REPORT ON THE FRIENDS OF THE IRSH ENVIRONMENT [FIE] JUDICIAL REVIEW OF EPA LICENSE FOR A LANDFILL AT KILBARRY, CO. WATERFORD
Introduction: About FIE
Friends of the Irish Environment Limited [FIE] is a company limited by guarantee which was formed from the network created by environmentalists in Ireland in 1997 in order to monitor the full implementation of European environmental law, to work for changes in the Irish planning laws, and to pursue concerns and cases in both the built and the natural environment based on the principles of sustainable community development.
Since its formation, FIE has been active in assisting community groups throughout Ireland in seeking proper planning and development of their communities.
FIE regularly issue Press Releases on matters of national importance and maintains a website on the Internet on which these and our submissions at a national and European level are posted. This information is freely and publicly available and has been since our foundation in 1997. The organisation makes submissions to Draft County Development Plans and Government Departments, including lobbying TDs and having written Parliamentary Questions tabled. FIE has been represented at meetings with Government officials relating to national and regional development plans as well as national plans for biodiversity, heritage, spatial development and sustainability.
In this regard the organization has lodged objections to local authorities and appeals to An Bord Pleanala against the development consent decisions of local authorities. FIE has before An Bord Pleanala current planning appeals in its own right and in conjunction with community groups and concerned individuals.
FIE have been Notice Party to Judicial Reviews and are currently Notice Party in cases relating to urban project splitting in County Dublin and to unauthorized development in County Cork.
As a result of our concerns, FIE has made submissions to the European Commission detailing our belief that the Irish authorities have failed to fully and properly transpose many Council Directives into Irish law, particularly those relating to the areas of environmental protection and environmental governance. These include but are not limited to submissions and formal complaints relating to, amongst others:
¬? the Habitats Directive
¬? the Birds Directive
¬? the Waste Directive
¬? the Urban Water Treatment Directive
¬? the Drinking Water Directive
¬? the Groundwater Directive
¬? the Landfill Directive
¬? the Seveso Directives I & II
¬? the Environmental Impact Assessment Directive
Of particular concern to our organization has been the implementation of the Environmental Impact Assessment Directive as without a full assessment of the possible impacts of a proposal it is not possible to determine if a proposal will benefit the common good and so accord with the Irish Planning and Development Acts 1963 - 2000.
Our concerns about the implementation of the EIA directive have led us to register formal complaints with the European Commission. In fact many other individuals and organisations have also registered complaints. The Commission has investigated these complaints and on 25 July, 2001 issued a Reasoned Opinion addressed to Ireland under Article 226 of the Treaty establishing the European Community for non-compliance with the Environmental Impact Assessment Directive. This document should be read in conjunction with this Report.
Landfill at Killbarry, County Waterford
It is in this context that FIE is seeking to have the High Court review the decision of the Environmental Protection Agency on 19 October 2001 to issue a license for a landfill at Killbarry, County Waterford.
The implementation of the Environmental Impact Assessment Directive by the Environmental Protection Agency is entirely inadequate. The process of deciding whether or not a project requires Environmental Impact Assessment is an obligation on the Environmental Protection Agency as an emanation of the Irish State. Yet the Agency appears to have completely failed even to consider whether the project required Environmental Impact Assessment.
There are a number of significant differences between the Environmental Impact Assessment procedure as set out in the Directive and the Irish implementing Regulations and the procedure implemented by the Agency in this case. One of these is that the Environmental Impact Assessment Directive requires that the assessment of impact on the environment be carried out before consent is issued, whereas even in the license granted - which FIE contends is not valid - there are a number of conditions which have to do with the future design and assessment of works or activities proposed for the site.
This application is for the continued use of an existing landfill which is causing environmental pollution and nuisance, including contamination of ground and surface water contamination, landfill gas emissions and odours, etc. The application is for the landfilling of 68,000 tonnes/year and a total waste intake of 75,000 tonnes/year, the balance of which [7,000 tons] is to be recovered.
The European Communities (Environmental Impact Assessment) Regulations, 1999 (S.I. 93 of 1999) require that Environmental Impact Assessment is carried out on applications for consent to the operation of installations for the disposal of waste with an annual intake greater than 25,000 tonnes.
Yet in spite of being three times higher than the threshold requiring an EIA, there was no Environmental Impact Statement submitted with the application and the Agency did not require one. FIE could find no documentation on the file recording the Agency's deliberations if any as to whether or not the application should have been subjected to Environmental Impact Assessment. It appears from the file that the Agency failed to consider whether the application was one which should have been accompanied by an Environmental Impact Statement and subject to Environmental Impact Assessment. It simply asked the applicant for the licence to advise it on this matter and accepted the applicant's advice.
There were references to the question of whether or not Environmental Impact Assessment was required in various documents on the file consisting of:
¬? P. 48 of the Waste License Application by Waterford Corporation which states that Environmental Impact Assessment is not required.
¬? Letter of 4 Nov 1997 from Environmental Protection Agency to Waterford Corporation pointing out that the site notice refers to Environmental Impact Statement but none has been supplied and asking for clarification.
¬? Letter of 19 November 1997 from Waterford Corporation replying that an Environmental Impact Statement was not needed, showing a new site notice and newspaper advertisement with no references to Environmental Impact Statement.
¬? Letter of 13 July 1998 from Environmental Protection Agency to Waterford Corporation, asking them to provide yearly waste input figures for 1988 to 1996 inclusive, and to set out why they say they need no Environmental Impact Statement, and include any evidence/correspondence.
¬? Letter of 6th August 1998 from Waterford Corporation to Environmental Protection Agency, replying with attachment, giving annual quantities and stating, inter allia, that no Environmental Impact Statement was required because the quantities landfilled over the 1988 to 1996 period had never increased by over 25,000 tonnes per year.
¬? Letter of 18th May 2000 from Tadhg O'Mahony of the Environmental Protection Agency to the City Manager of Waterford Corporation, pointing out that further information supplied by the applicant showed quantities of waste being accepted which were considerably higher than those applied for and referring, inter allia, to the letter of 6th August and the response therein to the question about Environmental Impact Statement.
¬? Letter of 8th September 2000 from City Manager to Environmental Protection Agency in reply to letter of 18th May discussing waste quantities and making no reference to Environmental Impact Statement.
¬? Inspector's report of 8th February 2001 which states simply that "An Environmental Impact Statement was not required to accompany the application."
¬? There is no reference to Environmental Impact Assessment in the report of the Technical Committee which considered the objections to the proposed determination issued by the Agency.
Even had the landfill been one with an intake of less than 25,000 tonnes per annum, given the pollution which has already been caused and the sensitivity and complexity of the site and the proximity to housing, this is a case where Environmental Impact Assessment would have been appropriate and the Environmental Protection Agency should have requested the submission of an Environmental Impact Statement.
However, there was no need to consider that in this instance as the application was automatically required to be accompanied by an Environmental Impact Statement by virtue of it exceeding the threshold set out in the relevant regulations.
The application submitted was invalid because it was not accompanied by an Environmental Impact Statement.
FIE is also particularly concerned that the assessment of proposed developments which may affect an area designated under the Habitats Directive (Special Areas of Conservation) or the Birds Directive (Special Protection Areas) under Article 6 of the Habitats Directive has not been incorporated in the decision making process in Ireland.
In this context we refer to the recent publication from the European Commission Directorate General Environment of the Report by the Oxford Brook's University entitled "Assessment of Plans and Project Significantly Affecting Nature 2000 Sites, Methodological Guidance on the provisions of Article 6(3) and 6(4) of the Habitats Directive 92/43/EEC". This Report should be read in conjunction with this publication.
The landfill is polluting the John's River, which is a tributary to the Lower River Suir. The Lower River Suir is a candidate Special Area of Conservation. Therefore under the Habitats Directive the application for a Waste License is required to be subjected to an appropriate assessment of its impact on the conservation status of a European site.
There is no reference on the Environmental Protection Agency file to the designation of the Lower River Suir with the exception of a letter received by the Environmental Protection Agency on 6th November 2001, i.e. after the issuing of the license, from D??chas the Heritage Service which states that the landfill is polluting the John's River and refers to the Lower River Suir cSAC.
The Technical Committee considered the impact on leachate on the River Suir and recommended to the Board of the Agency that the draft licence be amended to require that the licensee submit a report on the impact of the leachate on the river. The Board of the Agency did not follow the Technical Committee's recommendation. Even if they had, it still would not have complied with the requirements of the Habitats Directive which requires that the appropriate assessment be carried out before the issuing of the licence rather than afterwards.
The Landfill & Groundwater Directives
Nor does the decision of the Environmental Protection Agency comply with the requirements of the Landfill Directive. Specifically, the license granted allows continuation of landfilling before the Agency has confirmed that the conditions in the license are being complied with which FIE believes are not being complied with.
The landfill is polluting groundwater and has been licensed to continue to pollute groundwater. This is contrary to the provisions of the Groundwater Directive
The Landfill Directive requires that prior to the commencement of disposal operations, the competent authority shall inspect the site in order to ensure that it complies with the relevant conditions of the permit. There is no evidence on the file that such an inspection took place. In fact it is clear that many problems, practices and situations have been identified by the Agency or its agents on the landfill site which if continuing after the issuing of the licence constitute breaches of the licence. This is documented in a letter of 15 May 2000 from the Agency to the City Manager of Waterford Corporation detailing these matters.
Contravention of Local Authority Development Plan
The 1994 Waterford City Development Plan stated that Kilbarry Landfill was coming to the end of its life. The continuation of the landfill is a material contravention of that Plan.
Substantial residential areas have been developed in close proximity to the landfill since over recent years. This is attributable to the understanding that the landfill would soon be closed. The proximity of urban development was made the subject of objections to the Agency, but the Technical Committee stated in reply that the proximity of housing, schools, businesses, churches and restaurants is a matter "outside the remit of a waste licence".
The Agency failed to consider grounds of objection based on the Development Plan, the proper land use and sustainable urban development of the area. Nowhere in the Inspector's report or the Technical Committee report do the responsible technical experts of the Agency consider whether or not this is a suitable location for the proposed activity. The Technical Committee states in fact that "the site is an existing greenfield site and consequently the suitability of the location is not an issue for consideration in the waste licence", a statement astonishing both in its inaccuracy of fact as to the current use of the site and in its view of the responsibilities of the Agency in deciding on an application made to it.
