DOMESTIC JUDGMENTS

The High Court states, obiter, that if it is known before development consent is granted that a derogation licence is needed, it should be obtained in advance of development consent being granted.

This case involves a challenge to the validity of derogation licences and Irish legislation regarding strictly protected species set out in regulations adopted to give effect to the Habitats Directive 92/43/EEC and the Birds Directive 2009/147/EC.

Arising from a review of the CJEU ruling, the High Court stated, obiter, that if it is known before development consent is granted that a derogation licence is needed, it should be obtained in advance of development consent being granted, and that this may be an important point in another case (it did not arise on the facts in this case, as the need to obtain a derogation licence had not been identified in advance of the Board making their decision).

The High Court dismissed (Judgment No. 3 and Judgment No. 4) all remaining grounds of challenge to a grant of permission for a housing development following the CJEU's ruling on questions referred in relation to mitigation measures and whether these can be taken into account during AA screening.

The key outcome from the CJEU's ruling is that EU law does not prohibit standard mitigation measures being taken into account in AA screening where they are standard design features in a development of that kind, known to work, and not included specifically for mitigation purposes for a European Site.

The High Court dismissed all remaining grounds of challenge to a grant of permission for a housing development following the CJEU's ruling on questions referred in the matter.

The High Court dismissed a request for leave to appeal by the applicants, and made no order as to costs across the four decisions and the CJEU hearing.

The High Court has referred four questions to the CJEU for determination in relation to EIA and AA.

The High Court referred four questions to the CJEU for determination in relation to EIA and AA, specifically in relation to species protection, and adjourned proceedings pending the determination.

The applicant alleged that there was no or no adequate assessment of potential disturbance to bats, or of potential deterioration or destruction of resting places in the EIAR Screening Report, the Tree Survey Report or the AA Screening Report. The applicant also noted that the inspector's report advised that tree-felling should be undertaken in accordance with the advice of a suitably qualified ecologist due to a potential impact on bats. The applicant alleged that the Board erred in screening out the need for EIA as the Board did not have sufficient information to allow it to conclude that significant effects on the environment were unlikely, having regard to the strictly protected status of bats under the Habitats Directive. Additionally, it was argued that the Board had no legal authority to grant permission that would result in the potential destruction of breeding or resting places, having regard to the Wildlife Act.

LEGISLATION

The Planning and Development Bill 2023, as approved by Cabinet, has been published.

One of the most anticipated changes in 2024 will be the enactment of the Planning and Development Bill 2023, 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, 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;
  • an easier and simplified process of amending and extending the 'life' of consents;
  • legislating for (intended) design flexibility in planning applications;
  • reform of Judicial Review of planning decisions, 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 schemes;
  • empowering the Courts to order decision makers to correct errors in permissions instead of quashing them;
  • new provisions for Urban Development Zones.

Planning and Development, Maritime and Valuation (Amendment) Act 2022 (Commencement of Certain Provisions) (No. 2) Order 2023.

The entirety of the Planning and Development, Maritime and Valuation (Amendment) Act 2022 has been commenced pursuant to this Order, including sections 26-34 which amend the retention permission, substitute consent and design flexibility procedures set out in the 2000 Act.

Retention permission

The process for applying for retention permission has been clarified by the new amendments. Previously, retention could not be sought if an EIA screening was required, even if the need for an EIA could be screened out. It was also unclear whether any pre-screening or preliminary examination (that is, even asking the question as to whether an EIA screening is required) would preclude retention permission being granted. The new provision enables retention permission to be granted where screenings in relation to EIA and AA are required but where they determine that EIA and AA are not required.

Substitute consent

The test for obtaining a grant of substitute consent remains the same but two key changes have been introduced:

  1. the substitute consent process has been streamlined by replacing the current two stage process with a one stage process. This streamlining of the process should considerably shorten the timeframe for determining a substitute consent application; and
  2. simultaneous applications for further development may now be submitted alongside applications for substitute consent for past development.

Ordinarily, under the new regime, on applying for substitute consent, the applicant will have six weeks to make their simultaneous application for development. However, those applications already in the system awaiting a substitute consent decision will have six months from the time of this Order being enacted to make their simultaneous application for development.

Design flexibility

Design flexibility is now included for development other than maritime development (the relevant provision was commenced on 2 October 2023).

Planning and Development (Amendment) (No. 3) Regulations 2023.

These Regulations set out procedural and administrative matters relating to planning arrangements in respect of flexibility with regard to planning applications as provided for under the Planning and Development, Maritime and Valuation (Amendment) Act 2022. They also proscribe in a Schedule the form of: (a) a request to a planning authority or An Bord Pleanála for a meeting regarding flexibility with regard to a proposed application, (b) opinion of the planning authority or An Bord Pleanála in relation to unconfirmed details in respect of a proposed application, and (c) statement of unconfirmed details to accompany an application. They also specify that a planning authority or An Bord Pleanála shall make available and display on its website no later than the fifth working day following a particular week, a list of any flexibility meeting request and a list of any opinion on unconfirmed details, issued during that week.

Planning and Development (Amendment) (No. 4) Regulations 2023.

These Regulations provide for amendments arising from changes to the substitute consent provisions of the Planning and Development Act 2000 provided for in the Planning and Development, Maritime and Valuation (Amendment) Act 2022. These Regulations align the Planning and Development Regulations 2001 with the Planning and Development Act 2000. They also extend the timeline for receipt of submissions or observations from five weeks to eight weeks, in relation to substitute consent applications. The Schedule provides a form of Application to An Bord Pleanála for Substitute Consent Site Notice, and a form of Application to An Bord Pleanála for Permission for Development of Land under Section 37L of the Planning and Development Act 2000.

DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS

The EPA publishes a draft explanatory memorandum on the requirements of the draft national-by product criteria for greenfield soil and stone.

The draft memorandum sets out criteria for greenfield soil and stone that can be regarded as a by-product under Regulation 27 of the European Union (Waste Directive) Regulations 2011 – 2020. The draft memorandum is intended to assist the following parties in their understanding of the relevant compliance requirements under the regulations: (i) producers of greenfield soil and stone; (ii) holders transporting greenfield soil and stone; (iii) end users of greenfield soil and stone; and (iv) competent authorities overseeing compliance with the requirements of the criteria.

The EPA publishes a report on the environmental enforcement performance of local authorities in 2022.

The report shows that over 520 local authority staff handled almost 70,000 complaints and carried out over 197,000 environmental inspections. In an accompanying news release, the director of the EPA's Office of Environmental Enforcement commented that although the scale of enforcement work being carried out significant, "in many areas it is not delivering the necessary environmental outcomes such as improved water and air quality and waste segregation."

The EPA publishes report on Air Quality in Ireland in 2022.

The report observes that although Ireland met all its EU legal requirements in terms of air quality in 2022, it did not meet the more stringent World Health Organisation air quality guidelines. Fine particulate matter (PM2.5), mainly from burning solid fuel in homes, and nitrogen dioxide (NO2) mainly from road traffic, are the main threats to good air quality in the country. The report advises that Dublin local authorities must fully implement the Dublin Region Air Quality Plan 2021 to improve Nitrogen Dioxide levels in the Dublin region.

The LEAP Online Portal providing access to environmental enforcement information is live.

The LEAP Online portal is now complete and provides access to the full set of enforcement information describing the enforcement activities, actions and communications between the EPA and holders of EPA licences and permits. According to guidance LEAP Online is intended to provide online public access to the formal regulatory correspondence that is exchanged between the EPA and its licensed, permitted and authorised operators during the regulatory process.

EU DEVELOPMENTS

The Advocate General proposes that Articles 5 and 8 of Directive 2000/60/EC of the European Parliament must be interpreted as meaning that they do not require Member States to characterise and classify all lakes with a surface area below 0.5 km2

The Advocate General opinion states that the Water Framework Directive does not require Member States to characterise and classify the ecological status of all lakes within their territory with a surface area below 0.5km2. It must be interpreted as meaning that in the context of the consent procedure for a project concerning a lake which has not been characterised and classified on account of its small surface area, the competent national authorities must ensure, by means of an ad hoc analysis, that the project is not capable of causing deterioration in the status of that body of surface water as provided for in Article 4(1)(a)(i) of that directive.

The European Parliament and the Council have provisionally agreed an approach in relation to the Environmental Crime Directive.

The Environmental Crime Directive proposes to target the most serious environmental offences. Once the new directive enters into force, Member States will be obliged to include greater precision on the definition of environmental offence categories in their criminal laws, as well as effective dissuasive sanctions for offenders. Breaches of environmental obligations, such as the illegal trade and handling of chemicals or mercury and illegal ship recycling will be treated as criminal offences in all Member States. Causing particularly serious damage to the environment will be treated as an aggravated offence, with higher sanctions. Now that an agreement has been reached, it is for the European Parliament and the Council to formally adopt the directive.

The European Parliament and the Council reached an agreement on a proposal for a new Waste Shipment Regulation.

The proposed regulation would address the challenges of achieving climate neutrality and becoming resilient to climate change, reversing biodiversity loss, addressing risks related to forest health and fulfilling international commitments on biodiversity preservation and climate change. The regulation would involve the development of digitalised, accurate and comparable data on the state of EU forests, and would establish a forest monitoring system to be operated by the Commission and Member States.

The European Parliament and the Council have reached a provisional agreement to update the Industrial Emissions Directive.

The proposed revision of the Industrial Emissions Directive 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. The updated directive will also include governance mechanisms for the extraction of metals and the large-scale production of batteries, and tighten rules on the grant of derogations. The European Parliament and the Council have yet to formally adopt the revised Industrial Emissions Directive, following the achievement of a provisional agreement.

The European Commission has issued a reasoned opinion on water management to Ireland.

The Commission has called on Ireland, among six other Member States, to finalise its review, adoption and reporting of the third river basin management plan as required under the Water Framework Directive (Directive 2000/60/EC). The directive requires Member States to review, update and report a management plan every six years. The Commission issued letters of formal notice in relation to this obligation in February 2023. Ireland had two months from the issue of the reasoned opinion in September to respond and take the necessary measures. Failing a satisfactory response, the Commission may refer Ireland to the CJEU.

The European Commission issued a reasoned opinion to Ireland to comply with EU law in relation to air pollution and to reduce its emissions of pollutants to cut air pollution.

The reasoned opinion criticised Ireland, among 8 other Member States, for failing to ensure the correct implementation of its reduction commitments for several air pollutants as required by Directive 2016/2284 (the "NEC Directive"). The NEC Directive sets national emission reduction commitments for five air pollutants which contribute to poor air quality and lead to significant negative impacts on human health and the environment. The Commission has concluded that Ireland is failing to meet its reduction commitments under the directive. Ireland has two months from the issue of the reasoned opinion in November to respond and take the necessary measures. Failing a satisfactory response, the Commission may refer Ireland to the CJEU.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.