LEGISLATION
Planning and Development Bill 2023
Seanad Éireann finished consideration of the Planning and Development Bill on 17 July 2024 and an updated version of the Bill is available here. It will be reconsidered for a final time by the Dáil after the summer recess ends on 18 September.
Merchant Shipping (Investigation of Marine Accidents) Bill 2024
The Merchant Shipping (Investigation of Marine Accidents) Bill has been presented at first stage to Dáil Éireann. It provides for the replacement of the Marine Casualty Investigation Board with a unit in the Department of Transport. It also provides for regulation-making power to cater for the newer types of vessels used in the offshore service sector and their transportation of industrial workers who will, for example, deploy infrastructure and service offshore renewable energy facilities.
Air Pollution Act (Amendment) Bill 2024
The Government approved the drafting of a Bill to enhance the enforcement capacity of local authorities and support the effective implementation of the solid fuel regulations, as well as delivering key aspects of Ireland's Clean Air Strategy.
OFFSHORE
Additional consultation on Draft South Coast Designated Maritime Area Plan ("SC-DMAP")
Although previous public consultation has occurred in respect of the SC-DMAP, the Minister of the Environment, Climate and Communications considers that, for completeness, a further period of additional public consultation is appropriate in respect of the document entitled "Workbook 1-Draft Environmental Data Log". This additional period of consultation will run until 30 August 2024.
Department of Housing, Local Government and Heritage consults on Ireland's Marine Strategy Framework Part 1
The Department is consulting until 25 September 2024 on an assessment of the status of Ireland's marine environment, the characteristics of what good environmental status should look like and a revised set of environmental targets for each of the 11 qualitative descriptors found in the EU Marine Strategy Framework Directive.
NATIONAL PLANNING FRAMEWORK
Consultation on first revision of the national planning framework ("NPF")
A draft revision of the NPF focuses on updates to reflect significant and sustained population growth since the publication of the NPF in 2018 and updates to Government policy. The consultation will run until 12 September 2024.
RECENT DOMESTIC JUDGMENTS
Court of Appeal dismisses appeal and upholds decision of Environmental Protection Agency ("EPA") to refuse to consider an integrated pollution control licence ("IPC Licence") application for peat farming
The EPA refused to consider an IPC Licence application by Harte Peat (the "Applicant") as the Applicant's peat extraction activities did not have planning permission under the Planning and Development Act 2000 (the "2000 Act"). The Applicant argued that the activities did not require planning permission as they commenced prior to 1 October 1964 and the coming into effect of the 2000 Act's predecessor. The Applicant further argued that the requisite environmental impact assessment ("EIA") could be considered by the EPA through the IPC Licence application process, rather than the planning process.
Dismissing the appeal, the Court noted that the threshold for the EPA's remit in respect of peat extraction is 50 hectares or more, while the threshold for mandatory EIA for peat extraction under the Planning and Development Regulations 2001 is 30 hectares. It would be "incoherent" to find that, below 50 hectares, a peat extraction applicant must go to the planning authority but that, above 50 hectares, the appropriate authority is the EPA.
The Court rejected the planning exemption argument as the Applicant had failed to establish that its current and proposed development remained within the parameters of its pre-1964 user. The Court noted that, in any event, EU law requires that all peat extraction that is likely to have a significant effect on the environment is subject to an EIA, irrespective of whether the activity commenced pre-1964.
High Court refers nine questions to the CJEU in An Taisce's judicial review challenge to the fifth Nitrates Action Programme.
This request for a preliminary ruling follows three judgments delivered by Humphrey J concerning a challenge to the Fifth Nitrates Programme under the Nitrates Directive and implementing measures, as well as a challenge to the validity of Commission Implementing Decision 2022/696 (the "Commission Decision"). The Commission Decision allows a derogation for Ireland, allowing the amount of livestock manure applied to the land each year to exceed an amount of manure containing 170 kg N/ ha.
The issues referred to the CJEU mainly relate to assessment requirements and obligations under the Water Framework Directive, Habitats Directive and Strategic Environmental Assessment Directive, and to the validity of the Commission Decision.
Substantive determination of the proceedings has been adjourned pending the judgment of the CJEU.
Supreme Court unanimously dismisses an appeal challenging the constitutionality of section 28(1C) of the 2000 Act
The Supreme Court upheld the constitutionality of section 28(1C) of the 2000 Act, which allows the Minister for Housing, Local Government and Heritage to give binding directions to planning authorities in relation to specific aspects of the planning process, enabling them to depart from the terms of local development plans. The guidelines at issue in the appeal were Specific Planning Policy Requirements.
The Court rejected that the legislation infringes Article 15.2.1 of the Constitution by giving the Minister legislative power, noting that the guidelines place significant constraints upon the Minister. The Court also rejected that the argument that the legislation infringes Article 28A.1 of the Constitution by enabling the Minister to effectively override local government decisions taken democratically, noting that the Oireachtas is fully entitled to ensure that local authority powers are exercisable in a manner which conforms to national policy standards.
High Court quashes aquaculture and foreshore licence applications, made by Ireland's largest producer of farmed salmon, on the grounds of inadequate EIA
The aquaculture and foreshore licences were applied for in June 2011 and granted by the Department of Agriculture, Food and the Marine ("DAFM") in 2015. An appeal of this grant was dismissed by the Aquaculture Licence Appeals Board ("ALAB") in 2022. This decision was itself appealed to the High Court, on 63 core grounds. Ultimately the Aquaculture Licence was quashed for:
- inadequate appropriate assessment screening of the risk of effects of seal scarers (an acoustic device) on seals;
- inadequate EIA as to the risks of escape of salmon from the
fish farm and specifically: - the necessity of re-consideration of
bespeaking the DAFM reports on the escape of 230,000 farmed salmon
in Bantry Bay in 2014 such that comprehensive EIA can be conducted
on the risks of such an event occurring and the effects of such an
event on the environment; and
- the comprehensiveness of the EIA as it related to the specification and structural integrity of the cage installations to be used at the proposed salmon farm. It was considered that such matters could not be left to determination by DAFM in line with a non-statutory design protocol at a later stage where such a determination would not require its own EIA; and - inadequate reasons for the conclusion that the proposed fish farm will not lead to a breach of Water Framework Directive limits as to dissolved inorganic nitrogen.
