LEGISLATION
Bill published requiring zoning windfalls to be shared with the State (available at this link)
This Bill aims to introduce a mechanism whereby a proportion of the value of land that is attributable to zoning and land use decisions is shared with the State. On a grant of planning permission, the payment of 25% of the uplift of the land value (a "zoning value payment") would be required as a condition of the permission, payable to the local authority. Certain land and types of development would not be in-scope, as detailed below.
Where permission is sought for development on land that is: (i) zoned solely or primarily for residential use; (ii) zoned for a mix of uses, including residential use; (iii) zoned for commercial or industrial uses and not residential use; or (iv) located within a strategic development zone, the planning authority or the Board must make the payment of a zoning value payment a condition to any grant of permission. This will not apply to planning applications for residential developments of less than five housing units, or commercial developments with less than 500 square metres of gross floor space.
Autumn Legislative Plan Published
The Irish Government published the Autumn Legislative Programme containing 61 priority bills which are to be progressed in the Dáil and Seanad. The full document is available via this link. Priority bills include the following, none of which have been published:
- Air Pollution (Amendment) Bill: to update the Air Pollution Act (1987) to support enhanced enforcement and the implementation of the Clean Air Strategy.
- Marine Protected Area Bill: to provide for the designation and management of Marine Protected Areas in the maritime area.
- Environment (Miscellaneous Provisions) Bill: to streamline EPA decision-making and shorten the period for final determinations of industrial emission and waste licences.
- Fisheries (Aquaculture) Bill: to update and modernise aquaculture licencing and bring the Fisheries (Amendment) Act 1997 into compliance with EU legislation.
- Inland Fisheries (Consolidation) Bill: to consolidate and modernise all enactments since the Fisheries (Consolidation) Act 1959. To encompass all species with a wide cross section of needs and habitat/ ecological/ water quality/ climate change imperatives.
- Arterial Drainage (Amendment) Bill: to transfer responsibility for the assessment and confirmation of flood relief schemes under the Arterial Drainage Act to an appropriate body.
New regulations on IPC Licences Published (available via this link)
These regulations amend: (a) the Environmental Protection Agency Act 1992, and (b) the European Union (Waste Incineration Plants and Waste Co-Incineration Plants) Regulations 2013 to define the substances to which Part IV of the EPA Act (Integrated Pollution Prevention and Control) applies, and to set thresholds for the emission of titanium dioxide.
IRISH REGULATORY UPDATES
Access to Environmental Information Refused based on Legal Privilege
A decision to refuse access to environmental information requested under the AIE Regulations was upheld by the Office of the Commissioner of Environmental Information. The reason was that it was clear that the information was the subject of legal advice privilege, and there were no overriding reasons of public interest weighing in favour of disclosure. The decision is available at this link.
Ireland's Third River Basin Management Plan Published (available here)
This plan is a requirement of the EU Water Framework Directive. It sets out a roadmap to restore Ireland's waterbodies to 'good' status or better and protect against further deterioration in the period from 2023 to 2027.
EU JUDGMENTS
Environmental NGO refused access to documents by European Court (judgment available here)
ClientEarth sought access to confidential European Commission documents concerning the French and Danish application of fisheries law. The Commission granted access to some but not all documents. ClientEarth appealed to the General Court, and subsequently to the Court of Justice of the EU (the "CJEU"). The CJEU dismissed the appeal. In coming to its conclusion, it noted that it was not sufficient for ClientEarth to claim that access to the documents was required to participate effectively in the legislative process and ensure the best possible protection of the environment and health. This claim was considered too general and not sufficient to establish an overriding public interest to displace the reasons justifying the refusal to disclose.
OTHER NEWS
European Commission sends formal notice to Ireland citing RED III failures
The European Commission has called on several Member States, including Ireland, to transpose rules to accelerate permitting procedures for renewable energy projects under Directive (EU) 2023/2413 ("RED III"). Countries in receipt of formal notices now have two months to respond and complete their transposition. If Ireland fails to meet this deadline, the Commission may issue a reasoned opinion and ultimately take a case before the CJEU. More information is available here.
European Commission restricts use of a sub-group of PFAS chemicals
The Commission has adopted new measures under REACH (EU chemicals legislation) to restrict the use of undecafluorohexanoic acid ("PFHxA") and PFHxA-related substances, which are subgroups of per- and polyfluoroalkyl substances ("PFAS"). The use of PFAS in certain products poses a significant risk to human health and the environment. The new measures focus on uses where the risk is not adequately controlled, alternatives are available, and socio-economic costs will be limited in comparison to the human-health and environmental benefits. The new rules come into force on a staggered basis from April 2026 onward. Certain uses of PFHxA are not affected, such as in construction textiles and in many categories of medical devices.
European Commission publishes new rules on emissions (available here)
This regulation updates the technical rules concerning monitoring, calculation, and reporting of greenhouse gas emissions pursuant to the Emissions Trading Directive. There is new content in relation to alternative fuels, and alternative aviation fuels in particular.
CIRCULAR ECONOMY
Construction and Demolition Waste – Irish Levy exemptions ended
New regulations ending the exemption for construction and demolition waste from the application of the Landfill Levy have been adopted. Additional regulations end the exemption for construction and demolition waste from the application of the Waste Recovery Levy.
Consultation on draft regulations to reform EPA End-of-Waste decision making process
The Department of the Environment, Climate and Communications has launched a public consultation on draft regulations to reform the End-of-Waste decision making process operated by the Environmental Protection Agency.
