Environment & Planning
RECENT DOMESTIC JUDGMENTS
Grant of leave to seek judicial review set aside as application was out of time.
The final day for seeking leave to apply for judicial review was Sunday 20 November 2022. Leave application papers were filed on Monday 21 November, and the application was moved on that date. The Court considered whether the applicants were out of time, and if so, whether that time could be extended. The Court observed that there was no express legislative provisions which provided for an extension of the 8-week period, and remarked that: ““Overall, the commercial context strongly leans against any implied or presumed legislative intention that there are unstated extensions to the 8 week period to be had if court offices are closed.” The Court also noted that there was no basis to grant an extension of time to the applicants where the applicants had not provided evidence that: (i) there was good and sufficient reason for doing so; and (ii) the circumstances that resulted in the failure to make the application within the period so provided were outside of their control. The leave order was ordered to be set aside, and the leave application dismissed as out of time.
Challenge by Friends of the Irish Environment against Food Vision 2030 dismissed.
The applicants sought an order to quash the Strategy and / or the decision of the Government adopt it.
The Court observed that although the Strategy has no statutory basis or mandatory or binding down-stream effects, the Government decision broadly approving the Strategy is still a form of governmental policy, albeit non-statutory and non-binding. The Court found that the applicant was entitled to challenge the decision of the Government to give broad policy support to the Strategy.
The applicants argued that an Appropriate Assessment (“AA”) was required for the adoption of the Strategy. The Court found that an AA process was not possible, and therefore could not have been required It held that the Habitats Directive is not capable of being operated if a plan or project is so general that it does not relate to any site capable of analysis and it followed European case law in noting that impacts which are not identifiable do not need to be assessed until they become identifiable. The Court also held that Strategic Environmental Assessment was not required. The proceedings were dismissed.
Court of Appeal considers application of section 3 of the Environment (Miscellaneous Provisions) Act 2011 (the “2011 Act”).
The applicant (who was unsuccessful in the substantive High Court proceedings) argued that proceedings under section 160 of the Planning and Development Act 2000 fell within the terms of section 4(1) of the 2011 Act, and accordingly that section 3 of that act applied to displace the usual rule that costs follow the event.
The Court noted that for section 3 of the 2011 Act to apply, the criteria set out at section 4(1) of the 2011 Act must be met. In summary, the relevant civil proceedings should be brought to ensure compliance with, or the enforcement of, a statutory requirement or condition specified at section 4(4) where the failure to ensure compliance with, or the enforcement of that requirement “has caused, is causing, or is likely to cause, damage to the environment”.
In this case, the proceedings were instituted to ensure compliance with the conditions attached to a planning permission. The Court also considered the affidavits, and concluded that “as a matter of reality and substance” the proceedings were instituted for the purpose of ensuring compliance with the planning permission. The Court went on to consider whether the applicant met the damage to the environment requirement. The Court agreed with previous case law that the applicant must make a stateable argument that damage to the environment is occurring or is likely to occur and considered that the applicant is required to meet a “low bar” under the test.
The Court considered the test to be met and held that section 3 of the 2011 Act applied to the proceedings, ordering that each party bear its own costs of the appeal, subject to one proviso. The appellant sought an order that the respondents pay the appellant the costs of the written submissions on costs. In circumstances where the appellant was entirely successful on the issue of costs, the Court was satisfied that it was entitled to grant the order sought.
RECENT SUPREME COURT DETERMINATIONS
Supreme Court granted leap-frog leave to appeal decision of the High Court upholding constitutionality of section 28(1C) of the Planning and Development Act 2000.
Section 28(1C) allows the Minister to issue planning guidelines containing “specific planning policy requirements” with which planning authorities, An Bord Pleanála, and regional assemblies must comply. The applicant (John Conway) argues that this constitutes an unauthorised delegation of legislative power and an interference with the role of local government and powers of directly elected authorities (contrary to Articles 15.2.1, 15.2.2 and 28A of the Constitution). He also argues that two specific sets of guidelines issued by the Minister were ultra vires.
The Court has granted leave, and confirmation of a hearing date is awaited.
LEGISLATION
The new Maritime Area Consent (Certain Application Fees) (No. 2) Regulations 2023 (S.I. No. 508 of 2023) came into force on 24 October.
This statutory instrument provides for fees to accompany certain applications in relation to maritime area consent. The statutory instrument revokes the Maritime Area Consent (Certain Application Fees) Regulations 2023 (S. I. No. 403 of 2023).
The Developer Profits Transparency Bill 2023 is at the second stage before Dáil Éireann.
This private members’ bill is sponsored by Cian O’Callaghan of the Social Democrats. The bill provides for the introduction of a requirement for property developers in receipt of State subsidies to publish annual financial statements. If the bill passes through Dáil Éireann, it will next be reviewed by the Seanad.
The Anaerobic Digestion (National Strategy) Bill 2023 is at the second stage before Dáil Éireann.
