Well done, Val!!

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Congratulations to Val Martin, who took on An Bord Pleanala in the High Court and won.

This amazing achievement is testimony to the fact that it is possible for a person, with no formal legal training, but with bucketloads of planning knowledge and guts, to take on the State apparatus in the High Court and win.

 

Here is the story in Val’s own words:

“In 2009, the predecessor to Raragh developments applied for planning permission for a wind farm at Kingscourt. Cavan 09/270, It supplied an Environment Impact Statement (EIS) (of sorts). Despite objection from 38 households the Local Council granted permission and it was appealed to ABP. They carried out a sort of EIA and granted planning permission.  As the developer did not know details of the cables at the time, a specific condition was that the planning permission did not include the connecting cables.

In 2015, the developer applied to extend the period of operating time for the wind farm until 2020. He stated that an EIS has been provided with the first application and Cavan Co. granted the application stating that an EIA had been done in 2010.  In May 2015, the developer applied for a declaration under Section 2 of the PDA to declare the 5.5 km of underground cables to the ESB sub-station in Kilnalun, Co. Meath to be development and exempted development.     Cavan Co. Council referred it to ABP (No.RL . 02. 3369).

On the 3rd May, 2016, the Board stated that it was a “development”  and “an exempted development”.  This would have allowed the whole work to go ahead.

I took a judicial review No 2016/460/JR acting as a lay litigant (presenting the case myself). I claimed that the underground cabling was not a “development” but a “project” and accordingly it could never be classed as an exempted development.  I cited the O’Grainne judgment and its ratio decidendi (binding part of the judgment) where the Judge said “In truth I have already concluded the wind farm and cabling are one project”.    I cited a few European cases which proved that a project can be split into phases and that the 2nd or subsequent phases must be assessed under the EIA Directive. In other words, when deciding whether its environmental effects are acceptable, it must be assessed with the cumulative effects of the entire project, and not just the phase currently under consideration.

The Board and the wind farm developer opposed me. They served me with a cart load of documents and I simply wrote in the legal submission that the High Court has no role to play in assessing planning applications, but must confine itself to the law alone.    The Board Lawyers, Philip Lee and Co. caved in and the developer’s lawyers did too.    The Barrister for the Board arrived in Court No 1 before Judge McGovern and said “this is the man who beat Board Pleanala” in a good humoured way.  There was no need for the 2-day trail which had been allocated.

The Judge said he would quash the decision of the Board and award me costs.  

 

Should anyone want copies my case and legal argument, just ask and I will send to you as hard copies. I acknowledge the help of Pat Swords, David Malone, Owen Martin, Francis Clauson, committee chairman Mike Muldoon, Dublin solicitor (and friend) George McGrath , campaigners all over the country and neighbours at Kingscourt for their encouragement.

 

Essentially the law is:

1) projects cannot be developments.

2) Projects can be split but all information known should  be provided at each phase.

3)   Projects cannot be processed under the PDA alone.

4) The PDA (part X) is the vehicle for processing an EIA.

5) One major cop,  well spotted by David Malone and used by me is that Article 2(4) of the EIA Directive allows for exemption a project from an EIA in exceptional circumstances.   If this is done government must inform the EU Commission and comply with a number of conditions which are very strict.  I think this would cover situations like where there is some sudden and unforeseen important event where development would have to be done without submissions for the public.   An international summit or the like.  This is the only way a project can be exempted.

The developer’s lawyers indicated that they did not want to remit the application to the Board. I do not know if they will now apply for an EIA for the cables and planning permission, that is for another day.

Regards

Val Martin”

 

Well done Val.  Respect!

 

an-bord

Posted in An Bord Pleanala; appeal; interested parties, Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, 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, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Planning Permission; Extension; Planning and Development Act, Strategic Environmental Assessment (SEA); Grid 25; North-South Interconnector, Val Martin | Tagged , , , , , , | 11 Comments

Extensive Research on Wind Turbine Noise

Government Ministers are constantly bewailing the lack of research, or claiming to be abreast of the latest research, into the damage caused to humans by wind turbine noise.

 

Jerry Punch and Rick James have finally managed to publish their mega-review on the damage caused to humans by wind turbines:
 
And
 

In Ireland, may I suggest that Minister Naughten has a lot of reading to do?

Posted in Academic Research; Peer-Review Process; Medical Journals, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EirGrid; Insurance; Law; Cancer; EMF, Ministerial Responsibility; Liability; Negligence; cardiovascular, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten, Wind Turbine Syndrome; Professor Alun Evans, Wind Turbines: Esen Fatma Kabadayi Whiting | Tagged , , , , , , , , , , , , | 4 Comments

Ministerial Responsibility and Liability

The ongoing scandal concerning the deliberate downgrading of what used to be Waterford Regional Hospital in favour of Cork raises interesting legal questions, particularly regarding the liability of a Minister for the actions of his own department, and in this instance, the omissions of the Minister himself.

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For those of you who have not followed the story, it was revealed last week that a senior HSE official downgraded the risk rating of the out-of-hours cardio service at the Waterford hospital shortly before those figures were sent to an independent expert to determine whether Waterford Hospital needed another cardio unit. Not surprisingly, the expert answered that question in the negative, despite overwhelming evidence from the hospital staff, including cardiac surgeons, that another unit was desperately needed. Attempts under the FOI Act to gain the terms of reference issued to the expert have been blocked, with critical portions redacted.

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The plot thickened further when it was revealed this morning that in November last year the previous Minister of Health, Leo Varadkar, received a detailed report outlining that patients were at risk unless another cardio unit was immediately supplied at Waterford Hospital. Newspaper reports would suggest that Minister Varadkar, a medical person himself, put the report in a drawer somewhere and forgot about it:

 

Eighteen patients suffered heart attacks while on the cardiac waiting list at University Hospital Waterford (UHW) over the past five years.

The revelation came in a special report submitted to the Health Service Executive (HSE) and Department of Health last November in support of a plea for greater resources, including a second catherisation lab at UHW.

A key element of the audit, details of which were obtained by the Irish Independent, was the mounting concern of UHW doctors that waiting times for both inpatient and outpatient cardiac care had been steadily increasing since 2010.

The audit was also submitted to the former Health Minister Leo Varadkar.

The cardiac report submitted last year bluntly warned that some of the heart attacks in patients might have been avoided “if there was no waiting list, or a very short one, which pertains in other centres.”

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This blog has already suggested that Minister Harris should resign as he is individually responsible for the actions of officials in his department. But what about the liability of Leo Varadkar? Can the subsequent death of patients be laid at his door due to his failure to act on the very clear warning contained in the cardiac report of last November?

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Under the Public Service Management Act of 1997, cabinet ministers are responsible for the actions of government departments and offices. Members of the government are collectively responsible to Dáil Éireann for departments of state administered by them. This is why Minister Harris should resign for the unauthorized alteration of the risk register, apart from the parliamentary convention which demands the same – as outlined in the previous blog.

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Ministers have a duty to inform the Oireachtas of their actions (and omissions?) and parliamentary question time is the device used to ask the Minister those awkward questions about their performance and the performance of their department. This is really a political or democratic accountability, it does not mean they can be sued in court for their apparent negligence.

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Judge, Hogwood and McVicar, in their excellent article “ ‘The pondlife’ of executive agencies: parliament and informatory accountability”, Public Policy and Administration, 12, 2, pp. 95 – 115. (1997, 97) have identified five levels of ministerial responsibility:

“Redirectory responsibility, requiring that ministers redirect queries to the appropriate person dealing with a particular case or issue.” Does this mean that Minister Varadkar was, at the very least, under a duty to forward the cardiac report to the CEO of the HSE, with instructions to act?

“Informatory responsibility, requiring the minister to keep parliament informed of what is happening in his or her department.” It might be argued that Minister Varadkar should have informed the Oireachtas of the dire situation in Waterford Hospital, perhaps with a view of securing extra funding, if indeed his coffers were bare.

“Explanatory responsibility, requiring the minister to make further explanation, particularly in cases of once-off shortcomings or wrong doings.” It has transpired that of the eighteen patients who had heart attacks whilst on the Waterford waiting list, six subsequently died. Would the Minister care to comment?

“Amendatory responsibility, where a minister is convinced that more than an explanation is required, requiring correction, amendment or reparation.” One can only imagine how the Minister was not convinced, as early as November last year, that Waterford desperately needed additional cardio resources. One would also ask, with that knowledge last year, why did they bother to appoint Dr Herity to do his report (which was compiled on the basis of an amended risk rating and a gerrymandering of the population figures).

“Sacrificial responsibility, where a minister accepts an obligation to resign.” Whether Minister Varadkar, along with Minister Harris, should tender his resignation for omissions that occurred under his watch, is the million dollar question. Does it matter that the Minister now has another portfolio (ironically entitled “Social Protection”)? Should he be held accountable for his past actions or omissions?

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For us mere mortals, the law says that we need to owe somebody a duty of care before we can be held liable. If I perform an action or fail to perform an action, and this act or omission creates a dangerous situation, then I am liable for the foreseeable hurt caused by that dangerous situation. So if somebody warned me that a cardio unit was dangerously under-resourced and it was my duty and within my reasonable power to correct that, my failure to do so would mean I was liable for the dangerous situation that I allowed to continue. In other words, if the relatives of those six deceased patients could show that, but for my failure to act, their lives would have been saved, I would be liable for their deaths.

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The question is – can a Minister be held liable on the same basis as us mere mortals?

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Alas, unfortunately not. Because of something called the Separation of Powers, the courts are not allowed to tell the Minister how to spend his budget – that is within the Minister’s discretion, which we gave to the Minister when we voted him in as a TD. So if a Minister decides to build a new cardio unit for his own constituents in Cork, thereby neglecting to build one for the citizens in Waterford, there can be no legal liability attached. All we can do in Waterford is try and vote the Minister out at the next election, unless he does the honourable thing and resigns. Moreover, when we do manage to vote some eejit out of his ministry, he is replaced by an ever bigger eejit.

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Aaah, the challenges of democracy.

Posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, lobbying; democracy; political process; general election, Ministerial Responsibility; Liability; Negligence; cardiovascular, University Hospital Waterford | Tagged , , , , | 2 Comments

The Minister Must Resign

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A convention is essentially a custom or tradition that has become so entrenched that it is obeyed almost as if it was a law.

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The convention of individual ministerial responsibility requires that a minister be personally answerable to the Oireachtas for the exercise of power. The convention arises out of the democratic principle that only elected officials, and not the public-service workers (“civil servants”) who assist them in formulating policy and administering programs, should be held accountable for the functioning of Government. In other words, the errant civil servant was not elected into the job, and therefore cannot be voted out. Accordingly, the Minister as elected official must “carry the can” and resign when he no longer deserves the public’s confidence because of maladministration on his watch.

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This means that if waste, corruption, or any other misbehaviour is found to have occurred within a ministry, the minister is responsible even if the minister had no knowledge of the actions. A minister is ultimately responsible for all actions by a ministry because, even without knowledge of an infraction by subordinates, the minister approved the hiring and continued employment of those civil servants. If misdeeds are found to have occurred in a ministry, the minister is expected to resign.

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In its traditional form, the convention even demands that a minister should face criminal charges for any criminal conduct under his watch.

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The principle is considered essential, as it is seen to guarantee that an elected official is answerable for every single government decision. It is also important to motivate ministers to closely scrutinize the activities within their departments. One rule coming from this principle is that each cabinet member answers for their own ministry in the Dail’s question time. The reverse of ministerial responsibility is that civil servants are not supposed to take credit for the successes of their department, allowing the government to claim them. Ministers are always very quick to poach this praise as their own, but this means they should be as quick to accept the axe when somebody in their department messes up.

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The issue has arisen with the scandal that has erupted over the handling of Waterford’s University Hospital and the refusal to provide the hospital with a second cardiac unit based upon an amended risk rating where it is apparent to even a non-medical layperson that such a unit is desperately needed.

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In case you do not know the story, I quote today’s Independent:

Gardaí are to be asked to investigate how a critical change in University Hospital Waterford’s (UHW) key risk rating assessment was made.

The alteration, which was made outside Waterford and without the knowledge of UHW clinicians, is feared to have been a critical component in the subsequent decision by an independent expert not to sanction an expansion of strategic cardiac services at Ardkeen.

The Waterford hospital now faces the loss of key cardiac services and potential funding to Dublin and Cork.

Campaigner and European Parliament candidate Kieran Hartley confirmed he is to lodge a formal complaint with Waterford gardaí today once he has obtained legal advice.

“This isn’t just an issue of public safety, though clearly it has huge significance in that regard,” he said.

