‘Draconian’ planning Bill would ‘set the clock back’ on access to justice

Published by Niall Sargent on

November 13th, 2019

A new planning Bill brought forward by the Government would set the clock back on access to justice rights to challenge poor planning decisions, an environmental group has warned.

Speaking on the Pat Kenny Show this morning, Tony Lowes of Friends of the Irish Environment (FIE) said that the proposed Housing and Planning and Development Bill is “draconian” in nature and will hamper access to the courts for both environmental and community group.

If passed, the Bill brought forward by Eoghan Murphy TD would add new cost requirements and standing restrictions to bring Judicial Review (JR) proceedings in relation to planning decisions.

While individuals and groups can appeal local authority planning decisions to An Bord Pleanála, decisions made by the national planning authority can only be challenged through JR proceedings in the courts, an already costly and time-consuming process.

The Heads of the Bill were sent to the Joint Oireachtas Committee for Housing, Planning and Local Government last week, alongside a letter from the Department of Housing outlining the justification for the Bill that it would like to see passed into law by next Easter.

The letter, seen by The Green News, states that the proposed changes come in the context of a “significant increase” in JR challenges that are “giving rise to further backlogs in the Courts” and associated project delays.

“In light of the level of proposed investment under the National Development Plan, it is considered that there is a need to safeguard the timely delivery of projects and value for public money while simultaneously maintaining the rights of citizens to challenge decisions that do not comply with EU environmental law and in accordance with UN access to justice requirements,” the letter states.

The Environmental Pillar – a coalition of national environmental groups – yesterday said that the Bill would do anything but support access to justice rights.

Legal professionals, including the heads of FLAC, the Irish Council for Civil Liberties, and Community Law & Mediation, took to social media yesterday alongside academics, citizens’ groups and international environmental lawyers to outline their concern with the Bill.

Tony Lowes of FiE with members of Futureproof Clare at high Court Photo: Niall Sargent
Tony Lowes of Friends of the Irish Environment (c) at High Court for Shannon LNG case Photo: Niall Sargent

100+ members rules

A requirement that NGOs must have a minimum of 100 affiliate members, for example, would rule out many national NGOs from taking legal challenges. This would include FIE, a group that has brought many important legal challenges over the years.

Most recently, the group succeeded in having new regulations to take large-scale peat extraction outside of the planning regime dissolved. The High Court ruled that the regulations, brought forward by Mr Murphy, were inconsistent with European environmental law.

An FIE challenge to the extension of planning permission for the proposed Shannon LNG gas terminal in Co Kerry was recently referred to the European Court of Justice (ECJ) over a number of questions around environmental assessments and planning law.

FIE has several other important cases currently before the Irish courts, including the much-publicised Climate Case Ireland about the State’s climate mitigation plan and a case challenging the climate credentials of the National Development Plan that is set to be heard in March 2020.

Mr Lowes said that Government officials “do not want these challenges” to move forward and will “come up with almost any excuses to avoid actually having to follow the law”, referencing the very critical appraisal of the Irish State in the ECJ’s judgement in the Derrybrien wind farm case yesterday.

“Everything about [the Bill] is regressive,” Mr Lowes added. “You begin to wonder what world the Government lives in when they see the youth out there demonstrating over climate justice and access to justice. This [Bill] just sets the clock back.”

High Court environmental rights constitution
The Four Courts Building Photo: Gary Barber

Costs and standing issues

Critics have also questioned proposals in the Bill to row back on existing cost rules for environmental cases in line with international requirements that costs should “not be prohibitively expensive”.

The Bill would see a cost capping system put in place that critics say will make it prohibitively expensive for the public and environmental NGOs to take legal cases.

The high cost of mounting legal challenges in environmental cases is recognised by the European Commission, the EU Court of Justice and the Chief Justice as an issue in Ireland.

The Heads of the Bill also call for a change in standing requirements so that applicants will have to show “substantial interest” rather than the current lower threshold of “sufficient interest” in order to bring a case.

In addition, they will also have to show that they are “directly affected by a proposed development… in a way which is peculiar or personal” to them.

The Bill also calls for an additional requirement that the applicant must have had prior participation in the planning process through the likes of submitting opinions or submissions on live planning applications.

The proposed extension of the minimum time that an NGO must be in existence before it can challenge a planning decision from 12 months to three years would also likely impact local groups that form sporadically in reaction to local environmental issues.

The Department of Housing did not reply to requests from The Green News for comment.

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Niall Sargent

Niall is the Editor of The Green News. He is a multimedia journalist, with an MA in Investigative Journalism from City University, London