Sold A Pup Part 2: Rip it up and start again

ImageReaders of my previous blog on the upcoming case of Pat Swords vs Department of Communications, Energy and Natural Resources have asked me to supply the various judgments that Pat has secured along the way, despite the Minister’s dogged attempts to hold up the matter for as long as possible, something he is still doing today (kicking for touch means making time for all those wind turbines to be built, obviously). The judgment of Peart J. is attached at the end of this. Peart J. granted Mr Swords leave to bring judicial review proceedings. The State opposed this, arguing undue delay (in other words, they rushed the NREAP through in 2010, without telling anybody, but then expect us to lodge our opposition within months of its creation – go figure). This motion of undue delay came before Judge Kearns who decided that Article 7 of the Aarhus Convention was not time limited. Accordingly, while one could not go back to 2010 under the Judicial Review mechanism (although some would argue with that), if it indeed was determined that the State was in breach, then it was not appropriate that the State should be allowed to continue until compliance was ensured. Judge Kearns therefore ordered Mr Swords to proceed by way of plenary summons – in other words, go to trial. The State is now arguing it needs a 10-day trial. Clearly a lay-litigant like Mr Swords does not have the resources, money and otherwise, to conduct a 10-day trial, and the Minister is banking on that fact. A 10-day trial also takes a while to secure a place in the Court diary, and the Minister wants this trial to be as far away from the local elections as possible. The hearing on the 6th May might decide that,and hopefully the High Court will see through the Minister’s shenanigans and rule against the State, but there is a long way to go, which is why Pat Swords needs our support.

The NREAP was conjured up in 2009/10 when wind turbines were the new cool, essentially because we didn’t know much about them. Since then, turbine technology has remained relatively stagnant whilst there have been huge technological leaps in other forms of renewable energy, all of which are far more labour intensive and so would create significant long-term employment opportunities. Turbines, on the other hand, are ultimately controlled by computers (often in a foreign land) and therefore are only good for short term installation jobs. When one remembers that these short-term jobs consist of pouring huge amounts of concrete into the land with catastrophic environmental consequences, the ‘green’ label that the wind-industry constantly bangs on about becomes suspect. Turbines are essentially maintenance free and only really need a local fire station for the times that they burst into flames. I am told that replacing the moving parts is very expensive, and so is something many private profit-driven wind farm owners neglect to do, leading to those turbine fires which the newspapers love to cover – the UK newspapers, in any event.

The other nonsense that the wind industry, and the Fine Gael / Labour cartel, is spreading is that Ireland might well land the gig of manufacturing wind turbines under licence to Siemens or a similar manufacturer. Wrong. That job has already been awarded to Hull in England. It is not coming to Ireland – not ever. All wind turbine technology will always be imported, period. So when Minister Rabbitte laments over our balance of payment woes – remind him just how prohibitively expensive these wind turbines are, something that is never included in the start-up budget of 3.8 billion euro (consider that the total estimate public service spend for 2014 is 53 million euro). Converting Moneypoint to biomass, on the other hand, will cost (at most) a tenth of that figure, and could be the catalyst that the Irish biomass industry so desperately needs – a catalyst which Minister Rabbitte has consistently not supplied.

Biomass technology (lots of Irish jobs), solar energy technology (lots of Irish jobs), and tidal energy technology – where Ireland could become a true world leader due to the consistent rise and fall of all our major rivers (and, dare I mention it? – lots of Irish jobs) has come along in leaps and bounds since the wind-energy fixated Fianna Fail/Green Party put together the pup that is the NREAP. A political commentator recently dubbed Fine Gael as the new Fianna Fail – here is your proof: Fine Gael not only picked up the pup, they attempted to increase the litter (pun intended).

Eamon Ryan and the Green Party, co-conspirators with Fianna Fail, are still trumpeting the virtues of wind energy. This might explain why Eamon and the Green Party find themselves the political equivalent of a basement-let in a second hand bookshop, struggling to come to terms with Kindle.