“This also potentially amounts to deception because a critical public health document was changed without reference to the people responsible for compiling it.

“My understanding is that the person believed to have made the temporary data change did not have the authority to do it.”

Experts stressed that a risk rating is arguably the single most important data assessed for a hospital.

The hospital board said it was “appalled” at the temporary change in critical cardiac risk assessment data.

One medic said such a change was “absolutely unprecedented” and queried its timing.”

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It remains to be seen whether the DPP considers that the unauthorised alteration of the Risk Register was a criminal offence. If this is answered in the affirmative, then on a strict reading of the convention the Minister should face criminal charges. This is unlikely to happen, but at the very least the Minister should still bear political responsibility for the actions of senior officials in his Department.

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Today ministers frequently use ignorance of misbehaviour as an argument for lack of culpability, but I would argue that in the instance of Minister Simon Harris and the actions of his department, this is not applicable as the Minister acted directly upon the product of the malfeasance, namely the unauthorised tampering of the risk register. Whilst Minister Harris was not aware of this tampering, nonetheless he used the reduced risk setting to justify not providing Waterford with a second cardiac unit. This was not a malfeasance that was distantly removed from the Minister, it directly determined his actions and consequently he was under a higher duty to ensure the accuracy of the information upon which he acted.

Posted in University Hospital Waterford | Tagged , | 3 Comments

Will the Citizen have access to the legal profession? Not if the Big Corporations have any say about it!

One of the many reasons I did not join the legal profession here. Well said Tom, we need more like you in practice.

LegalEagleStar

I qualified as a solicitor in 1980. I had no connections in law at all and if it wasn’t for the endeavours of my late father, I couldn’t have pursued my legal studies. He worked hard to provide me with an education and without him and the support of my mother, I’d never have succeeded.

For the previous couple of years or so before qualifying, I had been influenced by Inge Clissmann and Aedan McGovern, both barristers and now Senior Counsel. Inge had got me involved with FLAC, the Free Legal Advice Centres which was run by law students who represented in Court, members of the public who couldn’t afford access to justice. Inge introduced me to the Ballymun Centre located in the basement of Padraig Pearse Tower, long since demolished. There we mainly dealt with family law issues and quite simply, we were overrun with the work. Overrun and…

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Posted in EirGrid; Insurance; Law; Cancer; EMF | 2 Comments

Food for Thought

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Scientists are always telling us to “accept nothing, challenge everything, ask for empirical proof”. Lawyers work by a similar creed – “do you have proof of that? If not, there is very little I can do for you”.

Well; bear that in mind when you read this little gem:

“The Big Lie – By Alex Epstein

On February 29, 2016

There is an oft-cited comment that 97 percent of climate scientists agree that there is global warming and that human beings are the main cause.

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First of all, this statement itself, even if it were true, is deliberately manipulative. The reason we care about recent global warming or climate change is not simply that human beings are allegedly the main cause. It’s the allegation that man-made warming will be extremely harmful to human life. The 97 percent claim says nothing whatsoever about magnitude or catastrophe. If we’re the main cause of the mild warming of the last century or so, that does not begin to resemble anything that would justify taking away our machine food.

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One of the main papers behind the 97 percent claim is authored by John Cook, who runs the popular website SkepticalScience.com, a virtual encyclopedia of arguments trying to defend predictions of catastrophic climate change from all challenges.

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Here is Cook’s summary of his paper: “Cook et al. (2013) found that over 97 percent [of papers he surveyed] endorsed the view that the Earth is warming up and human emissions of greenhouse gases are the main cause.”

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This is a fairly clear statement—97 percent of the papers surveyed endorsed the view that man-made greenhouse gases were the main cause—main in common usage meaning more than 50 percent.

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But even a quick scan of the paper reveals that this is not the case. Cook is able to demonstrate only that a relative handful endorse “the view that the Earth is warming up and human emissions of greenhouse gases are the main cause.” Cook calls this “explicit endorsement with quantification” (quantification meaning 50 percent or more). The problem is, only a small percentage of the papers fall into this category; Cook does not say what percentage, but when the study was publicly challenged by economist David Friedman, one observer calculated that only 1.6 percent explicitly stated that man-made greenhouse gases caused at least 50 percent of global warming.

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Where did most of the 97 percent come from, then? Cook had created a category called “explicit endorsement without quantification”—that is, papers in which the author, by Cook’s admission, did not say whether 1 percent or 50 percent or 100 percent of the warming was caused by man. He had also created a category called “implicit endorsement,” for papers that imply (but don’t say) that there is some man-made global warming and don’t quantify it. In other words, he created two categories that he labeled as endorsing a view that they most certainly didn’t.

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The 97 percent claim is a deliberate misrepresentation designed to intimidate the public—and numerous scientists whose papers were classified by Cook protested:
“Cook survey included 10 of my 122 eligible papers. 5/10 were rated incorrectly. 4/5 were rated as endorse rather than neutral.” —Dr. Richard Tol

“That is not an accurate representation of my paper . . .” —Dr. Craig Idso

“Nope . . . it is not an accurate representation.” —Dr. Nir Shaviv

“Cook et al. (2013) is based on a strawman argument . . .” —Dr. Nicola Scafetta

Think about how many times you hear that 97 percent or some similar figure thrown around. It’s based on crude manipulation propagated by people whose ideological agenda it serves. It is a license to intimidate.”

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This is not about being what opponents label “a global warming denier”. It is simply a plea to break away from the “groupthink” and research and investigate these things for yourself and come to your own conclusions. Look into the backgrounds of these so-called experts/prophets of doom and see where their money is invested, for example. You might be surprised, hopefully shocked.

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This idea that “if you are not with us, you are against us”, is bullshit, plain and simple. Consider both sides of the argument, study research methodologies, ask politically incorrect questions to politically correct people, come to a conclusion for yourself when you actually understand what the arguments are about. If you don’t understand it, don’t come to a conclusion, because that is not your conclusion, it is somebody else’s.

Posted in Academic Research; Peer-Review Process; Medical Journals, Dr Sarah Laurie; Steve Cooper; Bob McMurtry; Alun Evans, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target | Tagged , , , , | 17 Comments

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.”

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 | Tagged , | 5 Comments

Don’t Stand on the Sidelines – Get In There!

 

A friend asked me the other day that if a person wanted to take the granting of planning permission on review, did you have to be somehow involved in the original application? As is the case with most questions concerning planning law, I did not know the answer, but I was sufficiently confident that Section 50 of the Planning and Development Act No. 30 of 2000 (PDA 2000), which deals with the judicial review of planning permission, would hold the answer.

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First you must establish your locus standi

Of course it is important to remember that this question only becomes relevant once it is established that the applicant has standing (locus standi) or the right to participate in that particular application for review. The PDA 2000 talks of a “legitimate interest” in the matter, which the Supreme Court has interpreted as such:

“I would therefore be of the view that the question certified for this court may be answered by stating that, in order to enjoy a substantial interest within the meaning of s. 50 of the Act of 2000, it is necessary for an applicant to establish the following criteria:—

(a) That he has an interest in the development the subject of the proceedings which is “peculiar and personal” to him.

(b) That the nature and level of his interest is significant or weighty

(c) That his interest is affected by or connected with the proposed development.”

 

See also O’Brien v Dún Laoghaire Rathdown County Council [2006] IEHC 177 , where Ó Néill J. held that “passionate interest” in local planning issues was not sufficient to satisfy the standing test.

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In addition the applicant has to show that he or she has “substantial grounds”. Again, this has been interpreted by the High Court:

“… in order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be … A ground that does not stand any chance of being sustained (for example where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether it is sound or not. If I consider a ground as such to be substantial I do not also have to say that the Applicant is confined in this argument at the next stage to those which I believe may have some merit”. (Carroll J. in McNamara v An Bord Pleanála, unreported, High Court, January 24, 1995). (my emphasis)

 

In other words, “substantial grounds” is a higher standard than prima facie grounds, which is required for leave in an ordinary judicial review. It is a higher, and tougher, fence to jump.

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The “substantial interest” and “substantial grounds” test for standing are two separate tests and must both be passed. As said by the Supreme Court:

    (1) The “substantial grounds” and “substantial interest” requirements of s.50 created two fences, not one, and an applicant who failed to establish the latter had no entitlement to obtain leave merely because he had grounds which were substantial.

(2) It was necessary for an applicant to establish an interest in the development which was peculiar and personal to him and had been so expressed, although the fact that some other party had the same or similar interest did not mean that both were excluded from having a substantial interest.

(3) The nature and level of his interest must be significant and weighty and his interest must be affected by or connected with the proposed development. Whether the interests of an applicant fulfilled those criteria was dependent on the circumstances of the particular case.

(4) The applicant’s circumstances distinguished him from no other member of the public living in or outside the relevant area. To permit the applicant to mount a challenge would undermine the clearly expressed legislative intent that the range of persons who could bring such challenges be considerably narrowed.” (my emphasis)

(Thomas Harding v Cork County Council and An Bord Pleanála and others [2008] 2 I.L.R.M. 251).

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Coming now to my friend’s specific query, namely is he allowed to join the process after the application/objection/appeal stage in order to apply for a judicial review?

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The relevant portion of Section 50 is subsections (4)(b), (c) and (d), which reads as follows:

 

“ … and leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed, and that the applicant has a substantial interest in the matter which is the subject of the application.

(c) Without prejudice to the generality of paragraph (b), leave shall not be granted to an applicant unless the applicant shows to the satisfaction of the High Court that—

(i) the applicant—

(I) in the case of a decision of a planning authority on an application for permission under this Part, was an applicant for permission or is a prescribed body or other person who made submissions or observations in relation to the proposed development,

(II) in the case of a decision of a planning authority under section 179, is a prescribed body or other person who made submissions or observations in relation to the proposed development,

(III) in the case of a decision of the Board on any appeal or referral, was a party to the appeal or referral or is a prescribed body or other person who made submissions or observations in relation to that appeal or referral,

(IV) in the case of a decision of the Board under section 175, is the planning authority which applied for approval, or is a prescribed authority or other person who made submissions or observations under subsection (4) or (5) of that section, or

(V) in the case of a decision of the Board under Part XIV, is a local authority that proposes to acquire land or to carry out a scheme or proposed road development or is a person who made objections, submissions or observations in relation to that proposal,

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(ii) in the case of a person (other than a person to whom clause (I), (II), (III), (IV) or (V) applies), there were good and sufficient reasons for his or her not making objections, submissions or observations, as the case may be.

(d) A substantial interest for the purposes of paragraph (b) is not limited to an interest in land or other financial interest.”     (my emphasis)

 

As a general rule, In order to have standing to apply for a judicial review of a planning decision, either by the local authority, or by ABP, one must have been involved in the planning application / objection / appeal process, either as a party, or somebody who made “objections, submissions or observations”, unless there were “good and sufficient reasons” why that person did not participate in the original planning application / objection / appeal process.

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What are good and sufficient reasons?

This phrase has been considered in a number of court decisions under the PDA 2000. Unfortunately those decisions that do involve planning law are usually looking at the same phrase earlier on in Section 50, where the applicant for judicial review fails to make the application for judicial review within the stipulated eight weeks, and is now seeking an extension of that time limit. The courts interpret this time limit very strictly, in line with the public policy requirement that people who have been granted planning permission should be allowed to act on that as soon as they can, without undue delay.

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The use of the phrase is different in our current scenario, where the applicant is not late as such, but is rather entering the process for the first time, not having previously participated. In this context the phrase comes later in Section 50, as we have seen.

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I managed to find one decision on point: Deerland Construction Limited v Westmeath County Council [2006] IEHC 420. Here the applicant for judicial review had failed to make observations during the initial planning application. Unfortunately, he did not have any excuses as to why he did not do so!

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In dealing with this, the High Court held as follows:

 

“I am quite satisfied that the Court could not consider this material, sworn to at paragraph 6 of that affidavit, as a good and sufficient reason for not making objections and submissions on the part of the Applicant to Westmeath County Council within the meaning of Section 50(4)(c)(ii). To do so would dilute the statutory language and the legislative intent to a point where it would be meaningless and leave the judicial review procedure open to abuse.

The thrust of the legislative intent over recent years in respect of judicial review in  planning matters is clear. It was referred to by Macken J in Harrington v An Bórd Pleanála, 26th July 2005, where she said:

‘As has been stated in several cases consideration of the legislative scheme makes it clear that the Oireachtas intended that Section 50 be stricter than the equivalent section of the earlier local Government Planning and Development Act 1992 which itself adopted a stricter set of criteria applicable to challenges to the grant of planning permissions than previously existed. This is because there is in place an extensive statutory scheme under which members of the public may object to the original grant before a  planning authority and may also appeal to and be heard by an independent appeal body, namely the Board. To that appeal scheme the Statute also provides for the nomination of certain designated parties who have an to ensuring wide ranging representation in  planning matters from diverse interests Groups.’

