Environment & Planning
RECENT DOMESTIC JUDGMENTS
Planning permission for eight storey apartment building quashed by the High Court
The applicants, Fernleigh Residents Association, and an individual challenged the decision of the Board to grant permission (granted on the basis that the Board had satisfied the statutory requirements allowing it, in limited cases, to grant permission where the proposed development would be in material contravention of the Development Plan, in this case, in respect of height and open space).
The Court quashed the permission on three grounds:
- Firstly, the Board failed to clearly and precisely identify the nature and extent of non-compliance with daylight provision, which was required in order to rely on the increased height provided for under the Building Height Guidelines to justify the material contravention.
- Secondly, the Board failed to give adequate reasons for its conclusion that the criteria in respect of public transport capacity had been met, which was again required to justify the material contravention.
- Finally, the Board failed to give adequate reasons, which were clear, cogent and properly engaging with the concept of exceptionality of quality of open space, for the finding of no material contravention as to open space provision.
LEGISLATION
New Regulations introduced under the Agriculture Appeals Act 2001.
These Regulations reduce the period for an appeal to the Forestry Appeals Committee from 28 days to 14 days (beginning on the date of the decision). The amendment also sets out several provisions regarding the timelines for publication of a “decision” under section 14A(4)(a) of the Agricultural Appeal Act 2001.
The Waste Management (Facility Permit and Registration) Regulations 2007 are amended.
The Regulations have been amended by insertion of two new classes of activity: the reception and storage of garden waste and the collection and storage of waste deposit return scheme products, subject to registration with the local authority or the Environmental Protection Agency. The amendments also require registration holders to take preventative measures to ensure that a registered activity does not result in the creation of unreasonable odour.
The Historical and Archaeological Heritage Bill 2023 completes the Final Stage before Dáil Eireann.
The Bill was drafted to repeal and replace the National Monuments Acts 1930 to 2014, to give effect to the EIA Directive and the Habitats Directive in relation to the carrying out of works near national monuments and to make a number of amendments to Acts such as the Foreshore Act 1933 and the Planning and Development Act 2000. The Bill will now be sent back to the Seanad, where the amendments made by the Dáil will be considered. If these amendments are approved by the Seanad, the next step is for the Bill to be signed into law by the President.
The Gas (Amendment) Bill 2023 completes the Second Stage before Dáil Eireann.
The Bill was drafted to provide for the dissolution of Ervia and the transfer of functions, assets, liabilities, records and staff to Gas Networks Ireland as well as to amend legislation such as the Gas Act 1976, the Gas Regulation Act 2013 and the Freedom of Information Act 2014. The Bill will now go through the Third Stage where it will be examined section by section and amendments made.
Planning and Development Bill 2022
The Bill was approved by Cabinet on Tuesday 3 October, and is due to be published within the coming weeks, before being debated in the Dáil and the Seanad. The Department of Housing, Local Government and Heritage published a guide to the Bill. Some points of interest include that:
- the Board’s power to correct an error of fact or law appears to have been removed;
- Residents Associations no longer need to be registered companies, but they do need to have a Constitution and have the approval of 2/3 of members in order to initiate judicial review proceedings. The names and addresses of all members who voted in favour also need to be put on affidavit;
- the Bill will introduce a new “Environmental Legal Costs Scheme”, which will have a scale of fees. Every party will bear its own costs, but if an applicant is successful it can recover its fees in line with the scale. If an applicant loses, it can apply to the Scheme to seek to recover costs in line with the scale. This application is means tested.
Separately, the guide notes that “An Bord Pleanála have received an exchequer allocation of €26.9 million for 2023, which is an increase of €4.7million on the 2022 allocation” and that staff numbers have increased by over 50% compared to 2021 levels.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
Guidelines for Planning Authorities – Design Standards for New Apartments (July 2023) have been revised.
The Guidelines have been revised to provide transitional measures for ‘Build to Rent’ developments which were within the planning system prior to the change in Government policy on 21 December 2022.
Guidelines for Planning Authorities – Regulation of Commercial Institutional Investment in Housing (July 2023) have been revised.
The Guidelines have been revised to remove the carve out for ‘Build to Rent’ developments, which no longer form part of government policy.
