December 20th, 2019
The Government’s proposals to limit citizens and environmental NGOs access to the courts to challenge planning decisions are out of touch with EU and international law, a leading legal expert has warned.
Speaking at an event run by the Planning, Environmental, and Local Government Bar Association of Ireland last night, Dr Aine Ryall of University College Cork raised serious concern with the recently released Heads of the Housing and Planning Development Bill 2019.
If passed, the Bill set to be brought forward by Eoghan Murphy TD would introduce a new cost regime and change standing rules for citizens and environmental groups to take legal challenges over planning-related decisions.
The Department of Housing has said that the changes would speed up legal proceedings following an increase in legal challenges in the High Court that is causing backlogs and associated delays to large infrastructure projects.
Critics, including various civil society groups and legal experts, argue that the proposals would unfairly limit standing rights and make it prohibitively expensive to take legal cases.
The proposed legislation, for example, would make it harder for environmental groups to bring a legal case by mandating that they must be in existence for at least three years and have over 100 members.
Running into conflict with EU law
Dr Ryall said that these proposals run into conflict with our responsibilities to ensure wide access to justice rights under both EU law and the Aarhus Convention. The convention gives a number of rights to the public with regard to the environment, including the right to access to justice that is fair, equitable, timely and not prohibitively expensive.
Dr Ryall said that the proposed changes in the Heads of the Bill would “rollback” on access to justice rights and “make it almost impossible” for environmental NGOs and local groups to bring challenges.
The environmental law expert said it is “alarming” that the Government is taking such moves now when we need, more than ever, to take a “more robust overview” of planning and environmental decision making as we face a biodiversity and climate crisis.
While parties to the Aarhus Convention have some discretion as to how they set up their domestic access to justice rules, Dr Ryall said that there are clear limits on how far they can go. “There is a bottom line and that is the wide access to justice obligation,” she added.
Ms Ryall, who sits on the Aarhus Convention Compliance Committee (ACCC) but was speaking in a personal capacity last night, pointed to several ACCC cases where it was determined that national rules must not block or widely restrict access to justice for environmental and citizen groups.
She added that several recent European Court of Justice decisions indicate that wide access to justice requirement trumps the flexibility or discretion of states to set access to justice criteria.
She said that an examination of European case law reveals that the role of environmental groups “is almost sacrosanct”, meaning that any rowing back on their standing rights “is going to cause some tension with European Union law”.
Citizens also pushed out
Dr Ryall also raised concerns with proposals to change standing rights requirements for citizens who would have to show that they are “directly affected by a proposed development… in a way which is peculiar or personal” to them. This, she said, appears to be ” especially restrictive”.
The proposed legislation also calls for applicants to prove that they had prior participation in the planning process through the likes of sending submissions on live planning applications in order to qualify to take a case.
In addition, she said, that there is no real clear justification for the proposed changes in the Heads of the Bill “apart from to talk about alleged unnecessary judicial reviews that are costing everybody money”.
“That, in my view, isn’t enough of a justification. We need to see clearly are there really unnecessary JRs and, if so, how many? And if there are delays in the system, what’s causing these delays?” Dr Ryall added.
Be careful what you wish for
She warned the Government that it needs to “be careful with what you wish for” as the proposed changes are unlikely to speed up the system and will instead “trigger more litigation”.
“The more you change the law and the more you play around with the rules, the more litigation you are going to have, and if you are playing with EU law, you are probably going to create the situation where references will need to be made to Luxembourg and that’s going to take 18 months [before] it comes back,” she said.
She stressed that the Government should instead look to improve the quality of decision making in the first instance by better resourcing the Board and local authorities to hire experts and other staff to process development applications “in a timely and efficient manner”.
A public consultation on the Heads of the Bill was launched on 9 December with a deadline of 13 January, providing concerned parties just 23 working days over the holiday period to provide feedback.
Following pressure from environmental groups, opposition politicians, and Committee members, the Minister agreed on Tuesday to extend the deadline until 27 January 2020.