Later she observed:

‘The foregoing extracts relevant to the issues in these proceedings demonstrate clearly that the Oireachtas has now adopted an evermore stringent set of obligations which must be met before the High Court should permit an Applicant to commence judicial review proceedings to challenge the validity of  planning permissions.’

Similar observations were made by Clarke J in Harding v Cork County Council 12th October of this year, where he said:

‘It is clear, therefore, that the 2000 Act introduced a stricter set of criteria than had been in place under the 1992 Act and those authorities which stem from the period when that latter Act was in force need to be viewed against that background.’

To approach the case, as I am invited to by the Applicant, would defeat that legislative policy as well as run counter to the wording of the Act. The gist of the Applicant’s argument is that I should overlook the failure to give any reason for not making objection to Westmeath County the development plan thereby triggering the statutory procedure which would enable the Applicant to make observations on that question.

I am unable to accept that approach. It upends the statutory scheme and involves me doing what ought not to be done.”

 

In other words, the “ends justify the means” is not a good and sufficient reason for not engaging in the planning application process from the beginning. Even where it might be clear (to you) that the application should never have been granted, that does not excuse you from hanging back and not participating, thinking you can jump in and kill the whole thing at the end.

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In the decision of Luke Moriarty v South Dublin County Council [2006] IEHC 109, the applicant sought to justify his non-participation in the planning application procedure on the basis that he had previously objected successfully to an almost identical application by the same developer. This previous participation actually counted against him as the Court said that he should have been, “if anything, on a higher state of alert than an ordinary member of the public but this cannot be held to give him a greater right than such ordinary member of the public. Accordingly, no  good and  sufficient reasons have been demonstrated.”.

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That is the lesson we need to take from this. If you are unhappy about a planning application, get in there and object as soon as you can, even if you have done it before against the same developer. Section 50 imposes deliberately strict and very tight qualifying criteria, which are similarly strictly interpreted by the courts. From a practical viewpoint, there are very few second chances (if any).

 

Posted in An Bord Pleanala; appeal; interested parties, EirGrid; Insurance; Law; Cancer; EMF, High Court; Judicial Review; Appeal on the merits; judicial discretion, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29 | Tagged , , , , | 1 Comment

Pat Swords vs Minister for Communications,Energy and Natural Resources & Attorney-General

Pat Swords for blog

Pat Swords

 

After a year of waiting, the judgment is finally out, and it does not make for pretty reading. The learned judge found against Pat in his condonation for delay application, and failed to rule on the protective costs application.

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I am living on a building site at the moment and so am unable to analyse and comment on the judgment. You can read it in full (link below) and if you want to offer analysis and comment, I will gladly publish those.

Swords v Minister of CENR 2016 HC

Pat had this to say:

 

“People need to realise the significance of this and as to how far it goes, or maybe I should say, should go, based on the future reaction to it. I had written some legal background to this before, so I’ve just cut and pasted it further down into the e-mail, although the footnotes are now in some cases probably misaligned with previous numbering.

In essence the issue of temporal limits is really a side show. The case was always highly valid, not least as with regard to the substantive issues, the failures of the NREAP to comply with legal procedures, this is already legally established, albeit in International law and not in domestic Irish law. The latter a complex issue for another day. However, the real issue of substance is the most basic human and civil right of the availability of an effective remedy, which is what I sought to explain with reference to the actual EU / Irish legal situation in the text further down. Did I or did I not have such a remedy back in 2010? Do I have it now? The answer to that simply doesn’t exist.

Let me make it clear, this matter came before three separate judges in the High Court, the first being on application of leave in front of Justice Pearte. In each case the judges refused point blank to rule on this issue, i.e. as to if I have a right to ‘fair, equitable, timely and not prohibitively expensive’, which would enable me to pursue this matter, which was clearly going to be very long and drawn out, not least as the State had confirmed this by both in writing and by its behaviour. . Let’s not beat around the bush here, the matter on the protective costs order ran for more than a day in March 2015, the State contesting it all the way and taking up the lion’s share of the time. There was and is an obligation for the Court to rule on this issue, see Point 52 of ‘Brown Bear’ below (plus Point 81 of the Judgement). Justice Keane refused to rule on this, according to him he didn’t have to? Why, because he found a letter in the file, that letter was never present in Court by either Party, as I said the State contested the matter fiercely. He then decided, see Point 88, that he didn’t have to decide.

There are a number of issues with this, not least as he ignored his obligations defined by the ECJ on ‘Brown Bear’. First off, if a new NREAP or similar was to appear in the next month or so and I or any another person was to appear again in Court, where would we stand? Presenting a dog and pony show in front of judges seeking fudges? Secondly, all of this is not for his bleeding entertainment, these proceedings cost time and money and judgements are a crucial part of the public’s right to an effective judicial process.

  • Courts are expected to provide reasons for judgment as a duty to the public at large

Regardless of what (which seems by mistake) the State put down in this particular letter, there was a ‘bum fight’ on this matter, which involved several days of preparation and over a day in Court. He then decided he didn’t need to decide. Bollocks, not least as the party which was entitled to a successful outcome of this issue was fully entitled to be financially recompensed for having to undertake these measures.

Adoption of legal instruments incorporating the Convention into Community law

 

The Convention’s three ‘pillars’ of access to information, public participation in decision-making and access to justice were also partially adopted into Community law by means of Directives. Directive 2003/4/EC on public access to environmental information[1] adopted both Article 4 of the Convention, which provides for access to environmental information on request and Article 5 of the Convention, which relates to the collection and dissemination of environmental information. It also adopted the access to justice requirements of Article 9(1) of the Convention, which are engaged by a refusal of a request for environmental information.

 

The excellent UNECE ‘Aarhus Convention: An Implementation Guide’ explains the Articles of the Convention in more detail. The second edition contains reference to the endorsed findings of the ACCC.[2] In addition the Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters,[3] adopted by the Meeting of the Parties in 2014, provide additional specific guidance in relation to public participation. As the Implementation Guide explains in its introduction to the public participation pillar:

 

  • ‘In its ideal form, public participation involves the activity of members of the public in partnership with public authorities to reach an optimal result in decision-making and policymaking. There is no set formula for public participation, but at a minimum it requires effective notice, adequate information, proper procedures and appropriately taking account of the outcome of the public participation’.

 

For decision making, as to whether to permit activities listed in Annex I of the Convention, the requirements of Article 6 of the Convention apply. Note: Annex I is very similar to the list of projects in the annexes to the EU’s Environmental Impact Assessment Directive.[4] Article 6 of the Convention is quite prescriptive in its requirements, such as the manner in which the ‘public concerned’[5] have to be informed and the contents of the relevant information to be provided.[6]

 

The public participation requirements relevant to decision-making on plans, programmes and policies related to the environment are defined in Article 7 of the Convention. These requirements are reasonably specific, engaging many of the requirements of Article 6, but the information to be provided is defined solely as the ‘necessary information’ and the ‘…the public, which may participate shall be identified by the relevant public authority, taking into account the objectives of the Convention’. For policies, the requirements are even less specific in that ‘…to the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment’. A similarly broad approach is to be found in Article 8, which relates to public participation during preparation of executive regulations and / or generally applicable legally binding normative instruments. Unfortunately, this vague phraseology does allow recalcitrant Member States to be shoddy and tawdry in their implementation of the Convention.

 

Through Directive 2003/35/EC on public participation, the requirements of Article 6 of the Convention were adopted into Community law by modifying existing Directives on Environmental Impact Assessment and Integrated Pollution Prevention and Control.[7] In addition, the provisions of Article 9(2) of the Convention, which relates to the access to justice provisions ‘….to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6’, were also adopted in Directive 2003/35/EC. Those provisions also including the requirements of Article 9(4) of the Convention, in that that the access to justice procedures ‘…shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’.

 

However, while the ‘text’ of Article 7 of the Convention, as it related to plans and programmes, was adopted into Directive 2003/35/EC, its scope was restricted to an extremely limited number of legislative measures, listed in Annex I of that Directive, which were primarily related to waste and air quality management. This was in major variance to the Convention, in which the public participation requirements of Article 7 apply to ‘all’ plans and programmes related to the environment.[8]

 

Indeed, the EU’s first Implementation Report to the Meeting of the Parties[9] claimed  that the implementation of Article 7 was ensured by the implementation of Directive 2003/35/EC, the SEA Directive[10] and the public participation requirements of the ‘water framework’ Directive [11] and the Directive on the assessment and management of flood risks.[12] However, the SEA Directive’s scope is strictly related to plans and programmes, which set the framework for future development consent of projects listed in the annexes to the Directive on Environmental Impact Assessment.[13] It is broader in its methodology than Article 7 of the Convention, in that instead of the ‘necessary information’, the public has to be provided with a detailed environmental report. However, it is narrower in scope. Therefore, some serious omissions occurred with respect to the proper adoption of the requirements of Article 7 of the Convention into the relevant Community Directives. .

 

Finally with respect to the access to justice pillar; the general rights of the public ‘…to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’ are to be found in Article 9(3) of the Convention. A third draft Directive, COM (2003) 624[14], was prepared in order to give effect to the requirements of Article 9(3) of the Convention. However, due to opposition from some Member States it was never adopted, instead when the EU ratified the Convention through Decision 2005/370/EC,[15]  it simply declared:

 

  • ‘That the legal instruments in force do not cover fully the implementation of the obligations resulting from Article 9(3) of the Convention as they relate to administrative and judicial procedures to challenge acts and omissions by private persons and public authorities other than the institutions of the European Community as covered by Article 2(2)(d) of the Convention, and that, consequently, its Member States are responsible for the performance of these obligations at the time of approval of the Convention by the European Community and will remain so unless and until the Community, in the exercise of its powers under the EC Treaty, adopts provisions of Community law covering the implementation of those obligations’.

[1] Directive 2003/4/EC of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC

[2] The Aarhus Convention: An Implementation Guide (second edition) Published June 2014.

http://www.unece.org/env/pp/implementation_guide.html

[3] ECE/MP.PP/2014/2/Add.2. http://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppppdm/ppdm-recs.html

[4] Directive 2011/92/EU of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment: Codification previously 85/337/EEC.

[5] This is defined in the Convention: ‘The public concerned’ means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

[6] There is an overlap / similarity with the information requirements of Article 6(6) of the Aarhus Convention and that of UNECE’s Convention on Environmental Impact Assessment in a Transboundary Context (adopted in Espoo, Finland, 25 February 1991; entry into force 10 September 1997) United Nations, Treaty Series, vol. 1989, p. 309. http://www.unece.org/env/eia/eia.html

[7] Directive 2003/35/EC of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC.

[8] See further detail in notes 27 and 28 above.

[9] Implementation Report, see n 10 above.

[10] .

[11] Directive 2000/60/EC of 23 October 2000 establishing a framework for Community action in the field of water policy: See Article 14 in relation to river basin management plans.

[12] Directive 2007/60/EC of the Council of 23 October 2007 on the assessment and management of flood risks.

[13] See notes 5 and 30 above

[14] Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters.

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2003:0624:FIN

[15] See n 9 above.

Swords v Minister for Communications, Energy and Natural Resources[1] initially commenced in November 2012, when the author was provided with leave for a Judicial Review of the Irish NREAP[2]. The State made a counter motion in respect of delay in taking proceedings, which was heard in April 2013 over a period of three days by Justice Kearns, the President of the High Court. This was a complex issue, as Ireland was for many years the only Member State, which had not ratified the Aarhus Convention, the ratification finally taking effect in October 2012. Ireland also had failed to transpose the requirements of Directive 2003/4/EC[3] and 2003/35/EC[4] until subsequent decisions against it occurred in the European Court.[5]

 

Ireland is a dualist State, in which Article 29.6 of the Constitution requires that international treaties entered into must be incorporated into domestic law by legislation before they are applicable within the State, the exception being European Community law, which, under the terms of Article 29 of the Constitution, has the force of law in the State. In Klohn V An Bord Pleanala[6] Hedigan J ruled in November 2011 that: ‘With regard to the Aarhus Convention, this convention is not applicable as Ireland has not formally ratified it.’ However, Kearns J took the view that it was applicable since 2005 when the EU ratified it.[7] As such then he decided, without producing any written judgement, that a Plenary Summons procedure should be substituted for a Judicial Review and costs be deferred to those proceedings.

