What is “disability”?

(My thanks to Randy Glasbergen)

 

We are always taught to define key concepts at the beginning of any investigation, so let’s try and do that. What is meant by the term ‘disability’?

Disability was defined by the World Health Organisation (WHO) in 2008 as:

“Disabilities is an umbrella term, covering impairments, activity limitations, and participation restrictions. An impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Thus disability is a complex phenomenon, reflecting an interaction between features of a person’s body and features of the society in which he or she lives”.

The WHO have since withdrawn this definition, and it is interesting to note that the WHO website no longer has a separate section for ‘disability’. What this 2008 definition did highlight was the distinction between ‘impairment’ and ‘disability’, with the point being that whilst the former is a physical fact which can possibly be objectively verified and measured, the latter is a product of society, influenced by factors like participation, or more often by limitation or exclusion.

To use slightly blunter language, disability can be seen as a convenient label for social discrimination: a social phenomenon rather than something directly arising from each individual’s impairment.  It also means that society can deliberately ignore the individual and the individual impairment, preferring to label, and thereafter collectively deal with, individuals as a part of a group defined by their disability, rather than by their individual attributes.

Doesn’t say much for society, does it?

Some would even go further and argue that government policies with regard to those with disabilities are simply an exercise in economies of scale: lump them together, treat them the same, and keep costs down by financing a one size fits all budget.

This sort of approach has far more than just financial or economic consequences, however. It is also an exercise in removing the humanity from the disability, thereby turning the disability into a commodity that is subject to budgets and balance sheets like everything else that must be paid for. It is far more politically expedient (and a lot cheaper) to talk about “those on the spectrum” than attempt to tailor services to individual needs. Try teaching an autistic child and an Asperger’s child and a Down’s child the same lesson in the same classroom and you will understand what I mean – and yet this is exactly what is happening.

 


Two theories of disability

The dominant and most common theory of disability is the medical model, often (ironically) called the ‘individual’ model of disability. According to the medical/individual model of disability the problems disabled people face in their daily life are mainly caused by their impairment, either physical or mental, and these impairments prevent the disabled person from fully participating in society. A good example is the so-called employment discrimination law. The statute or its regulations provide a list of the conditions or definitions of impairments which will allow a person to claim the protection of that legislation. In other words, the emphasis is on the individual and/or his/her impairment, rather than looking at their skills, which is how ‘normal’ people are selected for employment.

With the emphasis that the whole capitalist system places on the need for the employee to turn up for work every day and do a ‘full-day’s work’, it is little wonder that governments have seen it necessary to create a marginalised group of ‘people with disabilities’ or the cuter sounding ‘people with special needs’.

Before the advent of our highly industrialised and automated society, it might have been possible to find a place in the workforce for somebody with an intellectual disability, and even somebody with a moderate physical disability. The rural production process, and the extended nature of the feudal family, allowed many to make a genuine contribution to daily economic life. Families living and working as large groups were able to provide networks of care for children and the elderly, and in turn children and the elderly had a specific and important contribution to play in the process and the family which changed depending on age and capabilities.

In a industrialized and highly specialized society, if you are not able to work in a factory or operate a machine in the manufacturing process, you are useless to the capitalist economy and accordingly are marginalised as ‘disabled’. In other words, useless, surplus to requirements.

This raises interesting questions in our modern, highly automated, computer-driven society. Could it be argued that there should be more space for at least the physically impaired given the relative physical ease with which the instruments of production can now be controlled?  It can certainly be argued that there has been some movement to re-admitting the physically impaired person back into the workplace, by the gradual transformation of that workplace to allow greater ease of access (wheelchair ramps, lifts, etc.). Whilst this can be seen as progress, the more cynical would argue it allows the capitalist owner of that facility to extract a full day’s work from that person, which was not possible before.

Whilst such an economic analysis (favoured by the Marxists) is undoubtedly important, and perhaps self-evident, it is not the only reason for the marginalisation of people with disabilities. At the same time the church and religion was a very dominant force (and this was especially true in Ireland, where the Roman Catholic Church had a hugely influential role in all things government and traditionally dominated any political discourse until as late as the eighties.) Again, it was only relatively recently that the church stopped regarding the disability as a mark of good or evil (depending on the disability) which usually culminated in people with disabilities being institutionalised and hidden from public view.


Hopefully this model of disability is on the way out, to be replaced by what is commonly known as the social model of disability.

This model recognizes that disability is a social construct because it is the wider community (i.e. me and you) that erects and places societal and environmental barriers such as attitudes, policies and the physical environment, and that these barriers function to exclude or marginalize individuals with disabilities.

The social model of disability aims to integrate individuals with disabilities into the broader society by recognizing that changes are required by society as opposed to the individual concerned, for example by setting out the rights of individuals with disabilities to participate in the labour market, measured by their potential contribution, rather than by their impairment.

The social model of disability underpins the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and this should allow for an expansive definition of disability to develop.


Disability is defined in Article 1 of the CRPD:

“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

What is interesting about this definition is that it is not a definition at all. It rather confirms that disability is a social construction which places barriers to prevent the full and equal participation of the person with a physical or intellectual impairment.

This approach reflects a social and human rights model of disability by highlighting that is society’s failure to accommodate the needs of people with disabilities which give rise to their impairment, rather than as a direct consequence of their physical or intellectual condition.

Therefore, what we as a society need to be asking is how can we change our attitudes and approaches to people with disability, so as to include them in everything we do, rather than holding them at arm’s length like some alien race?

Posted in Autism, Autistic Spectrum Disorder, ASD, Special Needs; Intellectual Disability; Marriage | Tagged | Leave a comment

People with intellectual disabilities who want to marry.

In the matter of A

A man with an intellectual disability who wants to marry his long term partner has won his appeal to halt an inquiry into whether he should be made a Ward of Court.

In June 2019, the man’s care provider successfully applied for an injunction from the High Court to prevent the man from marrying his partner. The High Court then considered whether the man should be made a Ward of Court. The man opposed the application for Wardship, as it would prevent him from marrying his long-term partner who also had an intellectual disability, but was high functioning.

The application for Wardship was supported by the man’s siblings and the institution which cared for him. The man’s legal team argued his prima facie right to marry would be extinguished if he was made a Ward of Court despite there being no assessment of his capacity to marry.

Inquiry into Wardship

The Wardship procedure is commenced in the High Court. The High Court will direct an inquiry into the capacity of the individual prior to deciding whether the individual should be taken into Wardship. The following procedure applies:

Two doctors will be required to provide evidence as regards the incapacity of the individual. If the Court is satisfied that the matter should proceed further, then the individual will be medically examined and a report furnished to the High Court in relation to the individual’s capacity.

If no objections are filed, a “Declaration Order” may be made declaring the individual to be of unsound mind and incapable of managing his/her affairs and taken into Wardship.

A Committee of the Ward will also be appointed (usually the next-of-kin). All of the Wards funds and/or assets are then lodged with the Accountant of the High Court and the Accountant will have the responsibility for these funds.

The appointed Committee of the Ward of Court oversee the Ward’s wellbeing and liaise with the Registrar of the Ward of Courts regarding their needs and requirements.

The Court of Appeal

In August 2020, the Court of Appeal heard the man’s application to halt the Wardship proceedings. The Court of Appeal had to decide whether the man was entitled to marry or at least be entitled to have his capacity to marry assessed and determined by a fair and appropriate procedure. The Court of Appeal did not decide whether the man in fact had capacity to marry as that would necessitate substantive court hearings.

The Court of Appeal upheld the man’s challenge. The Marriage of Lunatics Act 1811 says that the marriage of a Ward of Court shall be void. In such circumstances, the Court of Appeal found that the man was entitled to have his capacity to marry appropriately assessed but that, because of the effect of the 1811 Act, such an assessment would be unavailable if he was admitted to Wardship. In other words, if the man was admitted to Wardship, he would never have a hearing about his capacity to marry and that door would be (permanently) closed to him. The man would not have an opportunity to show that he did indeed have the capacity to marry.

Capacity to Marry

In the ruling of the three-judge Court of Appeal, Collins J. described the case as “acutely difficult” and noted the question of the man’s capacity to marry was “a matter of intense dispute”. The following are some of the factors which were taken into account by the Court of Appeal in upholding the man’s challenge:

In her judgment, Whelan J. referred to Ryan v Attorney General [1965] IR 294 where the Court found that the right to marry was a personal right under Article 40.3.

Concurring with Whelan J, Collins J stated that the right to marry is a fundamental constitutional right as per Zappone v Revenue Commissioners [2008] 2 IR 417. He further commented that “The subsequent adoption by the people of the Thirty-Fourth Amendment to the Constitution, extending the right to marry to same-sex couples, demonstrates in a very concrete way the important value attached to that right in this jurisdiction.”

In his judgment, Collins J. said that societal attitudes to the question of whether people with intellectual disabilities should be able to marry had changed significantly since the introduction of the Assisted Decision-Making (Capacity) Act 2015 (the “2015 Act”), which once commenced will repeal the Marriage of Lunatics Act in 1811. As set out above, the 1811 Act provides that the marriage of a Ward of Court shall be void. The situation will be different once the Act commences which will mean that some intellectually disabled people will be able to marry. In this regard, Collins J. stated that “This is hardly a satisfactory state of affairs given the vital importance of the issues that the 2015 Act addresses.” (Despite its enactment, the 2015 Act has never been put into operation).

Collins J. also referred to English jurisprudence which suggests that the test for capacity to marry is “issue specific”, as per Sheffield City Council v E [2004] EWHC 2808 (Fam). In that case, Munby J. held that capacity to understand the nature of the marriage contract “is not the same as capacity to look after oneself or one’s property. Often, of course, someone who lacks the capacity to do the one will also lack the capacity to do the other. But not necessarily.”

Collins J. stated that the evidence before the Court of Appeal established a very significant risk that the man’s admission to Wardship would prevent his marriage and effectively close off any assessment of his capacity to marry as well as bring any legal proceedings he had brought asserting his right to marry to a premature conclusion. Collins J. said that that would involve a “manifest and serious potential injustice” to the man and his partner.

Collins J. acknowledged that whatever ruling the Court of Appeal would make was certain to cause anguish. Collins J. stated that he did not disregard the countervailing factors present in this case and gave significant weight to the welfare concerns expressed by the siblings of the man. In this regard, Collins J. stated that he attached significant weight to the fact that the interim orders made by the High Court (which restrain the man from leaving the State and regulating where he lives) will continue in force and if necessary, further orders may be sought.

Collins J. emphasised that the Court’s ruling should not be taken as calling into question the powers of the President of the High Court to manage the Wardship list. However, Collins J. said that it appeared that the decision of the High Court gave rise to a serious risk of injustice to the man. In such circumstances, Collins J. said that the Court of Appeal was clearly “entitled and obliged to intervene”.

The Assisted Decision-Making (Capacity) Act 2015


The Act provides for a new human rights-based framework for people with capacity issues. The supports provided for and monitored by the Decision Support Service (“DSS”), will ensure individuals with capacity issues are afforded their fundamental human rights to make their own decisions as far as possible about their personal welfare, property and affairs and finances. The Act also abolishes the current Ward of Court system and replaces it with a modern, person-centred framework to maximise autonomy for people who require support to make decisions about their personal welfare, property and financial affairs. It is estimated that 220,000 adults in Ireland could benefit from these reforms. Despite the pressing need for this Act, successive governments in Ireland have left it “on the shelf”, unused.

Constitutional Challenge

In November 2020 the man brought a constitutional challenge against the Ministers for Health and Justice, Ireland and the Attorney General over laws he claims are wrongfully, and in breach of his rights, preventing him from getting married.

He seeks various declarations including that the 1811 Marriage of Lunatics Act and the 1871 Lunacy Regulations are unconstitutional, and breach his rights under the European Convention of Human Rights. The 1871 Act regulates the High Court’s wardship procedure, while the 1811 Act voids any marriage entered into by a ward of court.

He also seeks a declaration the wardship jurisdiction vested in the High Court president in the 1936 Courts of Justice Act, and the 1961 Courts Act is unconstitutional and also breaches his rights under the ECHR.

He further seeks a declaration, in order to protect and vindicate his rights, the defendants must bring into force without further delay section 7 of the 2015 Assisted Decision Making (Capacity) Act which provides for replacement of the existing wards of court system and introduction of a new system of supported decision-making.

Ms Justice Leonie Reynolds made orders for the Irish Human Rights and Equality Commission to be joined as an amicus curiae to the action. The Commission, represented by Eoin McCullough SC, will provide submissions on the legal issues. The matter will be mentioned before the court in January, with a view to being heard in the spring 2021 session.

Posted in Special Needs; Intellectual Disability; Marriage | Tagged | Leave a comment

Learning at Level 5

This blog has been quiet for a while as I am currently engaged with lecturing online, which is a time-consuming and often stressful exercise, as there are so many elements completely beyond your control. I know that from a student perspective this is a really tough gig, and students (and their families) need all the help that we can give them.

With that in mind, I am developing a Discord site containing all manner of learning aids, lecture materials, and supplementary sources. Being a lawyer there is obviously a bias towards legal materials, but during my career, in addition to lecturing law students and before that legal practitioners , I have lectured students in many other disciplines, including academic skills and exam-writing techniques to first year students. I have also helped Leaving Cert students with grinds, and jobseekers with FETAC courses.

I am making all these materials available to be used by anybody and everybody. It is obviously an ongoing exercise / work in progress, hopefully getting bigger and more useful all the time.

If you could please spread the word to family and friends, or anyone that you know is currently at school, college, university, or doing an online upskilling course; that would be great.

In addition, if you have any such materials that have helped you or a family member in the past with your studies, please send them to me, and I can put them on the site, with an acknowledgement (if you want it) to the sender.

The invitation link to the site is:

https://discord.gg/6gWgMRT

Stay healthy and happy in these testing times.

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The concept of Standing and the access to justice

access to justice

The Roman forum was a busy, often chaotic, place. Merchants, moneylenders, prophets, politicians, herbalists, apothecaries, and so on, were all jostling around doing business. It was similar to our modern-day marketplace, but probably a lot rowdier.

What set the Roman forum apart from our experience of an open-air market was that the courts were also held in the forum. The Romans were in many ways the reason why we have the saying “justice must be seen to be done”, as they were insistent that the courts operated in public view.

However, you can imagine trying to hold legal proceedings in a rowdy and noisy marketplace. It was often difficult for the judges to see the litigants, let alone hear them. The Romans solved this problem by inventing an ingenious system. There would be a stone or small pedestal or the like and a litigant would stand on that. The person standing on the stone would be recognised by the court and invited to present his case. This was known as locus standi, or “a place to stand” (a place of standing). It is the basis of our modern law of standing.

locus standi

In our modern law, if a person has standing, it means they have the right to be heard in a court of law.

In terms of the common law, to have standing all a person needs to show is that they have an interest in the matter before the court. In essence this means that the outcome of the matter before the court will affect that person in some material way, be it financially, as a matter of status, or in pending litigation, for example.

When it comes to statutory law, things get a lot more complicated. Very often, in addition to showing that they have an interest in the matter, the aspirant litigant often needs to jump through a number of hoops in order to have the right to be heard in court.

There is obviously a fine line between a legal free-for-all and a deliberate barring to justice.

This tension has long been a thorny issue when it comes to environmental justice for the average citizen, as many would argue that a citizen should have an inalienable right to challenge decisions affecting the environment.

An example of a standing requirement is found in Section 50A of the Planning and Development Act of 2000 which deals with an application for a judicial review of the granting of planning permission by a local authority:

Subsection (3) says that the Court shall not grant section 50 leave unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and
(b)(i) the applicant has a sufficient interest in the matter which is the subject of the application, or
(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant—
(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection,
(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and
(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c), would have to satisfy by virtue of section 37(4)(d)(iii) (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv) shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were a reference to the class of matter into which the decision or act, the subject of the application for section 50 leave, falls).

