The body of environmental and planning rules applying to potentially
harmful activities and major development projects continues to grow in
terms of its complexity and the scope of its coverage, thus increasing
the burden on businesses and other actors in complying with and
enforcing these rules and regulations. However, there is also
concern that access to justice for ordinary citizens is being
restricted in relation to environmental issues. The Government's
recently published Planning and Development (Strategic Infrastructure)
Bill seeks to fast-track many large-scale transport and other building
projects through the planning system and to reduce the opportunities
for affected citizens or concerned groups to object to and challenge
such projects. At the same time, the costs of taking a legal
challenge to Governmental plans or decisions on environmental or
planning grounds and, therefore, the financial risks for a private
person or a local environmental pressure group, have become
prohibitive. These are some of the issues which will examined at
University College Cork at the fourth annual 'Law and the Environment'
conference on Thursday, 27 April.
Under European Community law, Ireland is obliged to facilitate the role
of environmental NGOs in decision-making procedures, such as
environmental impact assessment (EIA). This obligation must be
implemented in Irish law. One noteworthy aspect of the Strategic
Infrastructure Bill is the proposal to give environmental NGOs meeting
certain conditions a right to bring a judicial challenge to planning
decisions that involve EIA procedures. Under current planning
legislation, NGOs are required to demonstrate a 'substantial interest'
in the contested decision. This requirement can be problematic in
practice as an NGO will not usually have a property interest, or other
financial interest, that is directly affected by the decision in
question. According to Dr Áine Ryall of UCC Law Faculty:
"The change proposed in the Bill holds the potential to improve access
to judicial review for qualified NGOs. It recognises that
environmental NGOs may initiate a challenge in the public interest and
to ensure that the law (including EC law) is applied correctly when
important environmental decisions are under consideration."
However, Dr Ryall also sounds a note of caution: "At the
same time, the Bill sets down firm conditions that an NGO must satisfy
before it will qualify for the (proposed) automatic right of access to
the courts. The NGO's objectives must relate to
environmental protection and it must have actively pursued those
objectives during the period of 12 months before its application to the
High Court for permission to bring judicial review proceedings.
It must also meet any other requirements that may be prescribed by the
Minister for the Environment, Heritage and Local Government.
These additional requirements will be set down in a statutory
instrument and can relate to a range of matters including: membership;
non-profit operation and form of legal personality. The
real impact of the proposed change will depend on how tightly the
Minister sets these additional requirements."
She concludes that: "The move to streamline particular aspects of the
planning process raises the familiar tension between efficient
environmental decision-making and meaningful public participation
(including the role of NGOs). Modern planning and development law
attempts to draw an acceptable balance between these fundamental
objectives."
Dr Ryall also points out that "Proposing to extend environmental NGOs'
entitlement to initiate judicial review proceedings is only one aspect
of any scheme that aims to improve access to the courts.
Difficulties in securing civil legal aid and advice for planning and
environmental cases and the fear of being held liable for substantial
legal costs in the event of an unsuccessful judicial challenge create
real barriers for concerned individuals and NGOs who seek to challenge
controversial decisions in the public interest. These issues must
also be addressed if Ireland is to meet its obligations under EC
environmental law."
Dr Owen McIntyre, also of the Faculty of Law at UCC, tackles the issue
of the costs involved in environmental and planning litigation in his
presentation and highlights the potential role of so-called
'Pre-emptive Costs Orders', which are orders issued by the trial judge
early in the proceedings directing that the party bringing the
complaint or challenge will not be faced with an order for costs
against him should his action ultimately prove unsuccessful.
According to Dr. McIntyre: "Pre-emptive costs orders have an obvious
role to play in the enforcement of planning and environmental law,
where they can be used to mitigate the deterrent effect of the
possibility of ruinous costs being imposed on an unsuccessful
litigant."
The Environmental Law Group based within the Faculty of Law at UCC is
involved in leading-edge research in all aspects of environmental law
and regulation and is fast becoming a recognised centre of excellence
in this area, both nationally and internationally. In addition, it
plays a key role in developing understanding of environmental issues in
Ireland by providing a national forum which brings together legal
practitioners, regulators, policy-makers, environmental NGOs and
business interest groups, senior managers from industry and the
utilities, as well as academics, with an interest in environmental law
and policy.
Aimed at a wide range of environmental professions, the conference will
explore a broad selection of topics and will involve presentations by
leading experts in the field of environmental law from Ireland and
beyond. This year's programme has been significantly expanded
with a total of 15 presentations scheduled and arranged into five
specialist sessions. These include sessions on The Planning and
Development (Strategic Infrastructure) Bill 2006, on Developments in
Waste Management Law and on Environmental Complaints and Objections, as
well as more general sessions on Sectoral Issues in Environmental Law
and Cross-Cutting Issues in Environmental Law, which include
presentations on a range of key issues impacting upon environmental
governance in Ireland today. The conference builds on the success
of similar events held over the last three years and it is now the
pre-eminent event in the Irish Environmental Law calendar. More
than two hundred lawyers and other professionals attended last April's
event and it is intended once again to provide a unique platform for
the practical and informal exchange of views on this rapidly developing
area of law.
See http://www.ucc.ie/en/lawsite/eventsandnews/ for conference details.
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