Friends' Work

// Reasoned Opinion of the EU against Ireland's use of a particpation fee

addressed to Ireland under Article 226 of the Treaty establishing the European Community, on account of its failure to fulfil obligations under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment and Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 21/01/2003
2000/4078
C(2003) 352


REASONED OPINION

addressed to Ireland under Article 226 of the Treaty establishing the European Community, on account of its failure to fulfil obligations under Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment and Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC


PROVISIONS OF DIRECTIVES

1. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment ("Directive 85/337/EEC") as amended by Council Directive 97/11/EC of 3 March 1997 ("Directive 97/11/EC"), hereinafter referred to as "the Impact Assessment Directive" sets out a framework for the environmental impact assessment of certain projects.

Article 2(1) of the Impact Assessment Directive defines a basic duty to ensure the prior environmental impact assessment of environmentally significant projects.

Article 4 of the Impact Assessment Directive defines the projects to be made the subject of an environmental impact assessment.

Articles 5 to 10 of the Environmental Impact Assessment Directive set out requirements to be respected with regard the conduct of environmental impact assessments. These requirements inter alia include an obligation to consult the public concerned (Article 6) and to take information, including information derived from public consultation, into account in the decision-making process (Article 8).

By virtue of Article 12 of Directive 85/337/EEC, the measures necessary to comply with this directive were due by 3 July 1988.

Article 3 of Directive 97/11/EC requires Member States to bring into force the laws, regulations and administrative provisions necessary to comply with it by 14 March 1999 at the latest, and to forthwith inform the Commission thereof.

Article 3(2) of Directive 97/11/EC provides that, if a request for development consent is submitted to a competent authority before 14 March 1999, the provisions of Directive 85/337/EEC prior to these amendments shall continue to apply.

2. In 2000, the Commission registered two complaints against Ireland under numbers P2000/4078 and P2000/4188 concerning then proposed legislation which inter alia provided for payment of fees by members of the public as a pre-condition for considering their opinions in development consent procedures. The principal legislation - which has since been adopted - is the Planning and Development Act, 2000. This provides for payment of participation fees at local authority level. Earlier legislation provides for the payment of participation fees at other tiers of decision-making. The complainants inter alia argued that the requirement of payment of a fee was contrary to the provisions of the Impact Assessment Directive.

2.1. By letter dated 29 August 2000 (ref D(0)432590), the Commission requested the Irish authorities to comment on the complaints referred to in the previous paragraph.

2.2. By letter dated 6 December 2000 (ref. DGENV 813803), the Irish authorities responded. They stated that: "For administrative purposes, and in keeping with the provisions of Article 6(3) of the EIA Directive which provide that determination of "the detailed arrangements" is a matter for individual Member States, the Act enables regulations to be made to require an administrative charge or fee for making a submission or observation on a planning application." They also noted that there was existing provision for fees in relation to certain development consent procedures in Ireland.

2.3. On 23 October 2001, the Commission addressed a Letter of Formal Notice to Ireland (SG(2001)D/260437) inter alia in respect of the subjecting of rights under the Impact Assessment Directive to payment of participation fees.

2.4 By letter dated 7 March 2002 (ref. DGENV802296A), the Irish Authorities responded, referring the Commission to new Irish regulations concerning participation fees adopted pursuant to the said Planning and Development Act, 2000. They contended that the Impact Assessment Directive did not debar the imposition of such fees and that Article 6 of the Impact Assessment Directive left the detailed arrangements for the consultation of the public to Member States. They argued that the new fee (set at € 20.00) would contribute to an enhanced service under the new legislation, that it would not discourage participation, that it would not apply to certain non-governmental organisations or to persons merely seeking information in an EIA process, and that only a minority of developments would attract separate participation fees.

LAW

3. The Commission considers that it is contrary to the Impact Assessment Directive to make the right to express an opinion or have that opinion taken into consideration in a development consent procedure involving EIA subject to payment of a participation fee. Its reasons are set out at paragraphs 3.1. to 3.24. below.