The High Court rejected allegations of objective and structural bias as against ALAB, finding that these had not been proven.
The High Court determined that the related Foreshore Licence be quashed because, inter alia, it was contingent on the quashed Aquaculture Licence.
Commissioner for Environmental Information directs the Revenue Commissioners to release information on a commercial fuel depot pursuant to the Access to Information on the Environment Regulations ("AIE Regulations")
The Commissioner found that a site inspection report, an email thread between Revenue and the local authority, and a report of oil movements at the fuel depot, constituted "environmental information" for the purposes of the AIE Regulations.
The Commissioner considered that Revenue's role in issuing mineral oil licences could be considered a measure likely to affect the environment under the AIE Regulations, given the nature of the business selling fossil fuels and the scale of the operation.
The Commissioner found that Revenue has a key function when determining the outcome of fuel licence applications in verifying compliance by fuel sites with planning approval, fire and health and safety, and the Dangerous Substances Regulations.
Commissioner for Environmental Information annuls respondent's refusal to release information on purchase orders
The respondent contended that the information sought related to financial transactions with no environmental impact and was not environmental information.
The Commissioner directed the release of the information sought pursuant to the AIE Regulations on the basis that the respondent's operations are inherently likely to affect the environment "including: energy generation, recycling, waste management, peatlands restoration and rehabilitation, partnerships to develop new approaches to climate action, and infrastructure development".
The Commissioner noted the information "would contribute to the accountability and transparency of those operations, giving the public a greater awareness of the costs involved and the goods/services required to undertake them. Accordingly, it would be in line with the purpose of the Aarhus Convention...and the AIE Directive...contributing to greater awareness of environmental matters."
EU NEWS
Commission opens infringement procedures against Ireland
The Commission notified Ireland of its failure to meet waste collection and recycling targets laid down under EU waste legislation, including the Waste Framework Directive, the Packaging and Packaging Waste Directive and the Directive on Waste Electrical and Electronic Equipment.
Industrial and Livestock Rearing Emissions Directive
The Industrial and Livestock Rearing Emissions Directive entered into force on 4 August 2024, revising the former Industrial Emissions Directive. It is intended to reduce emissions from large industrial installations and pig and poultry farms. It aims by 2050 to reduce emissions of key air pollutants (PM2.5, SO2, NOX and NMVOC (non-methane volatile organic compounds)) by up to 40% compared to 2020 levels. It is the first EU environmental law to enshrine the right of people to seek compensation for damage to their health caused by illegal pollution.
Ecodesign for Sustainable Products Regulation
The Ecodesign for Sustainable Products Regulation enters into force on 18 July 2024, replacing the current Ecodesign Directive and setting out sustainability requirements for a wide range of everyday household products. It aims to significantly improve the circularity, energy performance and other environmental sustainability aspects of products placed on the EU market. The regulation is a framework regulation, meaning concrete product rules will be decided progressively over time, on a product-by-product basis, or horizontally, on the basis of groups of products with similar characteristics.
State Aid and Environmental Law
The Commission is consulting on a proposed procedure to give public access to judicial procedures to challenge specific decisions on State aid measures that allegedly contravene EU environmental law. The consultation will run until 6 September 2024.
EU JUDGMENTS
CJEU issues two judgments concerning the objectives of the Habitats Directive to "maintain or restore" a favourable conservation status for natural habitats and species
The first judgment related to a Spanish law which allowed for a wolf species with an unfavourable conservation status to be hunted in certain areas. The second judgment concerned the validity of Austria's general ban on wolf hunting, in response to a request for a preliminary ruling concerning a derogation from the national prohibition for the purposes of killing a single specified wolf.
In the Spanish case, the CJEU confirmed that the objective under the Habitats Directive to maintain a favourable conservation status for protected species must be interpreted as precluding national legislation which designates a wolf as "as species whose specimens may be hunted in certain areas", where that species has an unfavourable conservations status in that Member State.
The CJEU noted that where uncertainty remains (based on best available scientific knowledge) as to the risk to maintaining a species at a favourable conservation status, protection measures such as the restriction or prohibition of hunting may be considered necessary. The CJEU further noted that the inclusion of a species in the less strict protective regime of Annex V, rather than the strict protection in Annex IV, does not equate to a "favourable" conservation status.
In the Austrian case, the CJEU found that the obligation to "maintain" a favourable conservation status means that the Habitats Directive cannot be interpreted as meaning that the protection offered to Annex IV species ceases to apply when such species have achieved a favourable conservation status.
Article 16(1) of the Habitats Directive provides that a derogation from a protective measure must not be detrimental to the maintenance of the population of the species concerned with a favourable conservation status in their natural range. The CJEU confirmed that the assessment at the level of the biogeographical region should only be conducted where it has been established that that derogation does not adversely affect the maintenance of a favourable conservation status at the level of the local and national territory.
The CJEU also held that, when assessing whether there are 'satisfactory alternatives' available in the context of Article 16(1), national authorities are required to assess other possible solutions, taking account, in particular, of their economic implications, without those implications being decisive, and to balance them with the general objective of maintaining or restoring the animal species concerned at favourable conservation status.
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.
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.