This private members’ bill is sponsored by Christopher O’Sullivan of Fianna Fáil. The bill provides that the Minister for the Environment will prepare an anaerobic digestion strategy for use in agricultural, industrial and domestic settings. This strategy is intended to set out the policy, objectives and priorities of the Government in relation to the national Waste Action Plan for a Circular Economy.
Historic and Archaeological Heritage and Miscellaneous Provisions Bill 2023 signed into law by President.
As mentioned in the property section, the new Act repeals the National Monuments Acts 1930 to 2014 and replaces those Acts with provisions for the protection of historic heritage, provisions for the protection of archaeological heritage, provisions for the regulation of certain activities in the interests of such protection and provisions enabling the State to ratify or accede to certain international conventions which relate to such protection or regulation. The Act also gives effect to the EIA Directive and the Habitats Directive in relation to carrying out works at, on, in, under, to or within the immediate surroundings of monuments. Other provisions of the Act give further effect to the Valetta Convention and make miscellaneous amendments to Acts such as the Foreshore Act 1933 and the Planning and Development Act 2000.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
The Environmental Protection Agency has issued a draft explanatory memorandum regarding the requirements of the Draft National By-Product Criteria (Reference Number BP-N002/2023).
This note sets out criteria for greenfield soil and stone that can be regarded as a by-product under Regulation 27 of the European Union (Waste Directive) Regulations 2011 – 2020. It is intended to assist producers, transporters and end users of greenfield soil and stone, as well as competent authorities, in understanding the criteria / compliance requirements.
The Government has announced Cabinet approval for the new Planning and Development Bill 2023 and the Department of Housing, Local Government and Heritage has published a guide outlining the proposed Bill.
Key reforms include new ten-year Development Plans for local authorities, increased alignment among the tiers of the planning system, significant restructuring of An Bord Pleanála (including mandatory decision-making timelines) and reform of planning judicial review.
The Office of the Commissioner for Environmental Information has issued a publication on the handling of AIE requests, following a request for guidance by public bodies.
This document is intended to set out a broad framework for the handling of requests based on the OCEI’s experience of dealing with appeals.
The EPA has published national criteria for recycled aggregates.
The EPA has published National End-of-Waste Criteria for Recycled Aggregates. The criteria apply to aggregates recycled from construction and demolition waste, including soil, stone, concrete, bricks and ceramics. The criteria allow for the safe reclassification of recycled aggregates from waste to products, which can subsequently be placed on the market. The decision establishing the criteria is available here, and an explanatory note is available published by the EPA is available here.
DECISIONS OF THE OFFICE OF THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION
Office overturned a decision of the Department of Agriculture, Food and the Marine refusing a request on the grounds that the information sought was already publicly available.
In overturning the decision, the OCEI held that the Department had not demonstrated that all classes of documents sought were available on the website.
Second, in relation to the documents which were publicly available, the OCEI accepted the appellant’s submission that the phrase “easily accessible” must be understood from a teleological perspective, and he noted the purpose of the AIE Regulations and the Directive in reaching this conclusion. Therefore, a broad interpretation of the phrase “easily accessible” was adopted; it was held that for information to be easily accessible, it must be maintained in a manner which allows it to be interrogated, which was not the case here.
Finally, the OCEI set out that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. This was supported by the view that the Regulations clearly envisage and provide for the processing of large / complex requests as provision is made for the extension of the usual one-month timeframe for processing in such circumstances. It was held that a request could only be considered “manifestly unreasonable” where to comply would risk substantial interference with the work of the public body, which did not apply here.
Office overturned a decision of the Department of Agriculture, Food and the Marine refusing a request on the basis that it was manifestly unreasonable.
The OCEI held that the fact that a request is detailed does not mean that it is necessarily unreasonable; however, it may be unreasonable if disproportionate costs and effort on the part of the public authority would be involved. It stated that this did not apply here as the Department had not given adequate reasons as to why the request was considered manifestly onerous or clearly explained the burden it would place on the Department. The OCEI also highlighted that the applicant’s search was confined to records spanning a timespan of one month, and so it would be difficult to argue that the request was too broad / onerous to comply with.
EUROPEAN REPORTS, CONSULTATIONS AND DECSIONS
The European Commission adopted a new ETS Auctioning Regulation.
The Commission adopted a delegated regulation to establish a new Auctioning Regulation following the revision of the ETS Directive. It will now be submitted to the Parliament and Council for scrutiny. If these institutions do not raise objections in the next two months, the Regulation will be published in the Official Journal and enter into force thereafter.
If it enters into force, the new regulation will repeal and replace the current Auctioning Regulation which sets out the technical elements necessary for the organisation of EU ETS auctions. The proposed changes under the new regulation include extending the scope of the ETS in relation to maritime areas and developing a new and separate emissions trading system for buildings, road transport and other sectors.
Further developments on the EU ETS are set out in the energy section.