3.1. Firstly, the Impact Assessment Directive contains no express provision allowing for such participation fees. The Commission would submit that, had the Community legislator intended to allow the possibility of such a fee, it would have made express provision for them. In support of this, it would cite Council Directive 90/313/EEC on the freedom of information on the environment. In subject-matter, this is closely related to the Impact Assessment Directive in as much as it creates rights for the public with regard to information on the environment. In its Article 5, it expressly allows for a charge which may not exceed a reasonable cost. The Commission would content that, a contrario, the absence of such express provision in the Impact Assessment Directive supports the argument that Member States are not entitled to constrain the right to express an opinion or have that opinion taken into account by reference to payment of such fees.

3.2. Secondly, the Commission considers that participation fees run contrary to the scheme and purpose of the Impact Assessment Directive.

3.3. The third recital of Directive 85/337/EEC provides:

"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question;"

3.4. This indicates that a fundamental purpose of an EIA is to ensure that decisions on environmentally significant projects are adequately informed in terms of information emanating from relevant information sources. Information from the public concerned represents one of these information sources, as is expressly recognised by Article 6(2) of the Impact Assessment Directive. Consequently, to see the role given to the public concerned under Article 6(2) only in terms of an entitlement to have a service rendered to them by the authorities is, in the Commission's view, misplaced. On the contrary, that role can be considered in terms of the public providing a service to the decision-making authorities, i.e. providing supplementary information that can help these authorities make a fully informed decision. In an Irish context, such supplementary information can be particularly important, especially when it comes from expert non-governmental organisations, given that many Irish decision-making bodies lack specific expertise to judge environmental impacts (see also paragraphs 3.7 and 3.16 below).

3.5. In this regard, it may be noted that the role of the public under Article 6(2) is intended to be exercised with reference to specific projects. The general interest of having environmentally informed decision-making with regard to specific projects is paramount. In the context of this general interest, the Commission would submit that the imposition of participation fees on the public concerned is inappropriate, since it cannot be justified by reference to this interest. On the contrary, it works against this interest by making it less likely that one specified information-source, i.e. the public, will contribute to decision-making on such projects as intended. In contrast, Directive 90/313/EEC is not concerned with specific projects but with the general interest of giving the public access to environmental information. Because Directive 90/313/EEC does not set any conditions as to the reasons for seeking information (which may be entirely a private matter), and because those obtaining information under it do not necessarily render a service or contribute to a public-interest procedure related to the precise information requested, a charge for providing information is not similarly inappropriate. In any case, Directive 90/313/EEC makes specific provisions for a charge whereas the Impact Assessment Directive does not.

3.6. The Commission understands that the role of the public in helping decision-makers to make informed decisions was highlighted in many submissions to the Irish government opposing participations fees prior to their introduction at local authority level.

3.7. Fourteen local authorities, including the General Council of County Councils, passed motions to request that the fee would not be implemented, inter alia highlighting the poorer decisions that would result as members of the public had consistently supplied these authorities with information that was useful and relevant.

3.8. The relevant professional bodies, the Irish Planning Institute and the Royal Town Planning Institute (which represent professional town and country planners), together with a number of statutory consultees, the Heritage Council and An Taisce, advanced similar arguments against participation fees. The Heritage Council noted: "The introduction of a fee which would be payable by third parties to make submissions or observations on applications for planning permissions is not in line with one of the key principles of sustainable development, that of public participation. Given the current lack of specialised expertise amongst planning authorities in relation to a number of areas of sustainable development, the submission of observations from third parties provides an invaluable service to planning authorities in their attempts to assess applications in a comprehensive manner."

3.9. Key non-governmental organisations concerned with the protection of Ireland's environment also voiced concern that the participation fees with make it more difficult for them to inform decision-makers of environmental impacts. The Irish Georgian Society, which is concerned with the protection of Ireland's architectural heritage noted that the provision for charging in the proposed Irish legislation "is of particular concern, in that charging people to make submissions to local planning authorities will discourage public participation, and, in regard to conservation, will be adverse as local historical and archaeological societies, as well as bodies like the Irish Georgian Society, will be penalised financially for trying to encourage the authorities, and others, to respect our architectural heritage."

3.10. Thirdly, the Commission considers that the precise wording of Article 6(2) and (3) of the Impact Assessment Directive does not allow for the latitude in interpretation that the Irish authorities seek to give it.

