Environmentalists raise alarm over access to justice killing legislation

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IMMEDIATE RELEASE

The Government is trying to push through a draconian Bill before next year’s impending election that would kill access to justice rights on environmental issues, warns the Environmental Pillar.

The comments from Ireland’s leading environmental coalition come in the wake of the hushed launch on Monday of a very short public consultation over the holiday period on the General Scheme for the Housing and Planning and Development Bill 2019. [1]

Neither the Pillar nor its sister coalition, the Irish Environmental Network, were directly informed about the consultation launched by the Minister for Planning Eoghan Murphy TD and only found out about it by chance late on Wednesday evening.

The Government’s proposals introduced by Mr Murphy seek to change standing and costs rules that would make it near impossible for citizens, local groups and environmental NGOs to challenge bad planning decisions in the courts and hold authorities to account. [2]

Since the existence of the Heads of the Bill became known last month, legal professionals, including the heads of FLAC and the Irish Council for Civil Liberties, academics, citizens’ groups and international environmental lawyers have all outlined their concern with the Bill.

Thus, a proper public consultation is vital. The Government has, however, decided to launch a consultation that, in the view of the Pillar, flagrantly disregards international, EU and national obligations for public participation on environmental matters. [3][4]

Key concerns with the consultation process include:

· Failure to hold consultation prior to developing the detailed Heads of the Bill;

· Lack of sufficient advertising and no formal notice to environmental stakeholders;

· Period of consultation during holiday period when not realistic to expect public to engage;

· Very short deadline for submissions – only 23 working days;

· No background data and associated documents provided as part of the consultation

The format, timing, short deadline and poor advertising of the consultation is not conducive to effective public participation and sends a clear signal that the views and interests of the public in this matter are of little consequence to the Minister and the Government.

The Bill – Access to Justice under threat

The proposed Bill would add further requirements and restrictions making it very hard for ordinary citizens and eNGOs to achieve the necessary “standing” to bring cases to the courts.

This legislation would row back on major changes introduced just a few years ago to enable citizens, local groups and eNGOs to challenge bad environmental decisions. Those changes were long overdue and necessary to comply with EU law and the Aarhus Convention. [5]

The most worrying aspects of proposed Heads (explored in attached briefing document) are:

· Change to cost rules from a system where costs should “not be prohibitively expensive” to a cost cap rules system. This exposes the public and eNGOs to much higher costs, ensuring many will be dissuaded from bringing a case and making it harder to engage lawyers [6]

· 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… in a way which is peculiar or personal”. [5]

· Extension of minimum time that an NGO must be in existence before it can challenge a planning decision from 12 months to 3 years, ruling out new citizen-led NGOs concerned with local environmental and climate from bringing challenges [8]

· Insertion of new requirement that NGOs must have 100 affiliated members, thereby ruling out the vast majority of Irish groups from bringing challenges [9]

· Increased requirements for the “leave” stage (where you get court permission to challenge) with proposal to return to abandoned “on notice” system and adding to tests and complexity of the leave – this adds to the costs, duration and difficulty of court proceedings

Commenting on the poor public consultation process, Pillar Coordinator Karen Ciesielski, said:

“Despite the critical importance of further debate on this very contentious legislation, the Government decided that it was best to sneak in a public consultation on the heads of the Bill right at the start of the Christmas and New Year holiday period.

“The deadline for submissions – currently set for 13 January – gives the public, concerned conservationists and the many professional bodies and academics concerned about such matters a very short window to get their valid views across on this important matter.

“The timing of the consultation is not conducive to effective public participation. To schedule the consultation at such a time sends a clear signal that the views and interests of the public in this matter are of little consequence to Minister Murphy and the Government.

“The poor timing of the consultation is compounded by the lack of any meaningful effort to promote awareness of the public consultation. Despite the fact the Irish Environmental Network and the Environmental Pillar are key stakeholders in this matter, neither were afforded even the courtesy of a notification on the consultation.”

Commenting on the Bill, Attracta Uí Bhroin, Environmental Law Officer at the Irish Environmental Network, said:

“Minister Murphy is playing skittles with the three pillars of the Aarhus Convention that gives rights to citizens and eNGOs, as well as obligations for public authorities. First, he is trying to obliterate the access to justice pillar that gives rights to the public to challenge bad decisions of public authorities.

“Second, the appalling scheduling of this public consultation is steam-rolling over public participation rights, and third, the short timing makes it impossible to leverage the Convention’s access to information rights so that people can make informed submissions.

“As Environmental Law Officer of the IEN, I have written to the Minister this week urging him to extend the consultation. The request was made in the interests of the public at large, the many professional bodies concerned about such matters, and our own members.

“The proposed Frankenstein-like monster legislation would kill 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.

“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 drive litigation and the proposal for this Bill do 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.”

ENDS

[1] Consultation page: https://www.housing.gov.ie/housing/public-consultation-general-scheme-housing-and-planning-and-development-bill-2019

[2] The Heads of the proposed Bill: https://www.housing.gov.ie/sites/default/files/public-consultation/files/2019_1030_general_scheme_hpd_bill.pdf

[3] Directive 2003/35/EC: “The public concerned shall be entitled to express comments and opinions to the competent authority before a decision is taken… Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making…” https://goo.gl/7CeQHB

[4] National Consultation Principles & Guidance state: “Depending on the significance of the proposal, a consultation process would ordinarily be expected to vary from 2 to 12 weeks… A longer period is appropriate where those with limited resources, such as individuals and small businesses, are being consulted. In addition, longer consultation periods may be necessary when the consultation process falls around holiday periods”

[5] 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.

[6] 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…

[7] 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…”

[8] 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…

(9) 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 [100] affiliated members…

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