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”.
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.
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.
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.
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.
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.”
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.
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.”