Domestic Cases

Wicklow County Council v. Beattie [2018] IEHC 282 – 17 May 2018

High Court provides guidance on when evidence can be admitted at appeal stage

The High Court ruled on when new evidence can be admitted to it in an appeal from the Circuit Court. In summary, if the evidence could have changed the outcome of the Circuit Court proceedings then the High Court can exercise its inherent jurisdiction to admit the evidence on appeal.

This case arose from an application for an injunction sought by Wicklow County Council under section 160 of the Planning and Development Act 2000-2017 (the “Planning Acts”) and taken in the Circuit Court. At the appeal hearing before the High Court, WCC sought to rely on a new affidavit and Mr. Beattie sought an adjournment to file a replying affidavit. The hearing ultimately proceeded as WCC withdrew the affidavit. However, counsel for WCC continued to refer to the contents of the affidavit, despite objections by counsel for Mr. Beattie. The trial judge also referred to facts contained in the affidavit in his judgment.

Mr. Beattie sought an order under Order 61 Rule 8 of the Rules of the Superior Courts (which gives the court jurisdiction to admit fresh evidence to proceedings at the appeal stage) permitting the submission to court of the replying affidavit which he would have submitted had WCC’s affidavit not been withdrawn at hearing. The Court considered similar cases in which the submission of new evidence at the appeal stage was not permitted, but distinguished these on the basis of the facts, noting that the affidavit in this case would have had an important and potentially decisive influence if it had been submitted. The Court therefore granted the order sought by Mr. Beattie.

The Judgment can be found here.

An Taisce v. An Bord Pleanála & Ors [2018] IEHC 315 – 17 May 2018

High Court rules that An Taisce’s challenge to An Bord Pleanála’s grant of substitute consent was out of time

The High Court dismissed a judicial review challenge by An Taisce to a decision of An Bord Pleanála (the “Board”) to grant substitute consent to J McQuaid Quarries Ltd. An Taisce argued that the Board did not make reference to its obligations under EU law and the presence of exceptional circumstances in making its decision and that assessments by the Board of the environmental effects of the development were flawed. While the Court dismissed these points on their merits, they were ultimately moot as the application for judicial review was made outside of the 8-week period within which leave must be sought.

The Court held that the correct time for An Taisce to challenge the Board’s process and reasoning was when the Board took the decision to grant leave to apply for substitute consent, and not when the Board had taken the decision to grant the substantive substitute consent to J McQuaid Quarries.

The Court went on, however, to consider the substantive arguments raised in the case.

  • The Board's decision did not make express reference to its EU law obligations or as to the presence of exceptional circumstances: The Court held that this was not necessary to comply with EU law. The Court said nothing in EU law prevented Member States from identifying certain exceptional circumstances whereby it would be permissible to apply for development consent retrospectively. As long as such applications were exceptional, then this was in keeping with CJEU guidance. Furthermore, in this case exceptional circumstances relating to the quarry were easily found and such circumstances would not apply to all quarries.

  • The assessments carried out by the Board were flawed: The Court held that An Taisce’s submission in relation to this was “so general an assertion that it just cannot be a proper ground of attack in a judicial review proceeding”.

The Judgment can be found here.

Right to Know CLG v An Taoiseach and the Minister for Communications, Climate Action and Environment - [2018] IEHC 371 – 1 June 2018

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

Right to Know CLG successfully judicially reviewed a refusal of the Department of the Taoiseach (the “Department”) of its request under the European Communities (Access to Information on the Environment) Regulations 2007-2014 (the “Regulations”) seeking the release of cabinet papers dating from 2002-2016 where greenhouse gas emissions were discussed.

The Department had refused to release the information on the basis of a specific exception to disclosure under the Regulations relating to disclosure of discussion at Government meetings (prohibited by the Cabinet confidentiality rule in Article 28 of the Constitution).  Unlike the other exceptions to disclosure, this exception is not lost where the discussions relate to emissions.  Rather than appealing the refusal to disclose to the Commissioner for Environmental Information in the usual way, Right to Know judicially reviewed the decision on a number of grounds, including inadequate reasons.  The most fundamental grounds related to allegations of incompatibility of the exception relief in Regulations with the Access to Information on the Environment Directive.  Grounds were also raised that the Department did not balance the proposed refusal against the public interest in disclosure which was a necessary balancing exercise.

In arguing that its refusal to release the papers was correct, the Respondents relied heavily on a recent High Court judgment (An Taoiseach v Commissioner for Environmental Information) where the Court overturned the Commissioner’s determination that certain documents be released and decided (in short) that Cabinet confidentiality applied on the basis that it fell into the category of “internal communications” under the Directive. This meant that emissions based information did not have to be released and on that basis access was denied to cabinet papers where Ireland's greenhouse gas emissions were discussed.  

