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// Complaint to DGXI- Planing Bill 1999
Infringement of Environmental Impact Assessment Directive 85/337 resulting from proposals contained in the Irish 1999 Planning Bill - the €20 fee and the barriers to justice.
October 4, 1999
Infringement of Environmental Impact Assessment Directive 85/337 resulting from proposals contained in the Irish 1999 Planning Bill
Dear Mr. Kremlis;
Friends of the Irish Environment (FIE), an environmental network specialising in monitoring the implementation of European environmental law in Ireland, would like to draw the attention of the Commission to a serious situation brought about by recent proposed amendments to the law governing environmental decision making in this country.
The Irish government has published a consolidated 1999 Planning Bill, including such vital legal areas as development control, environmental impact assessment, and judicial review of environmental/planning decisions. While the bill is very long and complex, and while it contains some positive aspirational provisions, FIE is gravely concerned that certain other provisions in this bill will undermine the right of the public to participate in environmental decisions, and consequently will undermine the effective implementation of Community environmental law in Ireland.
In particular, we ask the Commission to take notice of the following matters:
(1) For the first time in Ireland, it is proposed that persons making comments on applications for development pay a fee, the amount to be prescribed "later" by the Minister via regulations. (Please see Section 33 of Part III of the bill.) This is said to be for the purpose of "streamlining" the planning process; however, we feel that it is unlawful for the government to seek to streamline the planning process by eliminating persons from the pool of objectors to a given project. While the government is saying that the fee proposed will not be large, we point out with urgency that even a small fee could have the effect of destroying the NGO sector in Ireland. Nearly all NGOs here operate with no budget and on an entirely volunteer basis. NGOs in Ireland are often met with resistance and obstruction by the authorities.
It is also frequently the case that local citizens groups, too timid to object to a proposed development, rely on NGOs large and small to object for them, and on the basis of greater expertise and information. Even a small fee of five or ten pounds would eliminate the possibility for environmental associations to comment on proposed developments, since this amount multiplied by many times would mean that they could not continue to pay. Such fees can be multiplied many times in even one projects as in complex modern developments there may be many applications, even without situations in which it appears a developer may be engaging in project splitting to avoid thresholds under the Environmental Impact Assessment Directive . Under the new Irish law, even citizens who see the Environmental Impact Assessment Directive being clearly infringed will have to pass a financial barrier before being permitted to draw the attention of their national authorities to the alleged infringements.
We fear that the Irish authorities might try and exempt from the fee only "acceptable" NGOs-those of the more established or conservative variety.
We submit that under Council Directive 85/337/EEC, as amended by Council Directive 97/11/EC, the right of the public to participate in environmental decision-making, particularly the right of the NGO sector, could be wiped away, thus subverting the intention behind the directive. We urge the Commission to take this matter up with the Irish authorities as a priority.
(2) The bill would also create a rule that no person could appeal a development decision to An Bord Pleanala (the Irish Planning Appeals Board) unless they had made comments at the level of the local planning authority. (See Section 36 of Part III.) This rule will also have a dramatic and negative effect on concerned citizens and the NGO sector in Ireland. Citizens and NGOs already have to pay £120 to make an appeal to the planning appeals board and £36 to provide additional information on a planning appeal lodged by any other person, even if this information relates to infringements of European Directives. Often, NGOs do not hear about a development until it has received permission from the planning authority; it is frequently at that stage that local residents seek help from NGOs, since they will need more sophisticated approaches before the Appeals Board. It is almost unthinkable that NGOs should be excluded on the grounds that they did not lodge an objection at the local authority level.
If the project is one likely to have significant effects on the environment, we believe that this new rule is also a clear violation of the EIA Directive. It is equally contrary to the spirit of all the European environmental directives. The government says that it wants the principal planning body to be the local authority, with only those who have "shown their interest" to have the right to appeal to the Appeals Board.
As you may know, Irish planning law is very vague, and we are currently inundated with environmentally destructive developments of many kinds. The NGO sector can barely keep up, yet it plays a valuable role in assisting local community groups trying to fight against developers, who bring in expensive legal counsel and environmental consultants to the Appeals Board. Our ability to assist community groups would be severely curtailed by this restriction of the right to appeal.
(3) The new planing bill also further raises the requirement for persons seeking judicial review of planing and environmental decisions to show a "substantial interest," rather than the more traditional "sufficient interest." (See section 48 of Part III.) We point out to the Commission that in 1992, when the Irish legislature sought to tighten up on the requirements for public interest applicants seeking review of these decisions in the Irish courts, the courts took this as a signal to be harder on these applicants for judicial review than ever before. As you may be aware, public interest litigants in Ireland suffer from the threat of having costs awarded against them; our courts are also notoriously unwilling to apply Community environmental law or to refer questions to the European Court of Justice. We feel that this addition to the planning law will further restrict our access to the Irish courts and diminish our ability to rely on the provisions of Community environmental law.
We believe that these amendments are contrary to the Aarhus Convention and we have the support of 65 Irish community groups to date in requesting members of our legislature to remove these bars to public involvement. We attach a copy of our letter to these members of the national legislature and the signatures to date.
These legislative proposals are also further evidence of the fact that, while Ireland has a good deal of aspirational environmental law on paper, the national authorities are continuing to attempt to prevent citizens from enforcing that law and making it effective. Ireland has very little in the way of clear land use principles or other environmental rules. If individuals or NGOs should be barred from making comment, from appealing, and/or from seeking judicial review in the environmental context, Ireland will quickly be overrun by the sort of negative development that we try our best to forestall.
The Steering Committee of Friends of the Irish Environment