Subsection (4) says that a “sufficient interest” for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest.

In other words, where a person is not directly impacted by the proposed development, then they must belong to an established organization with a proven and established track record of promoting environmental protection, and the development must have more than a localized dimension.

The Supreme Court has examined this notion of “sufficient interest” in the 200 Act. In Grace and Sweetman v. An Bord Pleanála [2017] IESC 10 the following explanation was provided:

“8.7. It is, … clear that a person who has a sufficient proximity, having regard to the nature of the development and any amenity in the location of the development (which might potentially be impaired), will have standing even without participation. Those who do not have such proximity may reasonably be required to show that they have some interest which is potentially affected and one very clear way of doing that is by demonstrating that interest by participation in the permission process. That is not, however, the only way in which such an interest can be demonstrated.

8.8. The more general and more important the amenity which may be at stake then the wider range of persons who may well be able to show that they have an interest in the amenity of the area which is the subject of the proposed development. The nature of the legal challenge intended to be mounted will be relevant also. For example, a person who cannot show proximity to a proposed wind farm and did not participate in the process is unlikely to have standing to make an argument more properly raised by a person more directly affected. In our view a challenger who has not previously participated and cannot show any direct personal prejudice must satisfy the leave judge that the point being made is one directed solely to the purpose of the special protection of the site”.

EU law does not take the matter much further. Article 11 of the Codified Directive 2011/92/EU, read with the applicable provisions of the Aarhus Convention, effectively says that it is up to the legislature of each country to define what constitutes “sufficient interest”, as long as this definition allows a “wide access to justice”.

A more recent example of executive attempts to restrict the citizen’s access to environmental justice comes in the form of the Agriculture Appeals (Amendment) Bill of 2020 which seeks to extensively amend the Agriculture Appeals Act (“the 2001 Act”). The Bill substantially amends Section 14A of the 2001 Act as it sets out who is entitled to lodge an appeal against a decision of the Minister or an officer acting for the Minister (known as a “relevant person” who has “standing”).

Again, the common law of interest is stated as it is includes a person who applied for a licence and that licence was refused or granted with conditions; a person who made representations about that person’s application; a person who owns or has an interest in adjoining land to the land affected by the licence application; a member of the public who should have been consulted about the licence application; an “environmental body” when the application requires an EIS or Natura Impact Statement where the environmental body is in the business of promoting environmental protection and has been doing so for at least a year.

However, there is a further hurdle, and the question must be asked whether this immediately prevents a “wide access to justice”?  Section 5 of the Bill authorizes the Minister to charge a fee for making an appeal against a decision involving public forests.

Surely there is nothing “more general and more important” than the treatment of public lands and public forests? Accordingly, it must be argued that any limitation on the right to appeal these decisions immediately falls foul of the test laid down by the Supreme Court and by the European Court of Justice. It is therefore imperative that the offending provisions are removed from the Bill immediately.

Posted in Access to Justice; Locus Standi; Standing; Legal Standing, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty | Tagged , , , , , , , , , | 7 Comments

Public Consultation – fruitful or farcical?

What makes a good public consultation?

I often write about a flawed or absent public consultation process. People keep saying to me: “We know how you are not supposed to do it, but can you not be constructive and suggest how a good consultation is set up?”.

Public consultation is a process that involves the public in providing their views and feedback, usually on a proposed Bill before it is let loose on the Oireachtas. In this blog I would like to discuss the elements of a good (general) consultation and how the efforts of the present (and past) governments score on that particular framework.

The timing of the consultation

 

The ideas, opinions and suggestions from the public should be invited whilst the policy under consideration is but a germ of an idea. There must be enough detail for an ordinary person to understand what they are being asked, as opposed to being asked to comment on a completed policy document. This is obviously a tricky balance, as there must be enough detail to allow the public to understand the issues at stake, and what they need to think about, but not so much as to make that process pro forma.

Article 6, Para. 4 of the Aarhus Convention:

“Each Party shall provide for early public participation, when all options are open and effective public participation can take place.” (my emphasis)

In other words, the policy must be able to change, significantly if necessary, if cogent arguments are presented by the public why this should happen.

The other balance that needs to be achieved is the balance between inviting as much discussion and input as possible, and actually getting the policy into legislation and implemented. Again, this is a tough one, but the Department concerned need to invite suggestions whilst the proposal is still in the brainstorming phase, rather than the current practice of inviting suggestions in the ink-drying phase. Similarly, the slavish adherence to the absolute minimum timeframe allowed (usually a month) is incredibly short-sighted. Where proposed legislation is contentious or will affect a large proportion of the public, one month of consultation is hopelessly inadequate. Flexibility is essential.

The other thing about timing is that the consultation should not be seen as having a beginning and an end (usually that one month). It should be recognised as a process, and policy makers should be alive to evolving suggestions which might be modified as the project continues, or where the policy has been in place for a while and can now be retroactively analysed.

To me this is the most important aspect of public consultation, with everything else paling in comparison. What our government calls public consultation is in fact public participation, where the numbers of people consulted and who responded are often cited, but with no details of how their ideas were actually implemented, which means they were not.

The invitation to consult

The initial invitation to consult must be done properly so as to attract public participation, and by as many as possible.

The public must not be treated like a child being fed line and verse, as they are capable of making sense of complex issues. At the same time, this does not mean that they are experts in any field of policy, and the information sheet must be written in language that is accessible to the ordinary person, with key terms and concepts being properly explained.

Stakeholders should be identified and sought out. Rather than hiding the invitation on the back page of the Gazette, or on the third layer of a website (current Government practice), the invitation should be emblazoned on the home page of the department concerned. In addition, the Department should seek out individuals and organisations that will be affected directly or indirectly by a project or a decision, as well as those who have the ability, experience or qualifications to influence the decision or policy, both positively and negatively. They can also be people who simply have an interest in the project. So, for example, an invitation may be published on Facebook pages of relevant organisations.

This really isn’t rocket science, and there are simple questions that can be asked before preparing and disseminating an invitation to consult. Questions that help identify the “public” or “stakeholders” might be:

  • Who is affected by this decision? – For example, the local community, neighbours, landowners, local businesses.
  • Who may have influence on the decision? – For example, community leaders, religious leaders, politicians.
  • Who knows about the subject? – for example, the academic community, NGOs.
  • Who has an interest in the subject? – For example, community groups, groups with special interests.

The value of good public consultation

One would think that this is a no-brainer – collective brain power and creativity must always be superior to a huddle of politicians and civil servants.

However, perhaps the greatest value of good public consultation is that it is both a requirement and a by-product of democracy. The process acknowledges the desire for people to have a say in decisions that affect their lives. More importantly, it provides an opportunity for the affected people (and interested parties) to have a say in decisions that affect their lives. At the same time, it provides the decision makers a better understanding of the stakeholders’ values, interests, issues, and concerns about the proposal to incorporate into decisions and ultimately empowers them to make better decisions. Finally, the process informs the public and helps them accept any resulting changes.

That is the ideal, the theory, but what really happens in practice?

Perhaps my favourite analysis is provided by Paul Hunt:

“All public consultations are a farcical optical illusion. The economic regulators have become extremely adept at conducting these ‘public consultation’ and interested Departments could learn from them – and probably will.

First, you announce what you intend to do – having already squared all the key interested parties who could cut up rough if you weren’t proposing things that were to their liking – and invite submissions from ‘interested parties’ and from the public.

Then, after a pre-announced lapse of time, you publish your final decisions, the submissions you received and some sort of response to these submissions. Focus on the submissions that are broadly supportive of what you have decided. You should have a fair few of these from the interested parties that you squared already. You will probably have to deal with a number of submissions that are critical of your decision. Some of these will be relatively easy to dismiss. Some critiques, however, may be more soundly based. You have to be very careful here. The first thing is to search for any error in a factual statement. It doesn’t matter how small or irrelevant it might be in the context of the critique advanced. Just seize on it and you can use it to demolish the entire argument. If the submitter is aware of this trick and manages to avoid falling foul of it, select a piece of the argumentation out of context and subject it to ridicule. If all this fails, simply select parts of the argumentation out of context and declare an inability to understand the point the submitter is making.

This is a pretty standard approach. The more experienced economic regulators have developed even more sophisticated techniques to ignore or dismiss critiques of their proposed decisions or actions, but the end result is the same. Once you’ve gone through this process you do can more or less as you like.

The only time this exercise comes to grief is when you upset one of the bigger interested parties which has a serious economic or commercial interest – and which has the interest and resources to mount a legal action.

At the end of the day final consumers and ordinary citizens will end up paying for the impact of the decisions you make – and they have absolutely no means of advocating or representing their interests collectively. So once you go through this process -and don’t upset any of the bigger interested parties – you’re in the clear.”

Public consultation as a process has huge potential for creating imaginative, practical, and problem-solving legislation. Unfortunately, those principles do not appeal to the insecure, the power-hungry, the greedy, or the corrupt.

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, lobbying; democracy; political process; general election, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty | Tagged , , , , , , , , , , , , , , | 2 Comments

Victims Vindicated: Farmers Victorious in Landmark Legal Battle Over Wind Turbine Noise

Will Irish judges follow the lead taken by their Australian counterparts?

Victims Vindicated: Farmers Victorious in Landmark Legal Battle Over Wind Turbine Noise August 25, 2020 by stopthesethingsLeave a Comment Victors …

Victims Vindicated: Farmers Victorious in Landmark Legal Battle Over Wind Turbine Noise
Posted in EirGrid; Insurance; Law; Cancer; EMF | 1 Comment

More on Forestry

Those readers who were I interested in my previous blog on the forestry industry in Ireland will be interested to read an interview that Peter Sweetman gave to the Irish Independent. I have selected some highlights from the interview:

Peter Sweetman is not opposed to forestry, he says, he’s opposed to the Government “getting around EU legislation”.

Known for his numerous submissions, the Mayo-based environmental activist currently has 21 outstanding objections against Coillte, but says he’s not to blame for any alleged shortage of felling licences, which others claim is causing a shortfall of timber in the country.

“They are accusing me of stopping all the wood because I have these 21 appeals. On August 5, 2020, Coillte put in 300 applications for felling licences. If I have 21 out of 300 they lodged I am not causing the world to stop. It’s all spin — inefficiency always needs a scapegoat.

“I am not against forestry. I am very tree mad and am surrounded with them here. I am objecting to the fundamental principle of getting around European directives and court cases. I believe in the old-fashioned Fine Gael thing of compliance with the law.

“A felling application is also an application to re-afforest. If the land was never afforested properly the first time around, and never had an EIA when it should have, it needs one next time around, but we ignore that.”

Sweetman says his major complain is that foresters are not doing a proper Environmental Impact Assessment (EIA) when applying for felling licences.

“If you want to plant 90ha of forestry in the one place, you put down 45ha in one year and then three years later you can plant the other 45ha, without an EIA.”

A cow shed, he says, over a certain size requires planning permission. “The fact whether you build an extension one year or ten years from the original shed, you still need planning permission, but the forest service and the Minister says as long as you put it (forestry) three years after it’s OK.

“I would say a proper EIA on forestry could be throwing up the fact the flooding on the Shannon is caused by the draining of the bogs in Leitrim. It’s quite likely. These are things that have to be looked at.”

Sweetman is also critical of the recently announced public consultation by the Minister of State for Land Use and Biodiversity Pippa Hackett on changes to the Agricultural Appeals Act. These changes would restrict the ability, and eligibility, of some people to appeal forestry decisions, including the giving of licences. It also introduces a fee to lodge an appeal.

Another proposal is that the Minister can issue directives to the Forestry Appeals Committee.

Sweetman maintains that the Bill contravenes the Habitats Directive, the Environmental Impact Assessment (EIA) Directive, the Strategic Environmental SEA) Directive and the Aarhus Convention.

“I’m looking for full compliance with the EIA, Habitats Directive and the Aarhus Convention. The only Minister in Europe diminishing the Aarhus Convention, which is a green convention, is the Minister for Forestry, Pippa Hackett. That’s pretty awful from a Green Minister,” he says.

He also says the Forestry Appeals committee claims to be unattached to anything, but the new forestry act would give the Minister power to make directions at them. “They could say all Coillte decisions have to be passed.”

Sweetman is highly critical of what he calls “secrecy” within the forestry sector.

“EU law is public but the entire forestry sector is secret. When you apply for a felling licence, you have to put a site notice up and you have to put a copy of the site notice into the planning office. But the copy of the site notice that goes on the public file in forestry has the name of the owner blacked out. It’s part of the secrecy.

Sweetman says he has no axe to grind with farmers looking to plant or fell forestry.”If the farmer sends me the relevant information, which would cause me to say it’s fine, I will withdraw any application. The actual assessments — if it requires an EIA, if there is adjoining forestry how much land and if it needs an NIS, you have to submit that. That’s all I want.”

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Seeing the Wood and the trees.

DB76B440-C01B-4F77-A0B0-572142FFBF59_1_201_a

 My most favourite place is in a forest. They are full of energy, they smell lovely, they shield you from outside noise, there is birdsong and the occasional chatter of squirrels, you might see deer or other forest creatures, and there is often the burbling brook just to top it off. Forests make you feel alive and recharge your batteries for future use.

 

My research has taught me that by the early 1900s, forest cover in Ireland had been reduced to 1 per cent of the land area of the country. Tree felling was finally regulated with the introduction of the Forestry Acts of 1928 and 1946. By 2014, the area of the national forest estate in Ireland was over 730,000 hectares or almost 11 per cent of the total land area (Dail debates). While this had expanded significantly since the early 1980s with the introduction of grant schemes aimed at encouraging private landowners, mainly farmers, to become involved in forestry, it was accepted that this was still relatively low compared to other EU member states given that about 40 per cent of total land in the European Union is under forest cover.

 

It was noted in 2014 (Dail debates) that more than 54 per cent of the national forest estate was in public ownership, mainly through Coillte Teo (established under the Forestry Act of 1988), with the remaining 46 per cent in private ownership. This contrasted with the position in the 1990s when 70 per cent was in public ownership and only 30 per cent was in private ownership. In 2014, there were more than 19,000 private forest owners throughout Ireland, the majority of whom were farmers. Ireland’s forests were also widely used by the public for amenity and recreation, with an estimated 18 million recreational visits to Irish forests each year.

 

What is the position now? The official position, according to the Department of Agriculture, Food and the Marine (DAFM) in their 2020 report “Forest Statistics” is that:

  • The area of forest is estimated to be 770,020 ha or 11% of the total land area of Ireland (National Forest Inventory 2017);

  • Forest cover is estimated to be at its highest level in over 350 years;

  • Of the total forest area, 391,357 ha or 50.8% is in public ownership, mainly Coillte ;

  • The forest estate is comprised of 71.2% conifers and 28.7% broadleaves;

  • Nearly three quarters of the stocked forest area is less than 30 years of age.

 

Despite the glowing language, there has in fact been little progress in the last six years, and Ireland is still lagging markedly behind the rest of Europe, with marginally more forest than we had in 2014 (an increase of about 40,000 hectares in six years)

 

The forestry industry lays the blame squarely at the government’s feet. Teige Ryan, of None So Hardy forest nurseries, was quoted in the Irish Times (15/08/2020) as saying the forestry industry in Ireland, after years of decline, was now in a severe crisis. He compared the industry to “a patient with a long-term, serious illness who has just had a heart attack”. Mr Ryan said administration of forest services and licensing by the Department of Agriculture had never been accompanied by a sense of urgency, with the result that many farmers decided against planting trees, and Government targets for planting have been repeatedly missed.

 

In fact, the performance of the state body, Coilte, has been extremely disappointing. As previously noted, Ireland has sat on the 11% forestation for quite some time now, despite having a target of 18 per cent by 2050. That target in 30 years’ time is still well under half the European average.