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

  • The Government sought to avail of an exception and refused the release withoutconducting the exercise of balancing the proposed refusal with the public interest in favour of disclosure before arriving at its decision. 

  • The reasons offered were inadequate. 

The matter has been remitted back to the original decision maker for a fresh decision to be made.

The judgment can be found here.

Cleary Compost and Shredding Limited v. An Bord Pleanála No.2 [2018] IEHC 347 – 13 June 2018

High Court refuses to find matters of sufficiently exceptional importance to justify judicially reviewing a decision to refuse permission to extend or expand waste activities at Larchill, Monasterevin, Co.Kildare

The applicant, Cleary Compost and Shredding Limited had appealed a decision of Kildare County Council to refuse permission to extend or expand a waste activity to the Board. The Board dismissed the appeal as the existing waste facility did not have the benefit of planning permission and could not benefit from any of the exemptions in the Planning Acts, as it required an Environmental Impact Assessment and an Appropriate Assessment. The applicant applied for leave to seek judicial review of this decision and was refused by the High Court. Leave to appeal this decision to the Court of Appeal was then sought. This application was also refused.

The High Court held that the application for judicial review had been refused on the basis that the Board had ample evidence before it on which it could come to the decision and it had not erred in its process. The Court held that asking an appellate court to further review the decision of the Board would not be in the public interest - the substance of the challenge and the reasons for the dismissal were clear, specific to the appeal and not of general or public application, and therefore the test under section 50A of the Planning Acts (i.e. that there are substantial grounds for contending that the decision is invalid or ought to be quashed and the applicant has a sufficient interest in the matter the subject of the application) was not met.

The Judgment can be found here.

Domestic Legislation

Radiological Protection (Amendment) Act 2018

This Act amends certain provisions of the Radiological Protection Act 1991 and provides a legal basis under the Radiological Protection Act 1991 for the transposition into Irish law of certain articles of Council Directive 2013/59/Euratom which sets safety standards for protection against the dangers arising from exposure to ionising radiation. The Directive provides for a risk-based graded approach to the regulatory control of radiation sources, replacing the ‘one size-fits-all’ system of licensing which is currently operated by the Environmental Protection Agency (EPA). The new graded approach will provide a new system of registration for lower-risk activities resulting in a reduction of the regulatory, financial and administrative burden of such practices.

The Act also provides that representations may be made by an applicant to the EPA following decisions made by that body in relation to registrations or licences for the carrying out of activities involving radiation sources. Decisions of the EPA may also be appealed to the Circuit Court (and from the Circuit Court to the High Court on a point of law).

In addition the Act transfers regulatory functions conferred on the Minister for Housing, Planning and Local Government under the Radiological Protection Acts 1991-2014 and the Containment of Nuclear Weapons Act 2003 to the Minister for Communications, Climate Action and Environment.

The Act also transfers the functions currently vested in the Minister for Housing, Planning and Local Government under the Containment of Nuclear Weapons Act 2003, which implements the State’s obligations under the Treaty on the Non-proliferation of Nuclear Weapons, to the Minister for Communications, Climate Action and Environment.

A function under the Harbours Acts 1996 to 2015 requiring the consent of the Minister for Transport, Tourism and Sport to exempt certain vessels carrying nuclear material otherwise prohibited from entering an Irish harbour will also be transferred by the Act to the Minister for Communications, Climate Action and Environment.

The Act can be found here.

Domestic Plans, Policies and Reports

Green Business Online Tool

Green Business, a programme managed by the Clean Technology Centre at the Cork Institute of Technology and funded by the EPA, has published a new online resource to help SMEs identify areas where savings can be made through improved environmental practices. The new tool is called TREE (Tool for REsource Efficiency) and provides advice to SMEs on how to save money through achieving greater efficiencies in water, waste and energy. Businesses can fill out a short questionnaire and then receive a tailor made report containing recommendations on how to become more efficient.

The tool can be found here.

European News

New Energy Performance in Buildings Directive comes into force on 9 July 2018

The revised Energy Performance of Buildings Directive (EU) 2018/844 will enter into force on 9 July 2018. Member States will have to transpose the new elements of the Directive into national law by 10 March 2020. The Directive includes measures that will accelerate the rate of building renovation towards more energy efficient systems and strengthen the energy performance of new buildings, making them smarter. It encourages the use of smart technologies to ensure buildings operate efficiently, promotes cost-effective renovation work, simplifies inspections of heating and air conditioning systems, sets up a framework for parking spaces for electric vehicles and introduces a smartness indicator for buildings. The new Directive has huge potential for efficiency gains in the EU building sector, the largest single energy consumer in Europe.

