Access to Justice?

Access to Justice pic for blog

The Aarhus Compliance Committee has interpreted Article 9 (3) of the Convention to mean that the public must have access to adequate judicial mechanisms in the event of acts and omissions in contravention of environmental law and, secondly, to provide means for the enforcement of environmental law to ensure its effectiveness. In other words there must be a quick and effective way to stop people wrecking the environment and ignoring the law. Neither the ABP nor the High Court can be described as quick and effective. We need something new that has the trust of the public – something like an Environmental Rights Commissioner and thereafter an Environmental Court – which is quick and easy and does not require a law degree to understand what is going on and is open to all, either the single citizen or the community group. Quick and effective justice is what is needed.

With this in mind I ask you to consider the plight of two groups who are currently in litigation concerning matters of profound public importance. Instead of funding the exploration of these important questions itself, the State is putting all and every obstacle in their way. It’s the old tactic of “can’t beat ’em? Then starve them!”

The legal fees necessary to take these matters further will be enormous. Between five and seven thousand people read this blog. If you could all see it in yourselves to donate a tenner to each family or group involved in this litigation, that would be an enormous help.

 

THE HIGH COURT (JUDICIAL REVIEW)[2016 No. 754 J.R.]
SINEAD FITZPATRICK AND ALLAN DALY
versus
AN BORD PLEANALA
AND GALWAY COUNTY COUNCIL AND APPLE DISTRIBUTION INTERNATIONAL

Sinead and Allan judicially reviewed the decision of ABP to confirm the grant of planning permission to Apple for a massive data centre right in the heart of the fields of Athenry. They lost and now need to appeal that decision.

Sinéad and Allan have to be back in court today at and decide by then if they are going to apply for a certificate to appeal.

They have been under considerable stress in taking the Judicial Review and now they will have there own costs to pay. They need help, fast.

I know it would take off some of the pressure and perhaps help them to make the decision to seek leave to appeal if the financial side could be sorted out for them.

There is a very real danger that Judge McDermott’s judgment will open the floodgates for data centres and in turn give the Wind Industry the excuse to develop further, given the massive electricity consumption of these data centres. Even if the likes of Apple can be stalled a bit longer they may take their data centre business elsewhere and hopefully other data centre developers would follow suit.

wind-turbines-near-house

 

The second case before the courts is Kathleen Connolly versus An Bord Pleanala (ABP).

The core issue of this case is how An Bord Pleanála carries out and records its assessments of developments, particularly where Appropriate Assessments (AA) and Environmental Impact Assessments (EIA) are involved.

To date a number of cases has been taken against the Bord challenging how the Bord records those assessments. The particular concern is with how it records its methods of examining, analysing and evaluating the likely effects of developments on the environment. As a result it is alleged that the Bord cannot communicate clearly its decision-making process in a way that all interested parties can understand. It is left up to those wishing to appeal the decisions of the Bord to trawl through all of the documentation and to employ specialists in assisting them to interpret the rationale behind these decisions. The time-frame of the appeals process is often too short for individuals or groups to achieve this analysis in a thorough and cost effective way.

The High Court Judgement of Mr. Justice Barrett in the case of Kathleen Connelly vs An Bord Pleanála on the 14th June 2016, ruled that it was the obligation of the Bord to record its determinations under EIA and AA legislation. In addition, it is required to give the main reasons and considerations on which its decision was based in such a way that Ms Connelly (and others) are given a proper understanding of why the decision to approve the development of a wind farm in Coore/Shanaway has been reached. In the absence of such a record in this case, Mr Barrett issued an order of certiorari, quashing An Bord Pleanála’s decision to allow the wind farm to be built. This is a very important judgement in planning and environmental litigation and will have far reaching effects beyond this case.

The Bord, on the basis that this ruling will have a very significant impact on how it operates and that this is of general public importance, petitioned the Supreme Court for clarification and the Supreme Court agreed that the issues raised in this case warrants clarification by a higher court. The Supreme Court will either uphold, overturn or refer the High Court decision to the European Court of Justice.

The current lack of a transparent and accessible decision-making process in An Bord Pleanála is a situation that needs to be addressed, and is long overdue. An Bord Pleanála is a public decision-making body, funded by tax payers’ money, and every interested party should understand clearly how and why the Bord makes the decisions it does. If this case is upheld, it will make it easier and more cost-effective for individuals and communities to decide on the merits of appealing a decision by An Bord Pleanála in the High Court.

‘It never suffices, and it has never sufficed, for a public decision making body to issue a decision that refers in a largely uninformative manner to an ocean of material consulted or relied upon, and to leave an affected party thereafter to fish in that ocean for what she might catch there of relevance within the ever diminishing time frame for bringing a related judicial review application – and one will search long and hard in the law reports to find a judge of the High Court, or any court, who has suggested the contrary.’
(Judgement of Mr. Justice Max Barrett, 14th June 2016, Kathleen Connelly vs An Bord Pleanála, para 27)

The ABP are now taking this decision on appeal and Kathleen and her community are severely depleted of funds, having fought (and won) the high Court case.

They would be grateful for any support. Please check out their website with ways to support them.

In support of this cause there will be a showing of the gorgeous documentary on the Burren, nature and the battle over Mullaghmore, ‘The Silver Branch‘ on the 19th of November at the Armada Hotel in Spanish Point, at 7pm as a fundraiser.  If anyone wishes to attend, contact Wind Aware Clare via their website regarding tickets. Risteard O’Domhnaill, the Director of ‘The Pipe’ and ‘Atlantic’ will be there on the night and has generously volunteered to do the projection.

 

It is a disgrace that appeals of this nature should be necessary in the first place; but these people are fighting for you and me and need our help.

 

 

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, Apple; Google; Data Centre, Brexit, BSB Community Energy Ltd, Cloud; iCloud; Data Centre; Data Center, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EirGrid; Insurance; Law; Cancer; EMF, Enercon, EU Renewable Energy 2020 Target, Framore Limited, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, Green Party; Ireland; Eamonn Ryan; Cormac Manning, High Court; Judge Caroline Costello; John Callaghan; Leave to Appeal, High Court; Judicial Review; Appeal on the merits; judicial discretion, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Law; High Court; Leave To Appeal; Environment, 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, Planning Permission; Extension; Planning and Development Act, 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, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans and tagged , , , , , , , , , , , , , , , , , , , , , , , , , . Bookmark the permalink.

3 Responses to Access to Justice?

  1. Beth Harrington says:

    Neil here is more insightful information if you have not read it yet. The Society for Wind Vigilance windvigilance.com

    Beth Harrington

    Beth Harrington Communications Cel. 647 588-8647 Twitter @smarysb

    >

  2. Pingback: Access to Justice? | ajmarciniak

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