High Court environmental rights constitution

Kill Bill: Access to Justice under threat by planning proposals

January 27th, 2020

During the closing months of its tenure, the outgoing Government proposed a Bill that would have left an even more stinging environmental legacy for Fine Gael.

The proposal in the Heads of the Housing and Planning and Development Bill 2019 would radically reduce and limit the rights of citizens, local groups and national environmental NGOs to challenge bad decisions made by public authorities across a range of areas including forestry, energy, planning, water, transport, and climate.

Before you think that you have no intention of going to court or that this doesn’t apply to you or your group, please stop for a moment. It doesn’t take a rocket scientist to know that if you can’t hold public authorities to account for their decisions and failures – the quality of their decisions is at risk.

So even if you don’t want to act – someone else might. That’s why the role of scrutiny of the Courts over public bodies is enshrined in our Constitution and access to justice is a human right that is available to us all.

How is it going to impact you?

Take a moment to look around – does something you see matter to you; or worse still, bother you? It could be your kids coming in from a Fridays for Future march. It could be the stream of traffic in front of you, or another bus over full capacity passing you by.

It could be the dodgy smell of the water from your taps, the inhaler you need to use because of air pollution, that dark looming wall of Sitka Spruce surrounding your home, or the shadow flickering from a wind turbine across your room. It could be that beautiful flock of birds feeding on the wetland in front of you or that site notice about a development down the road that really worries you.

All of these things are impacted by decisions by Government or Public Authorities, or An Bord Pleanála, or the EPA, or other bodies. The quality of the decisions made by Public Authorities and how they properly comply with the law to manage their impact on your environment is critical.

It’s critical to the impact these things have on everything around us and Court scrutiny of decisions of public bodies – and their failures – is really our guardian angel.

The Government said that its proposed Bill was going to stop vexatious litigants who they allege are delaying development. But what they’ve proposed goes way beyond that.

It’s truly frightening in the curtailment of our rights. It looks like the Bill lapsed when the election was called, but a public consultation on the Heads of the Bill is still pressing ahead so the proposal may be resurrected by the next Government if we don’t give it a kiss of death.

A flavour of what the Bill would do

It would make it incredibly hard for ordinary people or community groups to qualify to get into the Court to challenge a decision. It would change the requirements that groups have to comply with to bring a challenge, a move that would exclude lots of groups from taking cases. For individuals, the requirements are really limiting.

The Bill would also radically alter protection against exorbitant court costs and replaces them with a new system of “cost capping”. On first glance that might sound good, but it’s not. It leads to real uncertainty as applicants won’t know how exposed they may be if you lose. In addition, even if they win, the limit on awards mean applicants may still face huge legal costs.

It would add additional steps and difficult tests to pass in the court, making the whole process more complex and lengthy, would cut back on the types of decisions you can challenge and would also limit the ability by local and national environmental groups to make appeals to An Bord Pleanála.

So what can you do?

Firstly, you can express your concerns at the proposals in the Heads of the Bill by responding to the public consultation which closes at 5pm today. Full details are available here.

There are some great resources available that explain in detail the key issues with the heads of the Bill including this article for the Public Interest Law Alliance written by Dr Áine Ryall here. An Taisce has also developed an explainer [iece on the Heads of the Bill and the public consultation process.

In addition, you can ask every party and politician coming to your door canvassing in the run up to next month’s general election to commit to opposing such legislation.

If this Bill returns from the dead in the next Dail and passes into law, it will trigger all sorts of legal challenges and complaints to the EU and other bodies about how Ireland has ignored their legal obligations. But that will take time to sort out. It will be bad for the environment with many people unable to take legal challenges even when the decisions are really bad.

If the outgoing Government was really serious about trying to reduce delays – it would have focused on making good decisions that are compliant with the law and are not vulnerable to legal challenges.

It would have supported and resourced the decision-makers in the Courts, An Bord Pleanála, and Public Authorities properly and it would have also sorted out some of the very complex legislation currently in place that is hard to follow and often wrong in reflecting EU law.

It had a lot to sort out but it failed to do so before it tried to trample on your rights.

By Attracta Uí Bhroin

Attracta is the environmental law officer with the Irish Environmental Network, and is a Vice President of the European Environmental Bureau, the largest network of environmental citizens’ organisations in Europe.

Leave a Comment