Proposed Planning Bill Will Shut Out the Public Voice, says An Taisce

13th November 2019
Press Release

FOR IMMEDIATE RELEASE

An Taisce calls on the Government to scrap the proposed amendments to the planning legislation being pushed by the Minister for Housing in the Housing and Planning and Development Bill 2019 [1]. These amendments would drastically reduce the ability of ordinary people and environmental NGOs to legally challenge any bad planning decision with environmental implications.

The Bill proposes a number of significant amendments, seriously curtailing which members of the public may take a legal challenge, and placing arbitrary and restrictive thresholds on which organisations qualify as environmental NGOs. The amendments would also significantly increase the financial exposure for qualifying members of the public and environmental NGOs who wish to take a legal challenge.

The Heads of the Bill indicate a clear bias in favour of developers, outlining that the current cost protection system, whereby each party must pay their own costs, is allowing the ordinary person, and under-resourced environmental NGOs to take too many legal challenges, as the financial exposure is limited [2]. The right to participate in the planning system is a legal obligation under EU law and the Aarhus Convention, with the stipulation that it should not be ‘prohibitively expensive’. The current cost rules were implemented to make it easier for ordinary people and badly resourced environmental NGOs to legally challenge planning decisions which favour well resourced developers, despite the financial inequity. The proposed changes would reverse that, and only those who both qualify and have adequate resources could then engage in the system, in breach of Ireland’s legal commitments. The European Commission has already expressed concern at the cost of bringing an environmental legal action in Ireland [3], and these proposed changes will further exacerbate that.

The underlying premise of the amendments is to reduce delays in the planning system [4], but many of the legal challenges are well founded on environmental grounds, with the courts overturning many decisions to date in cases brought by the public and environmental NGOs because the decisions were flawed. If the government really intends to reduce planning delays then they should review the planning system which allows for these bad planning decisions to be made in the first place, which then necessitate legal challenges to be taken.

This Bill shuts out the voice of the people by all but preventing them from challenging any flawed planning decisions. This lack of recourse redistributes the power in favour of the Government and developers. This is the same dysfunctional planning system which allowed for the Derrybrien windfarm to be built in the absence of an environmental impact assessment, with a resultant landslide which caused significant environmental and property damage. The Irish Government has just this week been fined €5 million for this oversight by the European Courts, in addition to daily fines of €15,000 for still failing to rectify their mistake, 15 years later [5].

This is the same government who have declared a biodiversity and climate crisis, while simultaneously overseeing the ongoing loss of our most sensitive species and habitats [6], an ever increasing trend in our ammonia and GHG emissions [7] and the ongoing degradation of our waters [8]. Now is not the time to give them the benefit of the doubt. By silencing the voice of ordinary people and environmental NGOs there may be no one left to speak for the environment, and the next Derrybrien may be just around the corner. This is a sad day for environmental democracy.

Dr. Elaine McGoff, Natural Environment Officer with an Taisce said:

‘This should be renamed the Development ‘Permission’ Bill. It will essentially hand developers planning permission on a plate.’

‘At this critical time for nature, when we need strong public engagement more than ever, this Bill is an ill-judged attempt to shut out the public voice.’

‘Environmental NGOs in Ireland are severely resource limited. To then require them to increase their financial exposure when taking these legal challenges in their capacity as environmental watchdogs would all but stop them in their tracks. It would seem that is the intention of this Bill.‘

Phoebe Duvall, Planning and Environmental Policy Officer with An Taisce said:

‘This Bill rides roughshod over our legal rights, and is a thinly veiled Governmental kowtow to developers. The Bill represents a deliberate erosion of access to justice, and fails to fulfil the legal obligations to give the public its say in overseeing planning decisions, to the detriment of the environment.’

‘This Bill restricts who can take a legal challenge on planning decisions, and increases the financial risk in doing so. It’s quite clear who this Bill serves, and it’s certainly not the public or environmental good.’

Contact:

Elaine McGoff, Natural Environment Officer, 01 707 7063 / 085 7153796

Phoebe Duvall, Planning and Environmental Policy Officer, 01 454 1786

ENDS

NOTES

[1] An Taisce has seen a version of the Heads of the proposed Bill sent last week to the Joint Oireachtas Committee for Housing Planning and Local Government.

