Ireland: Environment & Planning Group Update July 2018 - Domestic News

Last Updated: 17 August 2018
Article by Deborah Spence, Danielle Conaghan, Yvonne Scannell, Laura Rafferty, Jacinta Conway, Maeve Delargy, Eimear O'Hanrahan and Eva E Barrett
Most Read Contributor in Ireland, October 2018

DOMESTIC CASES

Connelly v An Bord Pleanála [2018] IESC 31

Supreme Court upholds High Court's determination that the Board's AA was invalid and that notification of a decision that AA required must be given, along with reasons; but disagrees with the High Court on other points

This case involved a wind farm, where 6 turbines were initially proposed, but subsequently was re-designed as a 4 turbine wind farm. An Bord Pleanála ("the Board") granted permission for the development, but this decision was challenged by Ms Connelly on the basis that the Board had not given notice of the Appropriate Assessment ("AA") screening determination finding that an AA was required and had not included reasons for the determination.

In this context, the High Court considered whether or not the Board's AA and its reasons were adequate. The Court held that despite the change in development there was no description, analysis or evaluation of that information in the AA decision of the Board, and instead there was 'generically worded' text. Therefore, the High Court overturned the Board's decision to grant planning permission on the basis that the Board's AA determination and its accompanying reasons were deemed inadequate.

The Board appealed the judgment of the High Court directly to the Supreme Court on the grounds that the High Court judge set an unreasonably high threshold as regards the reasons to be given where a decision involves an AA (or an Environmental Impact Assessment ("EIA")).

The Supreme Court did the following:

  1. Upheld the High Court's judgment that the Board must provide notification of its decision that an AA is required, along with reasons for that decision.
  2. Agreed fully with the High Court's conclusion that no reasons could be found anywhere to suggest why the Board decided a full AA was required.
  3. The Supreme Court agreed with the High Court's decision that a failure to provide reasons as to why an AA was required could not, in and of itself in the circumstances of this case, render a permission invalid when an AA was actually carried out and where it is clear from the AA that all potential adverse effects on the relevant protected area had been identified and the necessary analysis conducted which would permit permission to be granted.
  4. In the circumstances of this case however, the AA conducted was invalid as it did not make specific findings of the complete, precise and definitive nature required. The Court cited Kelly [2014] IEHC 200 with approval and noted that there are four distinct requirements which must be satisfied for a valid AA decision, which did not occur in this case:

    1. The AA must identify in light of the best scientific knowledge all aspects of the project which can, by itself or in combination with other plans or projects, affect the European site in light of its conservation objectives;
    2. There must be complete, precise and definitive findings regarding the potential effects on any relevant European site;
    3. On the basis of these findings, the Board must be able to determine that no scientific doubt remains as to the absence of the identified potential effects; and
    4. Where the above requirements are satisfied, the Board may determine that the development will not adversely affect the integrity of the European site.
  5. Concluded that the reasons given by the Board to justify its decision to permit the project to go ahead were adequate as they would allow an interested party to see why the Board made its decision, and to take a challenge to that decision if they wished. The Supreme Court determined that the High Court had held the Board to too high a standard with regard to the requirement to provide reasons for its decision to grant planning permission.
  6. With regard to the conduct of the EIA and the reasons which the Board had given with regard to its carrying out of the EIA, the Supreme Court reversed the decision of the High Court in this regard. It distinguished the EIA regime from the AA regime, stressing that the EIA regime "does not require any particular result, but requires a particular assessment to be carried out", and that permission is only granted where the assessment is favourable to the grant of the permission concerned.  Therefore, because the Board's inspector considered the matters which were necessary to be considered in an EIA, the finding of the High Court that the EIA was invalid was reversed by the Supreme Court. 

The Supreme Court dismissed the appeal and the matter was remitted back to the Board for a fresh decision to be made having considered the points made in the judgment.

The Judgment can be found here.

Right to Know CLG v An Taoiseach, and the Minister for Communication, Climate Action and Environment [2018] IEHC 3710

High Court quashes refusal by the Department of An Taoiseach to make public cabinet papers discussing Ireland's greenhouse gas emissions due to its failure to give reasons and to balance the public interest.

Right to Know successfully judicially reviewed a refusal by the Department of An Taoiseach (the "Department") of its request under the European Communities (Access to Information on the Environment) Regulations 2007-2014 (the "AIE Regulations"), seeking the release of cabinet papers dating from 2002-2016, in which greenhouse gas emissions were discussed.

The Department had refused to release the information on the basis of a specific exception under the AIE Regulations relating to disclosure of discussions of environmental emissions at Government meetings. Right to Know judicially reviewed the decision on a number of grounds.

The Court quashed the decision of the Department for the following reasons:

  • The Government sought to avail of an exception and refused the release without conducting the exercise of balancing the proposed refusal with the public interest in favour of disclosure before arriving at its decision; and 
  • The reasons offered were inadequate. 

The matter was remitted back to the Department for a fresh decision to be made.

The Judgment can be found here.

Callaghan v An Bord Pleanála [2018] IESC 39

Supreme Court Decision on Strategic Infrastructure Development ("SID") determines that members of the public do not have the right to make observations during the SID Pre-Application Consultations

The Supreme Court found that there is no right for interested members of the public to make observations prior to a decision being made that a proposed development is SID, and in doing so upheld previous decisions by the High Court and the Court of Appeal.

Element Power had proposed to develop a windfarm consisting of 46 turbines on 3 clusters of land near Kells in County Meath. The Board determined that the proposed windfarm was SID. Mr Callaghan sought to challenge this determination.

The High Court had refused Mr Callaghan leave to seek judicial review, in part on the basis that he had not established substantial grounds for quashing the decision of the Board, nor had he established that there were substantial grounds for declaring that the Environmental Impact Assessment Directive had not been correctly transposed into in Irish law.