 

In Klohn Hedigan J also ruled that the Taxing Master’s assessment of €86,000 for four days in front of the High Court; ‘…appear to reflect economic reality for litigants in the State’. With regard to future Plenary Summons proceedings on the Swords’ case[8], the State made it clear that it was seeking considerably longer than ten days in the High Court.[9] This was clearly prohibitively expensive. As such then the matter did not return to the High Court until March 2015, when it was heard for five days in front of Justice Keane. This was solely to deal with two preliminary motions; the first brought by the State in respect of time delay and the second by the plaintiff with an application for a protective costs order. With regard to the first motion, the same arguments, which were presented previously in April 2013, had to be re-run in front of a different judge, the only difference being essentially the title pages referring to Plenary Summons rather than Judicial Review.

 

The NREAP was adopted in June 2010. Accordingly, Judicial Review proceedings should, by simple application of Irish law, have been brought without delay, such as within three months. However, even when Ireland ratified the Convention in 2012, it did not adopt its text into Irish law. The core of the Swords’ case[10], the right to challenge a failure of the NREAP to comply with the provisions of Article 7 of the Convention, fell under Articles 9(3) and 9(4) of the Convention, which as previously highlighted with respect to the EU’s ratification under Decision 2005/370/EC[11]; ‘…Member States are responsible for the performance of these obligations.’

 

Even when Ireland, in August 2011 and in advance of its ratification of the Convention, adopted legislation to enact some access to justice provisions related to Article 9(3) by means of Part 2 of the Environment (Miscellaneous Provisions) Act 2011, these fell far short of the broad scope of the Convention. Instead these were restricted to legal challenges to a limited number of proceedings in which ‘…each party shall bear its own costs.’ No provisions were made for legal challenges falling under the scope of Article 7 of the Convention and still to this day do not exist under Irish law.

 

As regards the European Court, there has only been one case with respect to Article 9(3) of the Convention, the Slovak ‘Brown Bear’ case of 8th March 2011.[12] While this related solely to standing rights, it did clarify:

 

  • 49 ‘Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law.’

 

  • 52 ‘In those circumstances, the answer to the first and second questions referred is that Article 9(3) of the Aarhus Convention does not have direct effect in EU law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by EU law, in order to enable an environmental protection organisation, such as the zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to EU environmental law.’

 

So the Swords’ case[13] is in many respects a circular argument. As no provisions for cost protection existed in 2010, it was in practice impossible / excessively difficult to initiate judicial proceedings, which is why a Communication to the ACCC was pursued instead. Indeed, under Irish law no such provisions for cost protection currently exist. So how can temporal limits be applied when your legal rights to initiate proceedings are never recognised? Judgement was reserved in March 2015 by Justice Keane and was adjourned repeatedly with the 20th May 2016 now being the latest date specified for delivery.

[1] High Court Record 2013/1265P

[2] High Court Record 2012/920JR

[3] See n 26 above.

[4] See n 32 above.

[5] ECJ 3.5.2007, C-391/06, Commission v Ireland; ECJ 16.7.2009, C-427/07, Commission v Ireland.

[6] [2011] IEHC 196

[7] Author’s report of the Court proceedings, as despite written records of Court decisions being a requirement of Article 9(4) of the Convention, none were produced.

[8] See n 79 above.

[9]http://www.unece.org/fileadmin/DAM/env/pp/compliance/Communications/Ireland_European_Platform/Annex_1_Letter_from_CSSO_04.04.2014.pdf

[10] See n 79 above

[11] See n 9 above.

[12] Case C‑240/09 Lesoochranárske zoskupenie VLK

[13] See n 79 above.

 

Posted in EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, judicial review; Wednesbury Test; O'Keeffe; rationality; Separation of Powers, Legal Costs; Access to Justice; Courts, Pat Swords, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty | Tagged , | 9 Comments

The SEA and Wind Farm Guidelines

 

The issue of the replacement of the 2006 Guidelines regulating a safe distance between wind-farms and residences has been going on for so long now in Ireland that it has taken on the nature of a Molière farce.   The ‘new’ guidelines, first aired in 2013, have now themselves become obsolete before their implementation as they are kicked from political pillar to post. Wind turbines are increasingly growing in height and in blade distance, and have outstripped the ‘research’ on which the 2013 guidelines were supposedly based (if one were to accept the findings of Marshall Day).

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The obvious problem facing wind-farm developers in Ireland is the nature of the rural population. Houses are scattered far and wide. Unlike the European system of restricting housing to hamlets and already-settled areas, in Ireland we have a relatively small rural population spread over a large area of land. The result is that there are very few large areas of land that are people-free, and accordingly if the separation distance was increased from the current guideline of 500m (particularly if that became a mandatory distance rather than a “if-you-feel-like-it” guideline), it would be practically impossible to build windfarms in large swathes of the Irish countryside. Music to our ears, but a horror story for the wind-farm developer.

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A recent opinion by Advocate-General Kokott for the European Court of Justice has thrown a further cat among the pigeons, as it states that these guidelines are subject to a Strategic Environmental Assessment (SEA).

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In brief, what happened was that a Belgian environmental NGO challenged the wind energy guidelines for their province in the Belgium Council of State (like an administrative law High Court), who in turn referred the dispute to the European Court of Justice. The contested issue was whether the wind energy guidelines should have been subject to a Strategic Environmental Assessment (SEA), which they weren’t.

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What is an SEA?

A Strategic Environmental Assessment (SEA) is the process by which environmental considerations are required to be fully integrated into the preparation of Plans and Programmes prior to the final adoption of those Plans or Programmes. The objectives of the SEA process are to provide for a high level of protection of the environment and to promote sustainable development by contributing to the integration of environmental considerations into the preparation and adoption of specified Plans and Programmes.

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The requirement for SEA derives from the SEA Directive (2001/42/EC). Eleven sectors are specified in the Directive and Competent Authorities (Plan/Programme makers) must subject specific Plans and Programmes for these sectors to an environmental assessment where they are likely to have significant effects on the environment.

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The eleven sectors are as follows: Agriculture, Forestry, Fisheries, Energy, Industry, Transport, Waste management, Water management, Telecommunications, Tourism, Town and Country Planning or Land Use.

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Clearly the million-dollar question is. What is a “Plan or Progamme”? This is a burning issue as whenever the government is accused of not implementing an SEA, its stock response is “but it’s not a Plan or Programme”, it’s a “…” (substitute any of the plethora of bullshit-descriptions dreamed up by the relevant government department seeking to evade the SEA Directive).

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What is a “Plan or Programme”?

The SEA Directive, after setting out its objectives in Article 1:

‘The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.’

thereafter goes onto define ‘Plans and Programmes’ in Article 2(a):

‘For the purposes of this Directive

(a)    “plans and programmes” shall mean plans and programmes, including those co-financed by the European Community, as well as any modifications to them:

– which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and

– which are required by legislative, regulatory or administrative provisions.’

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This very wide all-encompassing definition makes it clear that anything passed by government or local government or the Minister empowered by statute is a Plan or Programme and therefore requires an SEA if it impacts on the environment, (which is usually a given). The definition is further widened when the Directive goes on to say that even where a Plan or Programme does not fit into this definition, if it is likely to have an effect on the environment (guidelines are attached in the annexures to help the reader decide this) they should also have an SEA. For example:

  • the magnitude and spatial extent of the effects (geographical area and size of the population likely to be affected),

  • the value and vulnerability of the area likely to be affected due to:

    • special natural characteristics or cultural heritage,

    • exceeded environmental quality standards or limit values,

    • intensive land-use,

    • the effects on areas or landscapes which have a recognised national, Community or international protection status.’.

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In the Belgian case, the local authority for the Walloon area, just like their Irish counterparts, did not put through any legislation regulating issues like distance, shadow flicker, noise, etc. but rather made an Order (like our guidelines) which purported to regulate the wind farms (but without the binding qualities of an Act or Regulation). The NGO challenged this Order as it was not preceded by an SEA. The local authority argued that the order was not a “Plan or Programme” as envisaged by the SEA Directive.

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The Belgian court referred the following question to the ECJ:

In the course of those proceedings, the Council of State has therefore referred the following question to the Court:

“Are Articles 2(a) and 3(2)(a) of the SEA Directive to be interpreted to the effect that a regulatory order containing various provisions on the installation of wind turbines, including measures on safety, inspection, site restoration and financial collateral and permitted noise levels set having regard to town and country planning zones, such provisions setting a framework for the grant of administrative consent allowing a developer to install and operate installations which are automatically subject under national law to an assessment of their effects on the environment, must be considered to be a ‘plan or programme’ within the meaning of those articles?”

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This case caused much international interest, and as well as the written arguments of the parties themselves, written arguments were also submitted by the governments of Belgium, France, and the Netherlands, as well as the European Commission.

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A quick explanation about how the preliminary ruling procedure works in the ECJ: Instead of the Court immediately giving a judgment in the usual way, what happens is that the Court appoints an Advocate General to research the matter, consider all the written arguments put forward, and thereafter that Advocate General issues an Opinion. This Opinion is very important, as the ECJ will nearly always follow this Opinion (in fact I have never heard of a case where they have not followed the Opinion, either totally or at least most of it) when it issues its final binding judgment.

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So what did Advocate General Kokott say?

In her usual manner, she was very brisk and clear in her Opinion. An Authority (government or local government) is not allowed to circumvent the SEA process by dividing it up into various executive regulations, guidelines, etc. (very similar logic to the ban on project-splitting to evade the EIS).

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AG Kokott pointed out that the ECJ had already clarified what was meant by “Plans and Programmes” in the SEA Directive:

“The fact that, in the judgment in Nomarchiaki Aftodioikisi Aitoloakarnanias and Others (Judgment of 11 September 2012 in C‑43/10, EU:C:2012:560, paragraph 95), the Court, relying on a finding concerning the objectives of the SEA Directive in the judgment in Inter-Environnement Bruxelles and Others, has since defined the meaning to be ascribed to the expression plan or programme has so far been overlooked. According to that finding, a plan or programme is a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny. (my emphasis). … Consequently, there is no reason to restrict the Court’s definition of the terms ‘plans and programmes’ in relation to policies or legislation.”

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When looking at the Order setting out the various measures for the regulation of the Belgian wind-farms , the AG was very clear that this (guideline) was indeed covered by the SEA Directive:

“An order containing various provisions on the installation of wind turbines, including measures on safety, inspection, site restoration and financial collateral as well as noise levels set by reference to town and country planning zones, which prescribe at least part of the framework for the grant of administrative development consents for installations referred to in Annex II(3)(i) to Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment must be classified as a ‘plan or programme’ within the meaning of Directive 2001/42.” (my emphasis).

 

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This preliminary determination has direct effect on the situation in Ireland. Our Wind Energy Guidelines deal witrh similar issues to the Belgian ones, and are also used in development consent of wind farms here (they are adored by An Bord Pleanala), and therefore they too must comply with the EIA Directive – Annex II(3)(i) of Directive 2011/92/EC. Are you listening, Minister Naughten?

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We now have to wait for the ECJ to issue its final judgment along those lines. Once issued, the consequences are clear: Any wind energy guidelines a Government minister issues will be illegal unless they have gone through a prior and detailed Strategic Environmental Assessment.  

 

 

 

Posted in EirGrid; Insurance; Law; Cancer; EMF, Wind Farm Guidelines, turbines, flicker, noise, distance, Denis Naughten | Tagged , , , , , , | 5 Comments

Illegal delegation by the ESB

delegatus

Delegata potestas non potest delegari is a principle in constitutional and administrative law that means in Latin that “no delegated powers can be further delegated.” Sometimes the principle is stated as delegatus non potest delegare (“one to whom power is delegated cannot himself further delegate that power”), which is a bit clearer, as that it exactly what it means: If a statute gives you a power, only you can exercise that power, unless the statute expressly allows you to further delegate (sub-delegate) to somebody else.

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So if a statute gives a Minister the power to make Regulations, the Minister must do that himself, rather than handing over the job to another body or person.

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Similarly, if the 1927 ESB Act gives the Electricity Supply Board (“the ESB”) the power to decide whether to issue wayleave notices (which allows the ESB to work on private property without the owner’s consent) under Section 53, then only the ESB may do that, it cannot delegate that power to somebody else, unless the Act authorises the ESB to do so, but only to the extent that it authorises the ESB to do so.

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And that is what happened in the case of ESB and EirGrid vs Killross Properties Limited [2016] IECA 210, a judgment of the Court of Appeal.

