Environment and Planning
PLANNING AND DEVELOPMENT BILL 2023
One of the most anticipated changes in 2024 will be the enactment of the Planning and Development Bill 2023, which was published on 21 November 2023. Its publication followed a 15 month review by the Attorney General’s Office, and the publication of the draft Heads of Bill in January 2023. The Bill is the third largest bill in the history of the State. It aims to enhance clarity, and improve consistency and increase confidence in the planning system. Its enactment is anticipated in Q1/Q2 2024, with commencement in phases thereafter. Some core changes include:
- The introduction of statutory timelines for decision-making;
- New strategic ten-year Development Plans;
- Reform of planning Judicial Review, including the removal of the leave application process, introduction of statutory judicial review timelines and a revised legal costs system, which includes a legal costs scheme;
- Empower the Courts to order decision makers to correct errors in permissions instead of quashing them;
- New provisions for Urban Development Zones.
CLIMATE LITIGATION
We expect to see the current trend of climate action litigation continuing across 2024. From an Irish perspective, a case brought by Friends of the Irish Environment challenging the State’s Climate Action Plan 2023 is expected to be heard in 2024 (a new Climate Action Plan 2024 was approved in December 2023). Friends of the Irish Environment are also litigating two other climate action cases against the State. The decision of the UK Supreme Court in R (on the application of Finch on behalf of the Weald Action Group) v Surrey County Council and others on the downstream / end-user climate effects of offshore oil and gas extraction is also expected in 2024.
OFFSHORE WIND
Progress continues to be made on the planning front for the offshore wind sector. Some of the things to watch out for in 2024 include:
- The preparation of draft Designated Maritime Area Plans, or DMAPs, is continuing. On 6 December, Department of Environment, Climate and Communications (“DECC”) issued an update on the South Coast DMAP Proposal: Government reviewing feedback on potential offshore energy locations off south coast ahead of second public engagement period in 2024. It is intended that this Draft DMAP will then undergo a six-week statutory public engagement period which is expected to take place in early 2024. A draft east coast draft DMAP is hoped for in 2024.
- New law on design flexibility in applications was published over the Christmas break Planning and Development (Amendment) (No. 3) Regulations 2023 and further provisions on design flexibility are included in the draft Planning Bill.
- Drafting for the Future Framework consultation document has commenced, including services procured to undergo SEA/AA screening. Intention is for consultation document to go to public consultation in January 2024. SEA Technologies Roadmap first draft has been completed. An Independently produced report summarising public consultation feedback received on the draft second Offshore Renewable Energy Development Plan (OREDP II) was published November 2023. Report is available here
- On Marine Protected Areas (MPA), legislation is currently being drafted which is expected finalisation date for draft is Q1 2024. Draft legislation will then be progressed through the Houses of the Oireachtas for enactment of final Marine Protected Areas (MPA) legislation- indicative delivery date Q3 2024. Marine Environment unit and DECC are to develop detailed FAQs regarding the likely/potential impacts of MPAs on future ORE development.
See further information on the development of offshore renewable generation in the Energy section.
ANTICIPATED EU LEGISLATION
There are a number of anticipated legislative changes at EU level in 2024, which will impact how we do business in Ireland. Some of the core proposals include:
Green Claims Directive
The Green Claims Directive is aimed at protecting consumers from greenwashing and “circular” washing, and more tightly regulate green claims. The Directive will require that environmental labels such as “eco-friendly”, “green” or “carbon neutral”, which are often self-certified, to be independently verified before they can be used. 2023 saw an increase in complaints about alleged “greenwashing” being made to the Advertising Standards Authority of Ireland and we expect these to materially increase in 2024 across all sectors.
Nature Restoration Law
This is expected to be published in early 2024. The law will scale up existing nature restoration measures such as rewilding, returning trees, greening cities and infrastructure, or removing pollution to allow nature to recover. It will also require that EU countries must restore at least 30% of habitat areas in poor condition by 2030, 60% by 2040, and 90% by 2050. An emergency brake has been included whereby provisions for agricultural ecosystems can be temporarily suspended under exceptional circumstances.
Environmental Crime Directive
This Directive proposes to help achieve European Green Deal objectives by improving the investigation and prosecution of environmental crime offences. The Directive defines environmental crime more precisely and adds new types of environmental criminal offences. It also harmonises the level of penalties for natural persons and, for the first time, for legal persons across all EU member states. The agreement still needs to be confirmed by both the EU Council and Parliament before going through the formal adoption procedure.
Proposal for a new Regulation on Waste Shipments
The proposal for a new Regulation on Waste Shipments aims to ensure that the EU does not export its waste challenges to third countries and support a clean and circular economy. The proposal covers all types of waste. The proposal would make it easier to recycle and re-use hazardous and other “notified” waste (non-hazardous waste subject to particular scrutiny, like mixed municipal waste and unsorted plastic waste) within the EU. There will be no major changes to the current rules on EU exports of such waste. In the coming months, the Commission will propose additional new rules to achieve this objective, including regulating the design of packaging and other products to ensure that they do not result in waste that is impossible to re-use or recycle.
Industrial Emissions Directive
A provisional agreement has been reached on modernising management of industrial emissions. Once adopted this new law is intended to more effectively limit polluting emissions from industrial installations. Compared to the directive currently in force, the new law will cover additional sources of emissions make permitting more effective, reduce administrative costs increase transparency and give more support to breakthrough technologies and other innovative approaches. The updated law will also support circular economy investments by including resource use performance levels, as well as lowering chemical pollution through requirements for a reduced use of toxic chemicals during industrial processes.