Environment & Planning
RECENT DOMESTIC JUDGMENTS
Colbeam Limited -v- Dún Laoghaire-Rathdown County Council (Respondent) and Wendy Jennings and Adrian O’Connor (Proposed Notice Parties)
The Court directed the joinder of Ms Jennings and Mr O’Connor as notice parties in these proceedings in which the applicant is seeking to quash DLRCC’S decision to rezone their lands of 2.12 hectares at Goatstown Road, Dublin 14.
Colbeam was granted permission from the Board in June 2021 to develop student accommodation (SHD) on the lands. Ms Jennings and Mr O’Connor sought judicial review of the decision to grant that permission and were successful in obtaining an order to quash the permission in February 2023.
The Court considered whether Ms Jennings and Mr O’Connor could be considered directly affected and joined to proceedings. The Court held that the criterion for joinder of a notice party in judicial review requires the prospect of effect on rights as opposed to interests, and that the application of Ms Jennings and Mr O’Connor satisfies that criterion. The Court directed the joinder of Ms Jennings and Mr O’Connor as notice parties in these proceedings.
This decision has the capacity to directly affect the content of the substantive rights acquired by Ms Jennings and Mr O’Connor by way of the judgment in the judicial review by ensuring that certiorari will leave no scope for a grant of permission on remittal.
Clane Community Council -v- An Bord Pleanála & Ors
The applicant succeeded in quashing planning permission granted to Debussy Properties Ltd and also sought appropriate declaration of the legal rights/position and duties of the parties in this High Court judgment.
The applicant succeeded on four grounds, including in relation to the high density of the proposed build and a shortfall of parking space. The applicant also alleged that the Board erred in failing to consider the Development Plan objectives relating to the area and that the Board failed to show that it had considered the relevant parts of the Plan.
Planning permission was previously granted in 2021 to Debussy on the same land and then revoked. The Court found that the Board had failed to conduct a pre-planning consultation procedure in respect of the development and instead proceeded as if the 2021 planning application had been returned to the Board for consideration and the consultation from that time still stood. The Court said that this was incorrect.
Friends of the Irish Environment CLG -v- The Legal Aid Board and Ireland and the Attorney General
This judgment concerns the costs of a Court of Appeal hearing in which the Court of Appeal rejected the applicant’s claim that it was a “person” for the purposes of applying for and obtaining legal aid under the Civil Legal Aid Act 1995. Following this hearing there was a second short hearing on costs. The Legal Aid Board did not seek costs despite being successful in its case.
The Court of Appeal refused to award costs in favour of the applicant where it was unsuccessful at every stage in the proceedings, and did not fulfil requirements as regards having novel facts, far reaching importance and or being a test case.
Ironborn Real Estate Limited -v- Dún Laoghaire-Rathdown County Council
The applicant in this case was a developer, who sought to challenge a decision of Dún Laoghaire-Rathdown County Council (DLRCC) to refuse an application for an extension of duration to the life of its planning permission. The judgment dealt with the interpretation of section 42 of the Planning and Development Act 2000 (in particular section 42(1)(a)(i)(IV) and section 42(8)). The applicant developer was successful in relation to the section 42(8) argument only.
The Court agreed with the applicant’s interpretation of section 42(8), namely that the section only permits refusal of an extension where an EIA or AA would be required for the works remaining to be completed on foot of the planning permission sought to be extended (rather than the interpretation offered by DLRCC, which was that an extension could be refused where the entire development required EIA and/or AA).
The Court stated that “the extension authorises the completion of works still to be done, not the works which have already been completed” and so logically an EIA would assess only the works still to be done. Mr Justice Mulcahy noted that this interpretation is consistent with the overall statutory scheme and legislative history.
However, the Court did not accept the applicant’s submission in relation to section 42(1)(a)(i)(IV), which required that DLRCC must be satisfied that the works will be completed within the extended period. DLRCC’s evidence was that it was not so satisfied, and the Court rejected the argument that it was sufficient for the developer to confirm that the works were capable of being completed. This was considered to be a valid reason for refusal of the extension.
The Court ultimately determined that that DLRCC’s error in relation to section 42(8) was not sufficient to undermine the lawfulness of its decision, such that it should be quashed, and remitted to the Council for a fresh determination. On this point, he commented: “I cannot see anything in the invalid reason which taints the valid reason. They are ‘stand-alone’ and were based on entirely separate considerations.”
The Court dismissed the proceedings and made no order as to costs.
RECENT SUPREME COURT DETERMINATIONS
Sherwin -v- An Bord Pleanála & CWTC Multi Family ICAV
The Supreme Court granted leave for a leapfrog appeal of a decision made by the High Court to quash planning permission for an SHD at Holy Cross College, Clonliffe Road, Drumcondra.
The High Court had already refused an application for leave to appeal to the Court of Appeal made by the notice party developer, who then subsequently sought a leapfrog appeal to the Supreme Court. The Supreme Court found that the case raised issues of general public importance regarding the proper interpretation of section 57(10) the Planning Act 2000, in respect of how the Board must consider protected structures when reaching its decision on a planning application, and the interpretation of development plans in general. Because the project relates to a very large major housing development in the inner suburbs of Dublin, the Court found that it is in the interests of justice that there now be a single appeal against the High Court decision and that that appeal go to the Supreme Court.
LEGISLATION
Amendments to the Waste Management (Landfill Levy) Regulations 2015 with the introduction of the Waste Management (Landfill Levy) (Amendment) Regulations 2023
Regulations which came into effect on 1 September 2023 amend the Waste Management (Landfill Levy) Regulations 2015 by increasing the existing Landfill Levy by €10 per tonne and increasing the maximum amount that local authorities may retain to help defray the costs associated with the collection and enforcement of this levy.
