Ireland’s leading environmental coalition is shocked at the Minister for Housing’s attempt to press for new planning legislation that would make it near impossible to challenge planning decisions in the courts and hold public authorities and the Government to account.
The Environmental Pillar – a coalition of national environmental organisations – learned over the weekend of worrying developments with the Housing and Planning and Development Bill 2019 that is being brought forward by Minister Eoghan Murphy TD. 
In sum, the proposed Bill will add numerous challenging requirements and restrictions that will make it very hard for ordinary citizens and environmental NGOs to achieve the necessary “standing” to take cases.
The changes proposed in the Bill would also add to the complexity of the court process and increases the risks of exposure to significant costs to those seeking to challenge bad planning decisions.
This legislation would row back on major changes introduced just a few years ago to enable ordinary people, their organisations, and environmental NGOs to challenge bad environmental decisions. Those changes were already long overdue and necessary to comply with EU law and the Aarhus Convention. 
The Heads of the Bill sent to the Joint Oireachtas Committee for Housing, Planning and Local Government last week are very blunt that the proposed changes are designed to make it more difficult to engage in the legal process and appears to favour developer’s interests at the cost of environmental rights. 
The most worrying aspects (some of which are further explored below) of the proposed Bill are :
- Complete change to existing cost rules for environmental cases from a system where costs should “not be prohibitively expensive” to a cost cap rules system with court discretion. This exposes the public and eNGOs to much higher costs and uncertainty, ensuring that many will be dissuaded from bringing a case in the first place and makes it harder to engage lawyers 
- 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” and “in a way which is peculiar or personal”. This is in addition to a new 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, thereby essentially ruling out newly established citizen-led NGOs concerned with local environmental issues from bringing challenges 
- Insertion of a new requirement that NGOs must have a minimum of 100 affiliated members, thereby ruling out the vast majority of Irish groups from bringing challenges 
- Increased requirements for the “leave” stage (where you get court permission to challenge). The Heads of the Bill propose going back to the abandoned “on notice” system and adding to the tests and complexity of the leave – this adds to the costs, duration and difficulty of court proceedings
Commenting on the worrying developments, Attracta Ui Bhroin, Environmental Law Officer at the Irish Environmental Network, said :
“The Irish Government is proposing a Frankenstein-like monster approach to killing off access to justice in Ireland, drawing from the worst practices elsewhere and putting them all together in a bid to obstruct the rights of citizens and concerned NGOs to challenge bad and unlawful planning decisions.
“This legislation would row back on major changes introduced just a few years ago to enable ordinary people and small but committed environmental NGOs to legally challenge bad environmental decisions, without fear of incurring eye-watering costs and extensive obstacles to accessing justice.”
“The explanation for the Bill is blatant about making it harder to challenge decisions, with the Department arguing that challenges cause delays. It is bad decisions, and flawed legislation however, that are the real issue driving litigation in this country and this Bill does nothing to address that.
“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. It is particularly chilling that it comes at a time when environmental protection has never been more important, and citizens and groups are mobilising in a powerful Green Wave given the endless failures of this Government and administration.
“Member States are entitled to certain discretion on how they set up various rules and processes for access to justice. However, the Government is proposing to 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, and in our view, will breach the EU Charter of Fundamental Rights by making EU law rights excessively difficult to uphold. It also raises human rights and constitutional issues.
“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.”
 The Pillar 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.
 The Aarhus Convention is an international Human Rights Convention that acknowledges the importance of a healthy environment to people. It sets out rights for the public, including the right to environmental information, to participate in certain environmental decisions and rights to access justice on certain environmental decisions at a cost which isn’t prohibitive and in a process which is fair, equitable, and timely. Ireland was the last individual EU member state to ratify the Convention, and finally did so in June 2012 .
 The Pillar has seen an email sent last week by the Department of Housing to members of the Joint Oireachtas Committee for Housing last week that states: “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 letter also points to Easter 2020 as the envisaged timeline for the introduction of the Bill. The email states that, if deemed desirable, early pre-legislative scrutiny would be appreciated if this timeline is to be achievable.
 Wording of the proposed Head: The special legal costs rules in section 50B(2)-(4) of the Act of 2000 (“each party to the proceedings, including the notice party, shall bear its own costs”) relating to judicial reviews… be amended and replaced by new legal cost capping rules…
 Wording of the proposed Head : Head 4: Bringing of judicial review proceedings including standing rights Provide that: (1) Section 50A(2) of the Act of 2000 be amended as follows: (3) The “sufficient interest” test that must be satisfied under section 50A(3)(b)(i) of the Act in order for the Court to grant leave to apply for judicial review be amended to refer to the term “substantial interest”, and to require that an applicant shall – (a) be directly affected by a proposed development in a way which is peculiar or personal…”
 Wording of the proposed Head 4 : (5) The NGO “automatic standing rights” criteria, as provided for in section 50A(3)(b)(ii) of the Act, be amended as follows – (a) the minimum time requirement applicable to NGOs in relation to their establishment and pursuit of environmental protection objectives be increased from 12 months to 3 years preceding the date of application for section 50 leave…
 Wording of the proposed Head4: (5) The NGO “automatic standing rights” criteria, as provided for in section 50A(3)(b)(ii) of the Act, be amended as follows – (b) insert new requirements that in order for an NGO to have automatic standing rights in this regard, it shall – (i) have a minimum of  affiliated members…Further requirements in respect of a legal personality and also a further restriction requiring relevance of the eNGOs aims and objectives to the leave application in issue are also detailed in Head 4 (5) (d) and (e) and Head 5.
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, and has been at issue in a judgment of the EU Court of Justice in the 2018 North East Pylon case and also in comment in the EU Commission’s Environmental Implementation Review Report from 2019 and in 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 some habitat 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 makes it possible sometimes 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, and does not provide for a fair and equal process to review decisions when the State (supported by tax payers) 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 rule out recently established NGOs that are 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 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 that are currently in a position sometimes 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 further requirement for prior participation in the planning process, which makes the whole process additionally expensive and onerous given the costs involved for making submissions in our planning system and appeals.
So all these changes for multiple new requirements together constitute a major change in standing, the Bill would also 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, and they also have to establish 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.