Even not considering the Development Plan, the EPA misdirected itself in law in deciding that it is legally precluded from considering whether the site is suitable in the light of its inherent characteristics including the proximity of urban development, residences etc. As a result, it failed to have regard to relevant information and failed to properly address the objections made to it on location, planning and land use grounds
It is accepted that the landfill has caused and is causing, amongst other pollution and nuisance, severe pollution to the aquifer under the site and to surface water in the area and landfill gas emissions and odours. Under s. 40 (4) of the Waste Management Act the Agency can license an activity only if it is satisfied that the activity concerned, carried on in accordance with such conditions as may be attached to the licence, will not cause environmental pollution.
The Technical Committee were concerned that the proposed determination issued by the Agency was in breach of the Act in that it allowed disposal of waste in an unlined cell (Landfill Area 4) and that this "could lead to further pollution of the underlying aquifer and the surface water". For this reason it recommended that the proposed determination be altered to forbid disposal in Area 4 until that area was lined. The Board of the Agency did not make this recommended change to the licence.
Even if it had made this change, that is not a good interpretation of the relevant provision to licence a landfill which pollutes and continues to pollute, simply on the basis that the pollution is coming from existing waste held on site rather than new waste which is going into lined cells. This is making an arbitrary distinction as to the licensed activity on site. Nonetheless, even this change was not made and the view of the Technical Committee of the Agency was that the licence as finally granted is in contravention of the relevant provisions of the Waste Management Act, 1996.
In addition to emissions to waters, the landfill also emits landfill gas to the air around the landfill and causes serious odour problems and possibly health risks for neighbouring residents. The severity of this situation and the fact that the odour will continue is recognized in the report by Envirocon Ltd. submitted as part of the application. The Technical Committee recommended that the following condition be included in the licence:
"Within six months of the date of grant of this licence, a temporary system for the active abstraction, collection and flaring of landfill gas at the facility shall be installed and all existing passive wells shall be connected to the collection system. Passive venting from wells shall cease within six months of the date of grant of this licence."
However, the Board of the Agency despite the advice of the Technical Committee issued the licence with the following condition:
"As soon as practicable but not later than 12 months from the date of grant of this licence, a temporary system for the active abstraction, collection and flaring of landfill gas at the facility shall be installed and all existing passive wells shall be connected to the collection system."
The emissions to air are pollution within the meaning of s.40(4) of the Waste Management Act and that the licensing of the landfill to continue to emit landfill gas is in contravention of that section.
There are a number of incorrect statements in the application made to the agency by Waterford County Council. In particular the application states that the landfill is a containment facility when it is not, that there is gas flaring on site when there is not and never has been, and that there are no major floodplains in the study area when the site is part of a floodplain. The making of false statements on an application to the Agency is an offence and the making of these false statements invalidates the application.
Wayterford County Council is continuing to dump on the site by virtue of provisions of the Act which allow the continuation of landfilling on a site where a licence application has been made by a specified deadline. If a valid application has been made but invalidly determined they may be allowed to continue to landfill during and after the hearing. However, if no valid application has been made then any dumping going on at the moment is illegal and an offence under the Act.
The decision of the Environmental Protection Agency of 19th October 2001 to grant a license to for this landfill at Killbarry, Co. Waterford came to the attention of members of FIE who examined the facts relating to compliance with European environmental law and in terms of the displacement of flood water, leachate, gas emissions, effects on a European site under the Habitats Directive and other adverse environmental impacts arising from this decision of the Environmental Protection Agency. As these have never been subject to an appropriate assessment, FIE determined to take legal advice as to any possible recourse. Having taken such advice, the Directors of FIE considered the matter and approved an application by the Company to the High Court as no other national recourse is available.
"It is indisputable that the Irish national courts are not willing to approach planning or environmental matters in the light of the changed relationships - those between property interests and the public - created by the substance of European environmental laws."
Due to certain tendencies of the Irish bar generally (in particular, the inclination to turn European law questions into purely national law questions), the Lancefort applicants were hampered by the actual questions that were certified for appeal to the Supreme Court. In particular, the formulation of the European law point was by this stage in the proceedings both diminished and twisted.
It read as follows:
--Do the environmental impact assessment directive and Article 56(2) of the 1994 planning regulations require An Bord Pleanala-in relation to an Annex II development which does not exceed the [size limit] specified in relation to that class [of projects]-to consider the question whether the development would be likely to have significant effects upon the environment which would necessitate the carrying out of an EIA and the submission of an environmental impact statement and is the Board obliged to record its decision on such a question in a manner which is susceptible to judicial review?
There are many contextual problems connected with relying on provisions of the EIA directive before the Irish courts. A principal one which must be borne in mind in the Lancefort case is the fact that the Irish courts have never dealt with the concept of "environmental impact assessment." The national court has chosen not to analyse what the EIA process--the assessment being an act of the decision maker--adds to the existing national planning process. It tends to see only the requirement that the developer submit an EIS.
This is a childish approach to EIA law. The submission of the EIS is only the starting point. The courts have treated the submission of an EIS as only being for the benefit of the decision maker-that is, the provision of extra information. By extension, the court has acted as if this requirement is somehow at the complete discretion of the decision-maker. If the decision-maker wants the extra information, the EIA is required. The notion of assessment as an obligation, including specific rights of public participation following on from the systematic setting out of environmental problems, the requirement of mitigation, and so forth, have not been addressed by the Irish courts.
Keane J begins the substantive part of this judgement by stating that "It is common case‚Ä¶that the development in this case is below the thresholds thus fixed at which an EIA is required."
It must be noted that this was not common case, even though not pursued by the applicants. It is most likely that the development in question did in fact exceed the threshold for "hotel" developments under the Irish implementing regulations.
Keane continues that it is also common case that "under Article 56 of the 1994 planning regulations where the threshold is not reached, but in the opinion of the Board there are likely to be significant environmental effects, the Board shall require the applicant to submit an EIA to the Board"-where the planning authority did not so require.
One is trapped from the beginning in such a formulation. The Irish courts, with their history of extreme deference towards the Planning Appeals Board, have taken the phrase "in the opinion of the Board" to indicate a non-reviewable element of the law. Such an interpretation ensures that the purposes of the directive cannot be fulfilled, since the national court will not review this mixed question of law and fact: ought there to have been an EIA carried out? It bears repeating that the emphasis on "submission of the EIS" is in itself extremely distorting of the legal questions involved.
Keane states that it was submitted on behalf of Lancefort that the development, although below the threshold, would unarguably have a significant effect on the environment-specifically, material assets and cultural heritage-and that, accordingly, the Board was obliged "at the least" to consider whether they should exercise their power under the 1994 regulations to require an EIS."
Again, the court never emphasises the obligation of the Board to "carry out an EIA."
Keane continues by saying that it was submitted by Lancefort that the evidence did not establish that the Board had given any consideration to whether an EIS should be furnished "and that this failure fatally vitiated the granted permission."
The judge points out that the applicants did not contend-as they had at earlier stages-that the Directive had not been properly transposed.
The entire issue of transposition was treated in absurd fashion-by counsel and by the court. The directive was not fully transposed in Ireland. The court must be interested in this fact, whether the applicants insist upon it or not. There is an obligation on the court to interpret the national regulations in the light of all aspects of the directive. The applicants should not have "dropped" the issue if indeed they did. The fact of mention of architectural and archaeological heritage being left out of the national regulations could certainly influence the practice of the Planning Appeals Board in a manner very relevant to this case.
Keane continues by saying that the more recent approach of the applicants is that the national regulations, construed in the light of the directive, imposed an obligation on the Board to consider in a case like this whether an EIS should be required. But of course the Board left no written record on this score.
The case was "decided" on locus standi grounds. Incoherent as the judgement is, it is a tour de force of avoidance of the European law questions. As in other Irish cases-Kill Dump springs to mind-the applicants are caught in a legal maze, unable to invoke their European law rights. The Supreme Court here manages to dispose of the applicants without ever making a statement about European law for which it could be held to account.
The court does not analyse the locus standi question in the context of the European law issues raised.
Stating that although the constitutional question has been dropped, "some of the decisions of the superior courts which have dealt with the question of locus standi in constitutional challenges are of assistance in considering the objection on behalf of the Board and the Notice Party to the locus standi of the Appellants to challenge the grant of planning permission by the former body."
It would seem far more relevant to the case that the court should itself consider the relationship of the interested public to the planning permission in the context of the obligation on the official decision maker to carry out an environmental impact assessment in certain circumstances. The developers do not seem to have any business challenging the right of the public to bring a European environmental law challenge of this sort. Yet such questions are naturally never referred to the Court of Justice by the Irish courts.
Keane states that "the authorities" (not named) "reflect a tension between two principles which the courts have sought to uphold: ensuring, on the one hand, that the enactment of invalid legislation or the adoption of unlawful practices by public bodies do not escape scrutiny by the courts because of the absence of indisputably qualified objectors and, on the other hand, that the critically important remedies provided by the law in these areas are not abused."
As for the latter problem, Keane mentions that courts have dealt with the "dangers of giving free rein to cranks and busybodies." He goes on: "But it is to be borne in mind that the citizen who is subsequently seen to have performed a valuable service in, for example, bringing proceedings to challenge the constitutionality of legislation, while exposing himself/herself to an order for costs, may at the outset be regarded by many fellow citizens as a meddlesome busybody."
So where the act challenged affects all citizens equally, there is an obvious need, he says, for a "reasonably generous" approach. A severely restrictive approach where the decision of a public body is challenged would defeat the public interest in ensuring that such bodies obey the law.
One assumes that the judge sets all this out in order to preserve the impression that the Irish courts are generous with respect to access for public interest plaintiffs. Despite the Victorian harshness of the Irish costs rule in the public interest arena, the Irish courts never wish to appear that they are overtly favouring the big money interests, as this would offend the Irish self image as an historically oppressed people who happen to be located in the Western world.
Keane continues by saying that despite changes over the years, where a person seeks to challenge the decision of a public body, such a person must demonstrate a "sufficient interest." Applicants cannot be "merely officious or men or women of straw who have nothing to lose by clogging up the costs with ill founded or vexatious challenges." This legal huffing and puffing is taken on a cut and paste basis out of the British past; the extraordinary phrase "nothing to lose by clogging up the courts" makes the court itself the victim-when it is completely within the power of the court of eliminate a vexatious claim on its merits at the very first stage!
