LEGISLATION
Changes to the Residential Zoned Land Tax ("RZLT") included in the Finance Bill 2024 (available at this link)
The Finance Bill 2024 was passed by Dáil Éireann on 5 November 2024. It is at the third stage before the Seanad. The Bill gives effect to Budget 2024, and includes amendments to the RZLT regime.
Landowners whose land appears on the revised Residential Zoned Land Tax map, due to be published on 31 January 2025, may request a rezoning of the site between 1 February and 1 April 2025 from the relevant local authority. An exemption from RZLT has been introduced where development may not be commenced because the planning permission is subject to a judicial review application, or an appeal of a judicial review determination. The exemption will apply for the duration of the proceedings irrespective of the outcome. A new section has been introduced to provide for a deferral of RZLT for 12 months from the date of grant of planning permission, or until the land is sold to a third party, if earlier.
The Planning and Development Bill 2023 was passed by both Houses of the Oireachtas (available here)
The Bill was passed by both Houses of the Oireachtas on 9 October 2024 and was signed into law by the President on 17 October 2024. The Government has stated that the Planning and Development Act 2024 will be commenced in stages, with parallel sections of the Planning and Development Act 2000 repealed at the same time.
Bill proposes to make EIA mandatory for certain BESS installations (available here)
The Planning and Development (Stationary Battery Energy Storage Systems) Bill 2024 would extend the Planning and Development Regulations 2001 to include certain installations of stationary battery energy storage systems in the classes of development requiring an environmental impact assessment report. This Bill is currently at the second stage before the Seanad.
The European Communities (Carbon Border Adjustment Mechanism) Regulations 2024 have entered into force (available here)
As mentioned in the Energy section, European Communities (Carbon Border Adjustment Mechanism) Regulations 2024 have been made and entered into force on 25 October 2024.
NATURE RESTORATION AND BIODIVERSITY UPDATES
Next steps announced for Ireland's Nature Restoration Plan (available here)
The Minister for Nature, Heritage and Electoral Reform has announced the establishment of an independent Advisory Committee on Nature Restoration to support the development of Ireland's Nature Restoration Plan. The plan is due to be submitted to the EU Commission by 1 September 2026. The Advisory Committee will provide advice and recommendations to the Minister on the plan. It will engage with the stakeholder participation process and be responsible for considering the outputs of technical groups across the categories of Land, Sea, Towns and Cities and Finance. The Minister will retain overall responsibility for the plan. For more information, our briefing on the Nature Restoration Regulation is available here: Where Nature Restoration meets Infrastructure Development: Council approves new Regulation.
Biodiversity COP16 launches new voluntary fund derived from companies that benefit from genetic data (available here)
A decision to adopt an action plan for biodiversity and health was taken at COP16, which concluded on 2 November 2024. Governments failed to agree on certain agenda items, including agreeing to reform parts of the global financial system to limit damage to the environment. However, agreement was reached to develop a fund which will allocate a significant proportion of its resources to Indigenous Peoples and Local Communities (the Cali Fund). Companies that benefit from genetic data are encouraged to contribute to the fund. Contributions will be voluntary, and offered in exchange for legal conformity and access to a multilateral system of digital sequencing information. A decision was also taken to formally include indigenous communities in official UN decision-making on biodiversity.
The EU has adopted its negotiating mandate for the COP29 Climate Conference (available here)
COP29 will be held in Baku, Azerbaijan from 11 November to 22 November 2024. The EU will seek to ensure that countries are implementing last year's COP28 decision to transition away from fossil fuels, triple renewable energy capacity and double energy efficiency improvements by 2030. The EU will also seek to conclude negotiations on the rules for international carbon markets.
EU NEWS
Application of the EU Deforestation Regulation extended by 12 months (available here)
The EU Council has agreed to postpone the application of the Deforestation Regulation by 12 months. The Regulation will prohibit relevant products being imported into, made available in or exported from the EU unless they are "deforestation-free", produced in accordance with the relevant legislation of the country of production and covered by a due diligence statement which confirms this. Relevant commodities include cattle, cocoa, coffee, oil palm, rubber, soya and wood and specified derived products, such as meat, leather, chocolate and glycerol.
These obligations will now be binding from 30 December 2025 for large operators and traders, and 30 June 2026 for micro- and small enterprises. The Commission has also published additional guidance documents on the Regulation.