This is the first of the 8 legislative acts in the Clean Energy for All Europeans package to be adopted. The publication follows formal approval by the European Parliament on 17 April and by the Council of Ministers of the EU on 14 May.

The Directive can be found here.

New Binding Renewables Target of 32% Agreed at EU Level and Pending Approval

An agreement was reached on 14 June 2018 between negotiators from the Commission, European Parliament and Council to increase renewable energy use in Europe. The agreement includes the binding target of achieving a share of energy from renewables of at least 32% of gross consumption in 2030, with an upwards revision clause by 2023. A minimum share of at least 14% of fuel for transport purposes must come from renewable sources by 2030 and food-crop biofuels, like palm oil will be phased out. The European Commission stated that the rules agreed would serve also to create an enabling environment to accelerate public and private investment in innovation and modernisation in all key sectors.

The deal now needs to be approved by EU Ministers and MEPs.

The Commission’s press release can be found here.

EU Circular Economy Package

On 22 May 2018 EU Member States approved a new Circular Economy Package and adopted the following four Directives which amend the existing Waste Directives: Waste Framework (Directive (EU) 2018/851)Landfill of Waste (Directive (EU) 2018/850)Packaging and Packaging Waste (Directive (EU) 2018/852) and Electrical and electronic waste, on end-of-life vehicles, and batteries and accumulators and waste batteries and accumulators (Directive (EU) 2018/849).

These Directives set out new rules and targets for the reduction of waste and for waste management and recycling:

  • recycling targets for municipal waste: 55% by 2025, 60% by 2030 and 65% by 2035

  • recycling targets for packaging waste: 65% by 2025 and 70% by 2030

  • hazardous household waste will have to be collected separately by 2022, bio-waste by 2023 and textiles by 2025

  • by 2035 the amount of municipal waste landfilled must be reduced to 10% or less of the total amount of municipal waste generated

  • increased use of economic instruments and other measures to incentivise the prevention of waste

  • mandatory extended producer responsibility schemes must be established for all packaging by 2024

The EU press release can be found here.

C-671/16 Inter-Environnement Bruxelles ASBL and Others v Région de Bruxelles-Capitale – 7 June 2018

CJEU finds that Regional Town Planning Regulations (which lay down certain requirements for the completion of building projects) fall within the definition of ‘plans and programmes’ likely to have significant environmental effects within the meaning of the SEA Directive (Directive 2001/42/EC) which must be subjected to an environmental assessment

In this case the Court considered whether regional zoned town planning regulations fell within the remit of the SEA Directive.

The Court repeated the standard test to assess whether plans and programmes fall within the ambit of the SEA Directive – they must satisfy two cumulative conditions set out in Article 2(a) of that Directive, namely:

  1. they were prepared and/or adopted by an authority at national, regional or local level or prepared by an authority for adoption, through a legislative procedure, by Parliament or Government, and

  2. they were required by legislative, regulatory or administrative provisions.

Article 3(2)(a) of the SEA Directive provides that an environmental assessment must be carried out for all plans and programmes which are prepared for certain sectors and which set the framework for future development consent of projects listed in Annexes I and II to the EIA Directive. The Court considered whether the Regulations triggered the requirement under Article 3(2)(a) and found they did. The Belgian Regulations concerned ‘town and country planning’ and ‘land use’, terms the court identified as not limited to land-use in the strict sense of the term. The Belgian Regulations also satisfied the final requirement in Article 3(2)(a).

The Judgment can be found here.

C-160/17 Thybaut and Others v. Région wallone – 7 June 2018

CJEU finds that a Belgian Order decreeing certain land an “Urban Land Consolidation Area” (within which, derogations from certain planning requirements could be permitted) comes within the concept of ‘plans and programmes’ likely to have significant effects on the environment within the meaning of the SEA Directive and so, requires an environmental assessment

The key question in this case was whether the Belgian Order decreeing certain land an “Urban Land Consolidation Area” set the framework for the future development of projects outlined in Annex I and II of the EIA Directive. The Court decided it did. It cited Case C-290/15 D’Oultremont and Others [2016] with approval to stress:

  • Plans and programmes can relate to measures which establish “a significant body of criteria and detailed rules for the grant and implementation of one or more projects likely to have significant effects on the environment.”; and

  • ‘a significant body of criteria and detailed rules’ must be understood qualitatively and not quantitatively, to avoid strategies which may be designed to circumvent the obligations laid down in the SEA Directive by splitting measures, thereby reducing the practical effect of that directive.

The Judgment can be found here.