We then move on to the court's highly questionable, if all too familiar, analysis of the scheme of the Planning Acts with regard to judicial review-again, it should be clear that all of this has little relevance to the demands of the EIA directive itself. The judge says that in the light of the amendments of the Planning Acts in 1992, the intentions of the legislature to allow for expeditious planning decisions should be given great weight. This fallacious reasoning has plagued planning law in Ireland, whether involving European or national law questions. In fact, the "intentions" of the legislature are already to be found in the burdensome conditions placed on applicants for judicial review in the planning context. On what basis does the court take from this a mandate to exercise a still more stringent approach in its treatment of applicants? Did the legislature, in addition to procedural and substantive restrictions, also request the courts to be extra harsh in some indefinable manner towards applicants? Is there a free floating policy to "favour development interests" floating unspoken in between the lines of the Planning Acts as written?
The judge states that the Oireachtas has "made plain its concern that, given the existence of an elaborate appeals procedure which can be invoked by any member of the public and the determination of the issues by an independent board of qualified persons, the judicial review procedure should not be availed of as a form of further appeal by persons who may well be dissatisfied with the ultimate decision, but whose rights to be heard have been full protected by the legislation. The courts are bound in their decisions to have serious regard to that concern."
Again, what the nature of this "concern" is after the applicants have complied with each and every one of the concrete terms of the 1992 amendments is unclear. Is this not to extend the intention of the legislature? But far more seriously, one searches in vain for mention of the court's awareness of what the EIA directive has added to the existing Planning Acts. Why dwell on the intentions of the Oireachtas and not the intentions behind the directive and the new obligations created thereby-obligations which fall solely on emanations of the State, including on the courts?
As to whether or not Lancefort has "sufficient interest", Keane takes us on a convoluted journey which represent a setback for (public interest) locus standi law, European environmental law and domestic planning law. But it serves the ultimate purpose of sending Lancefort home, without the court making a single coherent statement about the requirements of European environmental law.
Keane starts out with the State v Cooney  case to support the proposition that whether an applicant has sufficient interest can only be determined by reference to the circumstance of the particular case. He also cites Order 84 Rule 20 (4) of the Rules of Superior Courts, governing judicial review under the Planning Acts, which states that "The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
Keane says that the terms of this rule "correctly embody the Irish law as to locus standi."
Two questions arise, he says, in determining whether a person has "sufficient interest" in the matter to which the application relates. Firstly, whether locus standi should be determined as a threshold issue, at the leave stage-or whether, assuming leave to be granted, it should be determined on the hearing of the substantive application for relief.
Secondly, the question of the extent to which the court, in determining the issue of standing, should consider the merits of the case the applicant seeks to make.
It should be noted at this point-at the point of entry to the convoluted--though virtuoso-- legal maze created by the Supreme Court, that these are not usually the main issues to be considered. World over, in the vast majority of cases, locus standi is a threshold issue to be determined in relation to the applicant's degree of interest in the subject matter of the dispute. There are volumes of case law on locus standi in the environmental context, which is a subset of locus standi in public interest cases, from every jurisdiction in the developed world. The question of locus standi can in the vast majority of cases easily be separated from the merits of the case. In any event, under the national "scheme" to which Keane so persistently refers, the High Court must determine that there are important legal issues at stake before the case ever goes forward.
Also, it is clear that from the point of view of democracy and fairness that it is extremely dangerous to mix a truncated version of "merits" with the question of locus standi. The exception (i.e., to the basic notion that locus standi is a threshold issue) can only be activated when the substantive case being made is very unclear at the initial stage in the litigation. That was manifestly not the case here, where the environmental impact assessment directive had been interpreted by the European Court of Justice, and already litigated in this and other European jurisdictions. There was no justification, except an eagerness to avoid the substance of the case, for the court to mix the merits with the locus standi question here. This mixing led to manifest injustice.
Keane begins the creation of this smokescreen by invoking, improperly, the case Inland Revenue Commissioners v National Federation of the Self Employed . This case is normally cited to indicate the start of the modern era in locus standi law in the UK, and is important for its reference to the nature of sufficient interest. But this case-after which in fact a great deal has happened in the UK with regard to locus standi for environmental plaintiffs-is invoked by the Irish Supreme Court here in the most misleading manner possible. Keane states that in Inland Revenue Commissioners, "the House of Lords took the view that, save in simple cases, the question of locus standi should not be determined until the substantive application is heard, since the question should not be considered in the abstract, but rather in a particular legal and factual context."
This is misuse of the case. The fact is that the Lancefort case had already made out the legal and factual context. Secondly, the Inland Revenue Commissioners case involved the vexed question of the degree to which a taxpayer can question the fairness and legality of various decisions of the tax authorities not related to the plaintiff taxpayer making the objection. In other words, the difficult question of the degree to which paying one's taxes gives one locus standi to question the larger tax policies and procedures of the tax authorities. This is a thorny issue in every jurisdiction. The issues raised by Lancefort are not in any way, shape or form similarly thorny.
This mixing of merits and locus standi had not occurred in Ireland in the environmental context before. One must ask why it happened here, and indeed what on earth relationship the EIA issues had to the tax issues raised in Inland Revenue Commissioners. The point in Inland Revenue Commissioners was that normally such tax issues cannot be challenged by members of the public simply because they are taxpayers. Thus, it became necessary, given the complex nature of the questions raised, to explore further the merits of the case to see if the plaintiffs had in fact carved out for themselves a place from which to challenge the tax decisions.
Keane's heavily misleading statement that "the House of Lords took the view that, save in simple cases, the question of locus standi should not be determined until the substantive application is heard" is very dangerous for all environmental applicants. It can only be impressive for those who do not know either the English case or the subsequent history of locus standi for public interest plaintiffs in the UK. The Supreme Court ought not to be allowed by the European authorities to misuse legal precedent so as to prevent environmental applicants from relying on European environmental law which has been deemed suitable by the Court of Justice itself for reliance by citizens in national courts. (See Kraaijeveld)
What follows in the Lancefort judgement is at once legally garbled and extremely threatening to the application of European environmental law in Ireland.
Keane states that with regard to applications for judicial review of decisions of the Board, the applicant must show substantial grounds. So, "as a general rule, there should be sufficient evidence before the court at that stage to enable the judge to determine the question of standing; to require the court in every case to reserve the question until the hearing of the substantive application would be inconsistent with the general statutory scheme."
Here again, the irony is extraordinary. It was the nature of the subject matter in Inland Revenue Commissioners that created the exception. The judge does not say why the Lancefort subject matter creates such an exception. But frighteningly, this ad hoc approach leaves it open to the court to, without setting out reasons or standards, reject certain applicants and certain applications because they need (why, we are not told) to be examined in the light of the "merits" of the case.
As for this appeal of locus standi, Keane says that it must be considered "the extent to which the court, in determining the issue of standing, should embark on a consideration of the merits of the challenge."
He quotes commentary on the Inland Revenue Commissioners case to the effect that "the real question is whether the applicant can show some substantial default of abuse, and not whether his personal rights or interest are involved." Again, it should be clear that we are getting Inland Revenue Commissioner through the looking glass. As mentioned, the difficulty in that case was that the default position would be that taxpayers do not have locus standi to challenge a failure of the authorities to collect tax from someone else; thus the deferral of the question of locus standi until a more complete examination of the merits was a more generous position than otherwise. Keane is using this in a completely backwards manner. Secondly, the issue is not so much whether the applicant establishes the default or abuse; but whether he/she establishes a potential failure or abuse; the merits should refer to the merits of the allegation, properly understood.
Oddly, Keane then moves on to one of the most generous public interest locus standi cases in English language litigation-the World Development Movement case . We are told that "the tendency in England has been to treat the requirement of a "sufficient interest" as being met where the applicant has established unlawful conduct on the part of a public body, even though the conduct in question may not have affected any private interest of the applicant."
But Keane sounds a cautionary note: he says that certain facts must be borne in mind with regard to that case. He reminds us that it was alleged by the applicants that there were irregularities involving overseas aid to a hydroelectric project in Malaysia. He also says that we must bear in mind that the allegation in Inland Revenue Commissioner was that the Revenue had not acted lawfully when it failed to pursue certain taxes. He states that "It was accepted in both cases that it was unlikely that any other responsible challenger would emerge if standing was denied to the applicants and that the allegations, if made out, would establish a clear breach of an important duty or a default in a significant area by public bodies."
This is extraordinary "logic"! Firstly, the types of allegations made in the two case mentioned above are of the sort that are without question the most difficult to bring before a court. Certainly the question of foreign aid and its effects is extremely political and, while terribly important, is not typically considered to be reviewable, precisely because of its political nature. In terms of subject matter, World Development Movement involved far more difficult and extensive challenges than those raised in Lancefort! Secondly, by these criteria, it is clear that Lancefort was also raising issues of serious breaches of law by the planning authority. The tragedy is that, given the structure of the Supreme Court judgement, these breaches were never substantively explored. Also, there was clearly no other challenger who was going to come forward had Lancefort not acted!
Does the Supreme Court deal at all with the European law question?
Keane leaps on to the European issues raised, and treats them with an audacious disregard.
He states: "It is also the case that the requirements of national law as to standing may in some instances have to yield to the paramount obligation on national courts to uphold the law of the EU."
The judge says that in this manner, Kraaijeveld is of "some relevance" (Since it is the clearest instruction of the European Court of Justice to date to the national courts, one would think that it was of more than just "some relevance", and surely of greater relevance than the intentions of the Oireachtas in drafting the 1992 planning law amendments!) We are told that the Court of Justice in that case said that the [EIA] principle must be applied by national courts, not simply where the court was obliged to raised the matter of its own motion, but also where it had a discretion so to do." (One wonders of the Supreme Court really had any idea what the Court of Justice was talking about here, with regard to the obligations of the national court.)
Keane points to para 61 of the Kraaijeveld judgement, where the court of Justice stated that "If [the State's] discretion has been exceeded and consequently the national provisions must be set aside in that respect, it is for the authorities of the member state, according to their respective powers, to take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment."
But Keane mysteriously decides that this aspect of the Court of Justice's reasoning does not apply here. He says that "In this case, there is no question of the State having exceeded the discretion conferred on it by Articles 2(1) and 4(2) of the Directive by defining the threshold or criteria in such as manner as to exempt in advance a particular class of projects referred to in Annex 2 from the requirement of an EIA."
This statement is either ignorant or deliberately misleading. The judge is perhaps mixing together the Commission v Belgium case with Kraaijeveled. Kraaijeveld had moved on from the Belgium case, in that in the latter, the State had removed a certain class of Annex 2 projects altogether, whereas in Kraaijeveld thresholds had been set so as to exclude a majority of projects of a certain type. (How many hotels in Ireland-hotels being an Annex 2 category-have been subject to an EIA?) The Lancefort case was precisely on point with regard to the Kraaijeveld facts. The Supreme Court shamelessly dismisses this crucial aspect of the case.
