Environment and Planning
"2023 will begin to see the impact of REPowerEU proposals to speed up the delivery of renewable energy projects, with application of the emergency Regulation to accelerate deployment of renewable energy."
ENVIRONMENT AND PLANNING
New Water Legislation
There will be new legislation to regulate private and public abstractions and impoundments. The principal aim of the Water Environment (Abstractions and Associated Impoundments) Bill 2022 is to provide for a licensing regime for abstractions over a certain threshold. The licensing threshold is proposed as a rate of 2000 cubic metres or more in any 24-hour period. Abstractions of 25 cubic metres or more in any 24-hour period will have to be notified to the Environment Protection Agency within a month.
Planning, Judicial Review & Reform
It is anticipated that 2023 will continue to bring change to planning law in Ireland, perhaps most notably to the system for challenging the grant of planning permission. The Government intends to introduce a Planning and Development Bill which, it is understood, may include a material impact test and requirements aimed at preventing challenges by interest groups set up solely to stop a specific project. This would signify continuing efforts to mitigate planning risk.
It is hoped that clarity will be brought to the issue of legal standing of purported Environmental NGOs to bring court challenges to public decisions. There is potential for light to be shed on the issue through two ongoing sets of court proceedings. A judgment from the CJEU in response to a request for a preliminary ruling from the High Court in Ireland is eagerly awaited in the case of Dublin 8 Residents Association v An Bord Pleanála & Ors 2022/525 JR, as is the judgment of the High Court in Ireland in the case of Ballyshannon Action Group v An Bord Pleanála 2021/759 JR. There is also potential for light to be shed on the issue by the legislature, through the Planning and Development Bill – only time will tell!
Planning and Environment High Court Division
Establishment of a new Division of the High Court, dedicated to hearing Planning and Environment challenges, is expected. The Government indicates that this is intended to work in tandem with reforms to planning legislation to bring about improvements in the ability to process cases and in costs, and to be consistent with Ireland’s obligations under EU environmental law.
Renewables Projects & Overriding Public Interest
2023 will begin to see the impact of REPowerEU proposals to speed up the delivery of renewable energy projects, with application of the emergency Regulation (EU) 2022/2577 laying down a framework to accelerate deployment of renewable energy. The planning, construction and operation of plants and installations for the production of renewable energy will be presumed to be in the overriding public interest for the purpose of certain EU environmental legislation. It remains to be seen how this will be implemented in Ireland, in light of the provision permitting Member States to restrict the application of these provisions to certain parts of their territory, types of technologies or projects. This will prove an interesting forerunner to the Recast Renewable Energy Directive III, which will likely include further mechanisms aimed at accelerating delivery of renewable energy projects, and which will have to be transposed in Ireland during the course of 2023 and 2024.
Maritime Area Regulatory Authority
The Maritime Area Regulatory Authority will be established. Phase 2 and Phase 3 offshore wind sector projects will then be able to apply to the Authority for Maritime Area Consents, which will open the route for them to apply An Bord Pleanála for development permissions.
Advancement of the Circular Economy
2023 should see the further advancement of the Circular Economy with the anticipated publication of generic by-product determinations and end-of-waste determinations in respect of particular materials, including soil and stone.
"It is anticipated that 2023 will continue to bring change to planning law in Ireland, perhaps most notably to the system for challenging the grant of planning permission."