 

To achieve this relatively modest target, it has been calculated that Ireland requires an annual afforestation programme of 15,000 hectares, according to the Wood Marketing Federation.

 

But government targets dating from 2014-2016 were for annual planting of just 8,000 hectares.

 

The government in turn points a finger at the decision of the European Court of Justice in case C-323/17 People Over Wind and Peter Sweetman v Coillte, (the famous River Nore Pearl Mussel case) where the Court of Justice ruled that mitigation measures could not be taken into account at the screening stage of an appropriate assessment. In other words, mitigation measures must be considered at the appropriate assessment stage, rather than screening. To do otherwise would completely undermine the Habitats Directive.

 

The DAFM complained that the decision had created the need for many more ecologists and administrative staff to implement the proper assessments. It takes a special type of warped logic to blame a court for pointing out that you are breaking the law.

 

That was three years ago. What has been done by the DAFM? Have more experts been hired and are proper assessments being carried out more efficiently and effectively?  Clearly not, if you speak to the forestry industry. Not only the industry, but other government departments, like the Department of Culture, Heritage and the Gaeltacht, who felt the need to remind the DAFM of their duties with regard to forestry.

Appendix 1 General observations

When faced with this sort of criticism about their bad performance, or any performance for that matter, the government did what it always does, it sought to throw a blanket over the whole process and exclude the public.

 

How did it do this?

 

It quietly published the Draft Agriculture Appeals (Amendment) Bill 2020 as an attempted cover up and stifling of the forestry appeals process, giving the public a month to comment.

 

When this Bill first came out I was completely bewildered as I have always known the Agriculture Appeals Act to be a mechanism whereby farmers could appeal if they were unhappy about the allocation of farming grants.

 

The Agriculture Appeals Act of 2001 provided an appeals mechanism to deal with appeals by farmers wishing to challenge decisions of officers of the then Department of Agriculture, Food and Rural Development regarding their entitlement to benefit under any of the specified schemes.

 

The Act established the Agricultural Appeals Office (AAO).  Appeals were dealt with by appeals officers appointed by the then Minister for Agriculture, Food and Rural Development. The chief appeals officer, a senior public servant, was known as the Director of Agriculture Appeals.

 

The list of specified schemes set out in the Schedule to the Act is surprisingly long but generally deals with livestock and its by-products, as well as the subsidising of various operational systems, like irrigation and waste management.

 

It is noticeable that apart from the mention of horticulture and agri-tourism, there seems to be little connection with forestry.

 

This changed in 2017 with the Forestry Act of 2014, which commenced on 24 May 2017. Part 11 of the 2014 Act, comprising Section 35 only, amended the Agriculture  Appeals  Act  of 2001 to extend its remit to a number of forestry activities and to provide for the establishment of a forestry appeals committee. As a result, the Agriculture  Appeals  Act 2001 (Amendment of Schedule) Regulations 2017 (S.I. No. 219 of 2017) updated the Schedule of Schemes which may be referred to the Agriculture Appeals Office for appeal under the Agriculture  Appeals  Act  2001 and also provided for the appeals procedure under the Forestry Act 2014, including the Forestry Appeals Committee. The Agriculture  Appeals  Act 2001 (Amendment of Schedule) Regulations 2017 came into force on 24 May 2017.

 

In other words, the Forestry Appeals Committee was now effectively a subsection of the Agriculture Appeals Office, and governed by the Agriculture Appeals Act. The specific remit of the Forestry Appeals Committee was to hear appeals against decisions made in terms of Section 7 of the Forestry Act 2014 (which deals with the granting of licences by the Minister); Regulation 3 of the European Communities (Forest Consent and Assessment) Regulations 2010 ( S.I. No. 558 of 2010 ); and Regulation 3 of the European Communities (Aerial Fertilisation) (Forestry) Regulations 2012 ( S.I. No. 125 of 2012 ).

 

This is the link between the Agriculture Appeals Act of 2001 and the business of forestry in Ireland. It explains why those who are interested in the conservation of our indigenous forests and the proper management and harvesting of our commercial forests are reacting to the proposed amendments to the Agriculture Appeals Act.

 

Planning Law and Forest Conservation? Hmmm.

 

It is therefore time to look at these proposed amendments, and their potential impact on our forests.

 

The stated objective of the Agriculture Appeals (Amendment) Bill of 2020 (‘the Bill”) is “to align the forestry licencing and appeals processes with similar planning processes”. This objective in itself is a bit of a head scratch as it would seem to be an attempt to align processes that should not, or at least do not need to be, aligned: planning and forestry licences. Why exactly is it necessary for these to be “aligned”?

 

The first part of the Bill adds to Section 14 of the Agriculture Appeals Act (“the 2001 Act”) and requires  the Chairperson of the Forestry Appeals Committee to issue an annual report similar to that of the Director of the Agriculture Appeals Office. Nothing to see there.

 

The next part of the Bill quite substantially amends Section 14A of the 2001 Act as it sets out who is entitled to lodge an appeal against a decision of the Minister or an officer acting for the Minister (known as a “relevant person” who has “standing”). Again, this is pretty standard fare and includes a person who applied for a licence and that licence was refused or granted with conditions; a person who made representations about that person’s application; a person who owns or has an interest in adjoining land to the land affected by the licence application; a member of the public who should have been consulted about the licence application; an “environmental body” when the application requires an EIS or Natura Impact Statement.

 

An “environmental body” is defined as

“a body or organisation (not being a state authority)-

(i) the aims or objectives of which relate to the promotion of environmental protection,

(ii) which has, during the period of 12 months preceding the appeal, pursued those aims and objectives.”

 

This certainly aligns with current planning law, with the State putting up as many hurdles to public participation as it can legally get away with. Given the Aarhus scrutiny to which Ireland is currently subject, and the damning indictment of the executive by the Supreme Court in the recent Friends of the Irish Environment decision regarding the general lack of public consultation on environmental policy, this is an aspect of the Bill that needs to be redrafted to ensure maximum public participation when it comes to conserving public forests.

 

It doesn’t end there. The attempt to block or at least restrict public participation in the conservation of public forests is a two-pronged strategy. It is the next amendment that I am assuming is the reason there are so many angry faces concerning this proposed Bill, because the next amendment involves the payment of fees.

 

Section 5 of the Bill says that:

“The Principal Act is amended by the insertion of the following sections after section 14A:

“14B (1) The Minister may charge such fees as he or she may prescribe for an appeal under section 14A(4) and different fees may be charged for different classes of such appeal.”

 

This is why  planning law and forest conservation should not be aligned. Their underpinning policies and objectives are completely different.

Essentially the argument for imposing a fee when one objects to an application for planning permission is that the objector is interfering with the owner’s constitutional right to enjoy his private property as the owner sees fit.

That argument does not apply to public forests. They are public forests and accordingly the public has a direct interest in them. Why should you pay to protect your given interest?

 

It gets worse. Section 14C (created by the Bill) says the following:

“(1) Where the Chairperson of the Forestry Appeals Committee is of the opinion that the case is of such a nature that it can properly be determined without an oral hearing, the Forestry Appeals Committee may determine the appeal summarily.”

“(4) Where the Forestry Appeals Committee is requested to hold an oral hearing of an appeal and decides to determine the appeal without an oral hearing, it shall serve notice of its decision on the person who requested the oral hearing, on each other party to the appeal and on each person who made submissions or observations to the Forestry Appeals Committee in relation to the appeal.”

 

In other words, the FAC can decide to not hear a person or persons in public, and there is no stipulation that they must give reasons for their decision. Section 14 of the original Act provides for an extremely limited form of relief, namely an appeal to the High Court on a point of law. Take note, an appeal, not a review. In other words, if you wanted to challenge a decision to not hold a public hearing, you would need to show that the opinion of the FAC Chairperson was wrong as a matter of law. Given that the new section does not stipulate what the criteria are that will determine whether a hearing should be in public or in camera, how can you prove the decision wrong?

 

The handling of public forests is governed by the EU Habitats Directive and the EIS Directive. Both of these Directives emphasise the importance of full public participation in all decisions involving the environment, especially when it concerns public land. This is even more so when read with the Aarhus Convention. The European Court of Justice, under case C-243/15 Lesoochranárske zoskupenie, (8 November 2016) interpreted Article 6 of the Habitats Directive in light of the Aarhus Convention to give Environmental NGOs public participation rights. The Court also confirmed that NGOs must be able to access the courts to enforce these rights by virtue of Article 9 of the Aarhus Convention and Article 47 of the EU Charter of Fundamental Rights.

 

I would suggest that the proposed Bill is in clear violation of those legal requirements.

But that is my opinion. Have your own say, and send those comments to the Department of Agriculture Food and the Marine before 28 August 2020 to their email: ForestryBill2020@agriculture.gov.ie

 

 

 

 

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“obscurum per obscurius”

(“the obscure by the more obscure”)

huh?

 

If “bullshit” was a proper legal concept, it would have been used liberally in the latest Supreme Court judgment, and one can only imagine that the actual word was used in discussions between the learned judges before Chief Justice Clarke delivered the unanimous judgment.

 

The judgment was Friends of the Irish Environment v. Government of Ireland [2020] IESC 49, and the item under consideration was that bureaucratic befuddlement known as the “National Mitigation Plan” (NMP), which contains the even more obtuse “Climate Action Plan”.

 

The Separation of Powers

Let’s get one technicality out of the way. The NMP is clearly a policy document, and the Separation of Powers doctrine says that the courts are prohibited from interfering with, or overruling, executive policy. Indeed, this was one of the reasons that the appellant, FIE, lost in the High Court.

 

The Supreme Court made short shrift of that argument, pointing out that the NMP was more than a simple policy document, it was actually created on the orders of the Climate Action and Low Carbon Development Act of 2015.  This Act instructed the relevant minister to “specify the policy measures that, in the opinion of the government, would be required” to create a resilient, low-carbon economy by 2050. In other words, policy became law.

(paragraph numbers refer to the original (unapproved) judgment)

“6.24 There may be an issue as to whether there are any areas which are truly completely outside the scope of judicial review on the grounds of a barrier, based on respect for the separation of powers, on the remit of the courts to review policy. But it does not seem to me that such questions properly arise in the circumstances of this case. If the government of the day were to announce that, as a matter of policy, it was going to publish, after public consultation, a plan designed to achieve precisely that which is defined in the 2015 Act as the NTO and then publish a plan which arguably failed to do what it was said it should do, then such questions might well arise. However, the position here is that there is legislation.

 

6.25 Most legislation has some policy behind it. It is likely to have been the policy of the government which was in power at the time when the legislation was enacted that legislation of the type in question should be promoted. Indeed, in the context of issues concerning whether there has been an impermissible delegation by the Oireachtas of the power to legislate, courts regularly have to consider whether legislation indicates the “principles and policies” by reference to which secondary law-making power can be exercised (see Cityview Press v. An Chomhairle Oiliúna (1980) IR 381). It may have been the policy of a particular government to introduce the legislation in question but once that legislation is passed it then become law and not policy.”

6.27 In that context, it does have to be acknowledged that some elements of the legislation simply require the Government to adopt a policy designed to the statutory end. For example, the legislation does not require any particular view to be taken as to which sectors are to contribute in which amounts to the reduction of carbon emissions. The legislation leaves it to the government of the day to make those policy choices. It is possible, therefore, that there may be elements of a compliant plan under the 2015 Act which may not truly be justiciable. However, it does seem to me to be absolutely clear that, where the legislation requires that a plan formulated under its provisions does certain things, then the law requires that a plan complies with those obligations and the question of whether a plan actually does comply with the statute in such regard is a matter of law rather than a matter of policy. It becomes a matter of law because the Oireachtas has chosen to legislate for at least some aspects of a compliant plan while leaving other elements up to policy decisions by the government of the day. It seems to me that the requirements of s.4, as to what a plan must specify, come within a category of statutory obligation which is clearly law rather than policy. Whether a plan complies, for example, with the obligation that it be specific as to how the NTO is to be achieved is, in my view, clearly a matter of law. The choices as to how the NTO might be achieved may well be policy choices and real questions might arise at to the extent to which those choices might be justiciable. However, whether the Plan does what it says on the statutory tin is a matter of law and clearly justiciable.”

 

 

⚖️    ✍🏻   ⚖️

 

This is a long judgment dealing with a number of complex legal arguments, but in the opinion of this author, the Supreme Court made a fundamentally important finding which echoes what a lot of people, this blog included, have been saying for a long time.

 

An attack on democracy

This concerns the lack of proper consultation, as would be expected in a country claiming to be a democracy. Yes, there was a call for submissions, and yes, these were made by various interested parties. Whether these submissions were actually considered by the drafters of the policy, given that the policy was already drafted before submissions were invited, is doubtful. But that is just the tip of the iceberg. The major criticism is that the NMP used language so obtuse and impenetrable, that the average citizen would not have a hope of understanding it, and therefore was never given the opportunity of properly engaging with the merits of the policy.

 

The NMP was not the first example of this undermining of democratic principles. The previous decade is littered with such examples of a bullyboy government foisting its policies onto the public with scant regard for public consultation and consideration of alternative viewpoints. The Supreme Court makes it clear that this practice is a direct attack on democratic governance:

 

“6.35 While there may be some merit in the suggestion that the document inquestion does provide greater detail in some areas, it must also be emphasised that it is not a plan in the sense in which that term is used in the 2015 Act. It has not been, for example, through the public consultation process which the 2015 Act mandates. While it may provide some level of transparency about the Government’s thinking as of 2019, it does not do so in the very formal way which the 2015 Act mandates. Whatever level of clarity is required by that Act about government policy to achieve the NTO by 2050, it must be provided in a formal plan adopted in accordance with the public participation measures set out in the 2015 Act.

 

6.36 More importantly, the real question at issue is as to whether the Plan itself gives any real or sufficient detail as to how it is intended to achieve the NTO. In that regard a number of factors must be taken in to account.

 

6.37 First it is necessary to reach some overall conclusion as to the level of specificity which the Act requires. It seems to me that the starting point for a consideration of that question must be to consider the purpose of the 2015 Act as a whole. The public participation element of that purpose is, of course, met by the public consultation process set out in section 4(8). But it is to the transparency element of the purpose of the legislation as a whole that the specificity mandated by s.4 is directed. The purpose of requiring the Plan to be specific is to allow any interested member of the public to know enough about how the Government currently intends to meet the NTO by 2050 so as to inform the views of the reasonable and interested member of the public as to whether that policy is considered to be effective and appropriate.

 

6.38 What the public thinks of any plan and what the public might do about it if they do not like a plan is a matter for the public to consider. But the 2015 Act requires that the public have sufficient information from the Plan to enable them to reach such conclusions as they wish. On that basis, it seems to me that the level of specificity required of a compliant plan is that it is sufficient to allow a reasonable and interested member of the public to know how the government of the day intends to meet the NTO so as, in turn, to allow such members of the public as may be interested to act in whatever way, political or otherwise, that they consider appropriate in the light of that policy.”

“6.43 Finally, it is necessary to look at the kind of policies which the Plan suggests need to be followed in order to meet the NTO. Having considered what the Plan says it does seem to me to be reasonable to characterise significant parts of the policies as being excessively vague or aspirational.”  (my emphasis – that word “bullshit” again springs to mind.)

 

 

 

“6.45 I accept that the legislation clearly contemplates that knowledge will evolve and that the detail of the Plan will become more fixed as time moves on. However, that does not seem to me to prevent there being a clear present statutory obligation on the Government, in formulating a plan, to at least give some realistic level of detail about how it is intended to meet the NTO.” (my emphasis)

 

The factual finding of this judgment is that the NMP predicts an increase in greenhouse gas emissions where the Act stipulated that there should be a decrease in these emissions. In other words, the NMP was in direct contravention of the Act and was therefore ultra vires.

