26 Apr 2006

UCC Conference to Examine a Number of Urgent Themes in Environmental Law, 27 April

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.

221MMcS