The Department of Transport publishes its Climate Action Roadmap 2023-2030.
It sets out an analysis of the 2030 greenhouse gas target (to reduce emissions by 51%) and the current gap to target from the baseline. It also identifies current and planned actions to bridge that gap between now and 2030.
EUROPEAN REPORTS, CONSULTATIONS AND DECISIONS
A new Reasoned Opinion on water management has been issued by the European Commission.
The Commission has called on eight Member States (including Ireland) to finalise the review of their river basin management plans as required under the Water Framework Directive (Directive 2000/60/EC) and/or the flood risk management plans as required under the Floods Directive (Directive 2007/60/EC). Both Directives require the Member States to review, update and report these plans every six years. The Commission issued letters of formal notice in relation to these obligations in February 2023. Ireland is late in the review, adoption and reporting of the third river basin management plan. Ireland now has two months to respond and take the necessary measures.
RECENT EUROPEAN DECISIONS
The Court of Justice of the European Union rules that Germany breached obligations under the Habitats Directive.
First, the Court found that by failing to designate 88 sites of Community Importance (designated by decisions of the European Commission) as special areas of conservation, Germany had failed to fulfil its obligations under the Habitats Directive. Germany contended that these sites were already legally protected under national legislation, but the Court held that this did not satisfy the obligation under the Habitats Directive to formally designate Sites of Community Importance as special areas of conservation.
Secondly, the Court found that by failing to define detailed conservation objectives for the 88 sites, Germany failed to fulfil its obligations under the Habitats Directive. Specific and precise conservation objectives must be set out within six years of the designation of an area as a Site of Community Importance. However, the Court did not accept the Commission’s argument that Germany’s general manner of setting conservation objectives was contrary to the requirements of the Habitats Directive.
Thirdly, the Court held that Germany infringed the Habitats Directive for 737 of its 4,606 Sites of Community Importance by failing to establish any conservation measures whatsoever and by pursuing, for the establishment of conservation measures, a general practice that does not meet the requirements of the provision. Germany contended that since the notification of the reasoned opinion, it has made significant progress, but did not dispute the fact that at the deadline set for responding to the Commission’s reasoned opinion, it was in breach.
The Court of Justice of the European Union holds that Italy breached obligations under Council Directive 98/83/EC on the quality of water intended for human consumption.
An official English translation of this judgment is not yet available and we will provide further details when this is published.
An Opinion has been issued by Advocate General Rantos in the case of Sweetman v An Bord Pleanála, Ireland & Ors (C-301/22).
The question referred to the CJEU in this matter was whether the Water Framework Directive requires Member States to characterise and classify the ecological status of all lakes within their territory with a surface area below 0.5km². The Advocate General noted that Annex II of the Directive, in referring to size typology of based on surface area of lakes, considered that there were four categories: 0.5 to 1km2, 1 to 10km2, 10 to 100km2 and greater than 100km2. The absence of a reference to lakes with a smaller surface area here formed part of the Advocate General’s reasoning that a Member State would not be required to characterise or classify the ecological status of such lakes. The Advocate General also found that an ‘ad hoc’ assessment was adequate in respect of these smaller lakes. We await the ruling of the Court of Justice on this matter.
CLIMATE LITIGATION
The State of California has sued five of the world’s largest oil companies for damages and misinformation.
The suit alleges that the ExxonMobil, Shell, BP, ConocoPhillips and Chevron caused billions of dollars in damages and misled the public by minimizing the risks from fossil fuels. An industry group, the American Petroleum Institute, is also a defendant. The state is seeking the creation of an abatement fund to pay for future damages caused by climate disasters in California.
Six young people from areas of Portugal ravaged by wildfires and heatwaves sue 32 European governments over alleged climate inaction.
As we noted in the Energy section, the Portuguese applicants, supported by Galway-based Global Legal Action Network, argue that countries’ failure to cut emissions fast enough is a violation of their human rights, including the rights to life, physical wellbeing and mental wellbeing. The case is the largest climate case ever to be heard by the European Court of Human Rights in Strasbourg. A ruling in the case is expected in the first half of 2024. If the complaint is upheld, it could result in orders from national courts for governments to cut carbon dioxide emissions blamed for climate change faster than currently planned.