 

However, this judgment is so much more than that. It is a scathing indictment of the process of government in this country, where the executive regards the general public as little more than ignorant fools who must be told what to do. That needs to change, and quickly.

impenetrable!!

(My thanks, and apologies, to Bill Watterson).

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Forcing the ‘Custodians of the Planning Process’ to do their job.

corrupt officials

Many readers will be surprised to know that Irish planning law does have enforcement procedures. They will be even more surprised to know that the bodies designated to perform this enforcement function are the Councils. This is due to the fact that in Ireland these two entities rarely appear at the same time. Despite our Councils being the designated custodians of the planning process, they seem somewhat reluctant to fully embrace that role.

Many reasons have been put forward by many people for this reluctance to enforce the law, some exaggerated, but possibly all containing an inkling of the truth:

 

  1. Council officials are corrupt.

    “One area where local councillors do retain real power is in planning – planning in terms of land use zoning and planning as in lobbying officials when they (the officials) are deciding which development applications are granted permission, and which are not. And it is in planning that unhealthy practices and relationships have built up over much of the past 30 years: in short, the planning process has been severely corrupted.” (Peter Murtagh, Irish Times, 4 May 2009)

“A Dublin county councillor held more than £60,000 in an undisclosed An Post account at the time of his death, the tribunal has established.
Cyril Gallagher, of Fianna Fáil, denied that he had an account with An Post when interviewed by the tribunal in 1999. He also denied any knowledge of corrupt payments on the council.
Lobbyist Frank Dunlop has claimed he paid Mr Gallagher £1,000 for his vote on the rezoning of lands at Ballycullen in south Dublin in October 1992.
After Mr Gallagher died in March 2000, it emerged that he did indeed have an An Post account, containing £60,603.” (Paul Cullen, Irish Times, 16 February 2006)

bribe

 

 

  1. Commercial interests override private interests.

    “An Bord Pleanála has given the green light for 211 apartments at Clonsilla in north-west Dublin in spite of opposition from politicians and local residents.The appeals board has granted planning permission to Kimpton Vale Ltd for the 211 apartments in three blocks ranging from six to eight storeys in height at lands at Windmill, Porterstown, Clonsilla.The appeals board found that the proposed development would constitute an acceptable residential density in the Metropolitan Consolidation Area and would not seriously injure the visual amenity of the area, would be acceptable in terms of urban design, height and quantum of development.The plan encountered strong local opposition including former Solidarity–People Before Profit TD, Ruth Coppinger, former Labour TD, Joan Burton and a number of elected members of Fingal County Council.Deputy Coppinger told the appeals board that she strongly opposed the proposal and that it amounted to a massive over-development of a suburban housing estate.Deputy Coppinger argued that the proposal would create an anticipated estimated demand for 64 school places – more than two full classrooms in an area where there is school space shortage and adjacent schools at full capacity.Deputy Coppinger stated that she endorsed the views of the local area committee of Fingal County Council that concluded that the scale of the development is not supported by current or planned infrastructure in the area.” (Gordon Deegan, breakingnews.ie, 8 April 2020).

 

3.    Enforcement officials are underfunded, overstretched, and   usually unsupported.

“East Meath Councillors have accused their own council of being a ‘soft touch’ when it comes to enforcing planning conditions against some developers. Furious councillors hit out at the lack of prosecutions in the courts in relation to enforcement orders and have accused the council of being afraid of the legal costs in pursuing cases in the High Court.” (Drogheda Independent, 29 October 2004)

 

 

4.   Elected Councillers and Council employees often have a direct financial interest in the development under consideration.

“A Sligo county councillor has denied that there was a conflict of interest when he proposed controversial road improvement measures at a notorious junction without revealing that he had sold some of the land to the local authority.Fianna Fáil county councillor Jerry Lundy was paid €10,000 by Sligo County Council for 0.15 hectares of land at Rhue, Tubbercurry.The land is close to a crossroads where a 13-year-old girl and a 41-year-old mother were killed last year.Local residents want the county council to make safety measures at Rhue crossroads where the pair died its priority.They are also angry at a decision to close two nearby exits from the N17 first in order to construct a new junction.They maintain that the new junction will increase the volume of traffic in Rhue, and that this could lead to a worsening of the situation.Mr Lundy, who insists that work on the N17 will improve road safety, said there was no conflict when he proposed the measure at the September meeting of the council.”The county council had bought the land three months earlier so it was not my property when I proposed the motion and there is, therefore, no conflict of interest,” he said.” (Marese McDonagh, Irish Times, 19 October 2005)

 

Whatever the political, financial or personal circumstances surrounding the planning process, the law is clear. The Planning and Development Act of 2000 contains a number of provisions regarding the enforcement of the planning process by both Councils (“a planning authority”) and An Bord Pleanala (“the Board”):

(Please note that I have supplied the title and beginning of the applicable sections as some of these sections are very long. If you want to see what the whole section says, look at the Act.)

Section 6: Power of examination, investigation and survey
“A planning authority and the Board shall each have all such powers of examination, investigation and survey as may be necessary for the performance of their functions in relation to this Act or to any other Act.”

 

Section 8. Obligation to give information to local authority
“(1) A local authority may, for any purpose arising in relation to its functions under this Act or any other enactment, by notice in writing require the occupier of any structure or other land or any person receiving, whether for himself or herself or for another, rent out of any structure or other land to state in writing to the authority, within a specified time not less than 2 weeks after being so required, particulars of the estate, interest, or right by virtue of which he or she occupies the structure or other land or receives the rent, as the case may be, and the name and address (so far as they are known to him or her) of every person who to his or her knowledge has any estate or interest in, or right over, or in respect of, the structure or other land.
(2) Every person who is required under this section to state in writing any matter or thing to a local authority and either fails so to state the matter or thing within the time appointed under this section or, when so stating any such matter or thing, makes any statement in writing which is to his or her knowledge false or misleading in a material respect, shall be guilty of an offence.”

 

Section 151. Offence
“Any person who has carried out or is carrying out unauthorised development shall be guilty of an offence.”

 

Section 152. Warning letter
“(1) Where—
(a) a representation in writing is made to a planning authority by any person that unauthorised development may have been, is being or may be carried out, and it appears to the planning authority that the representation is not vexatious, frivolous or without substance or foundation, or
(b) it otherwise appears to the authority that unauthorised development may have been, is being or may be carried out,
the authority shall issue a warning letter to the owner, the occupier or any other person carrying out the development and may give a copy, at that time or thereafter, to any other person who in its opinion may be concerned with the matters to which the letter relates.”

 

Section 153. Decision on enforcement
“(1) As soon as may be after the issue of a warning letter under section 152, the planning authority shall make such investigation as it considers necessary to enable it to make a decision on whether to issue an enforcement notice.”

 

Section 154. Enforcement notice
“(1)(a) Where a decision to enforce is made under section 153 or where urgent action is required under section 155, the planning authority shall, as soon as may be, serve an enforcement notice under this section.”

 

Section 157. Prosecution of offences
“(1) Subject to section 149, summary proceedings for an offence under this Act may be brought and prosecuted by a planning authority whether or not the offence is committed in the authority’s functional area.”

 

Section 162. Evidence of permission
“(1) In any proceedings for an offence under this Act, the onus of proving the existence of any permission granted under Part III shall be on the defendant.”

 

There is certainly no legal reason for the appalling state of our planning system. Why then do we hear of illegal wind farms in Laois, illegal quarries in Galway, illegal roads in Waterford? Name a county and you can be sure that a local resident will have a story about a development that continues business as usual despite being illegal and despite opposition by the citizens affected by its operation.

Perhaps those reasons given by people at the beginning of this piece are true?

 

bribe2

Posted in An Bord Pleanala; appeal; interested parties, lobbying; democracy; political process; general election, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act | Tagged , , , , | Leave a comment

Injunctions against Quarries

Illegal quarries seem to be in the news a lot lately, and it is always useful to pursue these stories, as their level of proliferation is usually directly proportional to the level of corruption in our county council system.  The reason for that is that it should be impossible to conduct illegal quarrying if a council is enforcing the planning laws. It always seems to be the case that where an illegal quarry is successfully operating, it is usually because the council is turning a blind eye, or where a specific councillor is influencing the vote.

In the judgment under consideration, Donegal County Council v.P Bonar Plant Hire Ltd t/a Bonar’s Quarry[2020] IEHC 349, to its credit, the council in question, Donegal County Council (DCC) was actually enforcing the planning law and asked the High Court to stop the operations of Bonar’s Quarry.

The DCC asked the High Court to grant an interlocutory injunction in terms of Section 160 of the Planning and Development Act 2000, restraining P Bonar Plant Hire Ltd t/a Bonar’s Quarry from further work at a quarry situated at Calhame, Letterkenny, Donegal.

The reported facts of the case should be extraordinary, but unfortunately are commonplace. Bonar’s Quarry admitted that that An Bord Pleanála refused permission for the carrying out of quarrying works at the site. However, Bonar argued that this prohibition only affected the “extended area”; and it carried on quarrying in what it claimed was the “original site”. It did this on the basis, so it claimed, that the original site had been used as a quarry before 1 October 1964, and that the operation of the quarry had not intensified to such an extent as to amount to a material change in use that would require planning permission.

This is a common argument. It is often the case, although not necessarily with this case, as the judge does not spell this out, that quarry operators know that council records, especially as far back as 1964, are generally in a mess or probably non-existent. What this means is that it is almost impossible to contradict a claim that a quarry has been operating before 1st October 1964 (when planning permission was essentially not necessary). Similarly, it is often difficult, if not impossible, to contradict an assertion that the quarry has changed its operation in any way, so as to amount to a material change requiring planning permission.

The quarry was previously owned by Mountain Top Quarry Ltd (MTQ). In 2003 , MTQ applied for retention and extension of the existing quarry, but this was refused by the ABP, as there was no Environmental Impact Statement (EIS).

MTQ tried again in 2006, applying for retention permission for removal of topsoil and extension of the quarry, accompanied by an EIS. In 2008, An Bord Pleanála granted planning permission for the quarry to operate for five years. In 2012, MTQ applied to Donegal County Council for an extension of the duration of the 2008 permission, and an extension of the 2008 permission until 9 June 2018 was granted.

In 2014 Bonar’s Quarry took over operation of the quarry. In 2018, it applied to Donegal County Council for the continuation of quarrying activities for a period of 10 years, covering the entire quarry site. Planning permission was granted by Donegal County Council in July 2018, but a third-party appeal was lodged with An Bord Pleanála.

In April 2019, An Bord Pleanála refused planning permission for the continuation of quarrying activities because it was not satisfied that the development would not adversely affect the integrity of the Leannan River SAC located 3.5 km away. Further, it found that the EIS was inadequate.

Despite the refusal, the quarry recommenced operations in April 2019. Members of the public complained to the County Council. The County Council issued an Enforcement Notice in June 2019, calling on Bonar’s Quarry to cease all operations. This was ignored.

As previously mentioned, in justifying its ostensibly illegal operations, Bonar argued that on the expiry of the planning permission in June 2018, Bonar’s Quarry reverted to the pre-1964 quarry while all operations in the ‘extended area’ ceased. 

The Law

Section 160 deals with what is known as a “planning injunction” aimed at halting existing, or even preventing future, unauthorised development. The court can grant a prohibitory injunction, in other words stopping or preventing a development. But what a lot of people don’t realise is that this section also authorises the court to grant a mandatory injunction (where the court orders a person to do something). Section 160(2) says that “the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature”. The power to restore land is qualified by the expression “as far as is practicable”. 

The application for an injunction is usually taken by the council, but if the council fails or refuses to act, the application can be made by a member of the public. The section is generous in this regard – the member of the public does not have to show any property right, they must simply be acting to  “procure the performance of a public duty or to prevent its breach” – the so-called  “watchdog role” made famous in the case of Morris v Garvey [1982] I.L.R.M (and see State (Haverty) v An Bord Pleanála [1988] I.L.R.M. 545). 

This generous standing requirement makes sense in that all you are asking for is an injunction – the court will not go fully into disputes of fact or law, this is a stop-gap measure to prevent any further or future damage to the environment. If the respondent wants to challenge the injunction, that is when the issues will be fully explored.

Like the application for any injunction, the court will consider three things. To quote Judge Barr:

“34. In addressing the legal issues which arise on this application, the court must apply the well-known test set down in Campus Oil v. Minister for Industry and Energy [1983] I.R. 82, which established that the court must ask three questions: 

is there a serious question to be tried;

are damages an adequate remedy and 

where does the balance of convenience lie?”

A planning injunction is what is known as a “discretionary remedy”, which is a nice way of saying that the judge has a lot of flexibility in deciding what to do. However, case law shows us that the sorts of things that judges will look at when deciding whether to grant the injunction are as follows:

The reasonableness of the conduct of both parties. The applicant must come to court with “clean hands” – in other words, they must be making the application for pure motive, rather than attempting to secure some hidden agenda (like removing a competitor). Similarly, if the respondent can show that it has bent over backwards to comply, but the applicant insists on taking further legal action (usually again for an ulterior motive), the court can refuse the injunction.

The court can look at “public convenience” – what impact will the injunction have on the surrounding community? For example, the noise and dust might have been harmful to the local community. On the other hand, if the quarry provides a lot of employment to the residents of the area, the court might be reluctant to grant the injunction. You might remember the famous case of Grimes v Punchestown Development [2002] 1 I.L.R.M. 409, where the court refused an injunction to stop the well-known Creamfields rock concert, because of the disappointment it would cause to a lot of people who were keen to attend, as well as the enormous waste of public time and expense for all the public bodies involved who had already made large scale plans for policing, traffic control, waste removal, etc.

Finally, the court may refuse an order where the violation is merely technical or minor; or where an injunction would impose undue hardship on a respondent.

Where the court grants an injunction under s.160, and the respondent fails to comply with the order, this will constitute contempt of court. The matter can be brought back before the court seeking such measures as sequestration of assets or an application for attachment of property and even imprisonment of the owners.

The decision

In granting the injunction, Judge Barr was very clear in his condemnation of the activities of Bonar Quarries (the paragraph numbers refer to the original judgment):

“39. Insofar as there is a dispute between the parties as to whether the respondent is only working the original area of the quarry, or is carrying out works in the so-called “extended area”; that is not a matter that can be determined on an interlocutory application based on affidavit evidence. However, the court is entitled to note that there is strong evidence in the affidavit sworn by Mr. McDermott and in particular, in the aerial photographs exhibited thereto, that the respondent is working the entire site, including the so-called “extended area”.

“42. It is also noteworthy that as of June 2004, the Board indicated that this quarry required to be the subject of an EIA. The applicant is correct in its submission that as a matter of European law, if an EIA is required, planning permission is also required.”

“43. The court is also entitled to have regard to the fact that by virtue of the implementation of the 2008 planning permission, the operator created a single, enlarged quarry on the site, which in planning terms, constituted a single planning unit. The enlarged quarry was not a pre-1964 quarry and was, from June 2008 to June 2018, governed and regulated by the conditions of the planning permission that issued in 2008.”

“47. The respondent’s argument that it is entitled to continue operations on the site of the original quarry, is considerably weakened by the fact that it ceased works in the quarry upon the expiration of the permission in June 2018 and did not attempt to recommence such works until after the refusal of its application for further permission by the Board in April 2019. The court is satisfied that it is entitled to take account of all of these matters in reaching its decision on this application.”

“51. The clearly stated intention of the respondent as expressed by Mr. Bonar, is to continue operating the quarry so as to fulfil its contractual commitments until it is in a position to commence operations at a new quarry in September 2020. The respondent, through Mr. Bonar, has articulated a clear intention to flout the planning laws and the environmental provisions contained therein, until it can carry on its commercial activities at another location.”