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Briefly, the facts are that Killross Properties was challenging the legality of a wayleave notice which authorised the ESB and EirGrid to work on a 110 kV line, which included erecting a temporary line whilst the original line was being repaired/modified.

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The ESB had appointed Eoin Waldron, an employee of the ESB, as an authorised officer for the purpose of serving Section 53 notices. The problem was that Eoin was doing a lot more than simply serving wayleave notices, he was issuing them.

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In response to the challenge of this appointment as being an unlawful delegation of statutory powers, the ESB argued:

 

“It is a mistake to think in terms of individual directions being given to Eoin Waldron in respect of any and every statutory notice he serves under s. 53 of the Electricity (Supply) Act 1927. Rather it is more appropriate to think in terms of Mr. Waldron being directed to carry out a project. As the ESB’s project leader on the upgrade the subject matter of these proceedings, once he has directed to carry out the project, Mr. Waldron must, inter alia, decide whether the envisaged works require the service of any notices pursuant to s. 53. If he determines that any such notices are required, he has by virtue of s.9 of the Electricity (Supply) Act 1927 the authorisation of the ESB to serve them. In this regard I beg to refer to a copy of the authorised officer list dated 3rd September 2012 adopted pursuant to s. 9 of the Electricity (Supply) Act 1927 by which ESB authorised Eoin Waldron to exercise powers conferred and/or imposed on it by the Act 1927 including the power to serve notices under s. 53 of the said Act”. (Emphasis added).

 

The authorised officer list was a document which contained the name of Mr. Eoin Waldron, amongst others, who was nominated as an authorised officer and this nomination was approved by Pat O’Doherty, the Chief Executive of ESB who signed the relevant authorisation of 3rd September 2012 in accordance with the 1973 Board decision.

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Killross Properties challenged this arrangement. It argued that the “1973 Board decision” was not a valid exercise of its authority given to it by the 1927 ESB Act. The Oireachtas had delegated certain powers to the Board and in turn Section 9 has also expressly authorised delegation by the Board to servants or officers, but that power did not include the power of sub-delegation. In other words, the ESB had to exercise that power itself, or it could authorise its Chief Executive Officer to carry out those powers, but it could not go further and authorise its Chief Executive Officer to  sub-delegate that power to somebody else. It was going further than just authorising Eoin Waldron to serve the notices. It was authorising him to decide whether the notice was necessary in the first place, and that was a decision that could only be made by the ESB, or by the CEO acting on the authority of the ESB in terms of Section 9. Therefore Killross Properties argued that the 1973 Board decision and the delegation by the Chief Executive was ultra vires (outside the law).

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The Court of Appeal agreed with Killross Properties:

“84. One of the powers which the Legislature has delegated to the Board is the power under s.53 to issue wayleave notices. Under s. 9 the Board may exercise these s.53 powers through any of its officers or servants authorised by the Board. The question is whether, as a matter of statutory interpretation, the Board can authorise one of its officers to delegate this power to another officer.

  1. Section 9 is drafted in simple and straightforward language. It consists of one sentence. It contains a simple concept, i.e., that the Board may authorise any of its officers or servants to exercise any of the powers of the Board. Therefore the Board could appoint its Chief Executive or Mr. Waldron or others to carry out s. 53 notice powers.
  2. The question which then arises is whether this delegation by the Board of its powers and functions under the Act to its Chief Executive, with the authorisation that the Chief Executive could in turn delegate those powers and functions to such other persons as he deemed appropriate, is a matter which is permitted by s. 9 of the 1927 Act.
  3. In my view, such a sub-delegation is not permitted by the Act for a number of reasons. Firstly, s. 9 specifically provides that the Board may exercise any of its powers through or by any of its officers or servants authorised by the Board. The statute is quite specific. Such persons have to be authorised by the Board. This means, in my view, that such persons have to be directly authorised by the Board and the Board does not have the statutory authority under s.9 to authorise officers to delegate these s. 53 powers to other persons authorised by that authorised officer.
  4. Secondly, the section does not expressly say that the Board may authorise any of its officers to carry out any of its powers and that these officers may, in turn, authorise other persons to exercise these Board powers. Moreover that proposition, in my view, cannot be implied into the statutory section. There is nothing contained in the express language of the statute which permits the Board to authorise specific officers to delegate to other officers the powers and duties imposed on the Board by this Act. Any interpretation which seeks to justify the sub-delegation of powers by officers/servants of the Board to other officers/servants of the Board would require specific wording to be added to the section and in my view, this would be impermissible.
  5. Thirdly, s. 9 also provides that such officers/servants must be authorised by the Board in that behalf. This means, in my view, as a matter of interpretation, that the officers/servants authorised to perform certain functions or powers must be specifically authorised by the Board in respect of those specific functions or powers. In other words the statute envisages that the Board not only authorises them directly but also authorizes them in respect of those specific powers or duties. This means that the statute envisages that the Board itself decides on the specific powers and functions so authorized. The section does not envisage therefore that the Board will delegate to one of its officers/servants the authorization to sub-delegate those powers or functions to a third party.
  6. Fourthly, s. 9 clearly envisages a situation whereby the Board would delegate a power directly to an officer or a servant in circumstances where such an officer or servant would be within the control of the Board directly and/or answerable to the Board directly. If the Board authorised its Chief Executive to carry out its s. 53 powers and the Chief Executive did so there could be no objection to that process. Likewise if the Board had authorised Mr. Waldron and other persons directly to carry out its s. 53 powers there could no objection to that either. However what happened in this case is that Mr. Waldron is not authorised by the Board; he was authorised by the Chief Executive who in turn was authorised by the Board to delegate these powers.
  7. Fifthly, whereas s.9 is an important statutory provision which enables the Board, to whom powers have been delegated under the statute, to avoid the strictures of the maxim delegatus non potest delegare, the provision in s. 9 must still be interpreted in the light of that principle. This means that although the Board may authorize certain officers to carry out certain specific tasks, it does not mean that the Board can authorize a person to delegate those functions to a third person. That would be to set at nought the delegatus principle.”

  1. In the circumstances I am driven to the conclusion that the authorisation of the Board to permit the Chief Executive to delegate the functions of the Board to other persons was ultra vires the power of the Board under s. 9 of the Act and was unlawful. As such the s. 53 notices must be regarded as invalid and unlawful.”

.in other words, Section 53 gives the ESB the power to issue the wayleave notice. Section 9 authorises the ESB to delegate that power to the CEO. But there is nothing in the 1927 ESB Act which allows the CEO to sub-delegate the power to issue wayleave notices to another employee (as opposed to serving a notice properly issued). Accordingly, the authorisation by the ESB allowing the CEO to do that was ultra vires.

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This emphasises a very important and useful point. Whenever an official of any department claims to be exercising powers given to him or her by an Act; don’t be scared to go and read that Act to make sure that firstly, he/she has the powers they claim to have; and secondly, whether the proper procedures were followed to give that person the powers that they claim to have.

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Administrative law (for example judicial review) is not glamorous law as it does not deal directly with the rights and wrongs of policy and other merit-based arguments that we so enjoy in TV courtroom dramas. It looks to see whether the Ts were crossed and the Is dotted. It looks at things like time limits and whether the days allowed to lodge papers were counted properly. It asks whether the Minister or any other government official has followed the proper steps before carrying out an action like overturning a County Development Plan.

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It might not be glamorous but it is responsible for all the victories so far against wind farms. Leave the merits of wind energy to the politicians to argue until they are blue in the face. Hit them where it hurts, in the small print.

Posted in An Bord Pleanala; appeal; interested parties, Peremptory law; Directory Law; Planning and Devlopment Act of 2000, Planning and Development Act 2000; guidelines; directives; Sections 28 & 29, Section 35; ESB Act 1927; wayleave notice | Tagged , , | 8 Comments

Please Brexit in an orderly fashion 


Excellent blog by Martin Goodall. Brexit can only happen when the House of Commons makes it happen.


Martin Goodall’s Planning Law Blog

Is Brexit inevitable?

Posted: 01 Jul 2016 04:15 AM PDT
“Despite an occasional urge to blog on topics outside the scope of planning law and practice, I have always resisted such temptations – until now. However, I feel so strongly about the subject on which I am writing today that I will make this a one-off exception to my usual rule.

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Few, if any, of the benefits that the charlatans running the Brexit campaign were promising to gullible voters would be forthcoming if we were to leave the EU. The money that would allegedly be ‘clawed back’ from Europe, would be a good deal less in net terms than some of the figures being bandied about by the Brexiteers, and is very unlikely to reach the NHS, or match the EU support currently paid to farmers, or to replace the structural funds currently paid by the EU to deprived areas. As for immigration, even if we were no longer to be in the EU, net in-migration is likely to be every bit as high as it is now, and the promised ‘control’ of our borders may prove to be illusory.

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As for red-tape and EU bureaucracy, there is a widespread consensus that nearly all of the rules that have been made in compliance with EU law would in practice have to be retained in our legislation, because the interests that they protect would need to be protected whether or not we were an EU member. Even fishing quotas are unlikely to change. So all those people who rejoiced last Friday that “we’ve got our country back” had been badly misled, both in believing that we had somehow lost our independence in the first place and in thinking that we would in practice have any greater freedom of action as non-members of the EU than we have now.

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Like quite a few other people I know, I feel so upset by the European referendum result, and its disastrous consequences for this country, that I cannot accept this outcome, and feel that we must find some way of reversing last Thursday’s decision. I believe strongly in parliamentary democracy. Referenda, on the other hand, do not represent genuine democracy and are far too prone to be swayed by demagoguery, as was all too apparent in the case of last week’s referendum. I do not accept for one moment that it is ‘undemocratic’ to seek to overturn the result of that referendum, so as to ensure our continued full membership of the EU. In the end, it must be parliament that decides. [And in case anyone believes that MPs are there simply to give effect to the wishes of their constituents, I suggest they should re-read Edmund Burke’s classic Address to the Electors of Bristol].

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I was interested to see that there are other lawyers who are thinking on the same lines as me. The first point that should be clearly understood is that the result of last week’s referendum is not binding in any way. It has no legal status, and does not oblige the government or parliament to give effect to its outcome. Secondly, eminent constitutional experts have pointed out that Article 50 of the Lisbon Treaty can only lawfully be invoked by an Act of Parliament. The royal prerogative that ministers exercise on behalf of the Crown, which includes (at least nominally) the power to make treaties and to declare war, does not extend to the formal procedure for leaving the EU, because our membership of the EU is enshrined in our primary legislation, and an amending Act would therefore be required to start the process leading to the UK’s departure from the EU.

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The government was very wise not to seek to invoke Article 50 for the time being, and it is clearly very much in our interests to delay doing so for a number of reasons, not least to allow for the possibility of a change of mind that might avoid the Article 50 procedure having to be invoked at all. Michael Zander QC (Emeritus professor of law at the London School of Economics), in a letter to The Times, has suggested that if the mood of the country towards Brexit has changed by the time the government seeks to invoke Article 50 of the Lisbon Treaty, MPs would have “a constitutional right, even a duty”, to refuse to give the will of the people effect. I entirely concur with that view.

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[I really don’t propose to permit myself any further digressions from planning law in this blog, and I shall similarly limit discussion in the comments section below. As the French say – Retournons à nos moutons.]”

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© MARTIN H GOODALL

Posted in Brexit, Uncategorized | Tagged | Leave a comment

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.

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 | Tagged , , , , , , | 4 Comments

Match Report

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The Captain’s warm-up had gone well and so we arrived at the beautiful but enormous Palace of Nations in Geneva with the usual pre-match jitters, but with Pat Swords charging ahead and us in his wake, we found our venue fairly easily and then retired to the Delegates Hall to check out the opposition and plan any last-minute strategy.

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The Delegates Hall is a beautiful high-ceilinged lounge with stunning frescoes on the wall, and was immediately a calming influence.

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The opposition was in the other corner, still looking grim, and were fielding their strongest team, and seemingly employing a 1-4-3 formation; with a Senior Counsel as forward striker, another Senior Counsel and junior counsel as roving wings, representatives from the State Solicitor’s office, the Department of Energy, and associated lackeys lobbying high balls into the penalty area, whilst in their goal was a representative from the Office of the Attorney-General. Either they were taking us very seriously, or most of them were looking for a few days in the sun around Lake Geneva courtesy of the taxpayer.

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Our numbers more or less determined our structure. Pat was up front as forward striker, I was roving defender/striker with instructions to shut down the midfield, and Dave Malone was a back / goalie with instructions to cut down anybody that got through Pat and I, but just be wary of the red card.

