30th August, 2019
A panel of legal experts has found that Irish planning law is non-compliant with requirements under an international convention to allow the public to participate in the decision-making process for projects that may significantly affect the environment.
The landmark finding from the Aarhus Convention Compliance Committee (ACCC) concerns Section 42(1) of the Planning and Development Act (PDA) that allows for planning permission to be extended beyond its original expiry date without any public participation in the renewal process.
The Aarhus Convention is an international agreement that gives a number of rights to the public with regard to the environment, including the right to participate in certain environmental decision-making. The Convention entered into force in 2001 and was ratified by the EU in 2005. Ireland became the last individual EU state to ratify the Convention in June 2012.
Section 42 allows Local Authorities to essentially rubber stamp time extensions to valid planning permission without any further input from the public. There is effectively no discretion to refuse the extension so long as basic technical requirements are met. There is no opportunity for the public or expert public bodies to provide their input.
The requirement in the Convention effectively recognises the need to allow the public to have a voice in light of the changed timeframes and environmental conditions since the original planning decision was made by the Local Authority.
Thus, in its decision released this week, the Committee found that Section 42 is not compliant with the Aarhus Convention as it does not comply with the obligation to provide for effective public participation rights. This is the first finding by the Committee that Ireland is not compliant with the Convention.
The Committee recommended that Ireland now takes the necessary legislative measures to ensure that permits for activities that may impact on the environment cannot be extended without first giving the public an opportunity to participate in the decision making process.
The case that led to the ACCC’s decision was brought in November 2013 by Kieran Cummins of Enfield, Co Meath concerning planning consent granted to John Keegan Quarries by Meath County Council in 1998 to develop a quarry on 8.5 hectares in Trammon.
On 30 May 2013, the developer submitted applications to extend the duration of three permits granted to it in 1998, 2004 and 2010 before expiry in August 2013. The public was not notified of these applications.
According to Mr Cummins, he only became aware of the extension granted while searching the website of the planning authority for an unrelated file in September 2013. As there was no means of appealing the matter to An Bord Pleanála under Irish planning law, the only means to challenge the decision is via a judicial review challenge through the courts.
The judicial review process is a timely and costly route that most citizens cannot offer to take. In addition, Section 42 challenges are effectively limited to only technical procedural matters.
The ACCC findings say that it is “obvious” that the judicial review process, as the only available domestic legal remedy in such cases, “does not provide an effective and sufficient means of redress” for the public to challenge permit extensions.
The case was the first brought before the ACCC since Ireland ratified the Convention. A further eight cases have since been brought against Ireland. Two were deemed inadmissible, and the rest are still in process.
Section 42 criticism
Section 42 of the PDA originally only allowed for an extension of planning permission if substantial works had already commenced on the site.
Following the economic crash when many developers had to abandon projects, an amendment (often referred to as the NAMA clause) was introduced that allows for extension in cases where no work has commenced for economic or technical reasons.
In both circumstances, there is no opportunity for the public to make submissions in the extension decision-making process, even where the project may have an impact on the environment.
Critics have called the process a box-ticking and rubber stamping administrative exercise as planning authorities have no discretion to refuse the request so long as the development meets basic technical requirements.
Critics also argue that this is a flawed process as the planning authority does not have to factor into its decision-making process changes to the environment over the five or ten year period.
Such changes may mean that the impact of the project is significantly different from those considered in the original application process and might now require new management and mitigation plans in order to ensure that that there is no significant impact on the environment.
In addition, the planning authority is not even in a position to attach new conditions to the permission except in relation to financial security issues linked to the completion of the project. They cannot add new conditions that take account of changes in regulations, standards or environmental circumstances over the years since the original permission was granted.
The question of planning extensions was central to several recent important legal cases in Ireland, including challenges from Friends of the Irish Environment (FIE) and local residents of the decision to allow the extension of planning permission for the proposed new runway at Dublin Airport.
In this case, permission was first granted to the Dublin Airport Authority for a period of 10 years for the construction of a new runway in August 2007. The runway was not completed during this period and an extension was sought and granted for an additional five year period out to August 2022. No submissions from interested or affected members of the public were accepted by the local authority.
The issue of extension is also central to another legal challenge brought by FIE in relation to plans to build a gas terminal close to the Shannon Estuary. The Shannon LNG case arose last year after An Bord Pleanála granted a five-year extension to permission for the terminal. The project has been on hiatus for the past decade since planning permission was first granted in March 2008.
FIE contended that the Board’s decision to grant an extension did not take into account recent developments in climate legislation as well as expanded protections to nature sites adjacent to where the terminal would be built.
The Board argued that the case concerns purely a temporal change in the permission, and, as such, it does not need to re-examine environmental assessments carried out in 2008 or carry out new assessments or screenings to determine assessment requirements.
In his decision to refer the case to the Court of Justice of the European Union in February, Mr Justice Garrett Simons said that a key question arising is whether there is a need to carry out certain screenings to determine environmental assessment requirements where the planning authority’s decision “merely extends the duration of planning permission, without any physical change to the permitted project”.