The Aarhus Convention

The Aarhus Convention 1998 recognises that the public and environmental non governmental organisations (ENGOs) have an important role in protecting the environment. The three pillars of the Convention, the right to information, the right to participate in decision-making and the right to access to justice are considered necessary to support the fundamental right of every person to live in a healthy environment and the duty, both individually and collectively, to protect or improve the environment for the benefit of present and future generations. All of the Member States and the European Community (EC) are signatories to the Convention along with several other countries.  Ireland is the only Member State not to have ratified the Convention to date. Therefore, as Ireland is not a Party it is not bound by the Convention as a matter of international law. However, the Aarhus Convention has had a major influence on the development of EC environmental law and in this way it has the potential to impact on access to justice and the enforcement of EC environmental law in Ireland.

EC environmental law

The enforcement of EC environmental law in the Member States largely depends, in the first instance, on competent authorities applying the law properly and failing that, on the national courts being prepared to enforce the law. The Commission also has an important role in ensuring that EC environmental law is implemented and enforced.  It is of note that the environmental sector continues to have the highest number of open infringement cases in the Commission and in 2005 it accounted for over one quarter of the total number of open cases concerning non compliance with Community law.  Ireland (along with other Member States) has frequently fallen short of EC law requirements in relation to the proper implementation and application of EC environmental law. The Commission is currently pursuing infringement proceedings against Ireland on a wide range of issues including matters relating to the EIA, Waste and Habitats directives.

ENGOs and individual members of the public play a fundamental role in ensuring the implementation and enforcement of EC environmental law before the national courts and by making complaints to the Commission.  A number of important legal and practical issues determine whether ENGOs and individuals have real access to judicial review to challenge environmental decisions. The main concerns include: restrictive locus standi rules; the costs associated with judicial review proceedings; time limits; delays in the legal system; and the narrow scope of review undertaken by the courts in respect of the decision under challenge. Locus Standi rules are of fundamental importance because they define who is entitled to challenge a decision by way of judicial review proceedings.

The first pillar of the Aarhus Convention concerning public access to environmental information was implemented into EC law by Directive 2003/4/EC which was due to be transposed into national law by 14 February 2005. Ireland has not implemented the Access to Information Directive.

Directive 2003/35/EC implements the public participation pillar of the Aarhus Convention into EC environmental assessment (EIA) law.  In respect of access to justice in EIA matters, it inserts a new Article 10a into the EIA directive (Directive 85/337/EEC as amended by Directive 97/11/EC and Directive 2003/35/EC).  Article 10a sets down core requirements in respect of access to review mechanisms.  These provisions allow Member States considerable discretion to determine what constitutes a sufficient interest or an impairment of a right for the purpose of national locus standi rules. However, this must be consistent with the objective of giving the public concerned wide access to justice to challenge the substantive or procedural legality of decisions which concern projects subject to EIA.  ENGOs that meet any requirements under national law are deemed to have the necessary interest. Review procedures must be fair, equitable, timely and not prohibitively expensive.

Irish planning legislation and case law

At one time considered the most open planning system in Europe, with extensive third party rights of participation, Irish planning legislation has been substantially revised so that the focus is now sharply oriented toward ensuring the expeditious determination of planning applications. Within this framework public participation is rationalised in favour of achieving early finality of planning decisions. This trend is most obvious in relation to the rules which govern access to judicial review.

Judicial review is a two stage process where the applicant must firstly apply for leave (permission) to bring proceedings and the case may proceed to the second substantive hearing stage only if leave is granted.  Judicial Review is not concerned with the merits of the decision under review but with the legality of the procedure by which the decision was reached. The decision of a public body may be challenged on a number of grounds including: unreasonableness/irrationality; legality; jurisdiction; breach of constitutional justice/fair procedures; inadequate reasons; breach of EC law; and proportionality. 

Following intense lobbying from development interests regarding delay to development because of allegedly unmeritorious challenges to planning applications, the Planning and Development Act 2000 (the 2000 Act) made fundamental changes in respect of restricting access to judicial review. Challenges to decisions of local planning authorities and An Bord Pleanála are now subject to special judicial review procedures which are far tighter than those that apply in ordinary judicial review proceedings. This restrictive regime includes the locus standi requirement that an applicant for leave must demonstrate a ‘substantial interest’ in the matter which is the subject of the application for judicial review. The only elaboration provided in the legislation as to the meaning of the phrase ‘substantial interest’ is the proviso that ‘it is not limited to an interest in land or other financial interest’.

