Bill would make it ‘impossible’ to challenge poor planning decisions

Published by Niall Sargent on

November 12th, 2019

Environmental groups have expressed deep concern at a new Bill put forward by the Minister for Planning that they say would make it almost impossible to challenge planning decisions in the courts.

The Green News has seen a version of the Heads of the Housing and Planning and Development Bill 2019 sent last week to the Joint Oireachtas Committee for Housing Planning and Local Government.

The document indicates that the Bill brought forward by Eoghan Murphy TD would add new requirements and restrictions on citizens and environmental NGOs that wish to bring Judicial Review proceedings in relation to planning decisions.

Key changes envisioned in the Bill include:

  • A change to existing cost rules for environmental cases whereby costs should “not be prohibitively expensive” to a cost cap rules system;
  • A change in standing rights requirements for applicants from “sufficient interest” to “substantial interest” and a requirement that they must be “directly affected by a proposed development”;
  • An additional requirement that the applicant must have had prior participation in the planning process;
  • Extension of the minimum time that an NGO must be in existence before it can challenge a planning decision from 12 months to 3 years;
  • A requirement that NGOs must have at least 100 affiliated members

In an email sent to Committee members last week, the Department outlines Easter next year as the envisaged timeline for the introduction of the Bill.

As such, the Department said that it would appreciate if the Committee carries out early pre-legislative scrutiny – “if deemed desirable” – in order to meet this proposed timeline.

“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,” the email states.

Climate Case Ireland team addressing media at the High Court Photo: Niall Sargent
Climate Case Ireland team addressing media at the High Court Photo: Niall Sargent

‘Developers over environmental rights’

The Environmental Pillar – a coalition of national environmental groups – said that the proposed changes and new requirements appear to “favour developer’s interests at the cost of environmental rights”.

The new rules proposed in the Bill to impose a cost cap of €5000 for individuals and €10,000 for groups would still make it prohibitively expensive for the public and environmental NGOs to take legal cases, the Pillar said.

The current costs regime allows for each side to bear their own costs and successful litigants may be awarded certain costs if they are successful. This can make it possible to engage with lawyers on a no foal, no fee basis.

The Bill would also set a limit on awards of €40,000 in successful challenges that the Pillar said would make it “unsustainable” for a small cohort of lawyers who act for citizens and environmental NGOs to take on cases.

The prohibitive cost of mounting legal challenges in environmental cases is recognised by the European Commission and EU Court of Justice as a key issue in Ireland.

Speaking at an environmental law seminar last July, the Chief Justice, Mr Justice Frank Clarke, said that the issue of costs has been “one of Ireland’s great difficulties” in complying with its Aarhus Convention obligations.

The international convention sets out the right to environmental information, to participate in environmental decisions and rights to timely access justice at a cost that isn’t prohibitively expensive.

Speaking at the same event, the European Commission’s Liam Cashman said that Ireland “stands out as really exceptional” within the EU due to the “cost risks” associated with taking a case to the courts.

“I think it’s difficult to be surprised if you don’t see your mainstream environmental organisations staying out of the courts. You may then wonder are we really getting the kind of environmental litigation that would serve the public interest,” he added.

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

Standing issues

According to Attracta Ui Bhroin, environmental law officer with the Irish Environmental Network, the new standing rules proposed in the Bill would essentially rule out the vast majority of Ireland’s environmental groups – both local and national – from bringing challenges.

The proposal that environmental NGOs would need to be in existence for three years is particularly concerning for local, citizen-led groups who may have only recently formed due to concern with a developing local environmental issue, she said.

A requirement that NGOs must have a minimum of 100 members would also rule out many national NGOs.

While EU Member States are entitled to certain discretion on how they set up rules and processes for access to justice, Ms Ui Bhroin said that this Bill would “abuse that discretion to such an extent that it obliterates the core obligation on Ireland to provide wide access to justice under EU and International law”.

“Given the context of costs in our Irish planning system, the size and nature of organisations and the costs in our courts, this [Bill] is an extermination of environmental democracy and oversight.

“The reason the courts have quashed several decisions in cases brought by the public and environmental NGOs are because the decisions were defective, but the Government’s solution seems to be not to improve the quality of the decisions but instead to prevent people challenging bad decisions with this poorly thought out and counter-productive piece of legislation,” she added.

Derrybrien judgement

Ireland’s poor environmental record, Ms Ui Bhroin said, was highlighted in the European Court of Justice’s ruling this morning against the Irish state for failing to carry out an environmental impact assessment (EAI) for the Derrybrien wind farm as required under a previous court ruling in 2008.

In July 2008, the Court ruled that Ireland breached the EIA Directive environmental Directive as no assessment was carried out ahead of construction of the large-scale 70 turbine project.

The European Commission brought a second action last year against Ireland for failure to fulfil its obligations in the 2008 ruling to ensure that the wind farm operator or the State itself carried out the EIA.

The court has now ordered Ireland to pay a lump sum of €5 million – even more substantial than the level sought by the EU Commission –  as well as a daily penalty of €15,000 from today until the date of compliance with the 2008 judgment.

A landslide at the wind farm in October 2003 caused great damage to the local river systems, killed around 50,000 fish, affected the water supply to Gort, blocked roads and impacted daily services and agricultural land in the local area.

“If ever there was a need for an example to show how deeply problematic and flawed the State’s position on environmental law is – this morning’s judgement sets that out with knobs on,” Ms Ui Bhroin said.

The Department of Planning was contacted by The Green News for comment on the proposed Bill but did not provide a statement at the time of publication.

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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