Climate and Energy - Policy and Guidance

“Something of a moving target”?

What does the external insulation of single house in Kilnamanagh, South Dublin, have in common with potential LNG infrastructure in the Shannon Estuary?

The planning system? Climate and energy policy and guidance? The exercise of administrative discretion? In fact, it's all of the above.

Climate and energy related policy is increasingly important in planning law. Two examples last week, at opposite ends of the project scale, show that such policy is not clear. It needs to be.

The Importance of Policy and Guidance

In Coyne v ABP [2023] IEHC 412, Holland J said that;

“Policies loom large in planning law and climate change law...” (§10)

“Obligations to “have regard to” something...are ubiquitous in statute law...Often, the obligation will relate to the content of policy documents, guidelines or similar documents...” (§14).

Somewhat prophetically (see below), he added that “failure to have required regard will often require that an Impugned Decision be quashed and...regard for irrelevancies may have similar effect.” (§15)

Climate and energy policies are increasing, in volume and in detail. They are becoming more important in challenges to the exercise of administrative discretion by national and local decision-makers. Many of the most important environmental policies are listed in;

• Verein KlimaSeniorinnen Schweiz & Others v Switzerland (14 Feb 2024, published 9 April App 53600/20) (aka “the Swiss Grannies Case”, in which a group of older Swiss women successfully argued that Switzerland had failed to protect them against the effects of climate change in breach of the European Convention on Human Rights)

• Toole v Minister for Housing II [2024] IEHC 610, commencing at §8 (a largely unsuccessful challenge to a foreshore licence allowing environmental surveying)

'Have Regard to'

Government guidance – whether for multi-million Euro energy infrastructure or home improvements - is almost always in the form of guidance issued under section 28 of the Planning and Development Act 2000 ("PDA 2000"). When Part 3 of the Planning and Development Act 2024 is commenced (not before the middle of this year) such guidance will be issued under sections 25 – 27 of that Act with existing s28 PDA 2000 guidance remaining in force until revoked or replaced. This is guidance, for the most part, to which planning decision-makers must 'have regard'.

In Cork County Council v Minister for Housing [2021] IEHC 683, Humphreys J referred to five categories of guidance and to 76 pieces of guidance (§88/9), although not all of which were issued under s28).

“Statutory obligations to “have regard” to matters are generally considered to rest lightly on the shoulders of decision-makers However, as in all statutory interpretation, context is critical...Obligations to “have regard” may impose greater or lesser burdens depending on context...But however heavy or light the obligation to “have regard”...I can't see it as anything but a mandatory obligation...[I]n judicial review, non-regard to a matter to which regard is mandatory is ordinarily fatal to an impugned decision.” (Holland J, Salmon Watch Ireland CLG v The Aquaculture Appeals Board [2024] IEHC 421 §1373/4)

Note the importance attached to interpreting guidance in the factual context of each individual case.

Paid subscribers can read further on “The Proper Approach to 'Have Regard To' Guidance” in my archived post of 11 November 2024.

Insulated Housewrap

Last week saw controversy surrounding the homeowners in Kilnamanagh, South Dublin, being threatened with planning enforcement proceedings through not having planning permission for external insulation part-funded by the SEAI.

The homeowners have applied for retention planning permission from South Dublin County Council but this has been refused on two occasions

Section 4(1)(h) PDA 2000 states that development comprising external works "which do not materially affect the external appearance of the structure so as to render the appearance inconsistent with the character of the strucure or of neghbouring structures" shall be exempted development (emphasis added).

External insulation will often cause the surface of a wall to protrude beyond that of its neighbours or, as in this case, will create other difference between the external appearance of two (or more) neighbouring properties where there was none before. In this case, the insulation covered exposed red brick at ground-floor level which had been visible until then and which remains visible on the attached neighnouring property.

Clearly it is at least arguable that external insulation will "render the appearance inconsistent with the character of the structure or of neighbouring structures".

Although a degree of discretion is inevitable in planning rules, there are now calls for the position to be made clearer, especialy in respect of home improvements designed to enhance energy efficiency.

Liquefied Natural Gas

At the other end of the 'size of development' spectrum, the Government approved last week a €300m+ plan (not including estimated €60m annual operating costs) to develop a floating liquefied natural gas importation terminal. The project is intended as an emergency back-up in the event of a disruption to energy supplies from the UK (which account for up to 75% of the State's gas). Ireland is one of only five European nations without LNG storage.

Controversially, the Government has not ruled out the possibility that LNG may include 'fracked' gas. Opponents have criticised the plan as contrary to the recently published Programme for Government and climate policy and obligations generally. In any event, the project may not be operational before the mid-2030s.

All EU states have been required since 2017 to ensure that gas infrastructure will continue to function even if a crucial part of the system fails. The easiest way to mitigate such risk would have been for Ireland to have developed LNG infrastructure years ago. Instead, the 2020 Programme for Government rejected LNG development, perhaps because of its need for Green Party support.

The Irish Times said in an editorial last Wednesday that the delay in developing and implementing LNG policy was attributable mostly to “the difficulty of reconciling the expansion of the natural gas network with Ireland's legally binding commitment to reduce emissions by 51 per cent by 2030.” “The circle was squared in November 2023 with the completion of a review that settled on a floating terminal to store liquefied natural gas as the least bad option.”

Decisions based on 'squaring circles' and 'least bad options' are always questionable.

The uncertainty in Government policy regarding the importation of LNG was exposed last year when An Bord Pleanála (311233) refused permission for the development of a gas-powered power plant, a battery storage facility and an importation terminal on the south shore of the Shannon estuary, about half-way between Ballylongford and Tarbert on the north coast of Co Kerry. The refusal was quashed by the High Court upon an application for Judicial Review by the developer in Shannon LNG v An Bord Pleanála [2024] IEHC 555.

The Court's decision was based on two classic points of Judicial Review, both concerning policy and guidance;