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The opposing team were squirming from the start because they had walked in with guns blazing, in full adversarial mode. However, the ACCC proceedings are run in true European fashion, based on civil law principles, where the Committee clearly had some completed ideas, and were really there to ask us clarifying questions, rather than asking us to convince them of anything.

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One thing that surprised us a lot was that for such a formidable team of heavyweights, with more legal brains milling around than at the Law Library Banquet, the opposing team had not considered a fairly obvious point – the presence of Dr Aine Ryall on the Committee.

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In the introduction and formalities stage, Aine had made it clear that she was from Ireland, that she had written extensively (and critically) on the implementation of Aarhus in Ireland, and had also served on the review of the ABP,  which led to that lengthy list of recommendations. The Chairperson very properly asked if there were any objections?

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It was one of the first things we had talked about when we were preparing, and we were more than happy that Aine remained on the Committee.  She will be an invaluable source of facts to the other Committee members about the true state of things in Ireland as she is by far and away the leading Irish authority on Aarhus.

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However, when the Chair asked the government team whether they had any objections to Aine remaining on the Committee to deal with the communication, it was like they were hit with a Beckham Special Curler. There were looks of panic and huddled heads and much buzzing under breath. It was clear they had not anticipated this, which was extraordinary. In true government fashion they kicked for touch and asked if they could make their decision known later.

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As they had kicked the ball out (rather wildly and way back in the stands) it was our throw-in.

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We started off with me delivering our Opening Statement (see previous blog) which went well and I think made clear which points we were pursuing. This was not about the merits of wind energy as such, it was about procedure and public participation. It was gratifying to see a number of Committee members bobbing along with the delivery – not quite a Mexican Wave, but the crowd was certainly warming up and baying for a goal.

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The State gave a rather stoic and low-key response, and it was clear that they were hoping for a goal-less draw, with minimal damage to their cause, and maybe a better result for the home game. They adopted a very tight defence structure, with a lot of passing the ball back to the keeper, who got rid of it as quickly as possible to one of the lackeys.

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The morning session went very well, with a number of our volleys finding the back of the net, and a few of their team looking like they were praying to be substituted. To be fair, the leading Senior Counsel was earning her fee, as she was receiving poor service from her midfield, but was still banging enough our way to keep our defence busy.

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Pat was Messi-esque:  showing equal skill with both feet, and kicking them back harder than they were coming at us. I caught them a few times with the off-side trap, especially when they raised the spurious argument that we couldn’t talk about Pat’s High Court case because it was still with the judge (four years later) and everything was “sub-judice”. That argument got the treatment it deserved – an elbow in the face as we went up for the high ball. Shame on the Attorney-General for being a party to that nonsense.

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The afternoon session was even better, as it was now the turn of the Committee members to come off the bench and ask some very pointed questions, which were aimed primarily at the State, with us pretty much sitting back and watching the blood-letting.

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We finished at 4.00, exhausted, but feeling good and looking forward to the next round. A relaxing pint in very pleasant surroundings on the banks of the Rhine was most welcome. Thanks very much to Val Martin and the gang for the tasty bite that we had later.

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(This was written whilst travelling and in anticipation of Ireland’s crucial match this afternoon. A more serious report will follow – I promise!)

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Posted in EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, 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, The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information | Tagged , , | 4 Comments

Ready, Steady, …

 

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We are finally here in Geneva. I am accompanied by Pat Swords and David Malone, and we are ready to do battle tomorrow with the government lawyers in front of the Aarhus Compliance Committee, which is a United Nations body situate at the Palais des Nations (Palace of Nations) .

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As luck would have it, their legal team (or army, as there was a crowd of them, all looking deadly serious) caught the same flight as us, but unfortunately there was no friendly banter, just steely-eyed silence. Very similar to their consultation technique.

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To give you a taste of things to come, here is our opening statement when proceedings begin at 10.30 (local time – 9.30 in Ireland):

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Opening Statement from Communicants of ACCC/C/2014/112 Friday 24th June 2016

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Ireland is internationally renowned for its unique and beautiful scenery and cheerful hospitality. What is less well known, is that, compared with other European countries of similar size, Ireland has a widespread and scattered rural population.

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This scattered population is primarily a legacy from the potato famine, with its huge death toll and resultant forced emigration. More recently, both in the 80s and currently, Ireland has experienced large-scale emigration, primarily as a result of the collapsed economy.

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This widespread scattering of the rural population has been exacerbated by the lack of any coherent planning strategy for the rural areas, which has enabled people to pretty much build where they liked, subject to minimum restrictions.

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The unique rural heritage and once stunning landscapes are being destroyed by a plan to install at least three thousand wind turbines and six thousand kilometres of new high and medium voltage lines. This is ostensibly to meet the proclaimed target of 40% renewable electricity. Curiously, given the diverse resources available to Ireland, the State has chosen to rely predominately on huge wind turbines to deliver this target.

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The communicants (that’s us) represent rural communities across the length and breadth of Ireland who have already suffered greatly as a result of the energy policy imposed upon them. Ill health, property loss and devaluation, increased unemployment (because of the impact on the food, tourism and the horse industry) and fuel poverty, can all be linked to the adverse consequences of the Irish State’s renewable energy policy.

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The historical legacy of widely scattered rural communities and many isolated single family dwellings means that in the Irish countryside there are no empty spaces to install those turbines, as people live there already. Despite this, the Irish State has failed to properly regulate setback distances between wind farms and rural communities. The giant turbines, and the proposed ‘super pylons’ to carry the generated electricity, have profound consequences on rural communities and their environment, and yet these communities have never be given the opportunity to discuss the impact of these proposals before their implementation, either at a national policy level, or at a local community development plan level. When the people make their wishes known in their local development plan, these are immediately vetoed by the central government as being in conflict with the national policy, on which they – the people – were never consulted in the first place.

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The principle of proportionality requires that measures adopted do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question. When there is a choice between several appropriate measures, recourse must be had to the least onerous (on the public and the fiscus), and the disadvantages caused must not be disproportionate to the aims pursued.

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So, what is the justification for this renewable plan and its enormous impact, both environmental and financial? Were other less expensive or less onerous options considered and offered to the public? Why was a renewable-energy mix not offered to the public, as opposed to a wind-dominated programme? Why were the public not offered a chance to reduce their consumption through energy-saving initiatives before huge wind farms were built next to their homes and children’s schools, and massively increased electricity bills posted in their mailboxes?

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Why do the communicants raise this before the ACCC? This is not an effort to debate the merits and demerits of wind energy, as the Irish State’s representative has suggested. It is raised simply because this plan was foisted on the Irish public, without consultation, or suggested alternatives, or indeed a zero option. It was a ‘done deal’, and even if there had been proper consultations at this stage (which is denied), these would have been pro forma, as options were already closed.

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In theory, Ireland has ratified the Aarhus Convention. In practice, it has made little or, in many cases, no effort to give effect to the rights and obligations enshrined in this International Treaty. These systematic deficiencies in legislative and administrative measures become self-evident when one takes the subject matter of the Communication, the implementation of the Irish renewable programme at all levels of government, and compares it with the three pillars of the Convention on: access to information; public participation in decision-making; and access to justice in environmental matters.

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For pillar one on information, i.e. Article 4 and Article 5 paragraph 7(a), the Communication and supporting documentation describes how there have been repeated failures to provide requested environmental information, in particular when it is directly connected to public participation on environmental policy proposals. The examples cited include a refusal to provide a cost benefit study connected to a massive export renewable policy, plus a refusal to provide the scientific basis to support claims that an 80-95% reduction in greenhouse gas emissions is required as part of proposed climate change policies. There is a recurring theme of a stubborn refusal to provide information relating to the substance behind decision-making, where it is vital that there is public awareness and public debate on these fundamental issues. If people understand why something is being done, they are more likely to support it.

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With regard to pillar two on public participation in decision-making, the primary focus of the Communication is on Article 6 paragraph (4), ‘when all options are open’ and Article 6 paragraph (8) ‘taking due account of the outcome of the public participation’. These paragraphs are engaged both by Article 6 on decisions on specific activities and Article 7 on plans and programmes related to the environment. Indeed clarity on these issues, in particular public participation in multi-stage decision-making, has been provided by the UNECE Maastricht Recommendations, which reference extensively the previously endorsed findings and recommendations of the Compliance Committee. Posting a link on a government department website advertising a two-week ‘consultation’ is wholly inadequate.

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It is also necessary to refer to Communication C-17 (ACCC/C/2006/17), where in November 2007 in response to the Committee’s request the EU made a number of clarifications, including: 

“Although it is not a party to the Convention, Ireland will be obliged to respect the commitments arising from the Convention, where they concern provisions falling within the competence of the Community”. 

With regard to International Agreements:

“Such agreements take precedence over legal acts adopted under the EC Treaty (secondary Community law). So if there was a conflict between a Directive and a Convention, such as the Aarhus Convention, all Community or Member State administrative or judicial bodies would have to apply the provision of the Convention and derogate from the secondary law provision. This precedence also has the effect of requiring Community law texts to be interpreted in accordance with such agreements”.

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As Communicants, we have demonstrated that not only is public participation pro forma, in which there is a refusal to address the substance and justification behind the decision-making, with decisions being made before, or despite, public consultations – if indeed they can be called consultations – there is also a systematic failure to have any form of administrative system to demonstrate how public input has been incorporated into the decision-making. Indeed, the Party has already made it very clear to the Committee that any issues related to renewable policy and its merits are excluded from the resulting decision.

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The Irish State had since February 2005 a defined legal obligation under Community law, which is also its own legal structure, and prior to its 2012 ratification of the Convention, to complete such public participation in decision-making at the successive tiers of policy, plan / programme, and individual project approval stage. That it chose to by-pass this obligation, in particular with respect to the 2010 National Renewable Energy Action Plan, is not part of the compliance issues being raised by 4 this Communication, as that has already been addressed by the compliance proceedings on Decision V/9g of the Meeting of the Parties.

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However, a blatant failure to complete these legally binding steps of public participation on the renewable programme prior to ratification does not provide the Party with the ‘carte blanche’, as it claims it does, to continue to proceed with the implementation of this renewable programme after the date of ratification, in particular denying the public their rights under Article 6 paragraphs (4) and (8). There are a multitude of substantive issues which should still be open for proper consultation, as they have not been closed at the previous tier.

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Furthermore, as previously documented, the Party, as a Member State, also has a specific obligation to derogate from a Directive, where it is in conflict with the Convention, which is in essence the substance of Decision V/9g and Directive 2009/28/EC on renewable energy.

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Despite it being a general obligation of the Convention for “public authorities to be in possession of accurate, comprehensive and up-to-date environmental information”, in order to fully integrate environmental considerations in governmental decisionmaking, the implementation of this programme has proceeded without sufficient safeguards to protect those living in rural Ireland. For example, a two-week public participation with respect to new Wind Energy Guidelines was initiated on January 2013. The main concern (and supporting argument) presented by the nearly 1,000 submissions, was the adverse health impacts associated with wind turbine noise and blade flicker. These concerns and arguments were completely ignored when the resulting draft guidelines were published nearly a year later. Despite the enormous amount of peer-reviewed research on the adverse health effects of wind turbines, the government chose to rely on a discredited Australian study undertaken by wind industry-sponsored research. A further public participation was then completed, which resulted in some 7,500 submissions. More than two and a half years after that, the new Guidelines have not yet been finalised.

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As regards the final access to justice pillar, the enormous cost barriers of the Irish Courts are well known, a matter which is being dealt with under Communication C- 113. Considering Article 9(1) on access to justice when information requests have been refused, the Communication documents how the Office of the Commissioner for Environmental Information took not just months, but years to process appeals. Furthermore, resulting decisions were not in line with the Convention’s goal of facilitating access to information; namely, that a request was deemed manifestly unreasonable as there were indications that it was related to challenging the policy concerned. A second request for a cost benefit study was deemed not to be environmental information. The reason for refusal was that even though it was framing a policy decision, that policy had not been adopted and hence did not yet have environmental effects. So in essence, the public is to be kept in the dark about 5 matters of substance related to decision-making around them until the policies are implemented – when options are closed.

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In theory, one could appeal to the High Court. In practice, this is best illustrated by the National Asset Management Agency (NAMA), a public authority, which appealed a decision of the Commissioner against them. The High Court case took nearly a year and a half, and a subsequent Parliamentary question demonstrated that NAMA’s legal fees were €71,350 and that of the Commissioner for Environmental Information €50,000. These amounts are clearly beyond the means of the average citizen and therefore justice is inaccessible.