[2] Explanatory note under Head 6 in the Heads of Bill document: ‘Ireland has transposed the “not prohibitively expensive” rule in relation to judicial reviews through section 50B(2) of the Act of 2000 by adopting the “each party shall bear their own costs” approach. This effectively means that where an applicant wins the legal challenge, s/he is entitled to his/her legal costs from the losing party (the defendant). However, where the applicant loses the challenge, s/he will not be fixed with the costs of the defendant, just their own costs. These arrangements can in practice result in applicants not being exposed to any risks or costs arising from the initiation of planning-related judicial reviews i.e. –i.e. where their legal representative agrees to operate on a no foal/no fee basis – thereby facilitating the taking of greater numbers of judicial reviews in the planning area in Ireland than might otherwise be the case, with consequential knock-on implications for project delays, including in respect of projects of national or regional importance such as strategic infrastructures developments’

[3] The Environmental Implementation Review 2019. COUNTRY REPORT IRELAND. European Commission. ‘Access to justice in environmental matters remains an issue. The Commission is concerned about the cost of bringing an environmental legal action in Ireland.‘

[4] An Taisce has seen an email sent last week by the Department of Housing to members of the Joint Oireachtas Committee for Housing that states: “The proposed judicial review reforms have been drafted in the context of the significant increase in the of judicial review challenges against planning decisions in recent years giving rise to further backlogs in the Courts in reaching determinations on such challenges 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…”

[5] Green News 12/11/2019 State fined €5 million over Derrybrien wind farm

[6] Six-yearly report carried out by the NPWS under Article 17 of the Habitats Directives on the state of protected habitats and species:

[7] EPA (2019) Ireland's Final Greenhouse Gas emissions 1990-2017; and EPA (2019) Ireland’s Transboundary Gas Emissions 1990-2030

[8] Latest EPA report on water quality (2017)

Some key concerns with the proposed Bill

Proposed new legal cost capping arrangements

The prohibitive cost of mounting a legal case is a key challenge in bringing environmental cases in Ireland that is widely recognised in the legal sphere. This has been an issue in a judgement of the EU Court of Justice in the 2018 North East Pylon case and also in comments in the EU Commission’s Environmental Implementation Review Report from 2019 and the 2019 Environmental Governance Assessment for Ireland.

The new cost rules proposed would expose people and groups to much higher costs if they lose in the courts, and also significant uncertainty on costs. It will also make it much more difficult to hire lawyers without having to finance this significantly themselves. This isn’t always possible for local communities or individuals, or for environmental NGOs seeking to protect habitats or species.

The current system allows for each side to bear their own costs, and it is feasible for successful litigants to be awarded certain of their costs if they are successful. This sometimes makes it possible to engage with lawyers on a “no foal no fee basis.”

The new rules proposed by Minister Murphy would impose a cap of €5000 for individuals and €10,000 for groups. This is prohibitively expensive, particularly for organisations that may need to take several cases in order to fulfil their objectives of protecting the environment from bad decisions.

Additionally, a limit on awards of €40,000 in successful challenges makes it unsustainable for the small cohort of lawyers who are prepared to act for citizens and environmental NGOs. It also does not provide for a fair and equal process to review decisions when the State (supported by taxpayers) and big companies can afford to pay their many lawyers to defend bad decisions.

The 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

This would stop recently established NGOs concerned with local environmental issues from bringing challenges. This is particularly concerning for local, citizen-led groups who may have only recently formed due to concern with a developing local environmental issue that may be linked to a development going through or about to go through the planning regime.

New requirement that NGOs must have a minimum of 100 members

A handful of environmental NGOs are currently in a position to take legal challenges and act as watchdogs through the court system, such as Friends of the Irish Environment and An Taisce.

This proposal in the Bill, however, would exploit a capacity issue at most NGOs and would rule out the vast majority of Irish environmental groups from bringing challenges, even looking at national environmental NGOs and foundations. It would also prevent many local environmental organisations from being able to act.

A change in the standing rights requirements for judicial review applicants from “sufficient interest” to “substantial interest” and a requirement that the applicant must be “directly affected by a proposed development in a way which is peculiar or personal” on top of a requirement for prior participation.

In a doff of the cap to developers, the Heads of the Bill seek to radically cut down on the prospect for citizens to be able to exercise their rights to protect their environment and communities, and to uphold their EU law rights.

The public will have to provide a far higher level of justification to have standing to entitle them to take such cases, meaning that the burden of taking legal action will fall even more heavily on the shoulders of our resource-strapped and cash-strapped environmental NGOs.

This is on top of requirements for prior participation in the planning process for the application in question, which make the whole process additionally expensive and onerous given the costs involved for making submissions and appeals.

As all these proposals for multiple new requirements together constitute a major change in standing, the Bill would severely tighten the rules for eligibility to take judicial review proceedings, so much so that would-be litigants would have to prove that the development impacts on them directly, and in a personal and peculiar way to entitle them to take such cases. They would also have to establish that they have a reasonable prospect of success at the leave stage.

The leave process to get permission to take a case has been made additionally complicated, with further tests and requirements, making the pursuit of cases much more difficult and also costly.