Now is the time for the public to speak up for environmental democracy, says An Taisce
The Government has recently launched a public consultation on the Housing and Planning Development Bill 2019 , but the timing, imminent deadline and poor advertising of this consultation does not comply with their legal obligations for public participation on environmental matters.
The Bill proposes amendments to the planning legislation which would drastically reduce the ability of ordinary people and environmental NGOs to legally challenge any planning decision with potential environmental impacts. 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.
These changes would prevent groups which form on foot of contentious planning decisions from legally challenging these decisions in the courts. This legislation would stop groups, such as the newly formed community group opposing the recently approved sewage treatment works in Dublin , or local groups opposing other infrastructure projects like windfarms from legally challenging these planning decisions.
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, should they pass the hurdle of having the legal right to take that challenge in the first place.
The Government did not clearly advertise that this consultation was launching, and are running it over the Christmas period, with just 23 working days for people to input. Not only is the proposed Bill going to restrict public participation if passed, the consultation itself is already limiting public input.
An Taisce calls on the Government to, at the very least, extend the deadline for this consultation, in the interest of truly participative public participation; but ultimately to scrap the problematic amendments to the planning legislation which are being pushed by the Minister for Housing in the Housing and Planning and Development Bill 2019.
This Bill shuts out the voice of the people, and this lack of legal recourse redistributes the power in favour of the Government and developers. This autocratic approach will seriously curtail the democratic right of the public to question the Government, ultimately giving the State the last say. The flawed public consultation of this Bill is indicative of the problems which will follow should it pass into legislation. Now is the time for the public to speak up, before their voices are silenced.
Dr. Elaine McGoff, Natural Environment Officer with An Taisce said:
‘The public must ask themselves if they trust the Government to always make the right decision when it comes to planning, because if this Bill passes into law it is them who will have the final say. If you don’t want to be silenced, and value your opportunity to participate, now is the time to speak up.’
‘The Government are doing their best to minimise our voices from the get-go. This is not how public participation works. This is an underhand attempt to sneak this Bill in under the radar.’
‘This Bill needs to be stopped in its tracks. We need the public to defend their right to participate, ultimately the Government will listen to the voting public. Environmental NGOs such as An Taisce cannot stop this on our own. Believe us when we tell you that this is important, and input to this consultation.’
Phoebe Duvall, Planning and Environmental Policy Officer with An Taisce said:
‘The appalling way in which the Government introduced this brief consultation right before the Christmas period and without informing any of the environmental NGOs is another blatant attempt to suppress the public voice in planning matters, just like the Bill itself.’
‘We urge members of the public to respond to this consultation to say to the Government in no uncertain terms that we will not tolerate this erosion of the public’s right to participate in the planning process and access justice.’
Elaine McGoff, Natural Environment Officer, 085 7153796, email@example.com
Phoebe Duvall, Planning and Environmental Policy Officer, firstname.lastname@example.org
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.