Keane continues, "Not merely has no attempt been made by the State to exempt in advance any of the classes of projects specified in Annex 2 from such a requirement: it has been at pains to reserve to the competent authorities [i.e., the Board] a power to require an EIS in any case where they are of the view that the project although below the relevant threshold, will have a significant effect on the environment."
Keane has it completely wrong here. It is not the State that gives the Board that power. It is the Directive that puts this obligation on the State and all its emanations. No one was arguing in Lancefort that a category of Annex 2 project had been eliminated from the list; neither was that the issue in Kraaijeveld. One wonders if the Supreme Court judges had either read or if read understood Kraaijeveld. The Kraaijeveld court simply refers with approval to its own judgement in the Commission v Belgium case. Keane is running together the facts of the two cases in a completely misleading and incoherent way.
He continues: "Thus, there is no question of the national rules on standing resulting in a failure by the Court to ensure that the relevant principles of EU law are applied in the State‚Ä¶as was the case in Factortame, for instance, when it was sought to rely on parliamentary sovereignty as precluding the enforcement of Community law."
But of course, not having dealt with the Community law issue raised, the court is simply referring to its own beliefs, and not to legal doctrine. The Community law issue raised by Lancefort simply sat there, unexamined by the court. The court creates a circular reasoning in which, by deliberately misunderstanding and then dismissing the Community law point, it then says that by denying locus standi to the applicants it is not denying them access to any Community law rights. This is complete legal nonsense.
Having demolished (as he sees it or would want others to see it) the entire European law rationale of the case, the judge proceeds to try and establish his public- spirited credentials! He goes on to reject the "Notice Party's view" that this kind of company, without assets, trying to evade its costs, was not bona fide. Indeed, Keane agrees with the Morris judgement that found the Lancefort company members to be sincere in their objectives and incorporated with that in mind.
"At the same time," he says, "it can hardly be disputed that, since the Appellants were not even in existence at the time the decision which is challenged was made, their interest in the subject matter of the proceedings is somewhat tenuous, if indeed it can be said to exist at all."
This is irresponsible legal reasoning. The judge does not say whether this element is decisive-or indirectly persuasive, or indeed what role it plays in the outcome. Had he stated that it was key to his decision, he would have been obliged to say why. And consistent with the Supreme Court's avoidance of all the main issues in this case, this point, too, is simply presented in throwaway fashion.
He brings up an English case called Hammersmith, in which it was held that "there may be circumstances in which it would be wrong in principle to deny standing to a body which was not in existence at the time of the impugned decision." But we are left hanging with respect to this aspect of the case.
It is at this stage that we move into the legal whammy.
Keane says that the claim that the permission was invalid rests on the "alleged failure of the Board to consider whether an EIS was required in the circumstances of the present case." While some of the blame for this formulation surely rests with Lancefort's legal counsel attempting to make the case more palatable to the court, the court itself bear enormous responsibility for trivialising the issues. "Alleged failure to consider whether an EIS was required" does not take into account the requirements of the directive at all. The alleged failure was of the Board to carry out an environmental impact assessment, an obligation falling squarely on them. It is not a question merely of the EIS document being presented to the Board.
The court goes on: "Although Mr Smith attended the hearing on behalf of An Taisce, as did junior counsel, they at no stage put forward the objection that an EIS had not been required by the planning authority or ABP‚Ä¶" And then, "Nor was that suggestion made at any stage by any of the reputable conservation groups which attended the hearing or by any of the architects, planning consultants or other experts who were present."
And what does Keane make of this? He says that "It must be assumed that some at least were aware, at least in a general sense, of the circumstances in which an EIS and EIA were required." Then, "In the particular case of Mr Smith and junior counsel representing An Taisce, no explanation was given at any stage of these proceedings as to why the objection was not taken until the application was made for leave to issue the present proceedings."
Keane points out that in the famous Chambers case of 1992, the fact that a person did not participate in an appeals board procedure was held not to be a reason to refuse locus standi. Likewise, the company that comes into existence after a decision may be in a position to "assert locus standi", as he puts it.
"But," Keane goes on, "it would, in my opinion, be a significant injustice to a party in the position of the Notice Party to be asked to defend proceedings on the ground of an alleged irregularity which could have been brought to the attention of all concerned at any time prior to the granting of permission, but which was not relied on until the application was made for leave to bring the proceedings."
This is outrageous stuff.
Firstly, had the judge asked, he would have been told that in fact the applicants were not aware until after the College Green decision by the Board that the EIA directive applied to the built environment and to the architectural heritage specifically. That was discovered by an academic advisor to Lancefort when preparing for a lecture, at which time it came to her attention that Ireland had left off mention of architectural heritage from its implementing regulations. She then phoned up the relevant bodies to see why they had not carried out an EIA for this project, and realised from their telephone responses that they had not in fact even considered the issues. It was in the weeks after the decision that this discovery became factored into the judicial review strategy.
The judge seems to be trying to imply that there was a conspiracy of silence. However, failure by the court to explore the truth of what would become a defining issue is itself evidence of astounding bad faith.
Secondly, the court (as often happens in Ireland) fails to distinguish between the citizen's obligation to raise all factual issues within his/her knowledge before an administrative tribunal and certain legal obligations falling upon public bodies-not on citizens. It is the State and all its emanations that are obliged to comply with European law in decision-making that affects the population. The EIA directive imposes no obligations on ordinary citizens, but rather gives them procedural rights. The relationship here is one between the emanation of the state and the court-the court's role being to examine whether or not there has been a failure of the official body to fully and completely live up to the obligations imposed by the directive. The idea that citizens participating in an administrative hearing have a duty to inform the decision maker of the law governing its decision-making process is both unfair and regressive. It was the Board that was at all times under the duties imposed by the Directive.
Michael Smith had his hands full at the administrative hearing in presenting to the Board arguments as to the importance of the buildings. Had the Board adhered to the obligations imposed upon it by the directive, the decision-making process would have been conducted differently-the environmental impacts, including on the architectural heritage, would have been as a matter of legal duty explored by the Board. National law alone is silent as to how the Board is to consider such impacts. On what legal basis did the Supreme Court here impugn the motives of the applicants-and indeed, on what possible legal basis did the court make this the defining element in its judgement?
The judge is dead wrong about this point, and it is reprehensible that an important European law issue was decided in such a manner.
But as in the Kill Dump case, the judge does not leave it there-he also feels obliged to attack the substantive merits of issues he does not even take up in the judgement. He says, with regard to matters which would have been the subject of the EIS: "Neither the High Court nor this Court were at any stage given any indication as to the respects in which it was alleged that the assessment carried out by the Board of the development, in this case as part of the planning process, failed to elicit data relevant to an assessment of the effects on the environment of the development."
He proceeds: "Whether, as a matter of law the Board were obliged to consider exercising their undoubted power to require an EIS is a separate issue‚Ä¶‚Ä¶.Assuming they were under such an obligation and failed to consider whether an EIS was required, it has not been shown that this had the slightest adverse effect on the attainment of the objectives of the directive and the regulations which implemented it ins this State."
Again, either the Supreme Court in Ireland is either ignorant of the meaning and purpose of EIA law around the world, or this was a nice way of dismissing Lancefort without leaving any damning loose ends. EIA law in every jurisdiction where it is found imposes a procedural requirement that has as its ultimate aim the substantive goal of mitigating damage to the environment. It is not just about information set in front of the decision maker; it is about the decision maker taking into account a systematic assessment of potential adverse effects, and factoring that into the decision-making process.
Keane seems to be saying that in his view, even if the Board failed in its obligation to order an EIS (clearly the real point is the Board's failure to carry out an EIA), the applicants did not show that this made any difference. But the entire meaning of the directive is thereby subverted by the court's logic. If the obligation was breached, the terms of the directive have simply not been fulfilled. One would like to recommend a course of reading in environmental impact assessment law by the court, before they presume to take on such cases.
It is obvious that there were a number of important issues here which, if they were unclear to the national court, had to have been referred to the Court of Justice. As usual, the Irish court would take no such step, for the simple reason that its main legal priority is manifestly the property interests of developers-persons not even mentioned in the EIA directive. The national court displays a compulsion to fold European environmental law into the terms of Irish planning law, even when the content of a directive makes that illogical. Since Irish courts privilege developers' interests, the courts must force European directives to do the same, even when the directive's provisions as written make this impossible.
The Irish courts' approach to these matters makes a mockery of the idea that national courts are obligated to act as "European courts" for the purpose of fully applying directives. The problem is that there is no sanction available against the bad faith of national courts in applying European law, and the courts are well aware of this.
Keane makes statements that imply he cannot see the difference between an EIS and a regular planning file. He says that with regard to the question of the public having access to the EIS-"it is perfectly clear that the public had access to the detailed plans lodged with the application for permission." On what legal basis is the court saying that "detailed plans" are the same as an environmental impact assessment-- carried out, we must recall, not by the developer but by the decision maker?
Keane sums up:
"An examination of the merits of the case accordingly, leads me to the conclusion that, if there has been any irregularity in the manner in which the Board discharged their functions, it could not possibly be regarded as constituting an abuse of power or a default in procedure sufficiently grave to justify affording locus standi to a body such as the appellants."
For one thing, the merits of the case were not examined by the court, but passed over. For another, a failure to carry out an EIA where one was required on the part of the national decision maker is obviously "sufficiently grave"-not only for purposes of locus standi, which is quite obvious, but also to invalidate the permission granted. The court did not deal at all with the question of the relations between the terms of the directive and the architectural heritage. The court also failed to offer any legal analysis as to why failure to carry out an EIA should not invalidate a permission (it is quite clear in most jurisdictions that it should do so), and why the court should not have ordered that the permission process be re-run, this time with an EIA carried out.
The court neither offers any law on this point, nor refers the question.
The most astounding statements, though, were yet to come. Keane writes:
"Not only were [Lancefort] not in existence at the relevant time and hence are in serious difficulties in contending that they had an interest in the subject matter; the procedural irregularity, if such it was, was of so little weight that neither Mr Smith nor counsel appearing on behalf of An Taisce‚Ä¶.participating in the procedure to the decision considered it worthy even of mention."
