Environment & Planning - Horizon Scanner: Infrastructure, Construction, Energy, June 2024

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High Court grants leave to appeal question of whether conservation objectives must be set for Special Protection Areas in order to carry out a valid Appropriate Assessment ("AA")...
Ireland Environment
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High Court grants leave to appeal question of whether conservation objectives must be set for Special Protection Areas in order to carry out a valid Appropriate Assessment (“AA”)

In its substantive judgment, the High Court had found that conservation objectives do not need to be set for a Special Protection Area in order for the Board to be able to undertake a lawful AA. In the circumstances of the case, the Court held that the AA was valid notwithstanding the lack of site-specific conservation objectives for the relevant site. The applicant sought leave to appeal this finding to the Court of Appeal.

The applicant submitted that (1) a protected site is not properly designated unless its conservation objectives have been set, and (2) the Habitats Directive requires AA to be undertaken “in view of the conservation objectives”. It follows, in the applicant's view, that AA cannot be undertaken lawfully where conservation objectives do not exist.

The High Court found that the applicant's case is stateable and accordingly granted leave to appeal.

High Court finds that permission should not be quashed where an error in AA is proven to be harmless

This judgment concerned (amongst other issues) the question of whether an error in AA, which is proven to make no difference to the conclusion, should nonetheless lead to a consent being quashed on the basis that EU law requires environmental assessments to be as complete as possible.

The AA screening had found that there was no hydrological connection between the development and an SPA because the development area drains to the west. This was relied upon by the Board's Inspector but was found to be “simply incorrect” by the Court, as the applicants had demonstrated that the northeastern portion of the site in fact discharges towards a different direction.

Having established than an error occurred, the Court turned to examine whether the error would warrant the consent being quashed. Evidence had been provided that, while there is in fact a hydrological pathway between the development site and the SPA, the potential for significant effects could be excluded for a number of reasons (distance, the nature of the intermediate watercourses, the scale and minor nature of the works proposed within the relevant area, a significant hydraulic and dilution buffer, and the very significant dilution and attenuation potential available from the wider contributing catchment).

The Court found that “insofar as there was an error, the evidence is that this was a harmless error”. It was noted that this evidence had not been challenged in any way, meaning that the applicants had not dislodged the averments that “there is a near-zero prospect of any effect, let alone significant effect, on European sites”.

The proceedings were dismissed (save for a declaration against the Board for failing to publish documents on its website) and the permission upheld.

Supreme Court refuses to grant costs in favour of the appellant in Crofton

In Crofton Buildings Management & Anor. v An Bord Pleanála & Anor. [2024] IESC 12, the Supreme Court dismissed an appeal against a decision being remitted to the Board for reconsideration. The judgment clarified that the ‘bar' to refuse remittal is very high and that the circumstances in which remittal may be refused will therefore be “rare and exceptional”.

Following this judgment, the appellants sought an order for costs on the basis that, notwithstanding that they were unsuccessful, the matter was one of “exceptional public importance”. To be awarded costs on this basis, the Court must find that it is in the interests of justice to do so because of the special circumstances of the case. The Supreme Court found that there were no such special circumstances in this instance. It was noted that the appellants have the benefit of a High Court costs order on the substantive issues and, although this appeal was a test case that clarified the law, the appellants brought the appeal in their own interest and lost.

The Court concluded that this was not an exceptional case where an award of costs to the unsuccessful appellants would be justified against the successful respondents.


Protection of Hedgerows Bill 2024

The Bill moved to second stage before the Dáil on 22 May 2024. The purpose of this Bill is to provide protection for “significant” hedgerows (i.e. hedgerows that contribute significantly to the protection of a local ecosystem or biodiversity, or the value of agricultural systems, or to a cultural site etc.). It provides for the establishment of a register of significant hedgerows, a prohibition on their removal except in specified circumstances, an appeals procedure, offences, and a notification mechanism to local authorities regarding potential or actual infringements.

Responsibility for Ireland's Marine Planning System transferred

Following a government decision in December 2023, responsibility for Ireland's marine planning system has formally transferred from the Department of Housing, Local Government and Heritage to the Department of the Environment, Climate and Communications (DECC).

DECC is now responsible for policy and legislation on marine forward planning and enforcement, governance and oversight of the Maritime Area Regulatory Authority and regulation of activity on the foreshore.


EU Regulation 2024/1157 on shipments of waste

The EU revised Waste Shipment Regulation entered into force on 20 May 2024. The newly revised regulation seeks to do a number of things including to reduce shipments of waste categorised as problematic outside the EU and to update shipment procedures to align with the goals of the circular economy and climate neutrality. It prescribes measures to ensure that waste will only be sent to destinations where it can be properly treated. For example, the new rules state that waste cannot be sent to non-OECD countries unless the said country demonstrates a willingness to take such waste and can demonstrate an environmentally sound method of processing the waste via auditing by independent bodies and monitoring by the Commission.

Environmental Crime Directive

The new Environmental Crime Directive entered into force on 20 May 2024.

The Directive proposes to target the most serious environmental offences. Member States will be obliged to include greater precision on the definition of environmental offence categories in their criminal laws, as well as effective dissuasive sanctions for offenders. Breaches of environmental obligations, such as the illegal trade and handling of chemicals or mercury and illegal ship recycling, will be treated as criminal offences in all Member States. Causing particularly serious damage to the environment will be treated as an aggravated offence, with higher sanctions.

Member States are obliged to transpose the Directive by 21 May 2026.

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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