LEGISLATION
Planning and Development Bill 2023
The Bill was passed by Dáil Eireann on 13 June 2024 and is proceeding to committee stage before the Seanad the week commencing 15 July 2024. Amendments may be made to the Bill by the Seanad, and be accepted or rejected by the Dáil. The version as passed by the Dáil is available here.
Third-Party Funding Contracts (Certain Proceedings) Bill 2024
The Bill entered the second stage before the Seanad on 27 June 2024. The Bill as currently drafted means that the offence or tort of maintenance or champerty would not apply to certain proceedings, including proceedings concerning environmental protection or climate change. (Maintenance involves the funding of litigation in which the funder has no interest, and champerty is funding litigation in exchange for a share of the proceeds of such litigation.)
Environmental Protection (Miscellaneous Provisions) Bill 2024
The Government approved a General Scheme of the Environment (Miscellaneous Provisions) Bill 2024, which is intended to streamline the EPA licensing system by, among other things, setting timeframes for decision making to align with changes to be introduced under the Planning and Development Bill. It also provides for a power for the EPA, in exceptional circumstances, to grant an exemption from the requirements of the Environmental Impact Assessment Directive for a licence application where the application of those requirements would adversely affect the purpose of the development, and the objectives of that Directive can be achieved by other means. It also provides a mechanism for limited reviews to the changes of licences. Further information is available here.
RECENT DOMESTIC JUDGMENTS
The Supreme Court dismisses appeal and upholds grant of planning permission for solar farm development in County Offaly
The Concerned Residents of Treascon and Clondoolusk (the "appellant") argued that the solar farm development required an environmental impact assessment ("EIA") because it involved a restructuring of rural land holdings, specifically the removal of hedgerows. "Projects for the restructuring of rural land holdings" are an Annex II project under the EIA Directive and require mandatory EIA screening pursuant to the Planning Regulations. Solar farms are not an EIA project.
An Bord Pleanála, the State and the Developer contended that this was an incorrect interpretation of the legislation.
The Court held that the fact that hedgerows were to be removed did not trigger the obligation to conduct an EIA in respect of the entire solar farm development.
In dismissing the appeal, the Court held that the literal meaning of the language in the legislation leaned heavily against the argument advanced by the appellant and that this was not a case in which there was any question of project splitting to avoid EIA thresholds.
It held that what is to be assessed is the whole EIA project which, in this instance, is the removal of the hedgerows, and that the solar farm works would be accounted for by way of any necessary cumulative assessment.
The Court of Appeal upholds the grant of a revised Industrial Emissions Licence for a cement plant in County Limerick
The Court of Appeal dismissed two appeals challenging the EPA's grant of a revised Industrial Emissions licence to Irish Cement Limited. The revised licence allows the plant to replace some of its existing fossil fuels with alternative fuels.
A number grounds were pleaded by the Applicants relating to EIA, AA, Water Framework Directive and the EPA Licensing Process, all of which were unsuccessful before the Court of Appeal.
Notably, in the Court of Appeal in its judgment was clear that considerable deference must be afforded to the expertise of the EPA in these types of cases owing to the "highly technical and complex nature of the evidence involved".
RECENT UK JUDGMENTS
The UK Supreme Court rules that the likely direct and indirect effects of a project on the climate must be assessed where those effects are accurately quantifiable.
In its judgment, the Court considered whether the EIA report submitted as part of a planning application to retain and extend an existing well for onshore oil extraction should have included an assessment of the greenhouse gas emissions that would occur when the oil extracted from the wells was ultimately burned elsewhere as fuel (the downstream emissions).
On the basis that 1) the enlargement of the well site made the burning of the resultant additional oil a virtual certainty, and 2) the quantum of the downstream emissions was accurately quantifiable, the Court held that the downstream emissions should have been assessed and therefore that the grant of planning permission was unlawful. In doing so, the Court highlighted the importance of a causative connection between the project and the effect.
This ruling now means that it is mandatory in the UK to assess quantifiable downstream emissions where there is a direct link between the project and their creation. However, in practice, it may be rare for the indirect effects of a project to be readily quantifiable.