This reasoning is an outrageous diversion of the court from its own task under European law: to examine the legality, under the European directive, of the decision-maker's process of reaching the decision. A half-developed attempt to cast a shadow of suspicion over the applicants serves as substitute for the true role of the courts. Indeed, there is scarcely a mention-in fact, no mention--of the court's own sense of its role within the European environmental law scheme of things.
Finally, not unaware of the fact that the UK is going in the direction of a more liberal approach to locus standi for environmental groups, the judge brings up the 1994 Greenpeace case, where that group had challenged the grant of a license to reprocess spent nuclear fuel. There, while the substantive challenge was rejected, the court had upheld Greenpeace's locus standi. Keane makes this extraordinary statement:
"The contrast between a concern based on a failure by the operator of such a plant to engage in a process of public consultation before beginning the discharge of radioactive waste with the stated concern of the appellants in the present case as to the absence of an EIS, in a case in which there has been an exhaustive and searching process of public consultation culminating in an oral hearing attended by the alter ego of the appellants, hardly requires emphasis."
Quite apart from the court's sarcasm, which is worrying in itself, the judge seems to be saying that the Irish planning process is as good as an EIA-that there is no need for an EIA while the Irish planning process is at work. It is obvious that the Court of Justice would not accept such a view. And while the judge might feel that the architectural heritage and full assessment by the decision maker of potential adverse effects on it, is not important, the directive makes clear that the architectural heritage is part of the "environment" to protect which is the directive's principal objective.
The judge says that in some cases, incorporated bodies such as Lancefort "may" be entitled to locus standi. It would seem to be the judge's position (and it is clearly on the basis of this position that the case is decided) that the issue of EIA applied to the built environment is not worth very much. It is frightening to think that laws in a Member State of the EU can be applied on the basis of whether the court "thinks" the issue is important!
Keane goes on:
"I would agree with the [Blessington Heritage Trust case] approach, although not with its application by the learned HC judges in the present case. It is, understandably, a matter of concern that companies of this nature can be formed simply to afford residents' associations and other objectors immunity against the costs of legal challenges to the granting of planning permissions."
What does the judge mean? To whom should it be of concern? Of course, the veiled reference is to developers. Does the "concern" extend to the courts as well?
Not-for profit associations are entitled to incorporate, the judge says, "and the fact that they have chosen to do so should not of itself deprive them in every case of locus standi."
It should in fact be of grave concern to the European Union that one of its Member States still follows the regressive notion that the people most entitled to be in court are those with enough money to pay the other side's costs if they lose. The narrow, grudging language of the Lancefort court seems like something out of another century.
Shielding themselves from costs may not be the only reason for incorporating, the judge says-as if citizens should be willing to lose houses and the security of their families in order to pay the costs of wealthy developers! In such a case, we are told, the High Court may order security for costs, as happened in this case!
Keane continues: "I cannot agree, however, with the submission advanced on behalf of the appellants that the fact that there were substantial grounds for contending that the decision was invalid necessarily leads to the conclusion that they had locus standi."
And further, "When the legal and factual merits of that issue are analysed, it is clear that this was not a case in which the appellants should have been recognised as having locus standi to mount such a challenge."
The unfairness of this pseudo-reasoning is abundantly clear. One can only regret that the European institutions do not take action to sanction the national courts in such cases, as here the national court has abdicated its duty to protect European law rights. That the architectural heritage, as named in the directive, is not of any great interest to the judges seems to have been decisive-if it is not important to us, there is no case for you, seems to be the logic. There is nothing by way of genuine legal reasoning or fair application of the European law in question.
The Commission proceeds based on the same legal arguments as those raised by Lancefort-What does this say about our national court?
One wonders how the Supreme Court felt when, not long after this judgement, the European Commission itself fully agreed with and endorsed the arguments offered by Lancefort in this case. Whether or not the Commission will pursue its case against Ireland or not is apparently still a matter for negotiation, but that the Commission agreed completely with the Lancefort arguments with respect to the EIA directive and the architectural heritage is of the utmost importance. This central fact cannot be ignored by the national authorities, or the national courts.
In predictable fashion, the judge finishes by saying that "It is accordingly unnecessary to express any view on the first question certified by the learned HC judge as involving a point of law of exceptional public importance and argued on behalf of the Appellants."
It is in the light of the above that we term the legal reasoning in this case a "maze", leading to enormous unfairness for the public interest applicants and also to the conclusion that the Irish courts are not applying European environmental law. It is indisputable that the national courts are not willing to approach planning or environmental matters in the light of the changed relationships - those between property interests and the public - created by the substance of European environmental laws.
First published March 23, 1999 Copyright (c) Dr. Sara Dillon
The emergence of international environmental law over the past two decades has raised many issues familiar to human rights lawyers. It has also given rise to a broad recognition of the linkages between human rights and environmental aspects of international law. The principle issues include the establishment and application of minimum international standards and the proper role of individuals and non-governmental organisations in international legal processes.
Since the 1960s human rights and environmental law have developed in parallel intersecting institutionally and substantively with increasing frequency. The connection between human rights and environmental protection was first recognised in 1968 when the UN General Assembly noted the relationship between the quality of the human environment and the enjoyment of basic rights.
The 1972 Stockholm Declaration on the Human Environment proclaimed that "man's natural and man made environment are essential to his well-being and to the enjoyment of basic human rights - even the right to life itself" and declared in Principal 1 that "Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for future generations".
A number of non-binding but widely accepted declarations supporting the individuals right to clean environment were subsequently adopted. The 1982 World Charter for Nature recognised the right of individuals to participate in decision making and have access to means of redress when their environment had suffered damage or degradation.
The 1989 Declaration of the Hague on the Environment recognised "the fundamental duties to live in dignity in a viable and global environment, and the consequent duty of the Community of Nations vis-a-vis present and future generations to do all that they can do to preserve the quality of the environment".
In 1990 the UN General assembly declared that "all individuals were entitled to live in an environment adequate for their health and well-being. Also in 1990 the UN Commission for Human Rights adopted a first resolution on human rights and the environment, which affirmed the relationship between the preservation of the environment and the promotion of human rights, and welcomed proposals for further studies on the subject.
Efforts to further develop language on environmental rights continue under the auspices of several international institutions including the Council of Europe and the UN Economic Commission of Europe. The majority of human rights treaties are silent on the environment. A small number make mention of matters closely related to the environment, such as health. Others more recently adopted references expressly made to the environment.
The environment did not really become an international legal issue until the 1970's which explains why the first human rights treaties did not address environmental issues in express terms. The UN Charter 1948, the 1950 European Convention for the protection of human rights and fundamental freedoms and the 1961 Fundamental social rights Charter all remained silent on the environment.
It was not until 1981, with the adoption of the African Charter of Human rights (1981 African Charter) that human rights and the environment were formally connected in an international legal instrument.
Article 24 of the Charter provides that "all peoples shall have the right to a satisfactory environment favourable to their development". Eight years later the 1989 San Salvador Protocol to the 1969 Convention on Human Rights (1969ACHR) went beyond the terms of the African Charter by establishing positive obligations in the State to protect the environment.
Article 11 of the protocol provides that:
1 Everyone shall have the right to live in a healthy environment to have access to basic public services.
2 The state Parties shall promote the protection, preservation and the improvement of the environment
Efforts at the Council of Europe, beginning in the 1970s to draft a Protocol on environmental rights failed due to lack of political support from Governments.
The draft Protocol provided:
1 No one should be exposed to intolerable damage or threats to his health or to intolerable impairment of his well-being as a result of adverse changes in the natural conditions of life.
2 An impairment of well-being may, however, be deemed to be tolerable if it is necessary for the maintenance and development of the economic conditions of the community and if there is no alternative way of making it possible to avoid this impairment.
1 if adverse changes in the natural conditions are likely to occur in his vital sphere as a result of the actions of other parties, any individual is entitled to demand that the competent Agencies examine the situation in all cases where Article 1 applies.
2 Any individual acting under paragraph 1 shall, within a reasonable time, receive detailed information stating what measures - if any - have been taken to prevent those adverse changes.
In 1992 the United Nation's conference on the Environment and Development stated unequivocally in Principal 1 of the Rio Declaration that " Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature." In supporting the participation of all concerned citizens at the relevant level the Rio Declaration also recognised the right of access to environmental information; the right to participate in decisions which effect their environment, the right of effective access to judicial and administrative proceedings, including redress and remedy, a right to development to meet environmental needs and the rights flowing from the recognition of the need to ensure the full participation of women, youth and indigenous peoples and other communities.
European Court of Human Rights Developments
In the past few years the European Court of Human Rights has increasingly addressed the relationship between Human Rights and Environmental Protection. This is reflected in the Landmark judgement case, where the Court found Spain to have violated Article 8 of the European Convention of Human Rights, ruling that "severe environmental pollution may effect individual's rights well being and prevent them from enjoying their homes in such a way as to effect their private and family life adversely, without however, seriously endangering their health".
It is in the context of the aforementioned international developments that the case law prior to Lopez-Ostra decision, practice and the organs of the European Convention are considered.
The first environmental decision appears to be that of the European Commission in 1976. In X and Y v. Federal Republic of Germany the applicants, who were members of an environmental organisation which owned 2.5 acres of land for nature observation, complained on environmental grounds about the use of adjacent marshlands for military purposes. The Commission rejected the application as incompatible rationae materiae with the convention, on the grounds that "no right to nature preservation is as such included among the rights and freedoms guaranteed by the convention and in particular by Articles 2, 3 or 5 as invoked by the applicant. Five years later, in X v. Federal Republic of Germany, the European Commission rejected as "manifestly ill founded" a claim by an environmental association that Article 11 of the ECHR entitled it to have a locus standi in administrative court actions to challenge a decision to construct a nuclear power plant. The Commission found that the ECHR does not require domestic legal systems to grant associations the right to institute legal proceedings pursuant to their statutory aims with out having to show a legal interest of their own in the matter.
Article 8 enshrines the right to respect for private and family life, home and correspondence. Paragraph 2 provides there shall be no interference by a public authority with the exercise of the rights outlined in paragraph 1 except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country.
In the case of respect for the home, this aspect of Article 8 has attracted few applications. Issues which might otherwise have fallen with in its provisions have been considered under Article 1 of Protocol 1. A number of complaints arising from nuisance caused by adjacent commercial activity gradually leaned away from Article 1 to a better basis for complaint under Article 8.
