Environment & Planning
RECENT DOMESTIC JUDGMENTS
The Court of Appeal upheld a section 5 declaration in respect of a grid connection.
The Court of Appeal upheld a section 5 declaration granted in 2018 in respect of Ballycumber Windfarm’s grid connection on the basis that it was an impermissible collateral attack on an earlier section 5 declaration for the same grid infrastructure. However, the Court did accept Mr Sweetman’s submissions that the Board erred in its application of the EIA Directive, and so awarded him a third of his costs, payable by the Board.
The Court of Appeal held that the Board is entitled to grant permission for a Strategic Housing Development, located within a Strategic Development Zone, where that SHD materially contravenes the SDZ Planning Scheme.
The Court of Appeal held that, while the Planning Acts provide that Large-scale Residential Development applications cannot be made within an SDZ, no similar exclusion was included for SHD. While the Court expressed sympathy for the Council, as permission was granted under SHD legislation for something that could not have otherwise been granted permission, it nonetheless found against the Council. The Court held that it seemed to follow that the order quashing the permission should be set aside (that is, the permission should be upheld) but is awaiting submissions from the parties.
The High Court limited a challenge to a foreshore licence for site investigation works granted to RWE to two grounds.
The applicant’s case centred on 10 core grounds, nine of which were dismissed in their entirety. Two “sub-issues” in the remaining core ground, relating to in-combination effects, remain live. The parties will now make submissions on whether the Court should decide one or both of these and, if so how, or whether one or both issues should be the subject of a reference to the CJEU. The matter is listed again for hearing on 10 July 2023.
The High Court quashed planning permission for a strategic housing development on the basis of material contravention of density and biodiversity in the Development Plan.
The proposed development was for a density in excess of that set out in the Guidelines for Planning Authorities on Sustainable Residential Development in Urban Areas (Cities, Towns and Villages) 2009. An Bord Pleanála argued that the Guidelines were not binding but the Court dismissed this on the grounds that the language used in the Development Plan when referring to the Guidelines gave them binding effect. An Bord Pleanála also suggested that mitigating measures, such as the planting of new hedgerows, would be taken to address biodiversity losses. This was rejected on the basis that they would not have the same value as hedgerows with some degree of maturity and were in breach of objectives under the Development Plan, which supported biodiversity.
Sentencing in case of former waste company owner found guilty of serious environmental offences.
A former Director of Neiphin Trading Limited was found guilty last November by a jury at Dublin Circuit Criminal Court on three charges: two breaches of a waste management licence, and holding or recovering waste in a manner likely to cause environmental pollution at a site in Kildare. He was sentenced to 12 months imprisonment for each charge, to run concurrently, with the final 12 months suspended. When handing down the sentence, Judge Greally noted the persistent nature of the offending and the prioritisation of profit making over compliance.
"The Government approved commencement of the process to revise the National Planning Framework (NPF) and publish the Roadmap for this First Revision."
LEGISLATION
Planning and Development Act (Amendment) Regulations 2023 amended to extend the pre-application consultation period for an event licence.
These Regulations amend the Planning and Development Regulations, 2001 to 2023. They extend the period during which a pre-application consultation meeting must take place in respect of an event licence from the 12-month period prior to the date of the event to the 24-month period prior to the date of the event. In the case of an application for several events at a venue in a period not exceeding one year, the period is calculated from the date of the first event.
DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS
The Department of Housing, Local Government and Heritage has published a Road Map for the First Revision of the National Planning Framework.
The Government approved commencement of the process to revise the National Planning Framework (NPF) and publish the Roadmap for this First Revision. The pre-draft process commenced in March 2023, and the final, revised NPF is due to be published in March 2024.
The Environmental Protection Agency (EPA) launched a new Food Waste Charter.
Building on the success of the first charter - which launched in 2017 and focused on the grocery retail sector - this new, more ambitious Charter, expands the call to action to every organisation in Ireland’s food supply chain. Businesses signing up to the Food Waste Charter voluntarily commit to measure their food waste, set targets and take action to reduce food waste, and to report annually on progress.
A new National Strategy for Horticulture 2023-2027 has been published by the Department of Agriculture, Food and the Marine.
The publication of the National Strategy for Horticulture 2023-2027 aligns with and delivers on a specific action in Food Vision 2030 by providing a road map for the horticulture industry to ensure the future economic, social and environmental sustainability of this crucial sector.
DECISIONS OF THE OFFICE OF THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION
The Commissioner annulled 20 decisions by the Department of Agriculture not to release forestry related environmental information.
