waiver of Development Contributions
In order for the annual Housing for All targets (average delivery target of 33,000 homes per year) to be met, a temporary time-limited arrangement for the waiving of local authority “section 48” development contributions and the refunding of Uisce Éireann water and waste water connection charges has been introduced, as a means to urgently help to address cost and viability issues and to incentivise the activation of an immediate pipeline of new commencements.
The Commissioner for Environmental Information found that the Department of Agriculture, Food and the Marine was not justified in refusing access to requested environmental information.
The Commissioner for Environmental Information found that the Department of Agriculture, Food and the Marine was not justified in refusing access to requested environmental information on the basis that no relevant environmental information was held by or for it. The Department did not identify any information that it held which was relevant to the request, and it was not entitled to refuse the request on the basis that it is manifestly unreasonable. The Department’s decision that, after all reasonable steps to ascertain its whereabouts were taken, the information requested does not exist or cannot be found, was annulled. The matter was remitted to the Department which should process the appellant’s request in accordance with the AIE Regulations.
Office of the Commissioner for Environmental Information Annual Review 2022
The OCEI published its 2022 Annual Review and several points of interest arose. There were 151% more appeals in 2022 compared to 2021, which was itself a record year for appeals. The OCEI completed 227 cases, an increase of 144 on 2021. The content and outcome of appeals received and closed during 2022 show a very worrying lack of understanding of statutory obligations in relation to Access to Information on the Environment (AIE) by some public authorities. The decision of the public authority was affirmed in only four (3.1%) of the 129 appeals closed by formal binding decision. In five (3.9%) the decision was varied and in 120 (93%) the decision was annulled. 8% of all AIE requests were appealed compared to only 2% of Freedom of Information requests. A common theme of responses deemed refusals was because of the failure to meet time limits (there were 146 deemed refusals at original decision, 164 at internal review stage and 118 at both stages).
EU REPORTS, CONSULTATIONS AND DECISIONS
Zero pollution: Commission consults citizens and stakeholders on the “polluter pays” principle
The European Commission is consulting until 4 August 2023 on the implementation of the “polluter pays” principle in the EU. The Commission will use this information to assess whether EU and national policies are sufficient to ensure that polluters bear the cost of pollution prevention, control and remedy measures. The consultation will cover aspects such as use of market-based instruments by the EU and Member States, indirect payment of the polluter through environmentally harmful subsidies, non-application of the principle in the context of EU funds, handling of environmental liabilities and the use of charging in policies.
Circular economy: Faster progress needed to meet EU resource-efficiency targets, ensure sustainable use of materials and enhance strategic autonomy
The EU must continue its efforts to reduce consumption of materials and generation of waste to achieve a more circular economy, according to the Commission’s revised Circular Economy monitoring framework, published 15 May 2023.
The European Environment Committee adopted its position on EU rules to further reduce pollution and steer large agro-industrial installations in the green transition
ENVI voted on the draft report on the revision of the Industrial Emissions Directive, as well as the draft report on the Regulation on reporting of environmental data from industrial installations and establishing an Industrial Emissions Portal. These two pieces of legislation are key measures from the European Green Deal to address pollution from large industrial installations with a view to aligning existing legislation with the EU’s zero pollution ambition as well as its energy, climate and circular economy policy goals.
RECENT EUROPEAN DECISIONS
The CJEU clarified the interpretation of the EIA Directive in proceedings concerning an application for development consent for an urban development project in Austria.
The Court (Second Chamber) ruled that the EIA Directive must be interpreted as precluding national legislation which makes the carrying out of an environmental impact assessment of ‘urban development projects’ conditional based on the size of the site and the fact the project is for entirely multifunctional development. The Directive must be interpreted such that, when assessing whether a project will be subject to EIA, the competent authority must examine the project concerned having regard to all the selection criteria listed in the Directive in order to determine the relevant criteria in the particular case, and must then apply those relevant criteria to the particular situation. The Directive must be interpreted as not precluding any case-by-case examination, although any qualifying concerned individual must have the possibility of challenging the decision. Finally, the Directive must be interpreted as precluding the grant, before or during the execution of a required environmental impact assessment or before the completion of a case-by-case assessment of the environmental effects intended to clarify the need for an environmental impact assessment, of building permits for individual construction measures which form part of larger urban development projects.