Áine Ryall is Co-Director of the Centre for Law and the Environment at UCC. She currently serves as Vice-Chair of the Aarhus Convention Compliance Committee. She writes here in a personal capacity.
On 9 December 2019 the Department of Housing, Planning and Local Government published the General Scheme of the Housing and Planning and Development Bill 2019 setting out specific proposals to amend the rules governing judicial review of planning decisions. The proposals are presented as ‘reforming’ the judicial review provisions in the Planning and Development Acts 2000 to 2019. It is clear from the Explanatory Notes included in the General Scheme of the Bill, however, that the primary intention here is to reduce the number of challenges to planning decisions and to provide greater certainty for developers, particularly in the case of strategic infrastructure development.
The restrictive nature of these proposals raises serious concerns over the negative impact that they will have on the right of access to justice in environmental matters.
The proposals presented in the General Scheme of the Bill are wide-ranging. They cover various procedural matters, as well as standing rules and liability for costs.
As regards standing, it is proposed to ratchet up the current ‘sufficient interest’ test. Specifically, a more restrictive ‘substantial interest’ test is envisaged. This new test will require an applicant who is seeking leave from the High Court to bring judicial review proceedings to demonstrate that they are ‘directly affected’ by a proposed development in a way that is ‘peculiar or personal’ to them.
This narrow approach is problematic. For example, proposed developments that have an adverse impact on a protected habitat are unlikely, in the normal course of events, to cause any personal prejudice or injury to the interests of individual objectors. The new standing test would therefore operate to weaken the protection of habitats and remote areas with high amenity value.
It is also proposed to amend the statutory requirements that NGOs must meet in order to have standing. Under this proposal, the minimum time that an NGO must be established and have pursued environmental protection objectives is to be increased from the current 12-month period to a period of three years.
Specific statutory criteria are proposed for NGOs. These include that an NGO must: have a minimum number of 100 affiliated members; operate on a not for profit basis; have a legal personality involving having a constitution and/or rules of association. Furthermore, the area of environmental protection that the NGO’s aims and objectives relate to must be relevant to the subject matter of the application for leave to bring judicial review proceedings.
The minimum membership requirement is likely to rule out many NGOs and, in particular, locally based organisations and community groups that may be formed on an ad hoc basis in response to a particular environmental issue.
As regards costs, it is proposed to replace the special costs rules that apply to certain categories of planning and environmental litigation with an entirely new costs regime. Generally speaking, what is proposed here is a reciprocal cost-capping scheme modelled on that which is currently in place in the United Kingdom. The Explanatory Notes in the General Scheme of the Bill confirm that the intention here is to tighten up the current costs rules and to increase the financial risk of bringing judicial review proceedings. There is no doubt that, if enacted, the proposed new costs regime will deter environmental litigation.
Limits on the State’s discretion to restrict judicial review
The State does not have an absolute discretion when setting procedural requirements governing judicial review in environmental matters. International law and European Union (EU) law create important limitations here.
At the international level, the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) sets minimum standards for judicial review, including standing rights for environmental NGOs and a specific obligation that access to justice must be affordable (the costs involved must not be ‘prohibitively expensive’).
The Convention also demands ‘wide access to justice’ to underpin environmental law enforcement. The Aarhus Convention is part of EU law. These minimum requirements also arise under EU law.
Article 47 of the Charter of Fundamental Rights of the EU provides further protection for the right of access to justice, as do Articles 6 and 13 of the European Convention on Human Rights.
And, of course, the Constitution guarantees the right of access to the courts.
The restrictive nature of the measures proposed in the General Scheme of the Bill do not sit comfortably with the right of access to justice. For example, there is an obvious tension between the proposed ‘substantial interest’ test and the obligation to provide ‘wide access to justice’. The onerous criteria that NGOs will be required to meet also appear to be problematic in this context.
Access to justice is fundamental to the rule of law
The proposals set out in the General Scheme of the Bill are alarming. If enacted, they will create very significant restrictions on access to judicial review to challenge planning decisions.
It is remarkable to see a legislative proposal to limit judicial review in such a dramatic way at a time when the climate and biodiversity crisis is front-page news.
Access to effective judicial control to ensure that the law is applied correctly is more important than ever before if there is to be any hope of maintaining a sustainable world into the future. This is especially the case with enforcement of the Environmental Impact Assessment directive (which includes an obligation to assess the impact of a proposed development on climate) and the Habitats directive.
The Department of Housing, Planning and Local Government is running a public consultation on the General Scheme of the Bill. The closing date for submissions is Monday, 27 January 2020.
This consultation is an important opportunity for everyone with an interest in environmental democracy and access to justice to have their say on these alarming proposals.