“52. In these circumstances the Court is satisfied that the balance of justice lies in favour of the grant of interlocutory injunctive relief against the respondent. The applicant is entitled to the reliefs sought at paragraphs (1) and (2) of the notice of motion.”

This is a very important judgment as it deals with a situation that is common in Ireland – the reliance on the so-called “1st October Rule”. That is a matter for evidence but if the quarry does not have existing planning permission, and is clearly damaging the environment or causing harm to the surrounding community, these should allow a member of the public to apply for a planning injunction (assuming that the council does not do so).

Posted in EirGrid; Insurance; Law; Cancer; EMF | Tagged , | Leave a comment

Path to Extinction: Giant Wind & Solar Farms Destroying Habitat & Threatening Endangered Species

Originally posted on STOP THESE THINGS: Mike Moore’s Planet of The Humans revealed the wholesale environmental destruction caused by wind and solar; …

Path to Extinction: Giant Wind & Solar Farms Destroying Habitat & Threatening Endangered Species
Posted in EirGrid; Insurance; Law; Cancer; EMF | Leave a comment

Michael Shellenberger: Sorry, But I Cried Wolf on Climate Change

Originally posted on STOP THESE THINGS: If climate change is a problem, then wind turbines and solar panels aren’t a solution: heavily subsidised and…

Michael Shellenberger: Sorry, But I Cried Wolf on Climate Change
Posted in EirGrid; Insurance; Law; Cancer; EMF | Leave a comment

Adios to Substituted Consent. At last.

Peter Sweetman

Peter Sweetman

What is substituted consent?

Substituted consent is a form of retention permission, whereby a person can obtain planning permission for a building or development  after that building has already been erected. It has a long and colourful history in Irish law, having first been officially introduced by Section 27 of the Local Government (Planning and Development) Act of 1963.

In essence it is retrospective planning permission, granted by An Bord Pleanala (ABP), in instances where a valid environmental impact statement (EIS) should have been carried out, but was not.

What made it very attractive for developers was that it could be obtained without many of the usual prerequisites of a planning permission application, namely the lodging of a valid EIS, and perhaps more importantly, without the usual period of public notice and consultation. This allowed many unscrupulous developers to start up businesses illegally (quarries seem to be the favourite) and then apply for planning permission as an afterthought, usually after the damage to the environment had occurred.

The relevant legislation is Part XA of the Planning and Development Act of 2000 (“the 2000 Act”), which was added to the Act in 2010 by an amendment Act. This amendment was an effort to appease the European Court, which found against Ireland in 2006 because the relatively easy manner in which retention planning could be obtained in this country was inconsistent with the European Impact Assessment (EIA) Directive.

The amendment Act was clearly a rush job, as it is a sloppy piece of drafting.

The (most) important section introduced by the amendment Act is Section 177 of the 2000 Act, which consists of a whopping seventeen subsections (Sections 177A-177Q).

The applicant for substituted consent must still jump through a few hoops. For the purposes of this piece, one of the hoops that needs to be navigated is that the applicant must apply to ABP for permission to apply, which is known as applying for leave to apply. This is governed by Section 177D of the Act:

(1)             The Board shall only grant leave to apply for substitute consent in respect of an application under section 177C where it is satisfied that an environmental impact assessment, a determination as to whether an environmental impact assessment is required, or an appropriate assessment, was or is required in respect of the development concerned and where it is further satisfied—

(a)             that a permission granted for development by a planning authority or the Board is in breach of law, invalid or otherwise defective in a material respect whether by reason of a final judgment of a court of competent jurisdiction in the State or the Court of Justice of the European Union, or otherwise, by reason of—

(i)              any matter contained in or omitted from the application for the permission including omission of an environmental impact statement or a Natura impact statement or both of those statements as the case may be, or inadequacy of an environmental impact statement or a Natura impact statement or both of those statements, as the case may be, or

(ii)             any error of fact or law or procedural error,

or

(b)             that exceptional circumstances exist such that the Board considers it appropriate to permit the opportunity for regularisation of the development by permitting an application for substitute consent.

(2)             In considering whether exceptional circumstances exist the Board shall have regard to the following matters:

(a)             whether regularisation of the development concerned would circumvent the purpose and objectives of the Environmental Impact Assessment Directive or the Habitats Directive;

(b)             whether the applicant had or could reasonably have had a belief that the development was not unauthorised;

(c)              whether the ability to carry out an assessment of the environmental impacts of the development for the purpose of an environmental impact assessment or an appropriate assessment and to provide for public participation in such an assessment has been substantially impaired;

(d)             the actual or likely significant effects on the environment or adverse effects on the integrity of a European site resulting from the carrying out or continuation of the development;

(e)             the extent to which significant effects on the environment or adverse effects on the integrity of a European site can be remediated;

(f)              whether the applicant has complied with previous planning permissions granted or has previously carried out an unauthorised development;

(g)             such other matters as the Board considers relevant.

(3)             In deciding whether it is prepared to grant leave to apply for substitute consent under this section the Board shall have regard to any information furnished by the applicant under section 177C(3) and any information furnished by the planning authority under section 177C(5).

(4)             The Board shall decide whether to grant leave to apply for substitute consent or to refuse to grant such leave.

(5)             The decision of the Board under subsection (4) shall be made—

(a)             6 weeks after the receipt of an application under section 177C(1),

(b)             6 weeks after receipt of additional information from the applicant under section 177C(3)(b), or

(c)              6 weeks after receipt of information from the planning authority under section 177C(5),

whichever is the later.

(6)             The Board shall give notice in writing to the applicant of its decision on the application for leave to apply for substitute consent and of the reasons therefor.

(7)             Where the Board decides to grant leave to apply for substitute consent, the notice under subsection (6) shall also contain a direction—

(a)             to apply for substitute consent not later than 12 weeks after the giving of the notice, and

(b)             to furnish with the application a remedial environmental impact statement or a remedial Natura impact statement, or both of those statements as the Board considers appropriate.

(8)             The Board shall give a copy of the notice of its decision under subsection (6) and direction under subsection (7) to the planning authority for the administrative area in which the development the subject of the application for leave to apply for substitute consent is situated and details of the decision and direction shall be entered by the authority in the register.

As with many applications, it is the leave to apply that is the main battleground, as the authority concerned has to consider essentially the very things that they will be called on to deliberate when considering the application itself. In other words, if one is granted leave to apply, there is a good chance that the ultimate permission (in this case substituted consent) will be granted.

All this has dramatically changed with the decision of the Supreme Court in An Taisce/Peter Sweetman v An Bord Pleanala. Paragraph numbers refer to the paragraphs of the original judgment: 01.07.2020-An-Taisce-v.-An-Bord-Pleanála-Peter-Sweetman-v.-An-Bord-Pleanála.

The judgment of the Supreme Court

The parties

On the one side were the Applicants, An Taisce and Mr. Peter Sweetman, and on the other side was the ABP with the owner of one of the quarries in question, Ms. Sharon Browne, as Notice Party (not a litigant per se, but with a recognised interest in the outcome).

The Facts

For the purpose of the Supreme Court hearing, three appeals were heard together, as they all concerned quarries applying for substituted consent in similar circumstances, with two of the appeals concerning the same quarry and the same decision by the ABP.

The first matter before the Supreme Court was the appeal by An Taisce against the decision of the ABP to grant substitute consent in 2014 to J McQuaid Quarries Ltd for a quarry at Lemgare, Co Monaghan.

A second and third appeal by An Taisce and Mr. Sweetman respectively was against the decision of the ABP to refuse to accept written submissions from them opposing Sharon Browne’s application for leave to apply for substitute consent for a quarry at Ballysax, The Curragh, Co Kildare. Ms. Brown was the owner and operator of the quarry.

The ABP had ruled that it could not lawfully accept the submissions from An Taisce and Mr. Sweetman because there was no provision in the Act allowing this. While members of the public could make submissions at the ‘substantive stage’ of the process (once leave to apply had been granted), there was no provision in the Act which allowed public submissions at the leave stage of the substitute consent process, (which is when the real battle is fought).

The Issue to be decided

Was the current Irish legislation consistent with the demands of the European Impact Assessment (EIA) Directive (and the many rulings of the European Court when interpreting and applying that Directive)?

The Finding

McKechnie J. said these appeals raised important issues of EU law, including whether the State’s response was adequate in upholding the requirements of the EIA directive.

He found that the substitute consent provisions do not sufficiently implement the EIA directive in light of various decisions of the CJEU.

“When the Court of Justice refers to retrospective regularisation as having to remain the exception, its justification is that otherwise developers may be incentivised to ignore or disregard the requirements of a prior consent/EIA:  in other words, national measures cannot act as an inducement to avoid EIA compliance (para. 74 above).  Therefore, such regularisation must remain the exception, rather than rule.  Consequently, the relevant provisions of domestic law cannot permit, allow or facilitate a situation whereby the obtaining of, as in this jurisdiction, a retention permission becomes common, normal or general.  Given this approach, how therefore does s. 177C(2)(a) meet the exceptionality requirement? “

  It is instructive now to look at what an applicant must assert and what the Board must be satisfied of on any application for leave under C(2)(b) and D(1)(b) of section 177.  When considering whether exceptional circumstances exist, under this pathway, the matters identified in subpara (2) must be taken into account:-

(i)           would the grant of retention permission circumvent the objectives of the Directive,

(ii)          could the developer have had a bona fide belief that the development was not unauthorised,

(iii)         would the existing circumstances permit the conducting of an effective assessment of the environmental impact of the development from its commencement,

(iv)         can any significant effects on the environment, occurring to date, be remedied, and

(v)          what in the past has been the developer’s attitude to planning compliance.

In addition, the Board may take into account any other matter it considers relevant.

It is striking now to compare the matters which I have listed with the essential elements of an application under s. 177C(2)(a). The core constituents of that section are as follows:

(i)           the completed development, in respect of which an EIA “was or is” required has been the subject matter of a permission,

(ii)          that permission may be invalid or otherwise defective in a “material respect”,

(iii)         as so determined by the Court of Justice or domestic court “or otherwise”,

(iv)         by reason of the “omission” to carry out an EIS or its “inadequacy” or,

(v)          by reason of “any error of fact or law or a procedural error” (emphasis added)

It is not readily apparent how these points, considered either individually or collectively, could be fairly described as being exceptional.  The development in question required an EIA:  the permission obtained is in a material respect in breach of law, invalid or “otherwise defective”, as so found by a judgment of the Court of Justice or a court in this jurisdiction by reason of the absence of a required EIA, or the inadequacy of same or as a result of “any error of fact or law or a procedural error”.  These factors, in the context under discussion, can only be considered quite general and quite broad.”

(Paragraphs 87-91)(my emphasis)

The judge went on to say that, to make matters worse, once leave to apply for substitute consent has been given, the exceptionality test (or rather the ‘general and quite broad test”) “forms no part” of the decision on the substantive application for substitute consent.

As previously mentioned, it is really at the application for leave to apply that the battle is lost and won, as it is here that the “exceptionality” test, whatever that means, must be passed. Accordingly, it is here that the public should be able to make submissions arguing that the applicant has not met that (not very onerous) substantive threshold. This public participation at the leave to apply stage becomes even more important when one considers that the substantive stage (the actual application) is not as onerous as the leave stage.

These findings confirm my criticisms of this process that I made over four years ago. I would say that the judge was quite generous in his use of the words “general” and “broad”. A number of stronger adjectives spring to mind when reading  Section 177D(2)(a)-(g).

With respect to the second complaint of both An Taisce and Mr Sweetman, namely ABP’s refusal to accept their written submissions at the application for leave stage, the judge considered the scope and meaning of the public right to participate under the directive.

Again, this is an important aspect of our law that the government and the planning authorities consistently try to play down and restrict. The judge was having none of that here and held that the exclusion in domestic law of public participation at the stage of seeking leave to apply for substitute consent is inconsistent with the public participation rights conferred by the Directive.

“The evident legislative intention as expressed in the Act is to the effect that the leave stage is intended to be carried out without a general right of public input. As such, I agree with the respondents that what is intended at the application for leave stage is what has been referred to in these proceedings as a “closed” process.” (Paragraph 109).

“In this regard, the following recitals to the EIA Directive should be noted:

“(16) Effective public participation in the taking of decisions enables the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken.

(17) Participation, including participation by associations, organisations and groups, in particular non-governmental organisations promoting environmental protection, should accordingly be fostered, including, inter alia, by promoting environmental education of the public.

(19) Among the objectives of the Aarhus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being.

(20) Article 6 of the Aarhus Convention provides for public participation in decisions on the specific activities listed in Annex I thereto and on activities not so listed which may have a significant effect on the environment.

(21) Article 9(2) and (4) of the Aarhus Convention provides for access to judicial or other procedures for challenging the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of Article 6 of that Convention.”

(Paragraph 118)

Accordingly, the judge held that the clear intent of the Oireachtas was to make the leave for application stage a ‘closed’ stage. This exclusion of the public was contrary to the provisions of the EIA Directive and the Aarhus Convention.

Well done indeed to Peter Sweetman and An Taisce in pursuing this fight. It has taken a long time, with numerous obstacles put in their path, both political and legal, but in the end their tenacity and bravery won the day. Respect!

Let this be an end to the secret shenanigans that always seemed to haunt applications for substituted consent. We can only hope that this judgment finally closes a particularly shameful chapter of Irish planning law history.

Posted in An Bord Pleanala; appeal; interested parties, EIA Directive 2014/52/EU, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, Green Party; Ireland; Eamonn Ryan; Cormac Manning, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Kilvinane Wind Farm Ltd; substituted consent, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector | Tagged , , | 7 Comments

What do we mean by “Conflict of Interest”?

EU commissioner lobbied by energy firm he owns shares in

  • Johannes Hahn is the European Commissioner for budget and administration. He also owns 2,200 shares in Austria’s largest electricity-provider (Photo: europarl.europa.eu)

 

 

EU budget commissioner Johannes Hahn owns 2,200 shares in Austria’s largest electricity-provider Verbund AG whilst actively being lobbied by the firm.

Hahn has had those shares since 2014, when he first became enlargement commissioner under Jean-Claude Juncker. They have since more than tripled in value, going from €32,813 in 2014 to €113,190 as of the end of last year.

In January, his head of cabinet met with Verbund AG shortly after the European Commission had unveiled its European Green Deal to go carbon-neutral by 2050.

Verbund AG spends up to €400,000 lobbying Brussels and had received a €2m research grant from the European Commission. Its interest include energy and financial market legislation.

A few days later his cabinet met with the International Association of Oil & Gas Producers and then Eurogas. Both have a history of trying to weaken climate policy.

Hahn had also doubled the value of his shares in the Austrian real estate firm CA Immobilien Anlagen over the same period of time, among a handful of other companies he has a direct financial interest in.

 

‘Procedures followed’

Asked directly if Hahn had sold off his shares since taking his new office in December, a spokesperson from the European Commission talked about procedures, in a somewhat obfuscated response.

“What I can tell you is that the parliamentary process, which led to the appointment of this commission – which involves scrutiny over ethical rules in relation into each individual commissioner – has looked carefully at their situation,” she said on Wednesday (12 February).

The issue has already been raised earlier this week by left-leaning MEPs Daniel Freund and Manon Aubry who demanded the European Commission publish updated declarations of financial interests for all the commissioners.

Freund, who previously worked at Transparency International, an NGO, had accused the commission of breaching its own code of conduct rules.

Those rules require the European Commission to update declarations of financial interests every year on 1 January.

“This is particularly problematic because promises were made during the Commissioner’s hearings, like selling of company shares. This must be corrected quickly,” said Freund, in an emailed statement.

He noted that commissioner candidates Elisa Ferreira and Stella Kyriakides only got the green light from the European Parliament’s legal affairs committee to advance in their hearings after they claimed to have sold their shares. The same committee had demanded that Hahn do the same.

 

For its part, the commission claims it has done nothing wrong.

