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.

 

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