Recast Directive on ambient air quality and cleaner air for Europe is adopted (available here)
The EU Council formally adopted the Recast Ambient Air Quality Directive, which sets updated air quality standards for the EU. These standards include limit values, target values, average exposure reduction obligations, average exposure concentration objectives, critical levels, alert thresholds, information thresholds and long-term objectives.
The Directive sets common methods and criteria for the assessment of ambient air quality in the EU and contains provisions on maintaining and improving air quality. Member States are obliged to ensure that, where a person's health is damaged by an intentional or negligent breach of the Directive, they have the right to claim compensation for that damage.
The Directive will enter into force 20 days after publication in the EU's Official Journal. Member States must transpose the Directive into national law two years after it enters into force. The current Directives on air quality (Directive 2004/107/EC and Directive 2008/50/EC) will be repealed at this time.
European Parliament approves the reform of the Single European Sky Regulation (available here)
Reform of the Single European Sky Regulation was agreed on 22 October 2024. Member States will be obliged to nominate or establish a national supervisory authority under the Regulation. The Regulation sets rules around air traffic safety standards, the sustainable development of the air transport system and air traffic management. It emphasises cooperation between Member States and the development of a more integrated airspace in Europe.
The new rules will enter into force 20 days after publication in the Official Journal of the EU. Certain provisions will apply from that date, while other provisions, including those related to penalties for infringement, will take effect two years after publication.
RECENT DOMESTIC JUDGMENTS
High Court makes declaration against An Bord Pleanála for breaching its duty to publish notice of the receipt of additional significant information (judgment available here)
The Board requested further information from an applicant developer for a proposed wind farm. On receipt of the information, the Board asked the developer to advertise that additional significant information received pursuant to the request was available for inspection and that observations and written submissions could be made. The developer ran advertisements in one local and one national newspaper, and set up a site notice. The Board did not give notice of the additional information itself.
It was held that the Board breached its duty to publicise the receipt of further information. However, the Court found that the applicants had not properly established that they themselves were prejudiced. The applicants' argument that the public and community had been prejudiced and, as such, the applicants had been implicitly prejudiced, was rejected. The Court declined to quash the decision merely because an unidentified person could have potentially been misled by the Board's failure to comply with its obligations. However, the Court considered that there was a public benefit in clarifying the issue and making a formal declaration. The Court declared that the Board failed to comply with its obligation under section 37F(2) of the Planning and Development Act 2000.
In relation to a separate claim by the applicant that the plans and particulars were inadequate, the Judge reiterated that flexibility itself is not impermissible; what is problematic is flexibility that is "so wide that it creates the possibility of a real planning issue", which did not arise here.
High Court acknowledges statutory requirement for litigation relating to renewable energy to proceed on an expedited basis (judgment available here)
The High Court refused leave to appeal its decision upholding the grant of permission for a proposed wind farm development. In his decision, Justice Humphreys referenced Directive (EU) 2023/2413 ("RED III"), which requires that the most expeditious procedure available in national law should be used for litigation relating to renewable energy. This provision of RED III was due to be transposed by 1 July 2024. The European Commission has sent a formal notice to Ireland and several other Member States to carry this out. The Court considered that the current practice direction for the Planning and Environment List endeavours to reflect the priority required for renewable energy litigation.
The judgment referenced the "inherent urgency" of renewable energy projects. Referring to the clash between arguments regarding the need to address the climate emergency versus the need to give effect to previously established European environmental law regardless of the nature of the project, Justice Humphreys stated that, while he has previously come down in favour of the latter, "recent legal developments might require a reassessment of that". The Court also noted that, in certain circumstances, RED III provides for a presumption in favour of renewable energy projects where impacts on European sites might otherwise preclude development.
High Court overturned decision of An Bord Pleanála refusing planning permission for the Shannon LNG terminal (judgment available here)
The Board refused permission for the development of a power plant, battery energy storage system and a re-gasification unit by Shannon LNG on the basis that the development would be contrary to government policy, and therefore contrary to the proper planning and sustainable development of the area. The Court found that the Board should have considered the National Risk Assessment 2023 in its decision, and misclassified technical analysis as national policy.