It says commissioners are indeed required to submit their updated declarations at the start of January. It says they are then screened, under the authority of European commission president Von der Leyen.

“In the present case, they are expected to be published in February,” said another commission spokesperson, in an email.

Hahn is not alone in owning shares in major corporations. Italy’s economy commissioner Paolo Gentiloni owns shares in Amazon, Campari, Expedia, among others.

 

Posted in EU Renewable Energy 2020 Target, lobbying; democracy; political process; general election | Tagged , , , , , , | Leave a comment

Oh, what a lovely scam!

E78E4316-6798-4E14-834D-939F10AA469E

 

This is a very interesting piece from National Wind Watch which in turn was gleaned from an article in the Sunday Times. Considering the number of new applications for wind farms happening all over the country, I wonder how similar the situation is in Ireland and how much the consumer has to pay to essentially stop wind farms from operating?

 

Turbines spread amid £127m bill

Credit:  Scottish wind farms are the main beneficiary of compensation as the network is unable to cope with the power produced | Mark Macaskill | The Sunday Times | December 29 2019 | www.thetimes.co.uk | [text provided by 3rd party source] ~~

 

Scottish ministers have been accused of an “irresponsible” dash for green energy as new data reveals that wind farms have expanded while being paid record sums of money to power down turbines.

This year, the operators of 86 wind farms across Britain were handed more than £136m in constraint payments to reduce output and discard surplus energy, a new annual record and £12m more than was paid in 2018.

Most of the compensation (£127m) was paid to Scottish onshore wind farms, including several that have either extended in recent years – with the Scottish government’s approval – or are seeking permission to do so.

The disclosure has prompted disquiet among opposition politicians and environmentalists who said compensation payouts should be a key consideration in whether to allow wind farms to be built or extended.

Energy firms are compensated for turning off turbines when the network is unable to cope with the power they produce. Such constraint payments are paid out by the National Grid but ultimately charged to consumers and added to electricity bills.

Analysis carried out by the Renewable Energy Foundation, a charity that monitors Britain’s energy use, shows that in 2019, six onshore Scottish wind farms received about 50% of the £127m bonanza. They include Fallago Rig in Berwickshire, which received £7.8m in constraints this year, yet is seeking an extension to add a further 12 turbines.

The Clyde wind farm was completed in 2009 but permission to extend the site with an additional 74 turbines was granted in 2014 and completed in 2017. Its operators, which includes the energy giant SSE, received almost £15m in compensation this year.

The big six also includes the 96- turbine Kilgallioch wind farm in South Ayrshire, which was extended in 2017. Its owners, Scottish Power Renewables, is seeking to extend the site by up to 11 turbines.

Whitelee, Europe’s largest wind farm, opened in 2007 and added a further 75 turbines five years later. Since 2013, it has received £106.5m in constraint payments, including £12m this year.

The Stronelairg wind farm near Fort Augustus went live a year ago and received more than £11m in constraint payments this year. Critics have questioned the wisdom of proposals to build two neighbouring wind farms.

“The probability of constraint payments is not given any significant weight in the planning system when considering applications for new or extended wind farms, with the result that the Scottish government is needlessly, and some will feel irresponsibly, contributing to the constraint problem and to UK consumer bills,” observed Helen McDade, the Renewable Energy Foundation’s Scottish policy adviser.

Alexander Burnett, the Scottish Conservative energy spokesman, said: “The fact that the SNP are still allowing windfarms to expand despite this staggeringly high level of constraint payments already in operation is astonishing. Indeed, this absurd situation simply demonstrates the foolishness of the SNP’s renewable energy policy.”

Since 2010, when constraint payments were introduced, more than £600m has been paid to Scottish wind farm owners. Because of a rapid growth in onshore wind, payments have increased steadily, in spite of grid reinforcements and upgrades such as the £1bn Western Link between Hunterston and Deeside, which was built to export Scottish power. The foundation claims that some wind farms lie behind grid bottlenecks, yet are given ministerial approval for upgrades to generate more power. The charity points to increases in turbine heights at the extension to the Gordonbush wind farm, near Brora in Sutherland. The original wind farm has been paid more than £16m to reduce output since it was commissioned in 2012.

Paul Wheelhouse, the energy minister, said constraint payments will fall as investment in the grid increases. “Adding more demand load onto the grid, as we electrify Scotland’s own transport and heating systems, will also reduce the need for constraint payments. The importance of continued grid investment to facilitate transmission cannot be overstated and this need featured in our Networks Vision Statement which we published earlier this year.”

 

Source:  Scottish wind farms are the main beneficiary of compensation as the network is unable to cope with the power produced | Mark Macaskill | The Sunday Times | December 29 2019 | www.thetimes.co.uk | [text provided by 3rd party source]
Posted in EU Renewable Energy 2020 Target, Planning Permission; Extension; Planning and Development Act, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten | Tagged , , , , , , , , , , , , , , , , , , , , | 4 Comments

A time for Family

Family Fun

As we enter this festive season of which the primary focus should be family, I paused to consider the destructive impact that renewable energy legislation has had on so many families in this country, particularly those families living in the rural areas, or at least outside the city limits.

 

I deliberately withdrew from the fight against wind farms a while ago as, apart from the tiresome hate-mail, the struggle had become all-consuming to the exclusion of everything else. The biggest sufferers were my family, who just never saw me, a sad state of affairs. This is the perplexing irony, your struggle to protect those you love means never seeing them.

 

On the other hand, I was lucky to make friends with some lovely people. Kieran, Pauline, Sean, Samantha, Graham, Kath, Paddy, Gemma, Midi, Shawny, Gianni, Michael, Dave, Pat, the list goes on, and I do miss their company, and keep telling myself to get in touch, but something always comes up. Sorry guys, the social failings of an introvert! I salute you for carrying on the fight, and we really must have an end-of-year drink.

 

The destructive impact on the lives of families of people actively engaged in the struggle not only has this social element, it has a legal element as well.

Could it be argued that laws which force citizens to spend all their family- time fighting them, usually to protect their family and their homes, are unconstitutional for that reason alone ?

 

 

ARTICLE 40

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

 

The government will of course rely on the ‘as far as is practicable” clause and argue that it is doing its best not to harm citizens, but will plead justification along the lines of “if you wanna make an omelette, you gotta break some eggs”.

 

This argument might be worthy of some consideration if the public were fully consulted about suggested legislation and their reactions actually considered and allowed to affect outcomes. It does not hold water on the back of ambush planning applications, ‘consultations’ with bouncers at the door, and ‘call-in’ offices hidden at the end of a cul-de-sac in a one-horse hamlet, invisible even to SatNav.

 

The argument is now entirely discredited with the government seeking to pass new planning legislation which effectively ousts public participation.

 

“Without the ability to criticize unjust laws in powerful symbolic ways, we can’t change them. And the point of a democracy is that people should be able to convince other people to change a law.”

Marvin Ammori

 

 

ARTICLE 41

1 1° The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

2° The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

 

The government will also argue that citizens do not have to go out and protest an unjust law, and therefore these are acts of voluntary self-sacrifice and cannot be laid at the door of the government. This argument might hold water if the protest was about the sugar tax on fizzy drinks as I was pissed-off that my rum-and-coke is more expensive. The argument does not hold muster regarding protests against, for example, the windfarm distance guidelines (the Minister still does not have the cojones to make Regulations, which can be enforced), where the issues are about a lot more than a dent in one’s lifestyle.

 

I can say with certainty that, if there was a choice, a lot of people doing the hard yards at the moment would rather be at home with their families. The work is exhausting and demoralising. This is not a voluntary protest, it is an act of self-defence, protecting their homes, their families, and for those who have wind farms built near their homes, their sanity.

 

“When law becomes despotic, morals are relaxed, and vice versa.”

Honore de Balzac

 

 

But these are just the musings of an idealist, who believes the role of government is to uphold the Constitution, and more particularly, that such Government is prohibited from making laws which attack the very fabric of our society, the family. Silly me.

 

I wish all of you a festive season of family, love and goodwill.

santa-claus-christmas-tree-clip-art-png-favpng-pnVUL26MKnvQWNfTGKBZ3SeBM

 

Posted in EirGrid; Insurance; Law; Cancer; EMF, EU Renewable Energy 2020 Target, Peremptory law; Directory Law; Planning and Devlopment Act of 2000 | Tagged , , , , , | 3 Comments

How Authorisation Procedures for Wind Farms are Illegally Discriminating Against Other Sources of Renewable Energy

An interesting article from Pat Swords:

 

Pat Swords for blog

 

1.1   Background

There is now in 2019 approximately 3,700 MW of wind energy installed in the Republic of Ireland with an additional 1,300 MW installed in N. Ireland. As can be seen from the Figure 1 below, for extended periods there is little or no wind power output, and then when a low pressure system moves in, the wind turbines all rush on to the grid at the same time.

 

Figure 1 Pat

Figure 1: All island electricity demand and wind energy output for week 7th Jan to 13th Jan 2019 (Eirgrid Data)

 

This is also clearly demonstrated in Figure 2 overleaf showing electricity demand and wind power output from early September 2019 to early October 2019. For large periods of the time, there was simply little or no wind energy, which when it was available generally rushed on to the grid for a short period, as a low pressure system moved through. During these periods of peak output, the wind energy output was at times nearly equal to the troughs occurring in system demand, i.e. each night time period.

 

 

 

Figure 2 Pat

Figure 2: All Ireland electricity demand and wind energy output for period 8/9/2019 to 7/10/2019

 

1.2    Impact of Intermittent Wind Energy

This irregular supply of wind energy causes huge problems with the existing generators on the grid, as they have to reduce their output or even cease generating for the period in which the wind energy rushes on to the grid, a procedure called curtailment. The “Impact of Wind Power Generation In Ireland on the Operation of Conventional Plant and the Economic Implications”, published in 2004 by ESB National Grid[1], was written at a time when there was an indicative target being considered by the EU that 13.2% of Ireland’s primary electricity would come from renewable sources by 2010. Currently in 2019 the percentage of electricity in Ireland, which comes from wind energy is reported as 30%. As that 2004 report points out, increasing the percentage of highly variable and intermittent wind energy on the grid cause conventional generators to operate in an increasingly inefficient stop / start manner.

 

  • The adverse effect of wind on thermal plant increases as the wind energy penetration rises.  Plant operates less efficiently and with increasing volatility.

 

This increases costs and reduces the effective emissions savings. An analogy can be to consider conventional generators as like vehicles now driving in a congested urban environment, with frequent stop / starts and acceleration and deceleration to compensate for the highly intermittent and variable wind energy input, while previously they were operating on a steady load like driving on the motorway.

 

Indeed, this is the reason why the simplistic carbon saving calculations completed by wind farm developers and claims made by the Irish state, such as in its National Renewable Energy Action Plan progress reports;[2] do not reflect actual real world emission savings. While a MW of electricity generated by wind energy, in the limited periods when it is available, will replace a MW of electricity, which would have otherwise have been generated primarily by fossil fuelled thermal plants, it does not displace the emissions associated with otherwise generating a MW of electricity in a thermal plant. This is because of the intermittent wind energy input to the grid, those thermal plant are now operating in a more inefficient stop start manner with increased emissions per unit of electricity generated. .

 

As that 2004 ESB report went on to conclude:

 

  • The EU target for Ireland, from all renewable sources, is 13.2%. Therefore it can be estimated that, in the long term, using WPG [Wind Power Generation] to comply with the EU target will increase electricity generation costs by 15% (€196m as a percentage of €1.28bn).  This translates to a CO2 abatement cost in excess of €120/tonne.

 

  • The cost of CO2 abatement arising from using large levels of wind energy penetration appears high relative to other alternatives.

 

In 2019 we have reached a 30% input of wind energy to the grid (penetration), which is far in excess of the figure being considered above in 2004. As thermal plant inefficiencies increase as more wind energy is added to the grid, the relative abatement cost highlighted above is a significant underestimation of the situation pertaining in 2019.

 

1.3   Economic Cost of Carbon Reduction with Different Renewable Energy Sources

 

Furthermore, as the renewable energy programme has proceeded in Ireland without any form of supporting analysis, there has never been a proper economic assessment of the cost of reducing carbon emissions, using wind energy or any of the other ten sources of renewable energy listed in renewable energy Directive 2009/28/EC.[3] A Directive which defines:

 

  • ‘energy from renewable sources’ means energy from renewable non-fossil sources, namely wind, solar, aerothermal, geothermal, hydrothermal and ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas and biogases;

 

Many of these eleven different sources of renewable energy are of a diffuse nature and more suited to being applied for heat energy rather than the generation of electricity. An example of this being the use of solar energy for water heating, which is a simple technology approach, such as circulating water through evacuated glass tubes.

 

  • Typical well-installed systems provide up to 60% of hot water demand over 12 months.[4]

 

The cost effectiveness of this approach can be determined from the fact that such solar hot water heating installations were in use even before grants for their installation became available. As could also be said in relation to biomass (wood based) heating systems and aerothermal and geothermal systems for space heating. If we consider a Waste to Energy plant, the municipal waste is combusted at a minimum temperature of 850 ⁰C producing in the boiler high pressure steam for electricity generation and hot water for use in district heating. Some 50% of the waste is of biogenic origin (biomass) and therefore 50% of energy produced is from a renewable source.

 

If this waste had instead gone to landfill, the biogenic fraction would have rotted and produced methane, which is a global warming gas with a Global Warming Potential (GWP) of 28 – 36 over 100 years.[5] In other words it is some 28 to 36 times more potent than carbon dioxide. While the landfill gas collection system would have captured some of this methane for combustion in gas engines, figures show that of the order of 40% is directly released to atmosphere.[6] In a Waste to Energy plant, the heat and mass balance shows 810 kWh of electricity produced per tonne of Municipal Solid Waste combusted with about 0.72 kg biogenic CO2 and 0.53 kg fossil CO2 per kWh of direct emissions.[7]

 

In the same timeframe that the Irish report was stating that utilising a low penetration of wind energy to reduce a tonne of CO2 emissions was €120, it was being reported that the cost to avoid a tonne of CO2 utilising Waste to Energy technology was about €43, whereas the costs to avoid 1 tonne of CO2 with (other) biomass was €80.[8] Indeed, if district heating systems are used in addition to solely electrical outputs, then this Waste to Energy CO2 avoidance cost reduces to the range €7 to €20.

 

1.4   Adverse Impact on other Renewable Generators

The capacity factor is the actual power generated divided by the rated peak design power. The capacity factor for the Indaver Waste to Energy plant in Co. Meath and the Irish wind energy sector is show in Figure 3 overleaf for the period of the 12th to 13th January 2019. This Indaver Waste to Energy plant treats some 200,000 tonnes of Municipal Solid Waste per annum, with an electricity output of 18 MW, which was until recently a continuous output, with over 50% being classified as renewable.[9]

 

 

Figure 3 Pat

Figure 3: Wind Energy Capacity Factor and Capacity Factor of Indaver WtE for the 12thand 13th January 2019 (Data from Eirgrid)

 

Clearly a low pressure system passed through on the 12th and 13th January 2019 and as a result considerable wind energy was inputted to the grid, such that other generators had to be taken off line and kept on hot standby ready to ramp up, when the inevitable happened and the wind dropped. This can be clearly seen in Figure 3, where the Indaver Waste to Energy plant had to be taken off the grid for extended periods. However, such a waste to energy plant can’t be simply throttled back, the waste is still arriving and the furnace temperature has to be kept at a minimum of 850 ⁰C to avoid dioxin formation in the off-gases. Instead the steam generated simply has to be dumped into the plant’s cooling system rather than be used to generate steam. Not only is this a loss of revenue to the Waste to Energy plant operator, but it is reflected in resulting higher costs for waste disposal of those using that facility.

