Áras an Uachtaráin,
6 July, 2010
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
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.
Tony Lowes Caroline Lewis
Directors of Friends of the Irish Environment