RECENT DOMESTIC JUDGMENTS
Court of Appeal refuses appeal against High Court decision: wind farm permission remains in place (judgment available here)
The applicants were not entitled to raise an issue of EU environmental law before the Court which had not been raised before the authority granting consent because they could have raised the issue earlier and could have procured access to the information needed to do so. The Court found that requirements of EU law cannot be set aside on the basis that they are difficult to apply. The Court also stated that the fact that commercial considerations may be weighed by a court does not in any way undermine access to justice.
High Court comments on costs rules in environmental proceedings (judgment available here)
These proceedings concerned the development and use of an unauthorised milking parlour by the respondent. Although both parties agreed that special cost rules under the Environment (Miscellaneous Provisions) Act 2011 applied, the respondent sought to resist a cost order on the basis that the applicant instigated proceedings rather than relying on the Planning Authority, who could have done so at no cost to the applicant. The respondent also argued that the applicant had not suffered materially.
The High Court held that it was clear from legislation that a successful private applicant is entitled, in principle, to recover their legal costs and there is no requirement on an applicant to satisfy any threshold of material suffering as a precondition to securing a costs order. The Court also held that any person can institute enforcement proceedings under the Planning and Development Act 2000, and need not await any action on the part of the local planning authority prior to instituting proceedings.
Burden of demonstrating illegality in AA is on applicant
The High Court dismissed a challenge where the applicant argued that the Board's Appropriate Assessment was flawed and that the Board relied improperly on Uisce Éireann's assessment of the capacity of a nearby wastewater treatment plant. The HC stated that the burden of demonstrating flaws in the AA was on the applicant following the presumption of the validity of administrative decisions.
In terms of the capacity issue, UÉ failed to explicitly confirm that the local wastewater treatment plant had capacity to serve the proposed development. However, its statement that it had no objection to the development could be read by the Board as a positive assertion regarding network capacity, in the context of the other documents available to the Board to make its decision.
Challenge to zoning decision refused by High Court (judgment available here)
The Dún Laoghaire Rathdown County Council ("DLRCC") Development Plan 2022-2028 (the "Plan") was adopted in March 2022. In the Plan, Bullock Harbour is assigned zoning objective "W" (waterfront). Zoning objective "W" generally permits residential development among other uses. However, following an amendment to the draft plan made by the elected members of DLRCC, "Residential" and "Residential Institution" uses are "not permitted in principle or open for consideration in Bulloch Harbour".
The applicant sought a judicial review of the inclusion of this amendment within the Plan based on the following failures: (a) a failure to give adequate reasons, (b) a failure to take account of relevant considerations, (c) taking account of irrelevant considerations, and (d) improper discrimination or singling out of the applicant's lands. The Court found against the applicant on each ground and upheld the Plan.
Concerns relating to the agreed flood-risk at the site were deemed valid planning reasons. It was also relevant that DLRCC members had considered a report of the DLRCC CEO which accurately summarised the applicant's submission on the proposed de-zoning. The Court held that zoning decisions by their nature may affect individual persons, but an adverse zoning decision is not evidence of discrimination. The Court also considered that no evidence of weight had been adduced by the applicant in this regard. It was held that the focus of the decision was clearly on flood risk, not the identity of the landowner, and that in any case the applicant was not the only person affected by the zoning decision.
Zoning status of lands was determined by the assessment of the Councillors at the time of the development plan, not determined by use at the time of planning application (High Court judgment, available here)
The High Court quashed the Board's decision to grant planning permission for 299 residential units in south Dublin. The Court determined that the Board failed to properly apply policies related to institutional lands. In particular, the Board was wrong to consider the de facto position of the lands at the time of the application (fenced off for sale and not in institutional use) as opposed to the assessed status of the lands under the relevant development plan (in institutional use as college playing fields).
Additionally, the Board did not provide adequate reasons for a significant reduction in car parking spaces (when compared to the standard/recommended amounts set out in the development plan).
The Board also failed to provide reasons for the application of upward modifiers to justify increased building height. The development plan was found to permit departures from three to four storey building heights in buildings in exceptional circumstances, but no such circumstances were identified by the Inspector or the Board.
High Court allows survey data from quashed foreshore licence to be used (judgment available here)
This decision relates to RWE's Dublin Array Offshore Wind Farm. The foreshore licence was granted in November 2020, and the surveys were completed by May 2021. Judicial review proceedings were issued in April 2021.The High Court quashed a decision to grant a foreshore licence for a geophysical and geotechnical survey on AA grounds.
However, the Court noted that RWE had tried to adhere to its obligations, notwithstanding that the licence was quashed on AA grounds. It considered that it would not serve the objectives of the Habitats Directive to punish a developer which had fully complied with its obligations.
The Court refused an application to amend the statement of grounds which sought to prevent the developer from using the survey data in future development consent applications, citing significant delay and potential prejudice to the developer.
The foreshore licence decision has been remitted to the Minister for Housing for reconsideration in line with the Court's findings.
Heightened duty to explain why proposed development plan does not accord with proper planning and development where Board departs from Inspector's Report (new High Court judgment)
This case relates to an appeal against the Board's decision to refuse permission for a development in Co. Cork. The Court found that the Board misinterpreted the Development Plan, determining that a proposed development type does not need to be included in a list of appropriate uses to conform with the Development Plan.
The Court also found that the Board did not give adequate reasons for refusing the permission sought and stated that there is a heightened duty to explain why the proposed development does not accord with proper planning and development in circumstances where the Board departs from the Inspector's Report.
It was not open to the Board to conclude, solely by virtue of an immaterial contravention of the Development Plan that the proposed development would be contrary to the proper planning and sustainable development of the area.
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.
