Fine Gael proposals to limit access to justice rights for citizens and environmental groups to challenge poor planning decisions is out of line with European and international human rights law, the Environmental Pillar warned today.
The comments from Ireland’s largest environmental coalition come as the public consultation on the controversial General Scheme for the Housing and Planning and Development Bill 2019 shuts. 
Brought forward by the Fine Gael Government, the Heads of Bill proposed major changes to the system of review and access to justice across a whole range of environmental decisions in multiple sectors. 
The proposals would radically limit who can take court cases on a whole range of planning and development decisions, make court procedures much more complex, and radically reduce protections against legal costs introduced only a few years ago to comply with EU law.
While the Taoiseach and Cabinet have said that the intention of the changes to avoid development delay, legal experts have argued that the proposals will run fowl of EU and international law and will invariably trigger a range of complex litigation, legal uncertainties and delays, and consume Court resources. 
Despite the draconian Heads of Bill going into limbo with the Dail’s dissolution for the general election, the consultation remains live, sending a clear message that Fine Gael and the Department plan to bring this zombie legislation back from the dead despite extensive condemnation from civil society.
Thus, it is vital that election candidates commit to opposing such proposals and respond to the concerns of citizens, local groups and environmental groups about the proposals that would roll back on access to justice rights. The Pillar’s detailed submission for the public consultation outlines our members’ core concerns with the proposed legislation, in particular the fact that the Bill proposes to:
- Make it near impossible for ordinary people, citizens groups and environmental NGOs to qualify to get into the Court to take a challenge in the first place;  
- Make the court process more difficult, lengthy and complex, and cause delays;
- Provides for chilling uncertainty on the nature of costs you might be exposed to in court 
- Leave applicants with the prospect of huge legal bills and fees even if you win in Court due to the proposed new cap on awards to successful applicants
Our submission also highlights how the inevitable challenges and litigation that will be triggered by these proposals is going to create legal uncertainty for everyone – including developers.
The submission also examines the ironic injustice that the Government missed a 2017 deadline to comply with EU legislation governing decisions on major developments by over a year, creating major legal uncertainty and a limbo for development, putting the legality of a whole range of decisions at risk. Now, it turns around and plans to block the public and environmental from the courts, blaming them for causing delays on development by challenging decisions. 
Attracta Uí Bhroin, Environmental Law Officer at the Irish Environmental Network, said:
“Fine Gael ‘s proposal is 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 NGOs to challenge bad and unlawful planning decisions.
“These proposals would row back on major changes introduced just a few years ago to enable citizens 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.
“If public authorities can’t be held to account before the Courts, then the quality of decision-making is at risk. For those marching on the streets about the failures of authorities on climate and biodiversity, the potential for further degradation in the quality of decision-making should be a truly alarming prospect.
“Let’s be clear – the proposals will make it more difficult to hold authorities to account and reduce the type of decisions subject to court scrutiny. This raises profound Constitutional issues over access to justice rights, as well as compatibility concerns with European and international human rights law. 
“The notes in the Heads are blatant about making it harder to challenge decisions, asserting that challenges cause delays without providing one shred of supporting evidence or any proper analysis on where the delays arise or to justify these draconian changes. Anecdote and assertion is no basis for legislating for such profound changes. The extent to which bad decisions and overly complex and flawed legislation are the real issue driving complex environmental litigation in this country and should be sorted out by legislators before they plan to trample over citizen’s rights.”
“It is breathtakingly arrogant that a Government that was over a year late introducing EU legislation governing major developments and created huge legal uncertainty for developers now turns around and blames citizens and eNGOs groups for delaying development by challenging decisions in the courts.
“No one wants to cause a delay or go to court for the fun of it – it’s a very serious undertaking that citizens and eNGOs don’t do lightly. They do it when decisions are flawed and the law isn’t followed, and their environment, homes, and the places they love and care for are being put at risk.”
“We’re calling on every election candidate to oppose these proposals. If the next Government wants to avoid development delays and protect the environment without compromising rights, they must focus on improving the quality of decisions by providing proper resources to Public Authorities, An Bord Pleanála and the Courts and make clear and uncomplicated legislation governing decisions.”
ENDS Consultation page: https://tinyurl.com/tawnhgn. The Pillar views the consultation process as deeply flawed, including the following key concerns:
•Failure to hold consultation prior to developing detailed Heads of the Bill;
•Lack of sufficient advertising and no formal notice to environmental stakeholders;
•Period of consultation over Christmas and New Year when it is not realistic to expect public to engage;
•Very short deadline – 23 working days – for submissions that was only briefly extended after pressure from eNGOs, and some members of the Oireachtas and MEPs
•No background analysis or supporting information provided as part of the consultation Pillar submission: https://tinyurl.com/vz7qa99  Although a planning Bill in name, the proposals would impact challenges to decisions on the likes climate, energy and transport plans, and consents in oil and gas, forestry, aquaculture, water quality. The Heads of the proposed Bill are here.  Proposed rules aim to limit court challenges to building projects: https://tinyurl.com/tl8xjmb
& Varadkar promises law to block ‘vexatious’ planning challenges: https://tinyurl.com/y6yzxnd8 The proposed Bill includes stricter grounds for citizens and environmental groups to bring a legal case. Environmental groups, for example, would have to be in existence for up to three years and have over 100 members to qualify. This will remove automatic standing rights of groups that are brought together to challenge a particular development, whether intended or not.  The Bill calls for a change in standing requirements so that applicants will have to show “substantial interest” rather than the current lower threshold of “sufficient interest” in order to bring a case. They would also have to show that they are “directly affected” in a way which is “personal or peculiar” by a proposed development and must also show prior participation in the planning process by, for example, making a submission on a live planning application outlining their concerns.  The Bill would see a cost capping system put in place that critics say will make it prohibitively expensive for the public and environmental NGOs to take legal cases. The high cost of mounting legal challenges in environmental cases is recognised by the Commission and the EU Court of Justice as an issue in Ireland.  The EU’s Environmental Impact Assessment Directive sets out legal requirements for the assessment and decision process for most major development decisions, and Irish legislation must address these. A new version of the Directive, with significant changes was made in 2014 and should have been transposed and implemented into Irish law by May 2017. However, the Government’s 200 pages of legislation in a Statutory Instrument wasn’t implemented until July 2018. In the consultation document on the changes, the Government issued a stark warning to anyone considering making a planning application in the interregnum period effectively indicating they did so at their peril stating: “174. It will be a matter for the developer to decide whether to submit an application for development consent which requires screening, or to request scoping, or to submit an application accompanied by an EIS, in any interregnum between 16 May 2017 and the making of the transposing Regulations, if later.”  This includes the European Charter of Fundamental Rights, The European Convention on Human Rights, and The Aarhus Convention, in addition to the Treaty of the European Union and a number of EU Directives