A form of indirect interference with the right to respect for the home which is possible if recognised, would substantially enlarge the scope of Article 8, and which would not stand in the way of direct applicability, are the deterioration of living conditions by certain measures or circumstances, thus in the Arrondale V United Kingdom which was declared admissible because of its complexity, the applicant complained about violation of Article 8 by the British Authorities on account of the great nuisance which she experienced in her home in Gatwick from descending and ascending aircraft, and from the traffic on the motor road. Following the Commission's decision in 1980 that the application was admissible (indicating a willingness for the first time to recognise the link between noise pollution and human rights), the parties agreed to a friendly settlement.
A similar case was Baggs V. United Kingdom, relating to noise from Heathrow Airport, which the Commission also found admissible and which was subsequently settled. In Vearncombe et al. v. United Kingdom and Federal Republic of Germany, also involving a noise pollution claim (in relation to a military shooting range), the Commission declared the application inadmissible on the grounds that the level and frequency of noise was below the threshold necessary to occasion a possible violation of Article 8 and Article 1 of the First Protocol . According to the Commission, the case was distinguishable from the Airport cases since the applicants were not exposed to "an intolerable and exceptional noise nuisance of such a level and frequency" as to the amount to a violation of Article 8.
The following year, on other grounds, the Commission declared manifestly ill founded and inadmissible S v. France, in which the applicant claimed that the construction and operation of a nuclear power station caused noise and other pollution (including nocturnal illuminations from the plant, nuclear risk and changes in the microclimate) which violated her rights under Article 8 and Article 1 of the First Protocol. Whilst the Commission recognised that these forms of nuisance could give rise to breaches of the convention, the facts indicated (principally on the basis of the reasonable compensation the applicant had been paid) that the interests of the applicant had not been disproportionately affected in relation to the interests of the community as a whole by these aspects of the plant.
It was not until 1990 that the European Court had an opportunity to address environmental issues when the above approach was again adopted in the Powell and Rayer case which concerned the applicants claim that their right to respect for their home had been violated by noise levels existing in the vicinity of Heathrow Airport. The Court declared "it is certainly not for the Commission or the Court to substitute for the assessment of the national authorities any assessment of what might be the best policy in this difficult social and technical sphere. This is where the contracting states are to be recognised as enjoying a wide margin of appreciation. Rather as in other cases concerning major economic social technical concerns, the Court felt the matter was left to the expertise of the national authorities.
The question before the Court was not whether Article 8 had been violated, but whether both applicants had an arguable claim (within the meaning of Article 13) of violation of Article 8. The Court held "in each case albeit to greatly differing degrees, the quality of the applicant's private life and the scope for enjoying the amenities of his home have been adversely affected by the noise generated by aircraft using Heathrow Airport (...). Article 8 is therefore a material provision in relation to both Mr. Powell and Mr. Rayer".
In view of the "fair balance that has to be struck between the competing interests of the individual and of the community as a whole" and taking into account the measures adopted by the authorities to control abate and compensate for aircraft noise, the Court reached the following conclusion: "In view of the foregoing, there is no serious ground for maintaining that either the policy approach to the problem or the content of the particular regulatory measures adopted by the United Kingdom Authorities give rise to violation of Article 8, whether under its positive or negative head. In forming a judgement as to the proper scope of the noise abatement measures for aircraft arriving and departing from Heathrow Airport, the United Kingdom Government cannot arguably be said to have exceeded the margin of appreciation afforded to them or upset the balance required to be struck under Article 8".
The Powell and Rayner Case is the first case to discuss briefly the relationship between positive and negative duties under Article 8 and the appropriate margin of appreciation. The Court thought that the appropriate principles to both situations are broadly similar. In both contexts regard must be had to fair balance that has to be struck between the competing rights of the individual and the community as a whole and in both contexts the states enjoy a certain margin of appreciation in determining the steps to be taken to ensure compliance with the convention. The judgement illustrated the Court's reluctance to allow environmental concerns of an individual to take precedence over the broader economic concerns of the wider community, particularly where the UK Government was able to point to its compliance with international standards concerning noise from aircraft. Despite the outcome of this case, the principle was firmly established: Article 8 does cover infringements upon private life and home by noise and disturbances.
These Article 8 cases reflected a growing recognition of the need to give proper protection to the environment. A similar recognition could also be seen in a series of cases turning on Article 1 of the First Protocol, in which the community interest related to the protection of the environment and the individual interest related to property rights which would be limited to the application of environmental considerations. These cases recognised that environmental interests could, in certain circumstances, override economic interests. In 1991 in Fredin v. Sweden the European Court recognised "that in today's society the protection of the environment is an increasingly important consideration", and held that the interference with a private property right (revoking for reasons of nature conservation the applicant's license to extract gravel from his property) was not appropriate or disproportionate in the context of Article 1 of the First Protocol.
Later that year in Pine valley Developments Ltd. and others V. Ireland the European Court confirmed its approach, holding that an interference with the right to peaceful enjoyment of property rights was in conformity with planning legislation and was "designed to protect the environment" was clearly a legitimate aim "in accordance with the general interest" for the purposes of the second paragraph of Article 1 of the First Protocol. Moreover, the interference, in the form of a decision by the Irish Supreme Court which was intended to prevent building in an area zoned for further agricultural development so as to preserve a green belt, had to be regarded "as a proper way - if not the only way - of achieving that aim" and could not be considered as a disproportionate measure giving rise to a violation of Article 1 of the First Protocol.
Lopez Ostra Case
The full applicability of Article 8 in the context of environmental nuisance was established in landmark this case.
Facts: Mrs Gregoria Lopez-Ostra was a resident of Lorca in South Eastern Spain, a town with a heavy concentration of leather industries. Twelve metres from the applicants home a plant for the treatment of liquid and solid waste owned by a company named Sacursa was built in 1988 with out the licence required by the municipal authorities under Article 6 of the 1961 regulations on activities classified as causing nuisance and being unhealthy. The applicant complained about smells, noise and polluting fumes caused by the plant for the treatment of the liquid and solid water. She commenced national proceedings seeking protection of her fundamental rights alleging, inter alia, unlawful interference with her home and peaceful enjoyment of it, a violation of her right to choose freely her place of residence, attacks on her physical and psychological integrity, and infringements of her liberty.
Each of her applications were unsuccessful arguing that the plants operation did not constitute a serious enough health risk to infringe fundamental rights, and that the municipal authorities could not be held liable. Mrs Lopez Ostra commenced proceedings before the Commission in 1990 relying on Articles 8 (1) and 3 of the European Convention. She asserted that she was a victim of a violation of the right to respect for her private life, family and home and of degrading treatment.
On the 8 July 1992, the Commission declared the application admissible and on August 31 1993 reported its unanimous opinion that there had been a violation of Article 8(1) but not of Article 3. The Spanish Government referred the matter to the Court, which rejected its preliminary objections that Mrs Lopez Ostra had failed to exhaust local domestic remedies and that she was not a victim.
The Court first considered the nature and extent of the nuisance suffered by the applicant and established from the evidence provided by Spain and the applicant that "hydrogen sulphide emissions from the plant exceeded the permitted limit and could endanger the health of those living nearby and that there could be a casual link between these admissions and the daughters ailments". This view was supported by the regional environment and nature agency which found that without constituting a grave risk to health, the emissions impaired the quality of life of these living in the plants vicinity. The Court concluded in relation to the application of Article 8 that "severe environmental pollution may affect the individuals well being and prevent them form enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.
This conclusion permitted two approaches to the application of Article 8. It could be construed as the applicant contended, to establish a positive duty on the state to take reasonable and appropriate measures to secure the applicant's rights under article 8 (1). Alternatively, as Spain apparently contended, it could be construed as "an interference by a public authority" to be justified in accordance with Article 8 (2). The Court found that the applicable principles were broadly similar in either approach. The test to be applied requires "regard [to], be had too the fair balance that has to be struck between competing interests of the individual and of the Community as a whole". In considering balance the aims mentioned in relation to the positive obligation flowing from 8 (1).
The Court after reviewing all the events stated that the nuisance could be attributed to the Spanish Authorities because they had adopted a passive attitude and that the Court only needed to establish whether the national authorities took the measures necessary for protecting the applicants right to respect for her home and for her private and family life under Article 8. The Court held that the authorities "could not be unaware" that the environmental problems continued and failed to take steps to close down the plant and take measures necessary to protect the applicants rights under the convention.
They unanimously held that no breach of Article 3 had occurred, upheld the Commission's earlier conclusion. Although the conditions in which the applicant and her family lived had been very difficult, they did not amount to degrading treatment with in the meaning of article 3. However, it is worth noting that the conclusion leaves open the possibility that in certain circumstances environmental pollution might give rise to a violation of Article 3.
This court case has provided some guidance in dealing with environmental issues concerning the standards to be upheld in determining whether harm has occurred, and whether on the facts the degree of harm crosses the threshold necessary to give rise to a violation of the Convention. It is clear that each case will be decided on its own facts and context.
The Court suggests that environmental pollution will not give rise to a claim unless it is "severe" but that such pollution need not go so far to "seriously endangering human health". Moreover, compliance with domestic environmental standards will apparently not necessarily provide a defence to an Article 8 claim: according to the Court the test to be applied is not whether the national authority fulfilled the functions assigned to it by domestic law, but "whether the national authorities took the measures necessary for protecting the applicants right under Article 8".
Earlier however the Court appears to rely on the Commission's conclusion that emissions from the plant exceeded "the permitted limit" and it appears to have been influenced by the fact that the applicant and her family suffered the nuisance for 3 years. This suggests that relatively low levels of harm will give rise to an action under Article 8 only when they occur over a reasonably lengthy period of time and not infrequently.
Contrary to the approach in Rayner and Powell, the Court is willing to substitute its view for that of the national Authorities, but it did so with out reference to any international standard or guidelines (if indeed there are any). The Court's willingness to in effect judicially review national action or inaction is welcome, but it is tempered by the failure to identify the objective grounds upon which such a review is based. The definition of "severe environmental damage" could be difficult to predict even when national or international standards have not been clearly met.
The other point to note in reference to the Rayner and Powell case is that the concept of a wide margin of appreciation has been substituted to a certain margin of appreciation when establishing if a "fair balance" has not been struck.
The Court confirms that the absence of express reference to the environment in the system established by the European Convention will not be a bar to bringing environmental cases, in particular under Article 8. This is important not only for future cases which may be brought under the European Convention, but also in other international human rights instruments which are silent on the environment.
Guerra and Others
Environmental Danger-Failure to provide information -Articles 8 and 10
The 40 applicants lived in the town of Manfedonia, approximately 1km from a chemical factory which produced fertilisers and other chemicals. In 1988, the factory was classified as "high risk" according to criteria set out by presidential degree. Emissions from the factory were often channelled towards Manfredonia.
