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Planning and Environment Law Briefing - March 2019

Our online editor summarises recent developments in planning and environment law in Ireland.

 

Friends of the Irish Environment Limited v An Bord Pleanála [2018] IEHC 80

This case came before the court by way of judicial review. The principal issue in these proceedings is whether a decision to extend the duration of a grant of planning permission engages the Habitats Directive - ie, whether the developer has to go through environmental assessment and screening a second time. 

The planning permission which forms the subject of these proceedings was initially for a period of ten years, but this was extended for a further five pursuant to s 42 of the PDA. The application in this case was made pursuant to s 146B, which obliges the board to consider whether the proposed alteration to a development plan is 'material' enough to trigger a requirement for an environmental impact assessment.

The principal issues in this dispute were as follows:

  • Whether a decision which merely extends the duration of planning permission, without any physical change to the project, engages the Habitats Directive at all
  • Whether, assuming the directive is engaged, the project as a whole needs to be re-assessed or whether a simple re-assessment in light of regulatory and geographical changes in the intervening years will suffice
  • Whether, hypothetically speaking, different considerations might apply if the assessment carried out at the initial grant of planning permission was inadequate

Mr Justice Garrett Simons, presiding, examined these issues by reference to Case C-411/17 and also, by reference to national law. In Case C-411/17, Inter Environnement Wallonie, AG Kokott offered a rather comprehensive opinion which seemed to indicate that where no material changes have been made to a particular project at the centre of a time extension dispute, then it cannot rightly be considered a 'project' for the purposes of carrying out a second environmental impact assessment.

However, the court noted that while helpful, Case C-411/17 did not address all of the material issues - primarily because of factual differences between the cases. The court went on to note that 'provision has already been made under Irish law which would appear to be intended to ensure compliance with the requirements of the directive in the context of an application to extend the duration of a planning permission, namely s 42 of the PDA 2000'.

As shown above, there are built-in safeguards in this section. It allows for the granting of time extensions where due to circumstances beyond the control of the applicant 'substantially militated against either the commencement or development or the carrying out of substantial works pursuant to the planning permission'.

Simons J then stated: 'My conclusion in this regard is informed by the existence of safeguards under s 42 which are absent from s 146B. In a sense, the argument on behalf of ABP proves too much... A developer is entitled to an extension of duration: (i) without having to show any cause for the delay in implementing the planning permission; (ii) without having to demonstrate that the development remains consistent with updated planning policy; and (iii) without having to demonstrate compliance with the directive'. The decision can be accessed in full here.

 

NUI Galway lodges plans for 670-bed student complex

According to a report published in today's Connacht Tribune, NUI Galway have lodged plans with ABP for the erection of a large-scale student accommodation development on lands held by the university at Dangan - on the newly created North Campus. 

The plans will involve the construction of four blocks, totalling 125 apartments. These will be filled with students during the academic calendar and then made available for short-term letting during the busy summer months, in a manner similar to the existing Corrib Village development. 

This is a further coup for a university which has been wracked by shortcomings in student beds, and will add to the Galway college's plans to develop space for 400 students at the former Westwood Hotel site, also in Dangan. The text of this decision can be accessed here.

 

 

Note: This is not intended to be relied upon as legal advice. Any errors should be notified to the editor and will be dealt with accordingly.

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