 

Indeed, an examination of pages 43 and 44 of 55 of Indaver’s Annual Environmental Report for 2018 gives a curtailment figure of 6,550 MWh.[10] Dublin Waste to Energy was also curtailed in 2018 by 30,550.8 MWh representing about 7% of the electricity it generated that year for the grid. See page 10 of 28 of its 2018 Annual Environmental Report as submitted to the Environmental Protection Agency.[11]

 

In total both Irish Waste to Energy plants in 2018 curtailed 30,551 + 6,550 = 37,101 MWh of useful electricity. As the municipal waste keeps coming in and the furnaces have to be kept at a minimum of 850 ⁰C, the steam generated in the boilers has to be sent to bypass the generators and be dumped to the cooling system. In the case of Dublin Waste to Energy, this dumped heat ends up in Dublin Bay at Ringsend.

 

So what is that in real money? Iarnrod Eireann used 25,240 MWh of electricity for traction on its Dart network in 2017.[12] So the amount curtailed from the Waste to Energy plants in Ireland in 2018 to facilitate increased wind energy on the grid is 1.5 times greater than what the Dart used in 2017. As more wind energy is installed, this situation is worsening, while as has been previously pointed out, some 50% of the energy output from such waste to energy plants is classified as renewable, because the incoming waste is some 50% of biogenic origin.

 

1.5  Authorisation Procedures which are Discriminatory

The Renewable Directive 2009/28/EC, while defining some eleven different sources as renewable, also places an obligation in its Article 13 on “Administrative procedures, regulations and codes”, which requires that:

 

  • 1. Member States shall ensure that any national rules concerning the authorisation, certification and licensing procedures that are applied to plants and associated transmission and distribution network infrastructures for the production of electricity, heating or cooling from renewable energy sources, and to the process of transformation of biomass into biofuels or other energy products, are proportionate and necessary.

 

  • Member States shall, in particular, take the appropriate steps to ensure that:

 

  • (d) rules governing authorisation, certification and licensing are objective, transparent, proportionate, do not discriminate between applicants and take fully into account the particularities of individual renewable energy technologies;

 

Authorisation clearly means the granting of planning permits, which is what this planning procedure entails. Furthermore, proportionality is a key aspect of EU jurisprudence, and the principle of proportionality is one of the key principles of Community law and given this pivotal status, it has been the focus of many judgments of the European Court; where the following principles have been repeatedly expounded:

 

  • “….according to settled case‑law, the principle of proportionality, which is one of the general principles of European Union law, requires that measures adopted by the European Union institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.”[13]

 

From a legal perspective, the situation has already arisen in Ireland that the excessive granting of planning permissions and grid connections for wind farms is clearly discriminating against other renewable sources, in particular that of Waste to Energy facilities. As previously highlighted utilising a low penetration of wind energy to reduce a tonne of carbon dioxide was €120, while the cost to avoid 1 tonne of CO2 with Waste to Energy technology was about €43, whereas the costs to avoid 1 tonne of CO2 with (other) biomass was €80.  Indeed, if district heating systems are used in addition to solely electrical outputs, then this Waste to Energy CO2 avoidance cost reduces to the range €7 to €20.

 

In other words, this discrimination is clearly illegal, as it is occurring in a manner which is discriminating against a renewable energy source, which is of significant lower cost, and is therefore a clear breach of legal requirements related to proportionality. However, this discrimination has a wider impact than solely the two Waste to Energy plants installed to date in Ireland. On the 24th July 2018 the following reply was provided in the Oireachtas by the Minister for Communications, Climate Action and Environment:[14]

 

  • The Lough Ree and West Offaly plants will no longer receive support for their peat production under the PSO from the end of 2019. Both plants have been approved under the REFIT 3 scheme for PSO support for co-firing 30% of total capacity out to 2030, and it is expected that these plants will begin co-firing on biomass in 2019. These two plants require the relevant planning permission to operate beyond 2019. The Edenderry plant has been approved for 30% co-firing support out to 2030, subject to renewal of planning permission.

 

Therefore three peat fired power stations representing a total output of 370 MW of electricity, will potentially have 30% of that output originating from renewable sources. Furthermore, if one consults the Gas Networks Ireland website, then this explains:[15]

 

  • Renewable gas[16] will be available on the gas network from late in 2018 and Gas Networks Ireland aims to supply 20% of Ireland’s gas from renewables by 2030. This equates to 15% of electricity generation demand or the heating requirements of up to 1,000,000 homes[17].  EU reports have indicated that Ireland has the greatest potential for renewable gas deployment of any of the EU 27 countries[18].  It is estimated that the roll out of renewable gas in Ireland will support 6,500 jobs[19], mostly based in rural Ireland.

 

While in addition to the two existing Waste to Energy plants, additional Waste to Energy capacity is required for waste management in the South East, South and West of the Country.

 

The only conclusion one can draw from the increasing number of partly biomass fuelled power generation plants on the grid, is that if Irish authorities continue to authorise more and more wind energy in a uncoordinated manner without any proper analysis, then considerable discrimination of these other renewable energy sources will occur, as they are curtailed to facilitate the increasing peaks in wind energy output. This is a failure of transparency and proportionality and is discriminating against other renewable sources. Hence by its nature it is a fundamental breach of Article 13 of Directive 2009/28/EC on “Administrative procedures, regulations and codes”.

 

 

[1] https://docs.wind-watch.org/EirGrid-WindImpact-Main.pdf

[2] See Section 10 of the NREAP progress reports:

https://www.dccae.gov.ie/en-ie/energy/topics/Renewable-Energy/irelands-national-renewable-energy-action-plan-(nreap)/Pages/Action-Plan.aspx

[3] https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32009L0028

[4] https://www.seai.ie/sustainable-solutions/renewable-energy/solar-energy/heat-and-hot-water-from-solar/

[5] https://www.epa.gov/ghgemissions/understanding-global-warming-potentials

[6] See for example Table 4.10: https://www.epa.ie/pubs/reports/research/climate/CCRP_3_Timoney_MethaneLandfill_web.pdf

[7]  Consonni et al 2005

https://pdfs.semanticscholar.org/4bc0/99953f62973e77f7a29474afcef4bd4636eb.pdf

http://www.seas.columbia.edu/earth/wtert/newwtert/meetings/meet2005/WTERTAnnualMeeting/presentations/S.%20Consonni.pdf

[8] https://www.powerengineeringint.com/articles/print/volume-15/issue-5/features/waste-to-energy-energy-no-time-to-waste.html   and Section 7.7 of:

https://www.umwelt.nrw.de/fileadmin/redaktion/PDFs/umwelt/munlv_klimaschutz_endbericht.pdf

[9] https://www.indaver.com/ie-en/services-for-municipal-waste/municipal-services-in-ireland/treatment-of-msw-in-meath/

[10] http://www.epa.ie/licences/lic_eDMS/090151b2806e45ad.pdf

[11] http://www.epa.ie/licences/lic_eDMS/090151b2806e349f.pdf

[12] See page 8: http://www.irishrail.ie/media/2017-iarnrod-eireann-annual-report.pdf

[13] For example ECJ, 07.03.2013, T-370/11, Poland v Commission

http://curia.europa.eu/juris/documents.jsf?num=T-370/11

[14] https://www.oireachtas.ie/en/debates/question/2018-07-24/2126/

[15] https://www.gasnetworks.ie/corporate/news/active-news-articles/natural-gas-generation-hits-all-time-high/

[16] Renewable gas is made using grass and other natural feedstocks using a process called anaerobic digestion.

[17] 1,000,000 homes is based on typical domestic gas consumption per CRU decision paper: https://www.cru.ie/wp-content/uploads/2017/07/CER17042-Review-of-Typical-Consumption-Figures-Decision-Paper-1.pdf  and is therefore based on total gas consumption.

[18] Optimal use of biogas from waste streams.  An assessment of the potential of biogas from digestion in the EU beyond 2020 (European Commission)

[19] IrBEA – Irish BioEnergy Association.

Posted in EU Renewable Energy 2020 Target, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Pat Swords | Tagged , , , , , , , , | 2 Comments

The attack on Human Rights in Turkey

Symbolbild Türkei Einschränkung der Meinungsfreiheit (picture alliance/dpa/S. Suna/epa)

Our friends in Turkey continue to try and protect their homes and heritage sites from a rampant wind industry supported by a ruthless government and some highly questionable court decisions. Despite these obstacles, the community continues to pursue what many of us would consider to be our fundamental rights.

Show your support here

 

 

Posted in Arsin Demir, Çalık Holding; Turkey; EU; renewables, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, Legal Costs; Access to Justice; Courts, lobbying; democracy; political process; general election, Turkey; ABK Çeşme RES Enerji Elektrik Üretim A.Ş, Wind Turbines: Esen Fatma Kabadayi Whiting | Tagged , , , , , , , | 2 Comments

QED

Renewables Threaten German Economy & Energy Supply, McKinsey Warns In New Report

To stabilize the electricity grid and avoid becoming too dependent on imported natural gas, Germany is expanding coal mining to the Hambach forest, where environmental activists were arrested last September.

 

new report by consulting giant McKinsey finds that Germany’s Energiewende, or energy transition to renewables, poses a significant threat to the nation’s economy and energy supply.

One of Germany’s largest newspapers, Die Weltsummarized the findings of the McKinsey report in a single word: “disastrous.”

“Problems are manifesting in all three dimensions of the energy industry triangle: climate protection, the security of supply and economic efficiency,” writes McKinsey.

In 2018, Germany produced 866 million metric tons of carbon dioxide, a far cry from its goal of 750 million tonnes by 2020.

Thanks to a slightly warmer winter, emissions in Germany went down slightly in 2018, but not enough to change the overall trend. “If emissions reductions continue at the same pace as they did over the past decade, then CO2 targets for 2020 will only be reached eight years later, and 2030 targets will not be reached until 2046.”

Germany has failed to even come close to reducing its primary energy consumption to levels it hoped. McKinsey says Germany is just 39% toward its goal for primary energy reduction.

 

 

https://www.forbes.com/sites/michaelshellenberger/2019/09/05/renewables-threaten-german-economy-energy-supply-mckinsey-warns-in-new-report/#6a8917bc8e48

Posted in Academic Research; Peer-Review Process; Medical Journals, An Bord Pleanala; appeal; interested parties, Çalık Holding; Turkey; EU; renewables, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, GDPR; Data Protection; Individual Rights, Green Party; Ireland; Eamonn Ryan; Cormac Manning, Irish Farmers Association; IFA; wind farm contracts, Kilvinane Wind Farm Ltd; substituted consent, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29 | Tagged , , , , , , , , , , , , | 1 Comment

Ireland in trouble with Aarhus – again

windaware ireland

Many thanks to Wind Aware Ireland for this very informative update:

Updates.

30th August, 2019

A panel of legal experts has found that Irish planning law is non-compliant with requirements under an international convention to allow the public to participate in the decision-making process for projects that may significantly affect the environment.

The landmark finding from the Aarhus Convention Compliance Committee (ACCC) concerns Section 42(1) of the Planning and Development Act (PDA) that allows for planning permission to be extended beyond its original expiry date without any public participation in the renewal process.

The Aarhus Convention is an international agreement that gives a number of rights of the public with regard to the environment, including the right to participate in certain environmental decision-making. The Convention entered into force in 2001 and was ratified by the EU in 2005. Ireland became the last individual EU state to ratify the Convention in June 2012.

Section 42 allows Local Authorities to essentially rubber stamp time extensions to valid planning permission without any further input from the public. There is effectively no discretion to refuse the extension so long as basic technical requirements are met. There is no opportunity for the public or expert public bodies to provide their input.

The requirement in the Convention effectively recognises the need to allow the public to have a voice in light of the changed timeframes and environmental conditions since the original planning decision was made by the Local Authority.

Thus, in its decision released this week, the Committee found that Section 42 is not compliant with the Aarhus Convention as it does not comply with the obligation to provide for effective public participation rights. This is the first finding by the Committee that Ireland is not compliant with the Convention.

The Committee recommended that Ireland now takes the necessary legislative measures to ensure that permits for activities that may impact on the environment cannot be extended without first giving the public an opportunity to participate in the decision making process.

 

Case Background

The case that led to the ACCC’s decision was brought in November 2013 by Kieran Cummins of Enfield, Co Meath concerning planning consent granted to John Keegan Quarries by Meath County Council in 1998 to develop a quarry on 8.5 hectares in Trammon.

On 30 May 2013, the developer submitted applications to extend the duration of three permits granted to it in 1998, 2004 and 2010 before expiry in August 2013. The public was not notified of these applications.

According to Mr Cummins, he only became aware of the extension granted while searching the website of the planning authority for an unrelated file in September 2013. As there was no means of appealing the matter to An Bord Pleanála under Irish planning law, the only means to challenge the decision is via a judicial review challenge through the courts.

The judicial review process is a timely and costly route that most citizens cannot offer to take. In addition, Section 42 challenges are effectively limited to only technical procedural matters.

The ACCC findings say that it is “obvious” that the judicial review process, as the only available domestic legal remedy in such cases, “does not provide an effective and sufficient means of redress” for the public to challenge permit extensions.

The case was the first brought before the ACCC since Ireland ratified the Convention. A further eight cases have since been brought against Ireland. Two were deemed inadmissible, and the rest are still in process.

 

Section 42 criticism

Section 42 of the PDA originally only allowed for an extension of planning permission if substantial works had already commenced on the site.

Following the economic crash when many developers had to abandon projects, an amendment (often referred to as the NAMA clause) was introduced that allows for extension in cases where no work has commenced for economic or technical reasons.

In both circumstances, there is no opportunity for the public to make submissions in the extension decision-making process, even where the project may have an impact on the environment.

Critics have called the process a box-ticking and rubber stamping administrative exercise as planning authorities have no discretion to refuse the request so long as the development meets basic technical requirements.

Critics also argue that this is a flawed process as the planning authority does not have to factor into its decision-making process changes to the environment over the five or ten year period.

Such changes may mean that the impact of the project is significantly different from those considered in the original application process and might now require new management and mitigation plans in order to ensure that that there is no significant impact on the environment.

In addition, the planning authority is not even in a position to attach new conditions to the permission except in relation to financial security issues linked to the completion of the project. They cannot add new conditions that take account of changes in regulations, standards or environmental circumstances over the years since the original permission was granted.

 

 

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty, The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information | Tagged , , , , | 3 Comments

What! More wind turbines? Are you serious?

wind-money

It is now widely recognised that wind turbines are inefficient, costly, environmentally unfriendly, and harmful to humans and other animals. For those who do not particularly care about these things, but are concerned about their personal finances, they are also very hard on the consumer’s pocket, as it is the consumer that is subsidising an industry whose very business model spells financial loss.

Let’s break that down.

inefficient

Inefficient:

“Here’s a quiz; no conferring. To the nearest whole number, what percentage of the world’s energy consumption was supplied by wind power in 2014, the last year for which there are reliable figures? Was it 20 per cent, 10 per cent or 5 per cent? None of the above: it was 0 per cent. That is to say, to the nearest whole number, there is still no wind power on Earth.

Even put together, wind and photovoltaic solar are supplying less than 1 per cent of global energy demand. From the International Energy Agency’s 2016 Key Renewables Trends, we can see that wind provided 0.46 per cent of global energy consumption in 2014, and solar and tide combined provided 0.35 per cent. Remember this is total energy, not just electricity, which is less than a fifth of all final energy, the rest being the solid, gaseous, and liquid fuels that do the heavy lifting for heat, transport and industry.”

(The Spectator, 13/05/2017).

print money

Costly:

“I worked on advanced wind turbine projects in the 1990’s developing variable speed generators to improve electronic efficiency and utilizing improved airfoil design for capturing energy from lower wind velocity.