The applicants complained that the authorities had not taken appropriate action to reduce the risk of pollution by the factory and to prevent the risk of accident. This, they agreed infringed their rights to life and physical integrity under Article 2 of the Convention. They also complained that the State had failed to take steps to provide information about risks and how to proceed in the event of an accident (as they were required by domestic legislation). They argued that this involved a breach of their right of information under Article 10 of the Convention. The Commission declared the case admissible only in relation to the complaint under article 10. Before the Court, the applicants relied not only on Article 10, but also Article 2. In addition they complained before the Court that their right to respect for family life under Article 8 of the Convention had been infringed, as a result of the authorities failure to provide them with the relevant information.
The Commission, finding a violation of Article 10, emphasised the importance of access to information in the FIEld of health and welfare and was prepared to impose a positive obligation under article 10. The Court, however by 18 votes to 2 held that Article 10 could not in the circumstances of this case impose an obligation to collect and disseminate information, nonetheless found a violation of Article 8, considering that the State had not fulfilled its obligation to secure the applicants' right to respect for private and family life through its failure to provide the applicants with essential information about the risks posed to them by severe environmental pollution.
In holding that Article 10 was not applicable the Court reiterated that freedom to receive information, referred to paragraph 2 of Article 10 of the Convention "basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him"..... That freedom could not be construed as imposing on a State, in circumstances such as these of the present case positive obligations to collect and disseminate information of its own motion. Article 8 was applicable and had been violated (unanimous decision). The Court held that the "direct effect of the toxic emissions on the applicants' right to respect for their private and family life means that Article 8 is applicable". Although the object of Article 8 was essentially that of protecting the individual against arbitrary interference by public authorities, it did not merely compel the state to abstain from such interference. In addition to that primary negative undertaking, there might be positive obligations for private or family life. Severe environmental pollution might affect individuals well-being and prevent from enjoying their homes in such a way as to affect their private and family life adversely.
In the present case the applicants waited for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory. It was unnecessary to consider the case under Article 2 (unanimously).
The case established that where they are risks to health from severe environmental pollution, it now appears that persons who may claim to be affected may derive a right to obtain information about these risks from the relevant authorities under Article 8 of the Convention. While Article 10 contains a freedom to receive information, that Court has maintained its view that this relates basically to information which others wish to impart. Note should be taken of the review of the evidence and the Commission deliberations on the manner they dealt with the complaint under Article 10 and which would have influenced the Court in applying Article 8 to the facts. The Court in deciding the case under Article 8 did explain the jurisdiction of the court rationae materiae. "The Court reiterates that since it is the master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by the applicant, a government or the Commission". By virtue of the jura novit curia principle, it has for example considered of its own motion complaints under Articles or paragraphs not relied on by those appearing before it and even under a provision in respect of which the Commission had declared the complaint to be admissible under a different one.
A complaint is characterised by the facts alleged in it and not merely by the legal grounds or arguments relied on. The Court has full jurisdiction only with in the scope of the "case" which is determined by the decision on the admissibility of the application. with in the compass thus delimited, the Court may deal with any issue of fact or law that arises during the proceedings before it.
The applicants in their evidence referred to domestic regulations, judgements and Council of Europe documents in relation to the environment. Section 14 (3) of law no. 349 of 8 July 1987, by which the Ministry for the Environment in Italy was created and the first legal provision on environmental damage introduced, provides that everyone has a right of access to the "information on the state of the Environment" which is, in accordance with the law; available at the offices of the administrative authorities and may obtain a copy on defrayment of the authorities cost.
In a judgement of 21 November 1991 the Council of Administrative Law for Sicily held that the concept of "information on the state of the environment" included any information about human beings' physical surroundings and concerning matters of some interest to the community. On the basis of these criteria, the Council of Administrative Law held a district Council was not justified in refusing to allow a private individual to obtain a copy of the analysis of the fitness of water in the district in question for use as drinking water.
Of particular relevance among various Council of Europe documents in the file under examination in the present case is Parliamentary resolution 1087 (1990) on the consequences of the Chernobyl disaster which was adopted on the 26 April 1996 at the 16th sitting. Referring not only to the risks associated with the production and use of nuclear energy in the civil sector but also to other matters, it states "public access to clear and full information...is a human right."
The Commission raised the point that the Italian provisions refer to environmental information available where as the information sought by the applicants was not "available" since it had first to be gathered and processed by the Italian Authorities and that there was no mechanism available to compel the state authorities through "positive action" to collect, process and publish information. The Commission recalled that "freedom to receive information...basically prohibits a government from restricting a person from receiving information that others wish or may be willing to impart to him". That the current state of European Community law and Italian law confirms that public information is now an essential tool for protecting the public well-being and health in situations of danger to the environment.
Therefore, the importance of the role which public information now plays in the independent FIElds of environmental protection out of the protection of health and well being of persons cannot be overlooked. In this regard the Commission regards that "the Convention must be interpreted in the light of present day conditions.... and it is designed to safeguard the individual in a small and practical way as regards those areas with which it deals".
Referring to the Council of Europe resolution "public access to clear and full information... must be viewed as a basis human right". The fact that such a principle has been set out in a resolution of the Parliamentary Assembly of the Council of Europe constitutes in the eyes of the Commission evidence that a body of opinion is developing, at least on the European level, which seeks to obtain recognition for the existence of a fundamental right to information in the FIEld of industrial or other activities dangerous to the environment and to the well-being of individuals.
The importance of the right of information this FIEld derives from its raison d`etre, which is to protect the well being and the health of the persons concerned and so, indirectly, rights the Commission recalls that "severe environmental pollution may affect individual's well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely" (Lopez Ostra v Spain). The right to information, as invoked by the applicants, is a further development of this line of reasoning. This principle provides justification for finding that there is a right to information in the FIEld of environmental protection.
The Commission further argued, that this right must be guaranteed in a complete and effective manner. The "fulfilment of a duty under the Convention on occasion necessitates some positive action on the part of the State; in such circumstances, the State cannot remain passive and there is... no room to distinguish between acts and omissions". (Airey v Ireland and Marckx v Belgium). Therefore, Article 10 of the Convention (which the Court substituted Article 8 to the facts) places the State under an obligation, not only to make environmental information accessible to the public, but also under positive obligations to collect, process and disseminate information which by its very nature, is not directly accessible and which cannot be known to the public unless the public authorities act accordingly.
The Court in summing up said the direct effect of the toxic emissions on the applicants right to respect for their private and family life means that Article 8 is applicable. The Court considers that Italy cannot be said to have interfered with the applicants private or family life, they complained not of an act by the State but of its failure to act. Hence the State did not fulfil its obligations to secure the applicants rights to respect for their private and family life and consequently there has been a breach of Article 8.
Mc Gingley and Egan v. United Kingdom
The applicants were stationed on or near Christmas Island at the time of nuclear tests in 1958. Replying, inter alia, on Articles 6 and 8 of the Convention, they complained that their rights to a fair hearing before the Pensions Appeal Tribunal and to respect for their private family lives had been violated by the withholding of documents which would have helped them to ascertain whether there was a link between their health problems and exposure to radiation. They also complained that they had been denied an effective remedy in violation of Article 13. The Commission had declared the case admissible, however the Court failed to rule in their favour in all counts. It is worth noting that the Court agreed by five votes to four that there had been no violation of Article 8 of the Convention.
The issues raised in this case by the Commission and the Court require discussion as they serve as a further guideline for future access to environmental information cases. The applicants contended, inter alia, that their participation in the test programme constituted a significant event in their young lives and that the relevant records are essential for their understanding of the nature and impact on them of that participation. They referred to the Gaskin case and submit they are in a similar position to that applicant who wanted unimpeded access to his medical file in order to establish his medical condition. They argue that the release of the records in the Gaskin case was complicated by a confidentiality problem which does not exist in this case in relation to the detonation related records. The Government submitted that the Gaskin case did not establish that an individual has an "unfettered right to access to information" held about him by the State, and pointed out that the information sought in the Gaskin case was a highly personal nature which could not be personally found by the applicant.
The Commission was satisfied that the relevant records constitute the only source of certain primary data which the applicants can begin to construct the actual nature and physical impact of their participation in the test program which can be reasonably said to amount to a highly significant event in their young lives. Accordingly, in the same way in which the applicant in the Gaskin case relate to his private and family life, the Commission considers that the relevant records relate to the applicants private lives.
The Commission recalled that an essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, there may be in addition positive obligations inherent in the respect for private life which would address "a failure to act" complaint. In determining whether or not such an obligation exists, regard will be had to the fair balance between general interests of the community and the interests of the individual and in striking this balance the aims mentioned in the second paragraph of Article 8 may be of certain relevance. Hence the Commission considers that the domestic system has not responded in a proportionate manner to the applicants strong and legitimate interest in obtaining access to the relevant records and, accordingly there has been failure to fulfil the positive obligation in the United Kingdom inherent in the applicants right to respect for their private lives.
The Court ruled for reasons that the present case is different from that of Gaskin where the applicant had made an application to the High Court for discovery of records which he sought access. The Court considered that a positive obligation under Article 8 arose and because of the nature of the information sought which might have hidden adverse consequences on the health of those involved in such activities (nuclear testing). Respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information.
However, the Court recalled that the UK Government asserted that there was no pressing national security reason for retaining this information sought and in compliance with the positive obligation to disclose, that there was under rule 6 of the Tribunal rules a procedure which would have enabled the applicants to have requested the said documents and that there was no evidence available to the Court to suggest that this procedure would not have been effective in securing disclosure of the documents sought. Neither of the applicants chose to avail themselves of this procedure, according to evidence presented to the Court, to request from the Competent Authorities at any other time the production of the documents in question. The Court considered that in providing for the Rule 6 procedure, the State has fulfilled its positive obligations under Article 8 in relation to these applicants. It follows that there was not violation of this provision.
Hatten and others v United Kingdom (16 May 2000)
Environment, Planning and Property
This is the most recent published on hand case relating to the environment .It concerns aircraft noise at night, effect on residents living near Heathrow Airport, and unavailability of action in trespass or nuisance under Articles 6, 8 and 13.
The applicants complained that their sleep was affected by the noise levels at Heathrow. Some of them noted that the air traffic had increased dramatically between 6am and 7am as a result of the shortening of the night quotas period and some applicants health had been affected as a result of broken sleep patterns and the use of air plugs.