Waste Recovery Levy Introduced by the Circular Economy (Waste Recovery Levy) Regulations 2023
The levy introduced by these Regulations, which mace into effect on 1 September 2023, will apply to general waste and general skip waste. However, construction and demolition waste, such as soil, stone and timber, is exempt. Waste wood and hazardous waste are also among the categories of waste which are exempt at present.
Fees introduced by the Maritime Area Usage (Licence Fees) Regulations 2023
The fees provided for by these Regulations will accompany certain applications in relation to licences authorising particular maritime usage in the maritime area of the State.
Fees introduced by Maritime Area Consent (Certain Application Fees) Regulations 2023
These Regulations prescribe the fees to accompany applications for the grant, amendment, assignment and surrender of licences granted under the Maritime Area Planning Act 2021, as amended, together with the fees for an application for a declaration as to whether or not a licence is required.
European Communities Environmental Objectives (Surface Waters) (Amendment) Regulations
This statutory instrument amends the European Communities Environmental Objectives (Surface Water) Regulations 2009 by introducing an updated table containing a watch list of substances for Union-wide monitoring.
Wildlife (Amendment) Act 2023
This Act provides for review of bog habitats; the purpose of this being to further provide for making, amendment and revocation of natural heritage area orders; to provide for arrangements concerning biodiversity; for those purposes to amend the Wildlife (Amendment) Act 2000; and to provide for related matters. This legislation has not yet been commenced.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
The Department of Housing, Local Government and Heritage published draft Sustainable and Compact Settlements Guidelines for Planning Authorities.
The draft guidelines for Planning Authorities aim to meet the housing needs of smaller and more diverse households and to support increased housing supply and greater housing choice. Medium-density housing models would be facilitated under the guidelines, and car parking spaces in new urban developments would be reduced or omitted. A public consultation regarding the draft guidelines will be open until 5 October 2023.
The Department of the Environment, Climate and Communications launched a public information and engagement period seeking the views of local South Coast communities to help determine where future offshore wind energy developments may take place. This follows the publication of the South Coast Designated Maritime Area Plan (DMAP) Proposal last month by Minister Eamon Ryan, which puts forward an initial ‘proposed’ geographical area within which future offshore renewable energy developments could be advanced. The initial proposed geographical area is approximately 8,600 square kilometres in size.
DECISIONS OF THE OFFICE OF THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION
The Commissioner determined that Coillte must reconsider a number of cases as it had not demonstrated that it had carried out sufficient searches in the first instance
The Commissioner annulled Coillte’s decision in 20 similar cases and directed it to undertake a fresh decision-making process in respect of each request. This was done as part of an effort to deal with appeals efficiently.
The 20 appeals were each the result of a decision by Coillte relating to a request for environmental information relating to forestry (the primary operation of Coillte) over the course of 2022 and early 2023.
These cases were identified by the Commissioner as suitable for review by Coillte staff to reassess if, given the passage of time and improvements in the search abilities of Coillte, additional information relevant to each individual case could be identified and released to the appellant.
The common thread between all cases is the application by Coillte of Article 7(5) of the AIE Regulations, which deals with the search process to be carried out by a Public Authority once a request for information is received. Under Article 7(5), Coillte refused the information sought by the appellants on the basis that no information existed or could be found relevant to the request. However, having reviewed Coillte’s decision-making records on these files, the Commissioner was of the view that Coillte had not demonstrated that it carried out reasonable and appropriate searches to identify and retrieve environmental information relevant to the requests.
Coillte was directed to undertake a fresh decision-making process in respect of each of the requests.
The Commissioner determined that advice provided by the Department of Housing, Local Government and Heritage to the Minister relating to amendments the Planning and Development Act constituted environmental information
In September 2021 Dr Logue requested a copy of the advice provided by the Department of Housing, Local Government and Housing to the Minister relating to recently made amendments to Part V of the Planning and Development Act 2000.
The Department refused this request on the basis that the information was not “environmental information” as per the definition in the AIE Regulations.
The Commissioner, however, found that the information requested was environmental information. The Commissioner considered the information to be an “administrative measure under paragraph (c) of the definition of environmental information, and considered that there was “more than a theoretical or remote possibility exists of impact on the Environment because planning and development necessarily and by definition impact the environment in numerous ways”. He also considered the information to be information ”on” an administrative measure likely to affect the environment.
The Department’s decision to refuse the request was annulled and the matter was remitted for a fresh decision-making process.
The Commissioner determined that Coillte was justified in refusing access to requested environmental information on the basis that no such environmental information was held by/for them
The Appellant requested a copy of all invasive species action plans completed in 2021 for proposals relating to forestry or forestry projects where such species were present on site from Coillte. Ultimately, Coillte refused the request on the basis that it did not have invasive species action plans. The Appellant appealed the decision to the Commissioner. Over the course of the appeal, Coillte set out the rationale for why such specific action plans do not exist, namely that the control of invasive species is managed through risk reduction, early intervention and treatment of invasive species. These processes are included in Coillte’s “planned operations”. The Commissioner was satisfied that Coillte took adequate steps to search for the requested information and with Coillte’s explanation as to the process and procedures it has in place for gathering information. The Commissioner affirmed Coillte’s decision to refuse the release of the records requested on the basis that no such records exist.
RECENT EU COURT DECISIONS
Circular economy: New law on more sustainable, circular and safe batteries enters into force
A new law to ensure that batteries are collected, reused and recycled in Europe entered into force on 17 August 2023. The new Batteries Regulation aims to ensure that batteries have a low carbon footprint, use minimal harmful substances, need fewer raw materials from non-EU countries and are collected, reused and recycled to a high degree in Europe.