However, the High Court decided that Mr Callaghan had raised a point of law of exceptional public importance - i.e. whether it was necessary to read into the Planning and Development Act 2000 (as amended) a right for interested members of the public to make observations prior to the Board making a determination that a proposed development is SID - and certified a question for an appeal.

The Court of Appeal had agreed entirely with the High Court's reasoning and conclusion and consequently dismissed Mr Callaghan's appeal, holding that there was no such right.

The Supreme Court upheld the decision of the Court of Appeal. It found that there was no such right, as that decision did not have material and practical implications for the public or Mr Callaghan.

The Judgment can be found here.

O'Brien and another v An Bord Pleanala [2018] IEHC 389

High Court stresses there is no obligation on An Bord Pleanála to engage in a point by point refutation of public submissions when making planning decision.

This case arose from a judgment of the High Court which upheld a grant of substitute consent to a windfarm by An Bord Pleanála (the "Board"). The High Court held that the Board had fulfilled its obligations when it had regard to its own Inspector's report (and an additional report which made it clear that the Inspector had regard to - and summarised - both the report of a noise expert and the submissions of Mr and Ms O'Brien) which recommended that permission be granted.

Mr and Ms O'Brien sought leave to appeal this judgment on the question of whether a requirement to carry out an EIA includes an obligation to examine, analyse and evaluate the substance of the information submitted by the members of the public concerned. The issue arose in relation to the requirements placed on the Board to:

  1. assess the effects of the proposed development; and
  2. consider any submissions or observations validly made in relation to the environmental effects of the proposed development.

The High Court concluded that there is no obligation to engage in a point by point refutation of the submissions and observations validly made. In this case all of the information validly submitted was considered by the Inspector and the Board. 

The Judgment can be found here.

Coughlan and others v ESB Wind Development Limited [2018] IEHC 368 

High Court refuses to make an order for discovery of certain documents in ongoing High Court proceedings in which damages are sought on the basis of an allegation of shadow flicker, visual impact and impact on the use and enjoyment of lands as a result of the construction of a wind farm

The application for discovery by Ms Coughlan and other local residents of certain documents held by ESB Developments was made in the context of wider proceedings taken by Ms Coughlan and other local residents arising from allegations of shadow flicker, visual impact and consequential impact of a windfarm on Ms Coughlan and the residents' use and enjoyment of their lands and dwelling houses.

The High Court refused to grant a discovery order releasing the different categories of documents sought for different reasons:

  1. Wind farm design documents: The High Court was not satisfied that the documents sought were relevant, necessary or cost saving, and did not entertain attempts by Ms Coughlan to broaden this category at the hearing beyond what she had sought in her written submissions.
  2. Departmental correspondence: The High Court refused this category as it did not satisfy the requirements for necessity, relevance or cost saving.
  3. Regulator correspondence: The High Court noted that certain documents had already been offered to the defendants on a "without prejudice basis". Therefore, the High Court refused an order for discovery in this category.
  4. Details on Treatment of Public Participation/Consultation Procedures: The High Court refused this category as it did not satisfy the requirements for necessity, relevance or cost saving.
  5. Landowner legal agreements along with details of the consideration provided: The High Court agreed with ESB Development which characterised this request as bearing no relevance whatsoever to the issues in dispute between the parties.

The judgment can be found here.

DOMESTIC LEGISLATION

The Planning and Development (Amendment) Act 2018 and the European Union (Planning and Development) (Environmental Impact Assessment) Regulations 2018 were recently published. Updates in relation to these new pieces of legislation will be circulated separately.

Aquaculture (Licence Application) (Amendment) Regulations 2018

These Regulations amend the Aquaculture (Licence Application) Regulations 1998 to give further effect to the EIA Directive (Directive No. 2014/52/EU) insofar as it applies to certain aquaculture licence applications. EIAs must now be carried out for marine based intensive fish farms, fish breeding installations consisting of cage rearing in lakes, fish breeding installations upstream of drinking water intakes and other fresh-water fish breeding installations of a particular size. The Minister for Agriculture, Food and the Marine retains the power under the existing Regulations to require any other applicant for an aquaculture licence, other than those specifically listed above, to submit an environmental impact assessment report if it is considered that the proposed aquaculture is likely to have significant effects on the environment.

The Regulations can be found here.

Climate Change and Low Carbon Development (Climate Change Reporting) Bill 2018

The Climate Action and Low Carbon Development (Climate Change Reporting) Bill 2018 is a private members bill sponsored by Timmy Dooley TD. 

The Bill proposes to require the Climate Change Advisory Council to publish guidelines for companies seeking to identify and include climate-related reporting in their annual directors' reports. It is proposed that such guidelines will include provisions relating to the identification of the financial and strategic implications of the physical risks resulting from climate change for the company, and the development of key performance indicators to reflect the company's efforts to reduce greenhouse gas emissions.

The Bill can be found here.

Forestry (Planning Permission) (Amendment) Bill 2018

This Bill proposes to amend the provisions of the Forestry Act 2014 to require planning permission for all forestry developments over 5 hectares before a licence is granted.

The Bill can be found here

DOMESTIC PLANS, POLICIES AND REPORTS

CRU Water Connection Charging Policy

The Commission for Regulation of Utilities ("CRU") has published an Information Note  updating the public with regard to the timeline for establishing Irish Water's Connection Charging Policy. The note does not provide a date for the finalisation of the charging policy and instead it states that the CRU must first reach a proposed decision on Irish Water's proposed Connection Charging Policy which it intends to publish in Q4 2018.

The Information Note can be found here.

EUROPEAN NEWS

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.

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