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The legal case of Swords v. Minister of Communications, Energy and Natural Resources demonstrates how a case that was given leave in November 2012, and despite appearances in front of two High Court judges, still has no written decision. The Irish Court Services have failed to provide access to justice. It is noteworthy that in their concluding remarks on the case, the State’s senior counsel, an ex Attorney- General, stated:

 ‘If the State so chooses to breach its international treaty obligations, then the citizen can complain about it but that is all the citizen can do.’

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 ‘Neither Article 7 nor Article 9 para 3 of the Convention have any direct effect on Irish law as a consequence of the EU’s ratification.’

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The communicants would ask the ACCC to find that the Irish State has repeatedly failed to consult with its citizens before environmental policy decisions were made. We would also ask the ACCC to find that when consultations are held, they are wholly inadequate and pro forma, in that there is no evidence which indicates that the responses are heeded or allowed to shape subsequent policy.

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So? Whaddya think? If you heard that, would you give us the nod? Wish us luck!

Posted in An Bord Pleanala; appeal; interested parties, EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, 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 | Tagged , | 4 Comments

Donegal: Ministerial windfarm direction quashed

Well done John! Great result.

The Law is my Oyster

Details are beginning to emerge of the settlement reached by Cllr. John Campbell and the Department in relation to the quashing of the s31 Ministerial Direction issued by Minister Alan Kelly in Oct…

Source: Donegal: Ministerial windfarm direction quashed

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Posted in EirGrid; Insurance; Law; Cancer; EMF | Leave a comment

Donegal: Ministerial windfarm direction quashed

Details are beginning to emerge of the settlement reached by Cllr. John Campbell and the Department in relation to the quashing of the s31 Ministerial Direction issued by Minister Alan Kelly in Oct…

Source: Donegal: Ministerial windfarm direction quashed

Posted in EirGrid; Insurance; Law; Cancer; EMF | 2 Comments

It’s official – nothing is happening at the High Court!

judge asleep

Readers were enraged at the contents of a previous blog on the inexplicable lack of activity on the part of the High Court in the case of Swords v Minister for Communications, Energy and Natural Resources. Conspiracy theories came thick and fast, with the theme of these comments being that when the balance of power between the executive and the judiciary is skewed, you have the beginnings of a dictatorship.  Regarding this theory, I can only quote Francis Urquhart:  “You might very well think that; I couldn’t possibly comment”.

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Unfortunately, nothing has changed. The return day was yesterday, 17th June 2016, and the parties assembled at the High Court, only to hear the judge once more adjourn the matter as he has not yet completed his judgment.

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To summarise therefore, this is how the High Court has dealt with the Swords application:

 

2013/4122 P: Swords v. Minister of Communications, Energy and Natural Resources

Schedule of dates on which reserved judgement should have been delivered

Date Occurrence
12/03/2015 High Court case concludes – Judgment reserved by Justice Keane
13/05/2015 Judgment listed for 113/05/2015, but adjourned in advance to 29/07/2015
29/07/2015 Both legal teams in Court, only to hear Justice Keane state that judgment was not ready and adjourned until 13/10/2015
13/10/2015 Both legal teams in Court, only to hear Justice Keane state that judgment was not ready and adjourned until 16/12/2016
16/12/2015 Both legal teams in Court, only to hear Justice Keane state that judgment was not ready and adjourned until 04/03/2016
03/03/2016 Courts service communicate to legal teams by e-mail that judgment would now be delivered on 20/05/2016
11/04/2016 Courts service communicate to legal teams by e-mail that judgment would now be delivered on 26/05/2016
23/05/2016 Courts service communicate to legal teams by e-mail that judgment would now be delivered on 17/06/2016
17/06/2016 Both legal teams in Court, only to hear Justice Keane state judgement was not ready and adjourned until 29/07/2016

 

In the previous blog on this, mention was made of the judgment of McMullen v. Ireland (Application no. 42297/98, judgment delivered on 29/10/2004), where the European Court of Human Rights (ECHR) found that Ireland had violated Article 6 of the European Convention of Human Rights (the right to a speedy trial). Another judgment by the ECHR, for the same reasons, was Rooney v. Ireland  (Application no.32614/10), where the Government of Ireland was ordered to pay damages to the applicant for the continuous delaying of his case before the High Court and the Supreme Court.

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It would seem that the Irish government is determined to ignore these damaging precedents.

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There is no doubt that the Aarhus Convention Compliance Committee will be very interested in this news and might have some searching questions for the government lawyers when we appear before the ACCC on Friday.

Posted in EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, High Court; Judicial Review; Appeal on the merits; judicial discretion, NREAP; National Renewable Energy Action Plan; EU Commission; Aarhus Convention Compliance Committee; ACCC, Pat Swords, The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information | Tagged , , , | 5 Comments

Sub judice in Geneva

toblerone

How often do you hear a politician and/or guilty party (when these are distinguishable) answer a penetrating question with: “I’m sorry, that matter is sub judice, I am not allowed to comment”?  What they are saying is that as the matter in question is before or about to go before a court, nobody can utter a word about it. More often than not, that is double-speak for: “If I answer that question, my career is over”. The sub judice rule is barely understood, and as a result is continuously abused. Finally, it is a restriction on free speech, and as such must be carefully and sparingly applied.

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On Friday 24 June 2016 Pat Swords, Dave Malone and I will be addressing the Arhus Convention Compliance Committee of the United Nations (ACCC) at the Palace of Nations (Palais des Nations) in Geneva.

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In preparation for this I have been going over our communication to the ACCC and the reply thereto by the Irish government.

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In essence we are arguing that any public consultations that have supposedly been conducted before legally binding decisions (at all levels of government) have been made by the government regarding the environment have been pro forma in that the decision had already been made, usually before the matter went out for public consultation, or despite the results of the public consultation.

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As you know, Pat Swords is conducting a case in the High Court at the moment, arguing that the NREAP is invalid, for a number of substantive reasons, including a lack of public consultation. Accordingly, a common theme in the government’s reply  to our complaint to the ACCC goes along the lines of “we can’t comment on that because the High Court is currently dealing with it” or “as the matter is before the High Court, the ACCC has no right to deal with this matter as that would undermine the authority of Irish courts” or “the Applicant’s conduct in referring to what was said in court is outrageous as such things are confidential”.

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This is a clearly a nonsense argument as we are not challenging the NREAP in the ACCC. In essence this is a sub judice / jurisdictional argument (although the State’s answer is very careful not to mention that phrase), and I thought I would examine this often-abused and misquoted sub judice rule to see whether it does actually apply in these instances.

 

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What is the sub judice rule?

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The rule is a category of the offence of being in contempt of court, where a judge can throw you in the cells without charge or trial for being in contempt of court and usually an apology and a night in the cells gets you out (once you have done what the judge wanted you to do in the first place).

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The sub judice rule was originally created to stop people from influencing a jury in their deliberations during a trial (an ‘active’ trial), and more often than not is restricted to criminal proceedings where the accused might be prejudiced by commentary about his guilt or innocence. Although in theory it can apply to all types of cases, it seldom raises its head with non-jury or civil trials. When the rule first came out, it wasn’t really about the judge at all, who was perceived to be immune to public pressure as they were not elected but appointed.

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The rule can be formally described as applying (with regard to proceedings which are “active”) to any publication which creates a risk, other than a remote one, that the course of justice in the proceedings in question would be seriously impeded or prejudiced.

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In other words, the government is arguing that the High Court judge who is presiding over Pat’s case would be unduly influenced in his decision (when it does eventually come out!) by us quoting some of the arguments that the State has put forward in that case (which are common knowledge and which the judge would know better than most people).

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The Law Commission of Ireland argued that a statutory offence of contempt for infringing the sub judice rule should be:

“a prosecution should only lie where the impugned conduct creates a substantial risk of serious interference with the administration of justice” (my emphasis).

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In other words, the bar is set quite high before a person can be said to substantially risk or seriously interfere with the administration of justice.

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It must therefore be asked: How has our complaint to the ACCC, which includes quotes of things that the government actually argued in open court, done that?

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In its decision of Laois County Council v Noel Hanrahan, Geraldine Hanrahan and Colm Hanrahan [2014] IESC 36; the Supreme Court found that the object of civil contempt is coercive; it is to enable one party to litigation to ask the court to compel another party to obey an order of court which the first party has obtained. The object of criminal  contempt, by contrast, is punitive.

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Given that Pat Swords is engaged in civil litigation with the State, exactly what form of contempt is he guilty of when he quotes portions of pleadings or repeats comments made by the State’s lawyer in open court? What form of contempt order could the State ask for?

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The short answer: none, because there has been no contempt. The sub judice rule has not been broken. Which is why the State never actually mention the rule – they just allege it is being broken without actually saying it.

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In our original communication, we referred to Pat’s case a number of times to show that the government was continuously saying one thing on one day, and the opposite on another day, depending on who they were talking to at the time. Some examples:

 

We said:

“The failures of access to justice provisions in Ireland are not limited to the ineffectiveness of the Commissioner for Environmental Information, to deal with appeals in relation to requests for information. Litigation costs in Ireland are already recognised as excessive and Irish legislation makes no allowance for the huge financial burden placed on potential litigants in environmental cases. Indeed, the case of Pat Swords, the Communicant in ACCC/C/2010/54, who brought the failure of the State to comply with the findings and recommendations of the Compliance Committee to the High Court in November 2012, is very illustrative of this fact. The State has repeatedly behaved in an obstructive fashion, the substantive issue on the Compliance Committee findings and recommendations have not been heard 18 months later. The State has repeatedly attempted to have the matter thrown out based on undue delay and is seeking more than ten days in the High Court to address the substantive issues. This represents a legal bill to the plaintiff of the order of €200,000 and as such is ‘prohibitively expensive’. The State is well aware of this, and persists in its demands for a lengthy trial, as it wants the case withdrawn at all costs.”

 

The government’s reply:

“Unfortunately, the manner in which the complaints are expressed by the Communicants is not helpful, particularly the use of broad, sweeping statements that are unsubstantiated. In particular, the Communicants place emphasis on proceedings entitled Swords v. Minister for Communications, Energy and Natural Resources 2013/4122P, proceedings which are currently before the Irish High Court. As the proceedings have not yet concluded and judgment in two preliminary matters is awaited, it is inappropriate for the Communicants to comment on the proceedings in the manner in which they have done.”

 

Exactly why is it inappropriate? Is the government arguing that Keane J. will be unduly influenced in his decision about the application for a protective costs order because we say that the State has deliberately dragged their heels in court?

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We said:

“In their Statement of Defence of the 18th November, the Chief State Solicitor’s office stated in Point 18:

  • It is denied that the NREAP is a plan or programme relating to the environment for the purpose of Article 7 of the Convention. If, which it was denied, NREAP was a plan or programme, or was alternatively a statement of policy relating to the environment, for the purpose of Article 7 of the Convention, the requirements relating to public participation in Article 7 were met by the public consultation that preceded the submission of the NREAP to the Commission.

‘So the State is contesting in the High Court that the Aarhus Convention applies to its renewable energy programme. In Point 19 of the Statement of Defence the State Solicitor further clarified:

 

 ‘If, which is denied the NREAP was a plan or programme the defendants deny that the State continues to be required to make appropriate practical and other provisions for the public to participate during preparation of NREAP, within a transparent and fair framework, having provided the necessary information to the public and complying with Article 6, paragraphs 3, 4 and 8, where applicable, as alleged at paragraph 18 of the Statement of Claim.’

Clearly there is intent not to comply with the recommendations of the Committee on ACCC/C/2010/54, which required the above measures to be adopted. Even more revealing is the position of the State in Pont 20 of the Statement of Defence:

 

‘The defendants deny that the public participation procedures provided for in the adoption of the NREAP were inadequate, as alleged at paragraph 21 of the Statement of Claim. Further, it is denied that the two-week period allowed was not a reasonable timeframe for the public to prepare and participate effectively in the adoption of the NREAP, as alleged.’

 

In other words, we are pointing out that the State is arguing in the High Court numerous points of law which are directly contradictory to the previous findings of the ACCC and show a clear intent not to comply with the Aarhus Convention:

 

“We now have a situation where the Irish State Solicitor is actively seeking to rewrite the international jurisprudence of the Convention in the High Court. It is also worth noting that during the hearing on Swords v Minister of Communications, Energy and Natural Resources 2012/920JR, which occurred in April 2013 in front of President of the High Court Justice Kearns, it was repeatedly stated by counsel for the State that the matters raised, the defendant himself and the ruling of the Compliance Committee were all “nonsense”.”

 

We are not trying to influence or argue the points in the High Court at all, we are simply saying that the Irish State is making it clear that it does not recognise the Convention nor does it have any intention of complying with it.

