RECENT DOMESTIC JUDGMENTS

High Court ruling provides welcome clarification on a number of issues

The High Court has rejected a challenge to a decision to grant "a relatively minor modification" to two previous permissions at Intel's Leixlip campus.

In refusing all reliefs (save for one declaration against an Bord Pleanála), the High Court made the following findings:

  • Matters not before the Board: The High Court has reconfirmed that legal points which were not raised in the context of the appeal cannot subsequently be raised in a subsequent judicial review challenge, subject to limited exceptions, and note that the proceedings bore "no resemblance – none whatsoever – to the applicant's notice of appeal to the board".
  • "Remedial" EIA: The "remedial obligation" (that is, the obligation to correct errors in a previous assessment) only arises where certain steps have been followed, including that any issue with a previous assessment must have been raised before the decision-maker (and not subsequently in judicial review) and the decision-making process concerned must be an appropriate way to give effect to the remedial obligation.
  • Recording of AA decisions: The applicant argued that the Board Order did not record an AA screening decision. The Order stated that the decision was taken "generally in accordance" with the inspector's report. The Court found that the decision should be read "in the light of the material overall" and that the decision could appropriately be read as lawful. It noted that the explicit or (if reasonably clear) implicit adoption by the Board of an inspector's report is not in itself a basis to quash a decision.
  • Clarity on EIA classes: The applicant alleged that the development engaged two classes of EIA project: "storage facility for chemical products" and "industrial estate development". The Court rejected these arguments, noting that (a) the applicant's interpretation of the chemical class is totally implausible as it would capture any incidental storage of chemicals, even in domestic residences, and (b) the industrial estate class is only engaged by the development of industrial estates (which the Intel campus is not), and where the development relates to the functioning of the industrial estate as an industrial estate.
  • Clarity of pleadings: As is established in case law, the Court reiterated that an applicant can only be permitted to advance a point at hearing that is acceptably clear from the express terms of the statement of grounds, subject to the grant of any order allowing an amendment.
  • Declaratory relief: The Board's Order was not uploaded to the Board's website for 18 months. The Board submitted that this arose from a technical issue that has since been resolved. The Court established a number of principles on when declaratory relief is appropriate (relating to, for example, the extent of the non-compliance at issue, and whether the issue was rectified when it came to light). Based on these principles and, in particular, the importance of compliance with public participation requirements, the Court made a declaration that the Board had contravened its obligation to make the Order available online. However, the Court found that this breach was not sufficient to quash the permission.

The Supreme Court dismisses two appeals in respect of challenges to Meath County Development Plan

The decision of Meath County Council (the "Council") to re-zone certain lands in its Development Plan 2021-2027 was challenged on the grounds that:

  1. insufficient reasons had been given;
  2. the decisions were inconsistent with the Council's obligation to ensure consistency of the Development Plan with the National Planning Framework ("NPF") and Regional Spatial and Economic Strategy ("RSES"); and
  3. the developer had a legitimate expectation as to how the lands would be zoned under the new development plan, based on commitments given by the Council in the previous development plan.

In respect of the first ground, taking into account the deliberative nature of decision-making processes by elected representatives, the Supreme Court found that the reasons underpinning the zoning decisions were sufficiently clear from the minutes and motion papers and the Chief Executive's report.

On the second ground, the Supreme Court found that the obligation to ensure consistency of a development plan with the NPF and RSES relates only to the objectives of those documents and not their entirety. Those objectives apply to "zoned land" within the meaning of the NPF and RSES, being land "zoned for housing or economic activity", which these lands were not.

On the third ground, the Supreme Court held that the commitments made in the previous development plan were ultra vires, because a local authority does not have the authority to bind itself to a future zoning commitment beyond its current development plan. Therefore, there could be no legitimate expectation in this respect.

Finally, the Supreme Court confirmed that an applicant does not have to challenge the entirety of a development plan in order to challenge a particular provision or decision in that development plan.

