Legal actions

FIE wrote to Mary MacAlesse requesting her to convene the Council of State to consider referring the new Planning and Development (Amendment) Act 2010 to the Supreme Court to test its constitutionality.

The Supreme Court then tests its constitutionality in toto and the President may not sign the bill into law if it is found to be unconstitutional. The President invoked this power over the Planning Bill 1999's social housing provisions.

Amendments to Section 50 of the Bill, which ‘purports to implement the European legislation encouraging access to justice', does the opposite. Legal advice the organisation has received confirms that what the amendment does is prevent NGOs or others from receiving their costs when litigating environmental issues, even if they win.

The only exceptions will require the litigant to show that the matter is of "Public Importance" AND that there are "Special Circumstances" AND that it is "in the Interests of Justice" to make such an award of Costs. This is a clear barrier to access to justice.

While much of the new legislation is forward thinking, the inclusion of this amendment to the Act will have devastating consequences for environmental justice in Ireland.

 
NOTE: The Planning and Development (Amendment) Act 2010 was signed into law on July 26, 2010.

FRIENDS OF THE IRISH ENVIRONMENT

PRESS RELEASE
6 JULY 2010

New Planning Bill protested to President

The environmental NGO Friends of the Irish Environment have written to Mary MacAlesse requesting her to convene the Council of State to consider referring the new Planning and Development (Amendment) Act 2010 to the Supreme Court to test its constitutionality.

In the letter, they allege that the new legislation will prevent them from accessing the Courts, a right under both European Directives and the Irish Constitution.

A precedent for this was established in 1999, when the on the advice of the Council of State, President MacAlesse referred Part V of the Planning and Development Bill 1999 to the Supreme Court.

The new Planning and Development (Amendment) Act 2010 was passed by the Dail last Thursday on a "Guillotine" vote. More than half of the amendments were not debated before the vote was called at 5 p.m.

FIE claims that amendments to Section 50 of the Planning Bill 2010, which ‘purports to implement the European legislation encouraging access to justice', does the opposite.

‘Legal advice we have received confirms that what the amendment does is prevent NGOs or others from receiving their costs when litigating environmental issues, even if they win. The only exceptions will require the litigant to show that the matter is of "Public Importance" AND that there are "Special Circumstances" AND that it is "in the Interests of Justice" to make such an award of Costs. This is a clear barrier to access to justice.

Under this revised legislation even successful litigants will be unable to recoup the enormous costs of pursuing litigation in the High Court and Supreme Court. Irish NGOs in particular are poorly resourced and would be acting recklessly if they sought the assistance of the courts in obtaining constitutional and European law rights under this amendment. Ordinary members of the public will find it impossible to obtain legal representation necessary for the access to justice that European law requires if their costs will not be met even when they win against the State.

A spokesman for the organisation said that ‘While much of the new legislation is forward thinking, the inclusion of this amendment to the Act will have devastating consequences for justice in Ireland.'

FIE has called the ‘rushed introduction and passage' of the Planning Bill 2010 the cause of the problem, comparing it unfavourably to Noel Dempsey's introduction of the Planning Bill 2000.

‘In 1999 the Government held public meetings in Dublin, Galway, and Cork to explain the new legislation. The changes were incorporated in ‘consolidated' legislation which meant that amendments were part of a single document. There was a two month period of consultation and hundreds of individuals, businesses, and County Councils made representations - which greatly improved the legislation.

‘This time the amendments are in separate documents which must be cross referenced to the 2000 Planning Act, there has been no public consultation, and a hundred pages of amendments were published without even an explanatory memorandum to be voted on before the Dail recessed for the summer.'

The Planning Bill 2010 was approved by the Dail last Thursday and the President is expected to sign it into law within a matter of days.

Credit: Spokesman
Verification and further information: Tony Lowes 027 74771 / 087 2176316


EDITORS NOTES

The President may, upon consultation with the Council of State, refer a bill to the Supreme Court to test its constitutionality. The Supreme Court then tests its constitutionality in toto and the President may not sign the bill into law if it is found to be unconstitutional. This is the most widely used reserve power and was used by six of the eight presidents.