The true answer is clouded by several factors. Federal and local tax incentive subsidies obscure the real cost. Maintenance is an expensive consideration that often is not considered in operating expenses. Interest paid on financing projects must also be included. Wind turbines, especially large units, are complex structures that require significant investment to build and operate. They are prone to failures and costly to repair. Downtime for routine servicing and inspections produces no electricity and winds are not always reliable consistent.

Turbine assemblies have a useful lifespan of about twenty years as mechanical and electrical components wear out over time and ordinary use, even under the best operating conditions.

The “carbon footprint” of wind turbines, figuring the manufacturing process and all the materials and manpower, transportation, other infrastructure, such as transmission wiring from remote locations, and site preparations involved in erecting and commissioning the units adds up to a real number that is seldom mentioned. Typical large units can be as tall as 400 feet and weigh up to 300 tons.

The actual pay-back of this “green technology” in terms of replacing fossil fuels and overall environmental benefit, including monetary outlay, is probably in decades rather than years.”

(John Rowen, former Aerospace Engineering Specialist/Technician at General Electric (1980-1995) -20/03/2016).

birds turbines

Environmentally unfriendly:

“As for resource consumption and environmental impacts, the direct effects of wind turbines — killing birds and bats, sinking concrete foundations deep into wild lands — is bad enough. But out of sight and out of mind is the dirty pollution generated in Inner Mongolia by the mining of rare-earth metals for the magnets in the turbines. This generates toxic and radioactive waste on an epic scale, which is why the phrase ‘clean energy’ is such a sick joke and ministers should be ashamed every time it passes their lips.

It gets worse. Wind turbines, apart from the fibreglass blades, are made mostly of steel, with concrete bases. They need about 200 times as much material per unit of capacity as a modern combined cycle gas turbine. Steel is made with coal, not just to provide the heat for smelting ore, but to supply the carbon in the alloy. Cement is also often made using coal. The machinery of ‘clean’ renewables is the output of the fossil fuel economy, and largely the coal economy.

A two-megawatt wind turbine weighs about 250 tonnes, including the tower, nacelle, rotor and blades. Globally, it takes about half a tonne of coal to make a tonne of steel. Add another 25 tonnes of coal for making the cement and you’re talking 150 tonnes of coal per turbine. Now if we are to build 350,000 wind turbines a year (or a smaller number of bigger ones), just to keep up with increasing energy demand, that will require 50 million tonnes of coal a year. That’s about half the EU’s hard coal–mining output.”

(The Spectator, 13/05/2017).

noisy turbines

Harmful to man and beast:

“Health studies into the effect of wind turbines on those living in their vicinity must be explored to prevent potential health problems, a conference on public health heard yesterday.

Alun Evans, Professor Emeritus of Epidemiology in Queens University, Belfast was speaking at the 2014 Summer Scientific Meeting at the Royal College of Physicians the second day of which was held in Dublin yesterday.

He said it was “quite possible” if the Dublin array, a proposed €2 billion project which would see 145 wind turbines constructed 10km off the east coast, goes ahead that up to two million people could be exposed to infrasound, a “sizeable minority” of who could potentially experience sleep disturbance.

Prof Evans said there was “clear evidence” that, as the size of wind turbines had increased, so has the infrasound and low frequency sounds generated by them and that they were now emitting “serious amounts of noise”.

“When you measure them with the correct filters you find they are producing noise levels which are far above what’s supposed to be permitted,” he said.

He said while many people are not affected, that others could experience sleep disturbance, adding this in turn leads to increased blood pressure which he said is a major risk factor for cardiovascular disease.”

(Irish Times, 23/05/2014)

 

“Cellular Mechanotransduction is the mechanism by which cells convert mechanical signals into biochemical responses. Based on the mechanical effects on cells it was proposed in this research project that the ground vibrations were responsible for a increased bone growth which was not accompanied by the muscle-tendon unit growth leading to the development of these flexural deformities.”

(The Lusitano Project, Faculty of Veterinary Medicine of Lisbon, 2013).

wind energy not free

Affecting your pocket:

Germany, once the European leader in the production and subsidising of wind farms, is rapidly abandoning this position, as the German public is now in open revolt, both over the physical impact of the monster turbines, and the ever increasing cost of electricity as a result of ever increasing subsidies.

“Several thousand wind turbines in Germany are likely to be closed down in the next decade because they will no longer receive any subsidies. “If electricity prices do not rise over the next decade, only a few plants will survive on the market without subsidies,” says an analysis by the Berlin-based consulting firm Energy Brainpool. This assessment is shared by most professionals. “In any case, by 2020, the shutdown of existing facilities is to be expected to a greater or lesser extent,” an article by several economists of the Helmholtz Center for Environmental Research in Leipzig concludes. “

(Translated from the German. ‘Ende der Förderung: Alte Windräder müssen bald vom Netz’; zdf.de-31/10/2017).

enviro unfriendly

I have deliberately sought older citations to show that this information has been in the public domain for a long time. In other words, the Irish government is well aware of this information – it is freely available. Whilst other European governments: Germany, Finland and Sweden in particular (I mention these three as they were at the vanguard of European wind farm building a decade ago) have dramatically reduced and even reversed their wind farm building, the Irish government continues to fully support the building of more windfarms, as evidenced by the slew of planning applications across the country.

This head-in-the-sand mentality is either as a result of stupidity, or corruption. In other words, our rulers are either acting on false or no information; or payments have been made, promises must be kept, and directorships for retired ministers are still the name of the game. You decide.

The Committee of Public Accounts (PAC) is “a standing committee of Dáil Éireann which focuses on ensuring public services are run efficiently and achieve value for money.” (https://www.oireachtas.ie; accessed 15/08/2019). Perhaps the PAC should investigate the subsidy scam?

conclusion

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Autism : A colourful history

This gallery contains 7 photos.

Originally posted on From the Inside:
This morning, I found a handful of photographs of our Ian from many years ago.  I was looking for something completely different, of course.  That is the way of my life.  The minute I…

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The final stages of capitalism

Illustration

In Das Kapital, (my translation) Marx describes the final stages of capitalism, literally along the lines of ‘capitalism will eat itself’:

 

“The final stages of capitalism will be marked by global capital being unable to expand and generate profits at former levels. Capitalists will begin to consume the government along with the physical and social structures that sustained them. Democracy, social welfare, electoral participation, the common good and investment in public transportation, roads, bridges, utilities, industry, education, ecosystem protection and health care will be sacrificed to feed the mania for short-term profit. These assaults will destroy the host.”

 

Let’s break that down and apply the mentioned elements to contemporary Ireland under a Fine Gael government:

 

“global capital being unable to expand and generate profits at former levels”

Apple is granted planning permission by Galway City Council despite admitting that the proposed data centre will “consume more electricity than Dublin”.

https://www.irishcentral.com/business/technology/apple-told-to-reveal-why-they-are-building-new-massive-plant-in-secret-area-in-ireland

 

As a result of intense publicity, and despite winning their Supreme Court appeal, Apple abandons its plans to build the ‘super data centre’.

https://www.irishtimes.com/business/technology/supreme-court-dismisses-residents-appeal-over-apple-s-athenry-data-centre-1.3856972

 

But was the withdrawal due to publicity, or was it a case that Apple did not need the data centre anymore?

https://www.equinix.ie/resources/analyst…/gartner-emerging-digital-infrastructures/

 

Capitalists will begin to consume the government along with the physical and social structures that sustained them.

During its (almost) ten years in government, Fine Gael have consistently sold off public assets, usually with the public purse coming off second-best and the buyer making a killing:

https://www.thejournal.ie/state-assets/news/

 

 

Democracy, social welfare, electoral participation, the common good and investment in public transportation, roads, bridges, utilities, industry, education, ecosystem protection and health care will be sacrificed to feed the mania for short-term profit.

A small selection of examples indicating the ever widening chasm between the “have it all’s” and the “have nothing’s”.

granny

https://www.irishexaminer.com/breakingnews/ireland/taoiseach-denies-budget-intended-to-safeguard-fine-gael-government-874219.html

 

https://www.irishtimes.com/news/health/thousands-turn-out-for-cardiac-care-upgrade-in-waterford-1.3764222

 

https://www.oireachtas.ie/en/debates/debate/dail/2017-11-22/28/

 

 

https://www.focusireland.ie/

Image result for homelessness in ireland

 

The latest attack on democracy is Fine Gael’s plan to “streamline” planning applications; i.e. crush any public objectors/opposition.

 

https://www.finegael.ie/new-laws-examined-data-centre-planning-breen/

 

 

“These assaults will destroy the host.”

Image result for revolution ireland

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Plain English please!

angry girl

“It is important to remember why our statutes should be framed in such a way as to be clearly comprehensible to those affected by them. It is an aspect of the Rule of Law. People who live under the Rule of Law are entitled to claim that the law should be intelligible. A society whose regulations are incomprehensible lives with the Rule of Lottery, not the Rule of Law”.

(Lord Simon of Glaisdale).

 

Why is it necessary for lawyers to speak gibberish? The official word for legal language is ‘legalese’, but gibberish is a more accurate description.

 

An elderly lady asked for my help recently. It turned out that her legal problem was a dispute with her landlord about his raising the rent, despite her understanding that the rent would not be increased until 2020. She had gone to a solicitor for a number of consultations and finally the solicitor had written her a letter, the primary paragraph of which read thus:

“In the event that you are not in agreement with respect to the amount of rent due and payable at that point in time there is a provision in the abovementioned contract which provides for the submission of the dispute to an arbitrator who shall hear and determine the dispute in accordance with the said contract.”

She did not understand what the letter meant but did not want to ask the solicitor to explain it as that would mean another consultation and another fee. I explained that what the letter said was:
‘If you do not agree on the amount of rent that your landlord demands, the contract says that the dispute must be decided at arbitration.’
I also had to explain what an arbitration was.

.

Why could the solicitor not use plain English?

.

Our statutory law is no better. My favourite is this definition from the Road Traffic Act of 1961, which says that a “pedestrian-controlled mechanically propelled vehicle” is a

“mechanically propelled vehicle which is neither intended nor adapted for use for carrying the driver or a passenger, or which is intended or adapted so that there are alternative methods of driving it, namely, by a person carried on it or by a pedestrian, except during a period during which it is driven while carrying the driver or a passenger”.

One needs to read that definition carefully and often. What it seems to be saying is that electric shopping baskets are not covered by the Act, whilst motorised wheelchairs are, especially when they are used to carry passengers, except perhaps when they are motionless. If you work it out, let me know.

 

Another favourite of mine is Section 12 of the Domestic Violence Act of 1996:

“An appeal from a safety order or a barring order shall, if the court that made the order or the court to which the appeal is brought so determines (but not otherwise), stay the operation of the order on such terms (if any) as may be imposed by the court making the determination.”

My reading of this is that the order is only stopped by an appeal if the court says so, and not automatically. Again, let me know if you read it differently.

 

If a society labelling itself as a democracy claims to be governed by the rule of law as one of the principal pillars of that democracy, it stands to reason that the law should be capable of being understood and obeyed by the majority of the people governed by that law.  If, however, the law is such an unintelligible mishmash that most people have to rely on the legal profession to explain the meaning and impact of the law when it invades all aspects of their lives, are we really a democracy?

 

Article 40 of our Constitution orders the Government to make laws that “defend and vindicate the personal rights of the citizen”. Has this constitutional duty been fulfilled when the citizen cannot understand the laws in the first place?

 

Similarly, s.5 of the Interpretation Act 2005 tells us that when interpreting a provision of any Act that is “obscure or ambiguous”, the provision shall be interpreted to “reflect the plain intention” of the Oireachtas.

 

And which ‘plain intention’ would that be? Is this not a case of a dog chasing its own tail?

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, lobbying; democracy; political process; general election | Tagged , | 3 Comments

Hate Speech

bullets

 

What is hate speech?

Hate speech, as defined by the No Hate Speech Movement Ireland, covers all forms of expression which spread, incite, promote or attempt to justify any form of hatred, stereotyping or discrimination based on intolerance.

This includes, but is not limited to, intolerance of people based on their ethnic and cultural backgrounds, religious belief, disability and health, sexual orientation and gender identity.  Hate speech also includes sexism, misogyny, aggressive nationalism, and all forms of threatening and/or abusive language based on an identifiable characteristic of a person.

 

Why is it important to make hate speech illegal?

One of the positive aspects of law is that it can have an educating effect and get people to think about some of their attitudes and habits. The plastic bag levy gets people to reuse their plastic bags, not because they necessarily care for the environment, but because it saves them fifteen cents. This becomes a habit and suddenly that person is contributing to a cleaner environment.

Hate crime legislation, admittedly over a long time, can shape the attitudes of a society when it comes to showing tolerance to those who are different from us. The punishment of hate crime offenders as ‘hate offenders’ offers an important public forum of censure (like the stocks, flogging post and gallows that used to be in the town square) and denunciation of the offender’s prejudice. This in turn creates a social climate that will hopefully impact on future generations until tolerance becomes a societal norm.

 

What is the position in Ireland?

There is no specialist hate crime legislation in Ireland. The Prohibition of Incitement to Hatred Act 1989 contains the following definition:

“hatred” means hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation”.

Section 2 says it shall be an offence for a person:

 (a) to publish or distribute written material,

(b) to use words, behave or display written material—

(i) in any place other than inside a private residence, or

(ii) inside a private residence so that the words, behaviour or material are                   heard or seen by persons outside the residence,  or

(c) to distribute, show or play a recording of visual images or sounds,

if the written material, words, behaviour, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred.

 

In other words, if you keep your hatred within the four walls of your home (and teach your children at home, rather than in the park), you are OK.  Just don’t let anyone hear you.

 

The Irish Council of Civil Liberties (ICCL), in their report, The Lifecycle of a Hate Crime: Country Report for Ireland, tell us that Ireland has one of the highest rates of hate crime against people of African background and transgender people in the EU, but has no laws to address it. They state that Ireland is “seriously deficient” when it comes to addressing hate crime in the state. This is despite Ireland being significantly above the EU average when it came to people from certain groups reporting having been subjected to hate crimes.

 

A separate report published in December of last year by the EU Fundamental Rights Agency (FRA)  found that 21% of people surveyed from a sub-Saharan African background experienced six or more physical attacks due to their ethnic or immigrant background in the five years preceding the survey.

This compared with an EU group average of 9% – and made Ireland the highest ranking in this area.

In relation to transgender rights, a 2014 FRA study found that Ireland recorded the second highest rate of hate-motivated violence against transgender people in Europe.

A total of 13% of trans people surveyed reported having been physically or sexually assaulted or threatened with violence, in attacks either wholly or partly motivated by transphobia, in the 12 months prior to the survey.

 

 

An Irish white man recently called me “a white supremacist from South Africa”. The rest of his comments are too gross to print. Whilst the ignorant conflation of “Mississippi Burning” and “The Long Walk to Freedom” provided some private amusement, that was only because I am old and cynical, and also appreciate the striking similarities between apartheid South Africa and the Deep South. Despite living in Ireland for sixteen years, and being an Irish citizen for eleven years; I still remember just how awful it was in the dark days of apartheid South Africa, and how privileged I was just because of the colour of my skin, despite my beliefs.

Somebody else, on the other hand, might take that sort of remark quite badly, and justifiably so.

 

People need to talk to each other, rather than at each other. Peace and love people, peace and love.

 

The “Oyster” is taking a sabbatical. I leave the energy debate in hands far more capable than mine. I have another blog on disability issues which you are welcome to visit.

Adios.

thatsallfolks

Posted in EirGrid; Insurance; Law; Cancer; EMF | 3 Comments

When you need a helping hand

For parents whose child has been (recently) diagnosed with autism, my wife Fiona has graciously made her book available on line for free.

Please spread the word.

https://online.flippingbook.com/view/601632/

Posted in Autism, Autistic Spectrum Disorder, ASD | Tagged | 1 Comment

Distraction from the car engine

A very insightful piece from an amazing young woman.

via Distraction from the car engine

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