The High Court referred five questions to the CJEU in relation to derogation licences

The questions proposed for referral to the CJEU relate to the timing for challenging a derogation licence and whether an earlier decision granting a derogation licence is to be treated as part of the development consent for the purposes of any extension of limitation periods for challenge; whether alternative measures such as alternative location or design must be considered before a derogation licence is granted; and whether a derogation licence must create some identified protection itself rather than through the mitigation measures adopted to compensate for the detriment that it creates.

The High Court rules that a transcript of a compensation hearing is not "environmental information"

The High Court overturned a decision of the Commissioner for Environmental Information granting access to a hearing transcript. The hearing related to a claim for compensation regarding electricity cables laid by ESB on the claimants' land. The High Court held it could not be said that there was a "real and substantial possibility" that the transcript would affect the environment, directly or indirectly. Furthermore, the High Court held that the transcript was the intellectual property of the stenographer, such that refusal to disclose it was justified under article 9(1)(d) of the AIE Regulations.

The High Court referred five questions to the CJEU in relation to anonymised requests for environmental information

The High Court referred five questions to the CJEU in relation to sustained pseudonymised requests for environmental information from Coillte. Coillte refused the requests as invalid, due to lack of legal name and address. The questions proposed for referral to the CJEU relate to whether:

  1. the word "request" means only a request that is valid by reference to the Directive;
  2. the word "applicant" means a natural or legal person identified by their actual name and/or a current physical address; and
  3. whether the Directive precludes national legislation requiring an applicant to furnish his or her actual name and/or current physical address.

The High Court holds that remittal is permissible in circumstances where a new Development Plan has come into force since the original decision to grant permission

The Board conceded a judicial review challenge to its decision to grant planning permission. The Notice Party Developer sought remittal of the decision to the Board. The Applicant objected to remittal on the basis that the Board no longer had jurisdiction to deal with the application because a new County Development Plan ("CDP") had come into force since the original decision to grant permission had been made.

The Court noted that there is a statutory presumption in favour of remittal, unless the Court considers remittal would be unlawful. The Court held that the applicant had not identified any legal preclusion to remittal in the circumstances of the case and so had failed to rebut the presumption. As such, the decision was remitted to the Board to be determined by reference to the new CPD.

LEGISLATION

Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023 (Commencement) Order 2023

As of 1 January 2024, sections 257 and 258, and Chapter 7 of Part 13 (insofar as not previously commenced) of the Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023 have been commenced pursuant to this Order. These provisions amend the Local Government Rates and other Matters Act 2019 and the Valuation Act 2001 and relate to rates levied in relation to property. As of 1 January 2024, the entirety of the Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023 has been commenced.

DOMESTIC REPORTS, CONSULTATIONS AND DECISIONS

The Department of Housing, Local Government and Heritage reports "significant successes" against wildlife crime in 2023

The Department of Housing, Local Government and Heritage reports that 43 prosecution cases were initiated by the National Parks and Wildlife Service for alleged breaches of wildlife legislation in 2023, according to data from the new Wildlife Enforcement and Nature Protection Directorate. One company was fined €8,000 for damage caused on a Special Area of Conservation, while another company faced 11 convictions and €31,000 in fines.

The Department of Housing, Local Government and Heritage announces new housing design guidelines

Following public consultation in 2023, the Minister for Housing, Local Government and Heritage, Darragh O'Brien TD, and the Minister of State with responsibility for Local Government and Planning, Kieran O'Donnell TD, published the Sustainable Residential Development and Compact Settlements Guidelines which focus on the interaction between residential density, housing standards and quality urban design and placemaking. The new guidelines outline density ranges, greater flexibility in design standards for housing, and an overall policy of more compact and sustainable forms of urban development.

The Government agrees to the appointment of Mr. Peter Mullan as the new Chairperson of An Bord Pleanála

The Government has agreed to the appointment of Mr. Peter Mullan as the new Chairperson of An Bord Pleanála, following an open recruitment process. Mr. Mullan, who is currently interim Chairperson of An Bord Pleanála, will now take up the position on a permanent basis. Mr. Mullan was first appointed to An Bord Pleanála as a temporary Board member in January 2023 and was appointed to the role of interim chairperson in September 2023.

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.