Report on Communication ACCC/C/2014/112 regarding complaint of non-compliance against Ireland

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Dave Malone,  Pat Swords,  Neil van Dokkum

 

The first session involved the opening statements.  These are delivered in writing to the Aarhus Convention Compliance Committee (ACCC) beforehand, which allows a speaker from both sides to paraphrase and highlight the main points underpinning the Communication and the Party’s Response  in about ten minutes or so.

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And then it was the turn of the Curator. The Curator is the ACCC member who was assigned the case, researches it, makes some sort of preliminary assessment (and perhaps recommendations?) to the rest of the Committee in closed session before the parties are invited in.

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The Curator asks ‘clarification questions’ to both the Communicant (us) and the Party (the Irish government) – sometimes a common question for both sides to answer, and sometimes a question directly and specifically at one party but the other is entitled to respond to the answer to the question. It is a very European civil-law way of doing it and you need to listen to the questions carefully, as they often have a sting in the tail.

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Two questions stood out for me in the morning session:

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The first was over the meaning of “environmental information” and whether the interpretation of the Commissioner for Environmental Information was wide enough. The State tried to argue that the Commissioner adopted an ‘expansive’ definition but we shot this down with a reference to Minch v Commissioner for Environmental Information and the Department of Communications, Energy and Natural Resources where Baker J rejected the ‘remoteness test’ used by the Commissioner when considering if a measure is likely to have an effect on the environment, suggesting that a broader interpretation of environmental information should be used. Following the Supreme Court in NAMA v CEI [2015] IESC 51, Baker J noted that a purposive approach to interpretation of the AIE Regulations is required, and concluded that the Commissioner took an overly narrow approach to the examination of the NBP. She stated that the question of remoteness was not the correct approach as it failed to take into account that Article 3(1)(c) includes measures, programmes, policies etc  which are likely to affect elements of the environment, not just those which have affected those elements.

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Baker J held that the Commissioner’s approach to the Report was incorrect in that he directly linked the production of the Report to his characterisation of the NBP. Baker J pointed out that the Report, as an economic model, could inform the decision of policy makers and further suggested that the full framework of the information available to the Government is likely to have an impact on emissions into the environment. This is a wider test, namely that that information need only be capable of affecting or be likely to affect the environment in order to constitute environmental information.

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As the ACCC (apart from Aine Ryall) were not necessarily aware of this Irish judgment, we also referred to Article 2, paragraph 3 of the Aarhus Convention which does not attempt to define “environmental information” in an exhaustive manner but rather breaks down its scope into three categories (“the state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements), and within each category provides an illustrative list. These lists are likewise non-exhaustive, and so they require a degree of interpretation on the part of authorities in a given case. The clear intention of the drafters was to craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation.

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I have a feeling that this point will be stressed by the ACCC, particularly as the State conceded that government departments were in the habit of rejecting requests for environmental information but claimed that it was doing its best to educate the officials in these departments and then had a little whinge about the lack of public funds to do this (an excuse used ad nauseum throughout the day).

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The other question pertained to the fee charged for information requests. Whilst the ACCC noted that it had been reduced from 150 to 50 euro, they still seemed unimpressed, particularly when an observer pointed out that you do not pay a fee when you commence an action in the High Court.

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Finally, the ACCC seemed truly shocked to hear just how long the Commissioner was taking to deal with appeals. Once again the State whinged about the lack of public funds and how 2015 saw the Commissioner increase the rate of concluded appeals to fifteen, and how they had appointed two more inspectors. This failed to impress the Curator who pointed out that even at a rate of fifteen completed appeals a year, the turnaround time was still likely to be almost two years, and that calculation was not catering for the probable increase in appeals. The State tried to claim that twelve appeals had been dealt with this in year already, but this was contradicted by one of the observers, who said the figure was closer to nine, and also explained that appellants were approached by the Commissioner’s office and told that if they withdrew their appeal they would get their fee refunded. When some people did this, this withdrawal was registered as a completed appeal, which might explain the inflated figure.

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Whilst on the question of Article 9 and the access to justice, we of course reminded the Committee once again that Pat’s case in the High Court was now in its fourth year without a judgment. The State claimed that this was an isolated case and that the usual turnaround time was much shorter, until an observer (Fred Logue) confirmed that he had been involved in a number of cases in the High Court which had taken between three and five years! There was a deafening silence from the State in reply to that shocking fact.

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The other area on which questions were concentrated involved the Wind Farm setback distances and the Guidelines which have been delayed for an inordinate time. We had explained to the ACCC about the fairly unique manner in which the Irish rural population is widely scattered over the land, so whilst there may not be that many people around, it does mean that there are no wide open spaces of population-free land. We explained that if the setback distance was increased, it would mean that a lot of areas would be off-limits to wind farms as it would not be possible to have sufficient setback distances from existing populations. Clearly this position was untenable to the wind energy companies and therefore was untenable to certain Ministers, hence the inactivity regarding new guidelines, as there was an effective stalemate between those who wanted increased distances and those who want to crowd the countryside with wind farms. The ACCC seemed intrigued by this, and there were many questions about the consultation process, and the State’s failure to deal with people’s health and medical concerns (Francis Clauson’s amicus brief), and the fact that the latest investigation into the guidelines was restricted to noise and flicker only. Two of the Committee seemed concerned that the State would actually reduce the setback distances to less than 500 metres, and the State had to assure them that this was “unlikely”.

