Green light

Rachel Minch SC is chair of the Law Society’s Environmental and Planning Law Committee. She tells us that Ireland is failing to put enough resources into the application and enforcement of environmental law

Launched in March 2023, the Law Society’s Environmental and Planning Law Committee hit the ground running with an appearance before the Joint Oireachtas Housing Committee on the draft Planning Bill.

The committee has since been busy establishing its profile by holding well-attended conferences, engaging with other professional associations, participating in stakeholder consultations in its areas of expertise, and serving as a point of contact for the Planning and Environment Court when engaging with legal practitioners on its procedures.

As such, the committee engages actively on the future of sustainable planning practices and the associated legal framework.

“The new Planning and Development Act 2024 has dominated a lot of our work,” committee chair Rachel Minch says.

With a diverse mix of experienced solicitors and younger members, the committee has hosted several influential events and made key submissions over the past year, including on the Aarhus Convention National Implementation Report and changes to the judicial review provisions by the Planning Act, in respect to legal costs and standing.

Enforcement of existing environmental laws will be a key focus for its work in the second part of this year, with a report and a seminar planned.

Serious consequences

“Environmental law is very attractive to younger lawyers,” Rachel notes. “They are the next generation of lawyers – but they will also have to live with the increasingly serious consequences of climate change and other environmental issues,” she says.

“You see many more young people interested in studying environmental law and seeking to specialise in climate law and policy.”

The committee recently hosted a special event aimed at young solicitors and trainees who wish to explore careers in planning and environmental law.

Held in conjunction with the Law Society’s Younger Members’ Committee, the evening featured presentations from key figures in the field, including Alison Fanagan SC, John Healy (Chief State Solicitor’s Office), committee vice-chair Danielle Conaghan, and committee member Rory Ferguson. (The committee now has welcome representation from the Chief State Solicitor’s Office.)

In November 2024, it hosted a sold-out conference on the Planning Act and renewable-energy issues, featuring keynote addresses from Mr Justice Richard Humphreys and senior Government officials in Housing and Environment.

“We could have filled the room twice over,” says Rachel.

The committee was integral to delivering the Law Society’s first climate-justice conference, too, where leading domestic and international experts addressed key issues affecting climate and environmental justice, including biodiversity and the climate crisis, ethics, and climate-conscious lawyering.

Speakers included Catherine Higham from the Grantham Research Institute, who discussed global trends in climate litigation, and Gerry Liston (Global Legal Action Network) who represented the applicants in the Portuguese Children’s Youth for Climate Justice case, heard before the European Court of Human Rights.

An event on nature restoration, held in conjunction with the Planning, Environmental and Local Government Bar Association, examined the EU’s new Nature Restoration Regulation and its implementation in Ireland.

Rachel also recently spoke to the Irish Planning Institute on their podcast.

Proactive stance

Looking ahead, the committee plans to bring forward a draft Climate Change Resolution for adoption by the Law Society, which would also consider ethical obligations and access-to-justice principles in solicitors’ professional dealings with clients, having regard to the potential impact of these dealings on climate issues.

This also raises the question of whether solicitors should be more proactive in questioning the environmental implications of the work they take on: “We need to carefully balance the need for legal representation and guidance with the responsibility to protect the environment,” says Rachel

 “The question of declining work may require guidance from regulatory bodies, like the Law Society. It needs to be carefully calibrated, and some of this may simply be a matter of personal choice and decisions by individual law firms,” she adds.

The committee is also keen to engage with practitioners based outside of Dublin and, in addition to online events, hopes to go nationwide, with events outside of the capital, as well as potential collaborations with University College Cork.

Many of the committee meetings are online, given the geographical spread of members, but Rachel finds in-person gatherings of value, too.

Cabin fever!

In the context of the continued shortage of housing in Ireland, she recently spoke to RTÉ News on proposals for making it easier to build ‘granny annexes’ or cabins without planning permission, highlighting the need for some regulation to avoid potential problems, such as drainage, access, and overdevelopment.

This could include a requirement to register such developments with the local planning authority, together with an associated site inspection, to ensure compliance with exempted development conditions and to avoid potential environmental and planning hazards.

