RECENT DOMESTIC JUDGMENTS
Commissioner for Environmental Information to reconsider whether wind farm operators are subject to requests for access to information on the environment following Supreme Court judgment
The Access to Information on the Environment Regulations allow individuals to request disclosure of environmental information held by "public authorities". Right to Know CLG sought information from Raheenleagh Wind Farm on turbine noise data. Raheenleagh refused on the basis that it is not a "public authority".
The Commissioner for Environmental Information initially agreed that Raheenleagh is not a public authority. This decision was overturned by the High Court. The High Court's decision was then overturned by the Court of Appeal.
On appeal, the Supreme Court found that the Court of Appeal had misapplied the test for assessing what is a "public authority". The test involves an assessment of whether the relevant entity is entrusted with "special powers". However, the requirement is not simply that the entity has powers, "but that the powers are vested for the purpose of performing services of public interest". There is "little point in examining the disputed powers without regard to the nature of the purpose for which they have been conferred". The Commissioner and the Court of Appeal had erred in this respect.
The Supreme Court noted that most of Raheenleagh's statutory powers, including its compulsory purchase power, relate to the authorisation to construct a generating station and not to the licence to generate electricity. It noted that these powers may lapse once their purpose has been fulfilled and the station has been constructed. However, it was not for the Supreme Court to consider the terms of the authorisation, which were not before it, in this regard. It ordered that the matter be remitted to the Commissioner for Environmental Information for reconsideration.
High Court finds that wind turbine noise amount to a nuisance; local residents entitled to damages
The High Court found that wind turbine noise levels amounted to an "unreasonable interference" with the enjoyment of local residents' property.
The Court found that two particular features of the noise rendered it an "unreasonable interference". First, there were frequent and sustained periods of noise widely acknowledged to be associated with high levels of annoyance. Even on the most conservative analysis, audio recordings and time domain graphs showed that noise at the plaintiffs' homes exhibited amplitude modulation values in excess of 5 or 6dBA (which, if audible at a sufficient level, suggest an unreasonable impact). Second, the noise exhibited "thump amplitude modulation", which is a characteristic "known to lead to adverse reaction in the community."
In line with the law of nuisance, the Court found that having a planning permission does not immunise developers from a claim of nuisance although it accepted that compliance with noise levels in a planning permission can be a factor in determining if there is a nuisance or not.
The plaintiffs' complaints were found to be objectively justified and the Court found they are entitled to damages (the amount of which will be determined at a later date).
High Court quashes strategic housing development on public transport capacity grounds
The Building Height Guidelines seek to support increased building height and density in locations with good public transport accessibility. For the relevant "specific planning policy requirement" to apply, a proposed development must be "well served by public transport with high capacity, frequent service and good links to other modes of public transport".
It was alleged that, when making its decision, an Bord Pleanála did not have the actual capacity of local public transport services serving the development, and that only a "theoretical and unreal capacity" was identified.
The Court noted that case law to date has not prescribed the precise method of analysing capacity and that methods may acceptably vary. However, case law has been clear that the issue of capacity is "intensely practical". In this case, the Court found the capacity analyses to be "highly theoretical" and fundamentally flawed. It found that the analysis overestimated actual capacity as it assumed that all buses arrive empty in peak hours and it made no attempt to quantify the demand for public transport likely to be generated by the proposed development. The decision was quashed.
High Court rules that the completion of activities authorised by a foreshore licence does not render a challenge to that licence moot
The applicant sought to challenge a foreshore licence granted by the Minister of State under the Foreshore Act 1933. The applicants are attempting to argue that the data gathered from activities carried out under the licence cannot be used if the licence is quashed. A motion was brought to strike out the proceedings in circumstances where the marine survey activities authorised by the licence had been carried out and completed.
The High Court found that its ability to provide an effective remedy had not been frustrated by the completion of the activities authorised by the foreshore licence. If the applicant establishes that the licence was granted in breach of either the Habitats Directive or the EIA Directive, the High Court would be obliged to take all measures necessary, within the sphere of its competence, to remedy the failure to carry out the requisite assessments. This obligation persists even where the works have already been completed. A meaningful and worthwhile remedy could still be provided by, for example, directing a remedial assessment. The application to strike out was therefore dismissed.
LEGISLATION
Planning and Development Bill 2023
The Bill is still at Committee Stage in the Dáil, where proposed amendments are moved, debated and decided. Debates continue on Wednesday 10 and Thursday 11 April.
EUROPEAN UNION
European Commission refers Ireland to the EU Court of Justice for failure to protect peat bogs
The Habitats Directive requires Member States to designate and protect natural habitats. The Commission alleges that raised bog and blanket bog habitats in Ireland continue to be degraded through drainage and turf cutting activities, and insufficient action is being taken to restore the sites.
The Commission considers that Ireland has made some progress since the initiation of the infringement procedure in 2011 but has not fully addressed the alleged shortcomings. For instance, whilst some restoration work has been undertaken on raised bog sites, no action has been taken regarding blanket bog sites.
New EU Directive on the protection of the environment through criminal law approved by the European Council
The Council has formally adopted a new directive on environmental criminal law. The law will replace an existing directive from 2008. The directive includes new offences (such as timber trafficking, the illegal recycling of polluting components of ships and serious breaches of legislation on chemicals) and higher penalties. Once in force, Ireland will have two years to transpose the directive into national law.
Further Legislation
Updates on the Green Claims Directive, Nature Restoration Regulation, and Industrial Emissions Directive are included in the Energy section of this Horizon Scanner.
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.
