The concept of Standing and the access to justice

access to justice

The Roman forum was a busy, often chaotic, place. Merchants, moneylenders, prophets, politicians, herbalists, apothecaries, and so on, were all jostling around doing business. It was similar to our modern-day marketplace, but probably a lot rowdier.

What set the Roman forum apart from our experience of an open-air market was that the courts were also held in the forum. The Romans were in many ways the reason why we have the saying “justice must be seen to be done”, as they were insistent that the courts operated in public view.

However, you can imagine trying to hold legal proceedings in a rowdy and noisy marketplace. It was often difficult for the judges to see the litigants, let alone hear them. The Romans solved this problem by inventing an ingenious system. There would be a stone or small pedestal or the like and a litigant would stand on that. The person standing on the stone would be recognised by the court and invited to present his case. This was known as locus standi, or “a place to stand” (a place of standing). It is the basis of our modern law of standing.

locus standi

In our modern law, if a person has standing, it means they have the right to be heard in a court of law.

In terms of the common law, to have standing all a person needs to show is that they have an interest in the matter before the court. In essence this means that the outcome of the matter before the court will affect that person in some material way, be it financially, as a matter of status, or in pending litigation, for example.

When it comes to statutory law, things get a lot more complicated. Very often, in addition to showing that they have an interest in the matter, the aspirant litigant often needs to jump through a number of hoops in order to have the right to be heard in court.

There is obviously a fine line between a legal free-for-all and a deliberate barring to justice.

This tension has long been a thorny issue when it comes to environmental justice for the average citizen, as many would argue that a citizen should have an inalienable right to challenge decisions affecting the environment.

An example of a standing requirement is found in Section 50A of the Planning and Development Act of 2000 which deals with an application for a judicial review of the granting of planning permission by a local authority:

Subsection (3) says that the Court shall not grant section 50 leave unless it is satisfied that—

(a) there are substantial grounds for contending that the decision or act concerned is invalid or ought to be quashed, and
(b)(i) the applicant has a sufficient interest in the matter which is the subject of the application, or
(ii) where the decision or act concerned relates to a development identified in or under regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant—
(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection,
(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and
(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c), would have to satisfy by virtue of section 37(4)(d)(iii) (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv) shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were a reference to the class of matter into which the decision or act, the subject of the application for section 50 leave, falls).

Subsection (4) says that a “sufficient interest” for the purposes of subsection (3)(b)(i) is not limited to an interest in land or other financial interest.

In other words, where a person is not directly impacted by the proposed development, then they must belong to an established organization with a proven and established track record of promoting environmental protection, and the development must have more than a localized dimension.

The Supreme Court has examined this notion of “sufficient interest” in the 200 Act. In Grace and Sweetman v. An Bord Pleanála [2017] IESC 10 the following explanation was provided:

“8.7. It is, … clear that a person who has a sufficient proximity, having regard to the nature of the development and any amenity in the location of the development (which might potentially be impaired), will have standing even without participation. Those who do not have such proximity may reasonably be required to show that they have some interest which is potentially affected and one very clear way of doing that is by demonstrating that interest by participation in the permission process. That is not, however, the only way in which such an interest can be demonstrated.

8.8. The more general and more important the amenity which may be at stake then the wider range of persons who may well be able to show that they have an interest in the amenity of the area which is the subject of the proposed development. The nature of the legal challenge intended to be mounted will be relevant also. For example, a person who cannot show proximity to a proposed wind farm and did not participate in the process is unlikely to have standing to make an argument more properly raised by a person more directly affected. In our view a challenger who has not previously participated and cannot show any direct personal prejudice must satisfy the leave judge that the point being made is one directed solely to the purpose of the special protection of the site”.

EU law does not take the matter much further. Article 11 of the Codified Directive 2011/92/EU, read with the applicable provisions of the Aarhus Convention, effectively says that it is up to the legislature of each country to define what constitutes “sufficient interest”, as long as this definition allows a “wide access to justice”.

A more recent example of executive attempts to restrict the citizen’s access to environmental justice comes in the form of the Agriculture Appeals (Amendment) Bill of 2020 which seeks to extensively amend the Agriculture Appeals Act (“the 2001 Act”). The Bill substantially amends Section 14A of the 2001 Act as it sets out who is entitled to lodge an appeal against a decision of the Minister or an officer acting for the Minister (known as a “relevant person” who has “standing”).

Again, the common law of interest is stated as it is includes a person who applied for a licence and that licence was refused or granted with conditions; a person who made representations about that person’s application; a person who owns or has an interest in adjoining land to the land affected by the licence application; a member of the public who should have been consulted about the licence application; an “environmental body” when the application requires an EIS or Natura Impact Statement where the environmental body is in the business of promoting environmental protection and has been doing so for at least a year.

However, there is a further hurdle, and the question must be asked whether this immediately prevents a “wide access to justice”?  Section 5 of the Bill authorizes the Minister to charge a fee for making an appeal against a decision involving public forests.

Surely there is nothing “more general and more important” than the treatment of public lands and public forests? Accordingly, it must be argued that any limitation on the right to appeal these decisions immediately falls foul of the test laid down by the Supreme Court and by the European Court of Justice. It is therefore imperative that the offending provisions are removed from the Bill immediately.

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). 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 Access to Justice; Locus Standi; Standing; Legal Standing, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty and tagged , , , , , , , , , . Bookmark the permalink.

7 Responses to The concept of Standing and the access to justice

  1. Joseph says:

    Excellent analysis. Though it is hard to see the Greenish mish-mash government dropping Section 5 of the new Agriculture Appeals (Amendment) Bill. It will be fascinating to see it knocked about in Court – the provision does not have standing!

  2. Inga says:

    Thanks for your valuable post.
    I am particularly interested in the historical origins of the concept of locus standi. Could you please suggest further literature on locus standi in Roman law? Thanks in advance!

  3. Inga says:

    I am very grateful for your comments and suggestions. I will definitely try to get your recommended book. I have found in some sources that the phrase locus standi is medieval in origin – it does not appear in classical Roman Sources. However, your explanation seems more plausible. 🙂
    PS Thanks also for the reference to the study, it is really interesting and valuable in today’s context.

  4. Neil van Dokkum says:

    Hi Inga
    I would be very interested if you find out more about the phrase being medieval in origin. I am not a Roman Law scholar and so I would be very happy to be corrected! Given that Latin was the lingua franca of medieval Europe, that is a plausible theory.

  5. Neil van Dokkum says:

    p.s. I studied and practiced law in South Africa, which is a Roman-Dutch legal system, based primarily on the writings of Hugo Grotius. The South African system is a fascinating hybrid – having both aspects of common law, as a result of British colonisation; and civil law, as a result of Dutch colonisation prior to the British.

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