The Council of State met on 30 June 2000 to advise the President, Mary McAleese on whether to refer each of two separate bills to the Supreme Court to test their constitutionality. These were Planning and Development Bill, 1999 and the Illegal Immigrants (Trafficking) Bill, 1999. Arising from the meeting the president decided to refer Part V of the Planning and Development Bill, and Sections 5 and 10 of the Illegal Immigrants Bill to the Supreme Court. Both bills were ultimately found to be constitutional.

 

President Mary McAleese
Áras an Uachtaráin,
Phoenix Park,
Dublin 8
6 July, 2010

By email: This email address is being protected from spambots. You need JavaScript enabled to view it.
By Fax: 01 6171001

Request to convene the Council of State to consider referring the Planning and Development (Amendment) Act 2010 to the Supreme Court


Dear President;

We write to request you to convene the Council of State to consider referring the Planning and Development (Amendment) Act 2010 to the Supreme Court to determine the constitutionality of the amendments to Section 50 of the Planning and Development Act 2000.


These amendments purport to implement Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in matters relating to the environment and amending our rights to public participation and access to justice.

In fact, Section 33 (2) of the Planning and Development (Amendment) Act 2010 states:


(2) Notwithstanding anything contained in Order 99 of the Rules of the Superior Courts and subject to subsections (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.

The effect of this is to deny even successful litigants the right to recoup the enormous costs of pursuing litigation in the High Court and Supreme Court. Irish NGOs in particular are poorly resourced and would be acting recklessly if they sought the assistance of the courts in obtaining constitutional and European law rights under this amendment. Ordinary members of the public will find it impossible to obtain legal representation necessary for the access to justice that European law requires.

The exceptions provided require the litigant establish that the matter is of "Public Importance" AND that there are "Special Circumstances" AND that it is "in the Interests of Justice" to make such an award of Costs - a clear barrier to our access to justice.

We would therefore be most grateful if you would convene the Council of State to determine if the matter should be referred to the Supreme Court to ensure that it is accordance with our constitution and our rights as European citizens before you sign into law this legislation.

Yours, etc,


Tony Lowes Caroline Lewis

Directors of Friends of the Irish Environment

 

 

The Irish Examiner breaks the story of the eastern European workers who were sent onto Haulbowline Island to ‘clean up' the surface and shift 112,000 tons of contaminated material without any knowledge of the lethal content that countless reports had established was present.The Examiner ran the story largest on its front page yesterday but omitted the story from its website. Why?

People's health were put at risk because the operations that the Department of the Environment contracted to be done were unlicensed activities at an unauthorised hazardous landfill done without benefit of any environmental assessment whatsoever - and flying in the face of consultants' warnings of creating any disturbance going back more than 10 years - Reports that were not released to the contractors - or FIE - until more than 18 months of investigation.

If there is proof of a connection between the clean up work and these illnesses then what defence can the State make when they themselves wrote a contract for work that was unauthorised and illegal? And still their last letter to us makes no mention of applying for a licence - the cover up went too far and can't be reversed now.

See the photos of the cleanup   |   Read the State's response to our letter threatening legal action if they don't apply for a licence. | Read the Examiner Story | Read FIE's Toxic Island illustrated study  | and the studies that were never shown to the workers.


Friends of the Irish Environment have welcomed the Order of the High Court against Leitrim County Council's road building in a European nature conservation site. CLEAN (the Cavan Leitrim Environmental Awareness Network) have stopped an unauthorised road building over Boleybrack Mountain, an upland plateau north of Lough Allen in County Leitrim.

The success of a voluntary local environmental group in protecting this area from development highlights the failure of the National Parks and Wildlife Service to perform its statutory function. Ireland current faces 33 court proceedings in the European Court of Justice for environmental failings. 13 of these have been returned to the Court seeking daily fines, 4 more than when the current Minister for the Environment took office. Press Release.

 


 

 


LNG COURT CASE WITHDRAWN

The judicial review of the proposed Shannon LNG terminal ended after Justice John McMenamin.- who jailed the Rossport Five - made it clear that if the case was not withdrawn it faced certain failure.

The case tried to highlight the fact that unpopular large projects like Shell's on-shore gas terminal, the Clare Explosives factory [with an oral hearing next week], and the Kerry liquid natural gas terminal are being sited in or beside areas designated for nature protection without ever examining the worst-case scenarios.

There are rarely environmental problems with these installations when they are operating normally. It is only when you have a major emergency that major impacts arise. There is a black hole in the planning process for this and other similar installations.

Press Release