3.11. Article 6(2) itself sets no qualification on the duty of authorities to provide information to the public "in order to give the public concerned the opportunity to express an opinion before the development consent is granted."

3.12. While Article 6(3) allows Member States to determine the detailed arrangements for information and consultation under Article 6(2), the Commission would submit that the scope of the Member States role must be considered as delimited by what is reasonably necessary to give meaning to the basic duty set out in Article 6(2). Support for this interpretation is found in indented particulars set out in Article 6(3), all of which relate to what is needed to make the duty in Article 6(2) effective in practice, and none of which advert to the possibility of fees.

3.13. In contrast, the imposition if participation fees by way of "detailed arrangements" cannot be considered as coming within the ambit of what is reasonably necessary to give effect to Article 6(2), a point reinforced by the fact that Ireland is the sole Member State to resort to such fees.

3.14. Furthermore, the Commission would submit that the imposition of participation fees by way of "detailed arrangements" runs contrary to the polluter pays principle, one of the principles on which Community environmental law is founded, and a principle which should not be overlooked in any interpretation of Article 6(3). In particular, the Commission considers that the principle is not adhered to if costs properly attributable to those proposing to create environmental impacts are instead allocated to those who may be affected by them. With reference to environmental charges, it may be noted that Council Recommendation 75/436/Euratom, ECSC, EC regarding cost allocation and action by public authorities on environmental matters states "the costs to be borne by the polluter (under the "polluters pays principle") should include all the expenditure necessary to achieve an environmental quality objective, including the administrative costs directly linked to the implementation of anti-pollution measures." In contrast, although any administrative costs arising from public participation are a consequence of initiatives taken by developers, the charges that Ireland imposes by way of participation fees fall on the public.

3.15. In this regard, and with reference to the equity of participation fees, the Irish General Council of County Councils has pointed out that it is developers who seek to change the status quo: "A householder, for example, is quite happily living in his or her house when an applicant applies to build an intensive pig unit in the field across the road. Naturally the householder is concerned and wants to make an observation to the planning authorities on this. Why should the householder then be forced into expense, no matter how nominal, because of a third party's unsolicited proposals?"

3.16. Furthermore, it appears form the submissions of local authorities and the General Council of County Councils that, as a matter of general policy in Ireland, developers are not expected to properly defray the administrative costs that result from their development proposals, and that inter alia, as a consequence, local authorities are discouraged from engaging the professional expertise that is needed to properly consider such proposals. This further underscores the potential contribution that the public, including expert individuals and organisations, can make to decision-making, by supplying a deficit in the expertise available to local authorities.

3.17. Fourthly, and without prejudice to the preceding arguments, the Commission considers that, in the legislative provision it has made for charges, Ireland has exceeded the scope for making detailed arrangements given by Article 6(2) of the Impact Assessment Directive.

3.18. Section 33(1) provides that "The Minister shall by regulations provide for such matters of procedure and administration as appear to the Minister to be necessary or expedient in respect of applications for permission for the development of land." Section 33(2)(c) provides that, without prejudice to the generality of subsection (1), regulations under this section may make provision for…."enabling persons to make submissions or observations on payment of the prescribed fee and within a prescribed period." Leaving aside questions of principle, the Commission takes the view that this gives the Minister a very broad latitude to set participation fees at a level which is prohibitive or dissuasive in cost terms, and cannot be considered compatible with the scope given to the Member States to determine detailed arrangements under Article 6(2).

3.19. Fifthly, and without prejudice to the preceding arguments, the Commission considers that, in the charges it has actually provided for to date, Ireland has proceeded in a manner that impedes or potentially impedes the rights given to the public concerned under Article 6(2) of the Impact Assessment Directive. The Commission considers that the level of participation fees which currently obtain in Ireland are such as to inhibit the public participation foreseen by Article 6(2) of the Impact Assessment Directive, especially with regard to a number of categories of persons. The fees are set at € 20.00 for participation in an EIA where the decision is determined at local authority level, and € 45.00 where, following an appeal, the decision is determined at the level of Ireland's Planning Appeals Board. Decisions on major projects requiring a consent from Irish local authorities are commonly appealed to the Board. Even if they pay the initial € 20.00 participation fee at the local authority level, and do not themselves make the appeal (the developer may appeal, for example), members of the public who wish to express an opinion are obliged to pay a further € 45.00 participation fee in order for their submissions to be taken into account by the Board. Further fees may arise where a decision involves the Environmental Protection Agency.