The appeals arose from a request for environmental information relating to forestry. They were all identified as cases where the Department of Agriculture, Food and the Marine’s decision-making process did not comply with the responsibilities placed on public authorities by the AIE Regulations. The Commissioner found that the Department failed to carry out sufficient searches to identify the information and there was a notable absence of reasons for refusal of the requests. The Commissioner found that it was “unacceptable” that the Department provided identical decisions in response to so many requests, without providing even a basic level of reasoning.
The Commissioner annulled Fingal County Council’s decision not to release information in relation to local authority own developments.
The information requested was a list of all the currently approved local authority own developments in the Council’s functional area, including approval and commencement dates. The Council refused the request, stating that a list containing the exact information outlined in the request does not exist within the Council and, as the vast majority of the information was already publicly available online, it was reasonable to direct the requester to this. The Commissioner annulled the Council’s decision on the basis that it was not appropriate to provide online links in the circumstances, and they had failed to show that the request was manifestly unreasonable. The Council also did not provide adequate reasons to justify its refusal of access to the information requested. The Commissioner directed release of the information requested.
The Commissioner annulled in part the EPA’s decision to withhold information and ordered the EPA to undertake a fresh decision making process for remaining information withheld.
Right to Know CLG submitted a request to the EPA seeking access to a copy of the Water Abstraction Register (non-drinking water), to include details of abstractions, such as grid locations, names and contact information of the person responsible for each abstraction and the purpose of each abstraction. The group submitted a second request seeking a list of named quarries with their GPS locations and related water abstraction data. The EPA refused the requests on the basis that the information could lead to pollution and vandalism, adversely affecting the environment as well as public security. The EPA also indicated that much of the information withheld comprises personal information. The Commissioner annulled the EPA’s decision in respect of the information withheld on the basis of adverse impact to the environment and public security (because it had not evidenced a link between the disclosure and the adverse effect, which must be reasonably foreseeable and not merely hypothetical). It also annulled the decision in respect of the information withheld on the basis that it contained personal information, as the EPA adopted a blanket approach, which was incorrect as: (a) a number of the entries related to companies rather than individuals, and (b) the individuals were required by law to provide the information.
The Commissioner dismissed a complaint from a company whose letter was released by the Commission for Regulation of Utilities to a requestor.
The CRU decided to release copies of all representations/submissions received by it as part of its consultation process on a proposed direction to system operators regarding the connection of data centres to the electricity grid. This decision was appealed by a company on the basis that the information released included a letter which was provided voluntarily without legal obligation. The company, which was in the process of applying for planning permission for a data centre, argued that the letter contained sensitive commercial business information which was subject to confidentiality agreements, and that the release of this information would damage their legitimate economic and business interests. The Commissioner dismissed this argument on the basis that the company did not provide evidence to substantive its claims. The company also argued that the release of the letter would cause protests that had previously occurred to be reignited. The Commissioner acknowledged this risk but held that, as the protests had already occurred, the risk of a letter reigniting them was on the lower end of the scale, and the public interest in releasing the information outweighed the interest served by refusal. The Commissioner affirmed the decision of the CRU and directed the release of the information sought to the requester.
EUROPEAN REPORTS, CONSULTATIONS AND DECISIONS
Nature Restoration Law voted on by Environment Committee of European Parliament.
The Environment Committee of the European Parliament voted on the proposed Nature Restoration law, with 44 voting for and 44 voting against. The law has already been rejected by Fisheries and Agriculture Committees. The law will now go before a plenary session of the European Parliament on 10 July, but is considered unlikely to pass in its current form as it has been rejected by three committees.
RECENT EUROPEAN DECISIONS
The CJEU held that Ireland failed to fulfil its obligations under the Habitats Directive in relation to special areas of conservation (SAC).
The Court upheld the Commission’s complaints that Ireland failed to designate a number of sites on its territory as SACs, to set site-specific detailed conservation objectives, and to adopt the necessary conservation measures. The Commission also alleged that the conservation measures put in place by Ireland were generally, systematically and persistently of an insufficient quality, but were unsuccessful in proving this.
The CJEU definitively ruled that “standard features” can be taken into account at AA Screening stage.
When undertaking AA screening, “standard features” can be taken into account. Standard features are all the constituent elements of a project inherent in it/elements that are incorporated into a project’s design that do not have the aim of reducing its negative effects (even where they nonetheless have the effect of reducing significant effects on a European site). The CJEU also held that EU law does not preclude national rules which may prevent applicants in judicial review relying on grounds or reliefs that were not pleaded. This therefore places the onus on applicants for judicial review to properly plead their case. It was also held that a decision maker, in carrying out and recording its decision on AA screening, does not have to respond to all points of fact and law raised during their decision-making process. It must meet “the requisite standard” which is not as demanding.