 

How does the government respond? Like this:

 

“These proceedings are currently pending before the High Court of Ireland and no determination as to the validity of the claims made by Mr. Swords has been issued by the High Court of Ireland. Ireland is defending the claim brought by Mr. Swords and denies the allegations made in the proceedings. … In light of the fact that these proceedings are pending before the High Court of Ireland, it would be inappropriate for this Committee to engage in any analysis of the matters that arise for consideration therein. This would amount to an impermissible interference by the Committee with proceedings that are pending before domestic courts. Strikingly, the Communicants quote (selectively) from the pleadings and affidavits filed in the High Court on behalf of the Minister to contend that in defending the proceedings Ireland is acting contrary to the Convention. It is inappropriate for the Communicants to raise complaint relating to the pleadings filed by Ireland before the High Court and seek to use these as the basis of a communication to this Committee.

In the communication, a number of allegations are made with regards to the manner in which these proceedings have been defended by the State before the High Court. It is unfortunate that the Communicants have chosen to engage in rhetoric of this nature in respect of proceedings that are currently pending and have not yet been determined. It is unfortunate that the Communicants have chosen to make wild and unsubstantiated allegations about the manner in which Ireland has dealt with the proceedings before the High Court.

In particular, it is denied that there is any intent on the part of Ireland not to comply with the recommendations of the Committee on the decision issued in ACCC/C/2010/545. As already outlined the Party Concerned in that communication was the European Union and there can be therefore no question of Ireland not complying with the decision.

It is further denied that the Irish State Solicitor is “actively trying to re-write the international jurisprudence of the Convention in the High Court”. There is no basis for such allegation to be made. Similarly, making an allegation relating to matters stated at the hearing of an application by Mr. Swords is not appropriate and the allegation made by Mr. Swords should not form part of the considerations of this Committee.

At this point in time, the allegations made by Mr Swords in the domestic proceedings have not been either legally or factually upheld by the Irish High Court and the mere fact that he has made these allegations cannot constitute evidence of non-compliance with the Convention by Ireland before this Committee. However, it is relevant in the context of Article 21 of Decision I/7 that the Communicants (of which Mr Swords is one) have made this complaint whilst at the same time invoking a domestic remedy before the national courts.

By way of general submissions, it is the position of Ireland that this Committee ought not consider any issue that relates to the Swords proceedings as this would amount to an impermissible infringement on the jurisdiction of the High Court of Ireland.”

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These arguments were made to the judge in open court in front of a public gallery. They can be reported by journalists if they wish. They can be accessed in the court file by legal researchers if they so wished. Why is it inappropriate for us to mention them in these proceedings?

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Instead of saying, “You got us lads, we’re fecked”, the government uses words like “wild and unsubstantiated allegations” to describe our quotations taken from their court papers! It is also worth noting that they do not deny that the State Solicitor used those words we quoted.

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As for the “impermissible infringement on the jurisdiction of the High Court of Ireland”, just how does that make sense? The ACCC is essentially a political body (a committee) created by another political body (the UN). It seeks compliance with a political instrument (the Aarhus Treaty/Convention). Its proceedings are described as “non-adversarial”, and the party making the complaint is a ‘communicant’, not a litigant. Adverse findings by the ACCC against the Irish government (and it is becoming quite a collection) are a political embarrassment, they are not legally binding (which is why Pat is suing them in the High Court). In other words, findings of the ACCC are most certainly not legal precedent that is binding on the Irish courts, although judges might have regard to them when it comes to interpretation of our domestic legislation. Accordingly, they can never be an infringement of the jurisdiction of a domestic court. That is pure nonsense.

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Wish us luck in Geneva – the place will be hopping.

Posted in EIA Directive 2014/52/EU, EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, 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 | Tagged , , | 3 Comments

What is happening at the High Court?

What is happening at the High Court?

 

Not a lot, it would seem.

 

In 2009 Pat Swords started his campaign against government plans to cover the Irish countryside with more than three thousand wind turbines and six thousand kilometres of new high and medium voltage lines.

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This led to the United Nations Economic Commission for Europe (UNECE) Aarhus Convention Compliance Committee in Geneva taking a test case in his name against the EU, in relation to the implementation of the National Renewable Energy Action Plan (NREAP) in Ireland, which was foisted on the Irish public without so much as a ‘how’s-your-father?’.

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At the time Ireland had not ratified the Aarhus Treaty, and therefore proceedings could not be taken directly against the Irish Government. This was unfortunate because if their mad energy plan had been stopped then, a lot of hardship and anguish, never mind the wastage of billions of euros of taxpayer’s money, could have been avoided.

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Pat circumvented the problem of not being able to proceed against the Irish government by going instead against the EU Commission for failing to ensure that Ireland did things properly when it came to consulting the public before it went ahead with the wind farms.

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The result was the ‘Swords decision’, in which the UNECE Compliance Committee confirmed that the EU had failed to comply with the necessary public participation provisions when it implemented its 2009 ‘Renewable Energy’ Directive (Directive 2009/28/EC on the promotion of the use of energy from renewable sources, which set an EU wide target of 20% renewable energy by 2020).

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Decision V/9g on compliance by the European Union, which was adopted by the Meeting of Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters at its fifth session (June/July 2014), found as follows (the Party concerned being the EU Commission):

“(a) That the Party concerned, by not having in place a proper regulatory framework and/or clear instructions to implement article 7 of the Convention with respect to the adoption of National Renewable Energy Action Plans (NREAPs) by its member States on the basis of Directive 2009/28/EC, has failed to comply with article 7 of the Convention;

(b) That the Party concerned, by not having properly monitored the implementation by Ireland of article 7 of the Convention in the adoption of Ireland’s NREAP, has also failed to comply with article 7 of the Convention;

(c) That the Party concerned, by not having in place a proper regulatory framework and/or clear instructions to implement and proper measures to enforce article 7”of the Convention with respect to the adoption of NREAPs by its member States on the basis of Directive 2009/28/EC, has failed to comply also with article 3, paragraph 1, of the Convention.”

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Pat then took the fight to the Irish courts. He had the decision of the ACCC that the consultation process before the launch of the Irish NREAP was fatally flawed. However, the EU enforcement mechanisms (especially where the EU Commission are on the receiving end) are notoriously slow as they are essentially political in nature and usually end up as political compromises behind closed doors. Therefore it made sense to secure a judgment of an Irish court against the government to the effect that the NREAP was irretrievably defective, and would need to be started again, but properly this time.

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Swords v Minister for Communications, Energy and Natural Resources commenced in November 2012, when Pat got leave to judicially review the Irish NREAP. The State made a counter motion in respect of delay in taking proceedings. This was a hugely cynical manoeuvre as their obstructionist tactics were the reason for the delays in the first place.

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The review proceeding was supposed to be heard in April 2013 over a period of three days by Justice Kearns. This was a complex issue, as Ireland was for many years the only Member State which had not ratified the Aarhus Convention (this finally happened in October 2012). Ireland had also failed to transpose the requirements of Directive 2003/4/EC and 2003/35/EC until subsequent decisions against it occurred in the European Court.

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Kearns J took the view that it even though Ireland had not (at the time) ratified the Aarhus Treaty, the Treaty was still binding on Ireland as a Member State since 2005 when the EU ratified the Treaty. As such, the learned judge decided, without producing any written judgement, that a Plenary Summons procedure should be substituted for a Judicial Review and the question of legal costs could be argued at that stage.

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It might be argued that Kearns J took the ball and booted it as far into touch as he could, probably hoping that it would not come back. In essence a plenary summons is used to commence proceedings where there is a real dispute between the parties but the amount of the plaintiff’s claim is not specific or easy to calculate. It is usually used in accident and injury compensation cases. I do not pretend to understand why the learned judge decided to use such a procedure here when there was essentially a procedural dispute which involved the interpretation of existing law and where the facts were relatively easy to determine.

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I would argue that a special summons should have been used. This procedure is reserved for cases that involve pure issues of law or very specific issues of fact – a complete description of Pat’s case. It is also a fast-track procedure where the judge decides the case by reading affidavits submitted by both sides. It is quicker and cheaper as it cuts down considerably on the bullshit and hot air, those much-loved tools of the State Solicitor’s office.

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Instead, surprisingly, the learned judge decided on plenary proceedings. When a plenary summons is issued, the next step is for the parties to exchange pleadings, which just means more opportunities for delaying tactics and increasing legal expenses by the State. The State grabbed this opportunity with both hands, arguing that it needed more than ten days in the High Court to present its case.  As the legal issues are relatively clear, this was probably intended as a platform to trot out a never-ending parade of puppet witnesses, who would say nothing but take a whole day to do it. This was nothing more than a scare tactic and also meant that the proceedings would be prohibitively expensive.

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This bully-boy tactic did not intimidate Pat, and the matter finally returned to the High Court in March 2015, this time for five days in front of another judge, Justice Keane. (Kearns J. announced his decision to retire early, no doubt eager to avoid having to preside over this dog fight).

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This five-day hearing was solely to deal with two preliminary motions; the first brought by the State in respect of time delay (using exactly the same argument as they had unsuccessfully used before when they lost before Judge Kearns) and the second by Pat who was looking for a protective costs order, given the enormity of the legal costs. The papers the State used to argue their delay argument were the same ones they had unsuccessfully used in April 2013. They just changed the title pages.

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In other words, the court has not looked at the substantive issue yet – namely the dodgy nature of the NREAP. This was just a preliminary skirmish.

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Judgment was reserved on 12 March 2015 by Justice Keane.

 

The parties were called back on 13 May 2015, expecting to hear the judgment. Pat was eager, the State was dreading it. However, the judge had not written the judgment, and the case was adjourned.

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The parties were called back on 29 July 2015, expecting to hear the judgment. The judge had not written the judgment, and the case was adjourned.

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The parties were called back on 13 October 2015, expecting to hear the judgment. The judge had not written the judgment, and the case was adjourned.

 

The parties were called back on 16 December 2015, expecting to hear the judgment. There was real excitement this time, as the judge was very late, and we imagined that he was putting the finishing touches to the long-awaited judgment. When he did arrive, the judge announced that he had not written the judgment, and the case was adjourned.

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The parties were called back on 17 May 2016, expecting to finally hear the judgment. The judge had not written the judgment, and the case was adjourned (until 17 June 2016).

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In its judgment of McMullen v. Ireland (Application no. 42297/98, judgment delivered on 29/10/2004), the European Court of Human Rights (ECHR) found that Ireland had violated Article 6 of the European Convention of Human Rights (the right to a speedy trial):

38. “The Court recalls that a State is obliged to organise its legal system so as to allow its courts to comply with the reasonable time requirement of Article 6 (…). It has held on a number of occasions that a principle of domestic law or practice that the parties to civil proceedings are required to take the initiative with regard to the progress of the proceedings does not dispense the State from complying with the requirement to deal with cases in a reasonable time (…). If a State lets proceedings continue beyond the “reasonable time” prescribed by Article 6 of the Convention without doing anything to advance them, it will be considered responsible for the resultant delay. …

  1. In this regard, the Court observes that a number of specific and lengthy delays in the proceedings are attributable to the domestic authorities: a period of more than one year between the last day of the High Court hearings and the delivery of its judgment (23 June 1992-13 July 1993); a period of almost two years between the applicant’s confirmation that all appeal documents had been filed and the first hearing date for the appeal (25 July 1995-21 March 1997); and a period of six months for the Supreme Court to re-constitute and fix a hearing date for the relevant appeal (11 June-16 December 1997). No explanation for these specific delays has been offered by the Government.

  2. In such circumstances, and having regard to the criteria laid down in its case-law, the Court finds that the proceedings in the present case were not dealt with within a “reasonable time”, as required by Article 6 § 1 of the Convention and that there has therefore been a violation of that provision.”

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Clearly the Irish Government did not listen to the ECHR, as exactly the same thing is happening with the Swords case. The State has been allowed to drag out proceedings, and mount up the legal costs of the applicant by continuously stalling and obstructing. And now the High Court is further confounding the process by sitting on its hands about a decision which should be writing itself, as clearly the State cannot win – both the law and the facts are completely against it.

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And perhaps that is the problem. Who would want to be in the shoes of Keane J when he tells the government that its multi-billion euro energy scheme is illegal and must be scrapped?

Posted in EU Renewable Energy 2020 Target, Freedom of Information; Access to Environmental Information; AIE; Commissioner for Environmental Information, High Court; Judicial Review; Appeal on the merits; judicial discretion, Law; High Court; Leave To Appeal; Environment, 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, The United Nations Economic Commission for Europe’s (UNECE) Convention on Access to Information | Tagged , , , | 8 Comments