Despite heightened public awareness of environmental issues, Rachel expresses doubts about whether this always translates into support in reality, given frequent objections to projects intended to improve matters, such as waste-water treatment plants and renewable-energy installations.

“There’s a tension in the public mindset. People want clean energy and better waste and water management, but they often don’t want the projects that make that happen next door to their homes, or the projects themselves may raise ancillary environmental and planning issues,” she notes.

“It is, of course, accepted that the location of these projects needs to be carefully considered.”

Room for improvement

Irish society has room for improvement in terms of both individual actions and institutional enforcement, she believes.

Inadequate resources for enforcement agencies, and small fines, mean authorities often lack the means to tackle planning and environmental offences, such as illegal dumping.

Remediation efforts for illegal dumps are often costly and difficult to execute, especially when the culprits cannot be identified or lack the resources to clean up the mess.

As the population expands, pressure mounts to provide housing, while preserving and improving environmental standards. Higher-density urban planning is an inevitability as Ireland’s population continues to grow, says Rachel.

Urbanisation is not universally popular, and the committee has consensus on the need for effective urban planning that accommodates growth, without sacrificing quality of life or environmental concerns.

“There’s an inevitability in terms of population growth, and that’s why it’s so important to adequately plan for that,” says Rachel. “We can accommodate both at the same time, protecting the environment, delivering on water treatment and water infrastructure, and ensuring efficient land use as well.

“The strategic housing development regime kind of fell apart in terms of the intensity and scale of these projects, together with the associated legal framework for these decisions.

“However, we have to use our land effectively, and the large-scale residential development regime appears to be proving far more effective, including with respect to public participation in these decisions.

“We need to plan for population growth responsibly, especially in cities such as Dublin, which requires denser and taller buildings,” she says.

Thorny issue

However, the more complex issue of resource-intensive data centres that gobble increasing amounts of energy, often from fossil-fuel-powered grids, is another thorny issue.

“A lot of our resource use, or energy use, doesn’t come so much from individual use – it comes from very resource-intensive industries,” she says.

“Who are we seeking to serve? Are we seeking to serve normal energy users, be it transport, commercial or residential? Are we seeking to accommodate the data centres and/or are we also actually seeking to produce more energy, such that we could proceed to export?”

These are policy decisions that need to be made in view of the debate about what should be prioritised, particularly when it comes to planning for offshore renewable energy.

Nature-restoration projects should also sit alongside infrastructural projects, she argues.

“Instead of focusing solely on protecting our remaining natural habitats and species, we must also restore degraded lands, such as peat bog – which is the aim of the Nature Restoration Regulation – and address the removal of hedgerows. It’s all the little things that can really add up: the ‘death by a thousand cuts’,” she comments.

However, environmental regulation can sometimes do itself no favours, she continues.

“I do think some of the European judgments are a bit extreme. They establish a very high standard to meet, which can be very difficult to apply or achieve in practice.

“This can then, sometimes, lead to significant delays and critical developments being refused or judicially reviewed. If it’s excessively difficult to comply with environmental laws, that can also be counterproductive,” she says.

“In addition, there can be a lack of integration and consistency between EU environmental-law requirements, such as the Habitats Directive and the Renewable Energy Directive (something Ireland raised at an early stage), leading to competing and conflicting demands.”

The right balance

The challenge is finding the right balance between protecting sensitive habitats and species and allowing for projects that contribute to the public good, such as renewable energy and other strategic infrastructural development, which includes housing.

Ireland’s growth, both in population and infrastructure, must remain aligned with its environmental obligations, through enforcement, greater public engagement, and smart urban planning, Rachel says.

Rachel pays tribute to committee secretary and Law Society librarian Clare Tarpey: “Clare does so much work to keep us organised, she keeps us focused and up to date on developments. She monitors areas where people might be looking for submissions, or areas in which we might want to be consulted.”

While there is heightened awareness of environmental issues among citizens, there are also contradictory positions, she adds: “I don’t know if we care about our landscape sufficiently, our general biodiversity and the quality of our environment, and I don’t think, overall, we put enough resources into application and enforcement of environmental law.

“The difficult thing is that many of us need to curtail our lifestyles – and nobody really likes to think about that, do they?”

Mary Hallissey is a journalist with the Law Society Gazette. 

More information on the Environmental and Planning Law Committee is available on the Law Society website.