3.20. In the first place, the participation fees are especially prohibitive in relation to persons dependent on social welfare payments (including recipients of unemployment benefit and disability allowance). The standard rate of payment currently stands at €118.80 a week. Recipients represent 8.6% of the population nationally, rising to 11.1% in Counties Leitrim and Wexford. In specific locations, the public concerned by individual projects requiring EIA may include a higher percentage of social welfare recipients. The cumulative participation fees of € 65.00 which will very often arise in an EIA amount to over 50% of an already exiguous weekly income.

3.21. In the second place, the participation fees are prohibitive in relation to persons or organisations which, because of a concern for the environment and/or a particular area of environmental expertise, wish to participate in a multiplicity of different development consent procedures. It should be noted that participation fees are not limited to procedures involving EIA, but apply to all planning procedures. This means that the potential cumulative burden may be considerable. In a submission opposing participation fees, the Barra Salmon Angling Association, County Mayo, stated: "The proposed fee may not be excessive in a once-off situation. However, our group and I assume many others around the country have occasion to lodge objections to various applications on a regular basis. Our only concern for doing so is to try and protect and preserve our unique environment in the West. The pressure, especially in recent years and the experience in all kinds of developments is making it more and more difficult to preserve what we have. Objections, appeal to An Bord Pleanala, and Oral Hearings are for a voluntary body with no outside funding time-consuming and financially draining. Your proposal if implemented will add to that burden and will result in restrictions on the number of objections we would normally make." It may be noted that this voluntary body operates in an area that has seen a steady decline in water quality, and a deterioration in game fisheries. The environmental concerns that underlie its wish to participate in decision-making procedures are therefore well-founded.

3.22. With reference to Ireland's submission that participation fees do not apply to certain non-governmental organisations or to persons merely seeking information in an EIA process, the Commission would observe that the exception for non-governmental organisations is of very limited extent (it understands that only one non-governmental organisation currently benefits and then not under all circumstances), and that the obligations contained in Articles 6 and 8 of the Impact Assessment Directive inter alia relate to the expression of opinions by the public as well as to the information of the public.

3.23. In the third place, the participation fees are especially prohibitive in relation to the public concerned by developments involving a multiplicity of separate development consent procedures. Citizens wishing to express an opinion on any separate EIAs that result will incur separate participation fees. This situation is described in relation to the re-development of Ballymun in a Commission Reasoned Opinion of 6 August 2001 (SG(2001)D/290823).

3.24. A consequence of the imposition of participation fees contrary to Article 6 is that Ireland also fails to comply with Article 8 of the Impact Assessment Directive. This is because Ireland fails to ensure that opinions expressed by members of the public who do not pay participation fees are taken into account in the development consent procedure.


FOR THESE REASONS

THE COMMISSION OF THE EUROPEAN COMMUNITIES


after giving Ireland the opportunity to submit its observations by letter dated 23 October 2001 (ref. SG(2001)D/260437) and after taking account of information provided by the Irish authorities in a letter dated 7 March 2002 (ref. SG(2003)A/00670),


HEREBY DELIVERS THE FOLLOWING REASONED OPINION


under the first paragraph of Article 226 of the Treaty establishing the European Community that Ireland, by making the full and effective participation of the public in certain environmental impact assessments subject to prior payment of participation fees, has failed to comply with its obligations under Article 6 and 8 of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended by Directive 97/11/EEC.


Pursuant to the first paragraph of Article 226 of the Treaty establishing the European Community, the Commission invites Ireland to take the necessary measures to comply with this Reasoned Opinion within two months of receipt of this Opinion.


Done at Brussels, 21/01/2003


For the Commission

Margot WALLSTR?ñM
Member of the Commission


IN CONFORMITY WITH COMMISSION
DECISION
For the Secretary-General

Sylvain BISARRE
Director for the Registry