According to Environmental Pillar’s immediate release, the Minister of Housing, TD Eoghan Murphy, is pressing for new planning rules outlined in the “Housing and Planning and Development Bill 2019”. If these rules were to be implemented, it would be even more complicated for citizens or NGOs to bring a case to Court against poor planning decisions. It would lead to a more complex court process, and a rising of the costs of the legal procedure. If implemented, these changes would be in violation of EU law and the UN Aarhus Convention.
Ireland’s leading environmental coalition said it “is shocked at the Minister for Housing’s attempt […] that would make it near impossible to challenge planning decisions in the courts and hold public authorities and the Government to account.”
What would change?
The first change would impact procedure costs rules. Now, in compliance with article 9 of the Aarhus Convention, the procedures are required to be “not prohibitively expensive”. The rules make each party bear their own costs, but a successful plaintiff might be granted some extra costs.
With the new bill, we would head to a cap of 5.000€ for individuals and of 10.000€ for groups. It would also limit the amount awarded to a successful litigant to 40.000€, which would make things harder for NGOs or citizens to seek legal representation as lawyers are often hired on a “no foal, no fee” basis for that kind of cases. Mr Justice Frank Clarke, Chief Justice, has said in the past that the issue of costs has been a “great difficulty” for Ireland to comply with the Aarhus Convention.
The requirements for citizens to be able to bring a planning case to court would be getting stricter. Again, in compliance with article 9 of the Aarhus Convention, any citizens willing to tackle a bad planning decision need to show a “sufficient interest”. With the new Bill, it would depend on a “substantial interest”. The new rules would also require from the individual to be “directly affected, in a way which is peculiar or personal” and to have had “prior participation in planning process”. This would call for a far higher level of justification and the burden of the proof of these requirements would rest upon the individual.
But under the new rules, the requirements for NGOs would be getting drastic too. From a condition of “12 months previous existence”, NGOs would have to exist for at least 3 years with the new regime. This prerequisite is already stern and rule out most of the recent (environmental) groups, but the bill goes further: NGOs would need a minimum of 100 affiliated members. The local groups that might meet the existence requirement would probably not meet this criteria. I guess it’s always easier to win a legal fight when your competitor cannot even access the battle field.
How would it breach international law?
This new Bill would be in breach of international law as it would not comply with the Aarhus Convention anymore. Ireland has been really late to comply with it in the first place, and now is about to set backward. The Convention has three clear objectives: ensuring citizens’ rights to access environmental information, to participate in environmental decisions and to timely access justice in environmental matters. How far from reached those objectives would be.
In regards toEU Law, it’s more debatable. The EU Directive 2011/92 on the assessment of the effects of certain public and private projects on the environment, guarantees access to justice in its 11th article. But this legislation gives member states some discretion power on how to implement access to justice. There’s a lot to bet that this discretion power will be a main – if not the only – argument of Minister Murphy when defending his Bill.
Saying a few words on this morning’s “Today Sean O’Rouke”, Minister Murphy did not mention this Planning Bill. He has yet refused to comment on the breaking news, explained Niall Sargent, Editor of Green News, to us.
The only explanations we could read so far are those written in an email Murphy has sent to the Oireachtas Committee for Housing, Planning and Local Government. While asking the committee for an “early pre-legislative scrutiny” to achieve an implementation by next Easter, he stated 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 European environmental law.”
If you’re a curious person, like me, you would try and find the Bill or at least a draft somewhere. Well I tell you; you’ll end up disappointed. Nor on the Ministry’s website, nor on the Oireachtas Committee tab, nowhere will you find something about this new Bill. “It’s difficult to be aware of this Bill if you have no links with the Committee” admitted Niall Sargent. The Environmental Pillar itself only saw the Heads of the Bill. “We need a more proactive information with the public.”
Any other comments?
Tony Lowes from Friends of Ireland explained this morning to Pat Kenny that “it’s a draconian Bill that is bad for environmental NGOs and community groups. Everything about it is regressive and it sets the clock back on access to justice rights.” Accordingly, Orla Hegarty explained that “the planning system is moving further away from being a citizen-friendly system, and back to being centralized.” According to her, instead of trying to poorly address the “court problem”, the Government should deal with the root of the problem and allow groups and citizens to raise their concerns earlier in the decision process.
The least we can say is that this new Bill has made voices rise all over the country. Various organisations have emphasised how this would be in violation of their rights to access justice. Several legal professionals also expressed how outrageous this new legislation is. “The reactions on social media are strong” said Niall Sargent. “Groups are really shocked.” Altogether, they will now try to raise awareness, especially – but not only – in the activist community. So, if you want to support the Environmental Pillar and other groups, a first step can be to talk about it and maybe even share this article.
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