The judgment considered which sources of policy the Board is obliged to have regard to in making decisions. The Court considered that, given Irish legislation applies not just to policies but objectives, the Board is required "to keep itself informed autonomously of formal policy statements, and in addition to have regard to more informal statements of policy and objectives to which its attention is directed." However, the Board is not obliged to continuously monitor all media to discern policy nuances in informal statements.
The Court noted that, although everything relevant to a decision must be considered by the Board, everything relevant does not need to be referred to expressly in the Board's decision.
High Court dismissed a challenge to a ministerial direction which amended the Fingal County Development Plan 2023-2029 (judgment available here)
The applicant challenged a ministerial direction which removed text from the Fingal County Development Plan 2023-2029 that suggested that noise insulation schemes related to Dublin Airport were inadequate. The Court acknowledged that there are drafting errors in the direction. However, the Court held that the errors were immaterial and that there was no doubt as to which provision the Minister wanted removed from the plan. Additionally, the Court held that, although the wording was "sub-optimal", its effect is clear, and the direction can be read in a manner that renders it valid. The Court upheld the Minister's conclusion that the development plan's contested text was inconsistent with the National Planning Framework, which supports noise management through Noise Action Plans.
Finally, with regard to the applicant's argument that inadequate reasons were given in respect of the issues raised in submissions, the Court held that the main reasons for the direction are discernible and an otherwise lawful decision is not invalid because a decision-maker fails to give reasons for impliedly rejecting incorrect arguments.
High Court considers level of detail required in rezoning decisions (judgment available here)
In making the development plan, members of Fingal County Council voted to zone a sports complex as Community Infrastructure, whereas the landowners wanted it zoned Dublin Airport. Certain grounds overlapped with the challenge against the ministerial direction which is detailed directly above. The Court held that the Council provided adequate reasons for its rezoning decision. It made sense for the members to adopt zoning that would conform with the recreational and sporting use of the lands in question. As such, less detailed reasons were acceptable. Moreover, there were 164 material amendments put forward. Consideration had to be given to how much detail was practicable without expending energy disproportionately.
Ultimately, the Court quashed the rezoning decision as it was influenced by non-planning considerations.
EU JUDGMENTS
A preliminary ruling was issued in Case C‑727/22, a referral to the Court of Justice of the European Union from a challenge against Project 2040 (available here)
This ruling relates to a request for a preliminary ruling from the Supreme Court to the CJEU in relation to a challenge against Project Ireland 2040, which comprises the National Planning Framework (the "NPF") and the National Development Plan. The applicants claimed that Project 2040 failed to meet the requirements of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (the "SEA Directive").
The ruling considered the interpretation of the SEA Directive. In brief, the Court ruled that the SEA Directive must be interpreted as meaning that a measure adopted by a Member State solely on the basis of a provision of its Constitution (subject to certain requirements) does not meet the condition of being "required by legislative, regulatory or administrative provisions" and consequently cannot constitute a plan or a programme.
The Court considered the NPF in this context. As the NPF was adopted by a decision of the Government acting exclusively pursuant to a power vested in it by the Irish Constitution, it was determined that the NPF cannot be regarded as falling within the scope of the SEA Directive.
DECISIONS OF THE OFFICE OF THE COMMISSIONER FOR ENVIRONMENTAL INFORMATION
The OCEI decided that the Department of Housing, Local Government and Heritage was not justified in withholding records containing personal information (available here)
The OCEI considered whether the Department was justified in withholding information contained within records concerning derogation licences on the basis that disclosure of the information would adversely affect the confidentiality of a third party's personal information. The information was withheld through redaction. The Commissioner considered that the names and addresses of the derogation licence holders is personal information, as per the meaning in the GDPR, since it relates to a natural identifiable person. The relevant individuals did not consent to the disclosure of this information.
However, the OCEI stated that the Department was not justified in redacting the withheld information. It determined that the public interest in releasing the information outweighed the interests served by the refusal and, as such, the Commissioner directed the release of the environmental information.
The OCEI determined that the ESB was justified in withholding certain records to protect its private thinking space (available here)
The OCEI considered whether the ESB was justified in withholding certain records on the basis that they concerned the internal communications of public authorities. Having reviewed each of the records concerned, the Commissioner was satisfied that disclosure of the information would adversely impact the ESB's private thinking space and that the records qualify as "internal communications" within the meaning of Article 9(2)(d).
The Commissioner also concluded that, in the circumstances of this case, the balance of public interest weighed in favour of maintaining the exception.
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.