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This led on to the Westmeath and now Donegal incidents where the Minister overruled the Council and its County Development Plan as not being in conformity with the overall national policy. The Committee seemed somewhat surprised that this could be done (again because the European model often caters for decentralised government) and the State were loud in their protests that the legislation authorised the Minister to do this. This did not really impress the Committee however and they wanted to know whether the Minister had sufficiently consulted with the public and the Council before issuing the diktat. This allowed us to introduce evidence about the Donegal action of John Campbell. Despite the State protesting that this was a settlement and not a judgment, we placed on record the first term of that settlement (emphasising the bold words):

“An order of certiorari quashing the County Donegal Development Plan 2012 – 2018 Directive 2014 (“the direction”) of 3 October 2014 issued pursuant to section 31 of the Planning and Development Act 2000 (as amended) on the ground pleaded at (e) 5 of the statement of grounds of December 2014, namely that the respondent erred in failing to provide adequate reasons in the final direction of the 3rd October 2014 which would provide interested members of the public with a sufficient justification for the decision and determination.”

 

There were obviously lots of other matters raised, as our Communication was very detailed, but the one I want to end with is also one that I want readers to think long and hard about, and to share your thoughts on this blog.

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The primary point that seems to need investigating involves the question of the State doing what it describes as “Progress Reports” to the EU on the NREAP. We were arguing that these so-called progress reports constantly changed the content of the NREAP when compared with the original NREAP (which was created before Ireland ratified Aarhus) and that therefore these were in fact amendments of the NREAP which accordingly required extensive public consultations for every amendment, in line with the Maastricht Recommendations and accompanying case law. An example would be the move away from off-shore wind farms originally proposed in the NREAP to the almost exclusive focus on on-shore wind farms. The State argued that this was more of a shift in emphasis rather than a change in the Plan as such.

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The one ACCC member asked that if there were less off-shore and more on-shore wind farms, did this not affect a lot more people on the land and therefore should they not be consulted? I regarded this as a rhetorical question, and the State did too, as they did not answer.

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There were a lot of questions on this so clearly it is something that we need to think about carefully when we answer the Questions that the Committee will pose to both sides. I would appreciate people’s thoughts on that issue:

When is a Progress Report about an existing plan actually an amendment to that plan that requires public consultation?

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There are lot of clever people out there so please get your thinking caps on and suggest some arguments and/or case law on the point.

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The next stage of this ACCC process, which should be in about two months’ time, will be answering the questions asked by the ACCC, and then the next public hearing happens in September, when hopefully they will make their finding.

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 practice in 2002 to take up a full-time 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). He is an accredited and practising mediator and is busy writing a book, with Dr Sinead Conneely, on Mediation in Ireland. His current interest is Ireland’s energy policy and its impact on the people and the environment. He is also researching 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 An Bord Pleanala; appeal; interested parties, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, Legal Costs; Access to Justice; Courts, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Pat Swords, 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 and tagged , , , , , , . Bookmark the permalink.

4 Responses to Report on Communication ACCC/C/2014/112 regarding complaint of non-compliance against Ireland

  1. menshevic says:

    Hi Neil,

    “When is a Progress Report about an existing plan actually an amendment to that plan that requires public consultation?”

    Surely the answer to such a question is when there is a change that impacts everything and everyone.

    A progress report is a report on the progress of a situation. I’m walking down the road…. I am now running (amendment that has no impact to anyone or anything around it) down the road…. I’m walking down the road… I’ve run out of road….

    The ‘progress’ is a report on what is going on ‘on the road’, walking can be ‘amended’ to running but when the road stops any further action cannot be called an ‘amendment’.

    To build more road requires a whole new change. You cannot call bringing in diggers, lorries, work people, changing the landscape, diverting people for months and months, for EVERY stretch of ‘new road’ required, an ‘amendment’ on a progress report. How does that progress report read? “I walked another kilometer today because that is all the road that was built.” No mention of all the action going on to build the road!

    Any alteration or change to the ORIGINAL plan is surely an amendment because the initial concept hit a problem that needed to be resolved. Such a resolution requiring a change to the original is, by it’s nature, amending the original and such amendment will have a different outcome and impact on everything around it.

    The change from offshore turbines to onshore turbines is a perfect example. The problem they hit was cost – the solution was to ‘amend to onshore turbines’ and therefore the different outcome had an immediate impact on both the land and the people living on that land. It’s the difference between landing on Mars and landing on the Moon, you don’t make ‘amendments’ you have to make a whole new set of equipment and address a whole new set of problems even though the basic commonality is that people will be leaving the earth’s atmosphere.

    That’s my tuppence worth because I have no access to Irish legislation.

    Good luck and a huge thank you to yourself, Pat and Dave for EVERYTHING you are doing!! Tina

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  2. Pingback: Report on Communication ACCC/C/2014/112 regarding complaint of non-compliance against Ireland | ajmarciniak

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