So whilst Pat Sword’s case has significant legal interest, it has huge political importance. Minister Rabbitte is not interested in listening to the voters who put him there in the first place, but he must listen to a court Order. The Minister has recognised this: One of the arguments in his brief is that the relief that Mr Sword’s is seeking would be a breach of the doctrine of the separation of powers, as the court would be telling a Minister what policy he should be following. Wrong. The court is not telling the Minister which policy to follow, it is telling the Minister he did not follow the steps required by law prior to implementing the policy (public consultation, which is part of the process that the Minister finds so tedious – democracy); and accordingly the policy is ultra vires (‘outside the law’), something this government, like the one before it, has perfected.

This is about democracy, pure and simple. It is about the right of a citizen to put up his hand and say: “Hold on, don’t I get a say in this?”

Pat Swords is that citizen.

Links: (interview with Pat)

Monday the 12th day of November 2012 BEFORE MR JUSTICE PEART

PAT SWORDS – Applicant

Upon Motion of the Applicant in person made ex parte unto the Court this day for leave to apply by way of an application for judicial review for the following reliefs
Relief 1 : Order of Certiorari
Order of “certiorari” of the Irish National Renewable Energy Action Plan (NREAP) adopted under Directive 2009/28/EC and the Renewable Energy Feed In Tariff (REFIT) scheme (State Aid N57 l /20006 and its extension)
Relief 2: Declaration
An order of Declaration by way of an application for Judicial Review in relation to the current implementation of the renewable energy programme and its associated funding arrangements. ls it lawful vis a vis Directive 2001/42/EC and Article 7 of the Aarhus Convention to grant planning permission for such developments and award funding under the R EFIT scheme when no proper and legally compliant environmental considerations and public participation in decision-making have occurred in the development of this programme. In particular, as a requirement of Annex I of Directive 2001/42/EC, the main environmental protection objectives of the plan or programme should be clearly defined and the alternative measures considered to achieve them.
Relief 3: Order for Protective Costs
An order for Protective Costs i n my favour by way of an application for Judicial Review and under Section SOB (2A) of the Planning and Development Act 2000 (as amended by the Environment Miscellaneous Provisions Act 2011). As applicant I seek said leave for Judicial Review pursuant to the law of the State that gives direct effect lo the provisions of Directive 2001142/EC and the UNECE Aarhus Convention, as set forth in paragraph (d) of the Statement of Grounds herein signed by the Applicant on the Grounds set forth therein.
Whereupon and on reading the Statement and the Affidavit of the Applicant filed on the 8’11 day of November 2012 verifying the facts set out in the said Statement and the exhibits referred to i n said Affidavit
And on heari ng said Applicant IT IS ORDERED that:
1. The Applicant do have leave to apply by way of application for judicial review for the reliefs set forth at paragraph (d) in the aforesaid Statement on the grounds set forth at paragraph (e) therein.
2. The said Applicant do serve an originating Notice of Motion returnable for the 15th day of January 2013 together with copies of the aforesaid.
Statement and verifying Affidavit and of this Order on the Chief State Solicitor on behalf of the Respondent
Applicant in person
The costs of this application and Order be reserved

13th November 2012

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from full-time practice in 2002 to take up a lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Uncategorized and tagged , . Bookmark the permalink.

4 Responses to Sold A Pup Part 2: Rip it up and start again

  1. cawtdonegal says:

    Thanks, it’s just the order of the Court confirming that threshold to bring a JR is reached (i.e. grants him “leave to apply by way of application for judicial review for the reliefs set forth … “).

    I note that it relates to proceedings as a litigant in person. I understood that Pat has legal representation now in place via Lohan & Co. Solicitors, is this not correct?

  2. Neil van Dokkum says:

    I think that is correct, yes. I hope so for Pat’s sake!

    Don’t forget that the JR is no more. Kearns J ruled that the matter should proceed by way of plenary summons = trial.

  3. Pingback: Wind farms in the Irish high court | Concerned About Wind Turbines - Donegal

  4. Pingback: Wind farms in the Irish courts during 2015 | Concerned About Wind Turbines - Donegal

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s