A recent series of High Court decisions indicate that the courts have applied a very strict interpretation to the substantial interest test which appears to suggest a requirement that the applicant be personally and directly affected by the proposed development and therefore leaves little room for the public interest of ensuring that laws designed to protect the environment are rigorously enforced.  Narrow standing rules in the environmental field are of particular significance because environmental concerns frequently encompass broad public interests which are not necessarily peculiar to a particular applicant.  While there are strong arguments to contend that the legislation does not actually require such a restrictive interpretation of the substantial interest test, it would seem that the courts consider they are bound by legislation which demands an increasingly strict approach to judicial review. Supreme Court guidance is currently awaited on this point as in Harding v An Bord Pleanála [2006] IEHC 295, the High Court recently certified that its decision to refuse leave involved a point of law of exceptional public importance and it was desirable in the public interest that an appeal should be taken to the  Supreme Court  The question which the  Supreme Court will decide relates to the criteria which are necessary to establish a substantial interest where the applicant does not have an interest in land or other financial interest.

The underlying objective of 2000 Act was to streamline the planning process so as to eliminate ‘unnecessary’ delays to development.  The Planning and Development (Strategic Infrastructure) Act 2006 (the 2006 Act) aims to take this process further. In particular the 2006 Act seeks to speed up the delivery of infrastructure development by centralising decision-making in relation to strategic infrastructure projects with An Bord Pleanála.   The type of development covered by the 2006 Act is specified in the Seventh Schedule and includes a wide range of projects under the broad headings of Energy, Transport and Environmental infrastructure.  An Bord Pleanála is empowered to determine whether a proposed development falls under the new strategic infrastructure procedures on the basis that the development is of the category set out in the Seventh Schedule and the Board considers that the development meets at least one of the following criteria:

(a)                the development  is of strategic economic or social importance to the State or region,

(b)               the development would contribute substantially to the fulfilment of any of the objectives of the National Spatial Strategy or relevant regional planning guidelines,

(c)                the development would impact significantly on the area of more than one planning authority.

These criteria clearly give An Bord Pleanála a very wide discretion to determine whether a proposed development comes under the strategic infrastructure procedures. The 2006 Act has been widely criticised as reducing the opportunity for the public to participate in the planning process. One important implication of removing consent procedures from local planning authorities is the loss of opportunity to appeal the planning merits of the decision. On a practical level, local communities will have less time to examine and respond to planning applications in respect of major and sensitive development projects including applications for landfills and incinerators.  As these types of decisions will now be taken by An Bord Pleanála, any challenge is by way of a judicial review application to the High Court. As noted above judicial review is limited to a review of the legality of the decision under challenge.

Is Ireland compliant with access to justice under the Aarhus Convention and the EIA directive?

The highly restrictive approach governing access to judicial review of planning decisions in Ireland is in direct contrast with the ethos of the Aarhus Convention and the amended EIA directive which stress participation and access to justice.  The 2006 Act purports to improve access to judicial review for ENGOs that meet specified criteria where the decision under challenge relates to a development subject to EIA. Under these provisions, ENGOs will be deemed to have the necessary interest (without having to establish a substantial interest in the matter) to seek leave. They are still required to establish that there are substantial grounds for the challenge in order to obtain leave.  For all other applicants and beyond EIA cases, the 2006 Act retains substantial interest as the basic locus standi test.  Directive 2003/35/EC was required to be implemented by 25 June 2005.  There is a very strong case to contend that Ireland has failed to meet its access to justice obligations under Article 10a of the EIA directive. Clearly the requirement to establish a ‘substantial interest’ does not sit well with the objective of giving the public wide access to justice. Likewise it is difficult to contend that Irish judicial review procedures are timely and not prohibitively expensive, particularly in light of the lack of availability of legal aid for environmental challenges. In respect of strategic infrastructure projects, Irish planning procedures no longer provide for challenge on the planning merits (substantive review) of the decision and the standard of review applied by the courts in judicial review proceedings in relation to a decision of a planning authority or An Bord Pleanála is extremely narrow.   In the leading Supreme Court decision in O’Keefe v An Bord Pleanála [1993] 1 IR 39, Finlay C.J. stated:

I am satisfied that in order for an applicant for judicial review to satisfy a court that the decision-making authority has acted irrationally…so that the court can intervene and quash its decision, it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision.

Issues concerning the compatibility of Irish planning law with obligations under the Aarhus Convention and EIA law are likely to arise in the Irish courts and at EC level in the future.  It also remains to be seen whether the Irish courts will moderate the current restrictive approach to locus standi in light of the Aarhus Convention, EC implementation of same and the pending Supreme Court decision in Harding.