Distinguishing procedure from the merits

 

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It is often a challenge when advising people who are distressed about a wind farm going up next to them or that EirGrid is building pylons on their farm because all they see are the issues or the “merits” as lawyers call them. To them it is about right and wrong and everything is black and white: “it is wrong that they are wrecking my life, you must appeal it”.

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Unfortunately planning law (and most other types as well) does not work that way. It is not based on whether the proposed building is beautiful in your eyes or whether you believe that wind energy is our saviour or that the pylon in your field is making your kids sick. It all comes down to ticking the boxes and making sure that everything is done in the proper order, at the proper time, by the proper person.

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That is why planning permission can only be challenged by judicial review. A review is not like an appeal, which challenges a decision on its merits (where it is either right or wrong). A review does not look at the substance of a decision (the wrongs and rights) but rather the procedure that was followed in reaching that decision. So instead of challenging a wind farm because you believe that wind energy is for the fairies, you need to challenge that wind farm for not following the proper procedures and ticking the proper boxes – like not doing an EIS or failing to include the grid connection for example.

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And this is where the Aarhus Treaty becomes important. If the procedure demands a public consultation, then the failure of the wind farm developer to consult with the people affected by the wind farm should be a fatal flaw.

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This then points to a bigger problem. If the Irish government deliberately fails to properly implement the Aarhus Treaty into our planning law, then the failure to properly consult the public cannot be used as a ground for review in Irish courts, even where the European Court gives out to the Irish government for failing to do its legal duty under the EU Treaty. This was illustrated in Pat Swords’ latest case. Nobody bothered asking the Irish public what they thought of the NREAP, but the Irish courts refuse to declare that that failure is fatal. Until it is part of our law so that even dodgy judges cannot ignore it, we are going around in circles.

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In this regard it would seem that the Irish government is taking lessons from its British buddies (or perhaps the other way round?). This was recently written by Louise Venn, an ordinary citizen like you and me, who is challenging the fact that the people directly affected by planning decisions seem to have little say in the whole affair with the decision often made before the application:

An imbalanced planning system in the UK is threatening our environment, neighbourhoods & quality of life

The UK is completely ignoring basic minimum standards of environmental justice under European law. It is actively preventing the public from being able to challenge illegal and environmentally damaging decisions by its own national Planning Inspectors.”

See: https://www.crowdjustice.co.uk/case/a-fair-uk-planning-system/

 

The same is true of Ireland. Although the Irish government assure the EU and European Court that they support public participation in planning matters, those that are actually affected or are involved in trying to challenge a planning application know that they are talking nonsens. Any challenge is an uphill struggle all the way, and a very expensive struggle, sucking all your energy and emptying your bank account. So much for access to justice and an inexpensive rememdy – these things do not exist in Ireland.

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It is important to stick together and keep challenging this unjust system. We know what happens when we sit back and allow the government to run the show without checks and balances: the country goes down the toilet. As was said by Nyberg Report on Irish Banking Crises:

 

“Groupthink occurs when people adapt to the beliefs and views of others without real intellectual conviction. A consensus forms without serious consideration of consequences or alternatives, often under overt or imaginary social pressure. Recent studies indicate that tendencies to groupthink may be both stronger and more common than previously thought.”

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, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, High Court; Judicial Review; Appeal on the merits; judicial discretion, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29 and tagged , . Bookmark the permalink.

5 Responses to Distinguishing procedure from the merits

  1. The Directive states;
    have access to a review procedure before a court of law or
    another independent and impartial body established by law to
    challenge the substantive or procedural legality of decisions, acts
    or omissions subject to the public participation provisions of
    this Directive.

    substantive substantive is the important word it is in conflict with O’Keeffe

    • As long as the only remedy is a judicial review, the substantive element will be restrictively interpreted I.e. an absurdity along the lines of Wednesbury. Procedural,irregularities will always be a happier hunting ground. I am not bothering to consider the function of the ABP as that institution is a waste of space.

  2. Pingback: Distinguishing procedure from the merits | ajmarciniak

  3. Pat Swords says:

    Neil is correct, the Aarhus Convention and implementing EU legislation provide a right to challenge the substantive and procedural legality of the decision. In the UK and Ireland the Judges don’t enter substantive issues, other than when you can first prove that the Government official(s) behaved irrational, i.e. defied common sense (Wednesbury / O’Keeffe judgements).

    This was one of the issues brought to the Compliance Committtee back in 2008 in a case against the UK. The findings and recommendations included:

    http://www.unece.org/fileadmin/DAM/env/pp/compliance/C2008-33/Findings/ece_mp.pp_c.1_2010_6_add.3_eng.pdf

    125. The Committee finds that the Party concerned allows for members of the public to challenge certain aspects of the substantive legality of decisions, acts or omissions subject
    to article 9, paragraphs 2 and 3, of the Convention, including, inter alia, for material error of
    fact; error of law; regard to irrelevant considerations and failure to have regard to relevant
    considerations; jurisdictional error; and on the grounds of Wednesbury unreasonableness
    (see paras. 87–89 above). The Committee, however, is not convinced that the Party concerned, despite the above-mentioned challengeable aspects, meets the standards for
    review required by the Convention as regards substantive legality. In this context, the
    Committee notes for example the criticisms by the House of Lords,and the European Court of Human Rights, of the very high threshold for review imposed by the Wednesbury test.

    126. The Committee considers that the application of a “proportionality principle” by the courts in England and Wales could provide an adequate standard of review in cases within the scope of the Aarhus Convention. A proportionality test requires a public authority to provide evidence that the act or decision pursued justifies the limitation of the right at stake, is connected to the aim(s) which that act or decision seeks to achieve and that the means
    used to limit the right at stake are no more than necessary to attain the aim(s) of the act or decision at stake. While a proportionality principle in cases within the scope of the Aarhus
    Convention may go a long way towards providing for a review of substantive and procedural legality, the Party concerned must make sure that such a principle does not generally or prima facie exclude any issue of substantive legality from a review.

    127. Given its findings in paragraphs 125 and 126 above, the Committee expresses
    concern regarding the availability of appropriate judicial or administrative procedures, as
    required by article 9, paragraphs 2 and 3, of the Convention, in which the substantive
    legality of decisions, acts or omissions within the scope of the Convention can be subjected
    to review under the law of England and Wales. However, based on the information before it
    in the context of the current communication, the Committee does not go so far as to find the
    Party concerned to be in non-compliance with article 9, paragraphs 2 or 3, of the
    Convention.

    So the Compliance Committee decided instead to concentrate on the costs of access to justice in the UK, i.e. ‘not prohibitively expensive’, which is a long on-going case against the UK, not least with respect to the latest crowd justice initiative highlighted by Neil in his blog piece above.

    It is also interesting to see how other mainland EU Member States with their different civil law tradition go about providing this substantive review. The EU maintains an e-justice portal, which deals with Aarhus access to justice provisions in each of the Member States, just click on the link below and the flags then on the right:

    https://e-justice.europa.eu/content_access_to_justice_in_environmental_matters-300-en.do

    For instance the Netherlands:

    Administrative Courts will review both the procedural legality and the substantive legality of administrative decisions as long as the interested parties have made that specific part of the decision a part of the dispute (see Article 8:69(1) General Administrative Law Act). When a public authority has been granted a margin of appreciation by the legislator in weighing the different interests involved in making a specific decision, the court will allow for this margin by applying a marginal review and upholding any decisions that it finds not unreasonable (Article 3:4(2) General Administrative Law Act). In general, courts will review the administrative decision and will ascertain whether the competent authority could justifiably base the decision on the material, technical findings and calculations that were used. There are no written rules of evidence other than the formal rules that have to be applied when establishing the facts. The court is for instance competent to appoint an independent expert, like the Foundation for advising Administrative Courts in environmental and zoning cases (Stichting Advisering Bestuursrechtspraak or StAB). In cases where the court concludes that the decision is unlawful it will annul the challenged decision.

    In reality it appears that the Dutch Courts in wind farm cases have been failing to review the merits (substance) of the decisions made (sounds familiar?). As such then there is a very good Communication to UNECE now on-going prepared by some Dutch legal experts; ACCC/C/2015/133. The Dutch authorities should have their written response in to UNECE about now, but this one is going to be interesting to watch over the next few months:

    http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppcc/envppcccom/acccc2015133-netherlands.html

    However, in Ireland it will take a long time for things to change, so until then restrict the ‘day in Court’ to issues of procedure. Neil is also right, An Bord Pleanala don’t do merits either:

    An Bord Pleanala Case Reference PL17. PA0038:
    http://www.pleanala.ie/casenum/PA0038.htm
    The EIS states that the operation of the proposed development would be likely to reduce the emission of greenhouse gases by the equivalent of 180,000 tonnes per annum. Several observers disputed the basis of this calculation. Their arguments were persuasive. The extent to which the proposed development would reduce greenhouse gas emissions depends on factors that cannot be conclusively determined in the course of this application, including the alternative means of electricity generation that would be available during its operation. Its impact on climate change would be positive, but it may not be significant. The proposed development is not justified for planning purposes by a demonstration that it would in itself lead to a quantifiable reduction in greenhouse gas emissions. It is justified by its compliance with general public policies that have been made in order to reduce greenhouse gas emissions. Whether those policies are likely to be effective is not a matter for the board to review in the course of this planning application.

    The law, i.e. both Article 6(4) of Aarhus and the EIA Directive, are clear that public participation has to take place when all options are open. That is procedure. You can win on that as others have done before:

    http://curia.europa.eu/jcms/upload/docs/application/pdf/2013-01/cp130001en.pdf

    Alternatively days in Court arguing merits are just going to be expensive days.

  4. Owen says:

    But do green groups not win cases on merit eg edenderry peat station. Do greens have special status at judicial review stage?

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