They alleged violations of Article 6, 8 and 13 of the convention and referred to section 76 of the Court Aviation Act 1982 (CVA 1982) which stated that "No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which having regard to wind, weather and all the circumstances of the case is reasonable or the ordinary incidents of such flight, so long as the provisions of any Air Navigational Order... have been duly complied with".
The applicants submitted that section 76 was a procedural bar to bringing a claim before the Courts in respect of unreasonable aircraft noise. They stated that there was no fair hearing or impartial enquiry process to examine the governments regulatory schemes. They further contended that their rights under Article 8 had been violated and they did not have access to fair and public hearing before an independent and impartial tribunal in respect of the violation of Article 6 of the Convention. They complained the remedy of judicial review was inadequate and in breach of Article 13.
The government submitted an analysis of the current rate of arrivals, and that they had struck an appropriate and justified balance between the various interests involved and extended that the applicants were exposed to lower levels than applicants in previous cases in which complaints were made concerning aircraft noise at Heathrow Airport and which were declared admissible by the Commission.
The applicants complaints under Article 8 and 13 were declared admissible (unanimously).
The Court found that the applicants complaints under Article 8 and 13 raised several issues of fact and law. The determination of which would have to be reserved to an examination of the merits. The part of the application could therefore not be declared ill founded within the meaning of Article 35, section 3.
The court declared the remainder of the application inadmissible (unanimously).
The Court had found no reason to depart from its judgement in the case of Powell and Rayner.
We await the judgement with interest.
It will be difficult to predict whether the nature and extent of environmental harm upsets the balance which the Courts seeks to maintain between individual and Community interests in Article 8. Further information on the issues identified in the cases is still needed. Developments after Lopez Ostra indicate that the outcome of environmental cases brought to the Commission remains unpredictable.
In Balmer-Schafroth and others v Switzerland (1995), for example the Commission found a violation of Article 6 (1) of the Convention where the applicants complained about lack of access to the Courts in respect of the Swiss Federal Council to grant the operation permit of a nuclear power plant.
In Tauira and others v. France (1995) on the other hand the Commission rejected as manifestly ill-founded an application by residents in Tahiti French Polynesia that the proposed French nuclear tests violated Articles 2, 3, 8 and 14 of the European Convention and Articles 1 of the First Protocol, on the simple ground that the applicants were not "victims" with in the meaning of Article 28 of the Convention.
It is now certain that human rights and in particular Article 8 of the Convention has opened out a whole area of law in connection with the environment. The foregoing discussion demonstrates the growing recognition of the importance of environmental issues in matters of environmental protection, quality of the environment and assertions of the need for protection against, or information concerning environmental threats. Considerable noise and other nuisance and pollution can undoubtedly affect physical well being and interfere with private life and the amenities of home. This in turn gives rise to pressing personal interest in having access to information relating to the extent and risk involved.
Principle Articles referred to:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Article 1 of the First Protocol:
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Cases referred to:
Marchx v. Belgium, Series A, No.31 (1979) 2EHHR 330
Arrondelle v. United Kingdom, Application No. 7889/97, Decision of July 15,1980
Baggs v. United Kingdom, Application No. 9310/81, Decision of October 16, 1985
Powell and Rayner v. United Kingdom , Series A No. 172,12 EHRR 355
Rayner v. United Kingdom, Application No. 9310/81, Decision of July 17, 1986
Leander v. Sweden, Series A, No.116,(1987) 9 EHRR 433
Lopez Ostra v. Spain Series A, No. 303-C 20 EHHR 277 December 9,1994
Ursula Balmer-Schafroth and nine others v. Switzerland (application No. 22110/93 Oct 18,1995
Guerra and Others v. Italy (116/1996/735/932 Feb.19, 1998
Mc Ginley and Egan v United Kingdom Application No. 21825/93 and 23414/94 9 June 1998
Gaskin v. United Kindom, Series A, No. 160 (1989) 12 EHHR 36
Hatton and Others v. United Kingdom application No. 36022/97 May 16, 2000 (admissibility)
co-authored with students Robert Cannon, Martin Clarke and Oran Doyle. The Law Department, Trinity College, Dublin. £15.00
Dr. Yvonne Scannell, the author of Environmental Law in Ireland, has apparently established her position as the doyen of Irish conservation law with her recent work, The Habitats Directive in Ireland.
It was this book - an advance copy - that the Judge in the Glen of the Downs High Court case had beside his gavel on the bench. Although the Heritage Council has refused to date to release a copy of her report for them, it was Dr. Scannell they turned to advise them on what to say about the implementation of the Habitats Directive in Ireland.
Sadly for Irish environmentalists, the learned Doctor's attention has been mainly taken up with developing theories of how one might frame a legal action to challenge the Constitutional basis of the European Habitats Directive as it has been implemented in Ireland. That is tragic. The other main thrust of this new work is the right of landowners to compensation. That is dangerous.
The Irish rural landscape has been spectacularly disfigured by outlandish, distracting and ostentatious buildings in the most conspicuous locations because of the bad old days when seemingly every refusal of planning permission was followed by a claim for "compensation"- or alternatively when county councils insisted that if they didn't give permission, they would be liable to pay compensation.
When this trend became unsustainable, the planning acts were revised. But no sooner was the ink dry on the Irish implementing regulations for this European legislation than the old compensation lobby started snapping its suspenders. There wasn't a meeting or conference in Ireland about this subject where someone wasn't peddling theories and plans relating to future "Constitutional" challenges to the Habitats Directive on the grounds that property rights were going to be violated.
The regulations, in saying that the compensation will only be available if an activity has been ongoing for five years (with certain exceptions if the Minister finds that justice so requires) are completely sensible because they eliminate the incentive to purposely make an application in the hope of receiving compensation. If such a restriction were not in the law, there would be no Habitats Directive, because the compensation culture would have the state beggared by paying gombeen men for the loss of their hypothetical windfall profits.
Should someone be "paid" for not being allowed to carry out scientifically and environmentally destructive developments in sensitive places? There is nothing in European or Irish law that can allow for that.
Dr. Scannell makes a great deal of the fact that the Habitats Directive says "the polluter pays" principle can have only "limited application in the special case of nature conservation". She seems to take from that the notion that when permission for development in an Special Area of Conservation under the Directive is refused, that should give rise to compensation.
In fact the Directive does not say that polluter pays has no application. It makes an exception for members states that must bear an "excessive financial burden" because of the "uneven distribution of priority habitats and species". Here, a "contribution" can be co-financed by the community. Farmers in Ireland have been offered help where they are being told they must cut back on certain damaging activities.
There is also a strong case that where a priority habitat was involved (priority habitats are listed in an Annex of the Directive and forms the basis of the first 200 sites selected) the State essentially has no choice about designating these habitats for protection. If that is the case, on what basis should compensation be provided? We all voted to accept European law.
Overall, it is hard to understand Dr. Scannell's suggestion that the Habitats Directive does not provide "policy". The policy is bio-diversity, and every Member State is under a clear duty to make sure that bio-diversity is protected - "to maintain and restore at a favourable conservation status natural habitats and species of wild flora and fauna of Community interest". What is left to the Member State is procedure, not policy.
Nor is the Habitats Directive the woefully unclear document that Dr. Scannell would make it out to be. The ONLY criterion for the designation - or non-designation - of a site is scientific. There is nothing unclear about that, even if the Minister has appointed a non-statutory appeals advisory board which can include industry representatives.
What might have been more use to us would have been a discussion of the situation in other Member States of the European Union, and more than passing (and very skimpy) references to endangered species law in the United States.
The Irish implementing regulations, while inadequate in some respects, are in many ways quite straightforward and sensible. Many environmentalists are rightly opposed to the current structure of the new "appeals body," as that seems not to have any basis in law, European or national. Certainly one would like to know why Ireland is now four years late complying with the Directive. One would like to know why so many priority habitats appear to have been excluded. One might like to enquire further about vanishing concepts of "zonation" and the shrinking boundary game. But the idea that the Habitats Directive and the Irish implementing regulations are incapable of fair application is an idea that has to be completely rejected.
Dr. Scannell's book ensures that it is only a matter of time until someone arrives at the Four Courts to argue that the Irish implementing regulations have gone beyond the requirements of the Habitats Directive (they haven't); or that the Directive is irrelevant to the concept of domestic compensation, etc. And given the abysmal track record of the Irish courts to date in actually applying European environmental law (they haven't), they just might bite at such an argument, and bite while forbidding the referral of these vital questions to the European Court of Justice.
We don't need Dr. Scannell's work, which must in large part be behind a recent suggestion at UCC's Heritage Studies Bi-Annual Conference for ALL our nature conservation legislation (including the long delayed amendments to the 1976 Wildlife Act which will finally give protection to the currently unprotected National Heritage Areas) to be amalgamated in one new act of primary legislation. We would all have gray beards - and our natural heritage would be irreparably diminished - if we had to wait for that.
What we need is a book that will tell the Irish authorities (including the judiciary) that the Irish conservation movement will hold them to the full implementation of the objectives of this Directive - the principal one being the preservation of endangered European habitats and species. And that this legislation is not a gravy train for litigious land owners and their legal teams, however distinguished.
18 July, 2002: FIE's challenge in the Irish Courts to the two proposed new peat burning power stations is withdrawn as a result of the Government's interference in the judicial process.
LEGAL CHALLENGE TO PEAT POWER STATIONS WITHDRAWN
The Judicial Reviews taken by the environmental network Friends of the Irish Environment were yesterday withdrawn from the High Court.
The actions were taken in April of this year against the decision of the Planning Appeals Board to grant permission for the proposed new peat powered stations at Shannonbridge and Lanesborough and against the licence issued by the Environmental Protection Agency for the project. FIE claims both were issued without an Environmental Impact Assessment of the extraction of the peat for the project.
The group stated its withdrawal was as a direct result of "the Government's interference in the judicial process."
Mr Brian Cowen, Minister for Foreign Affairs announced on 8 May that measures to allow the ESB proceed with the building of new Power Stations at Shannonbridge and Lanesborough were formally approved by the Cabinet.
Minister Cowen went on to say: "The decision taken today by the Cabinet, which I warmly welcome, means that there is no obstacle to the commencement of construction work on the new Power Stations regardless of the judicial review proceedings recently initiated in relation to planning permission. These proceedings had threatened to seriously delay construction work on the Power Stations."
The effect of the Government decision was to ensure costs incurred by ESB would be treated as additional costs for the purposes of the Public Service Obligations Obligation [PSO].
FIE's statement drew attention to Trevor Sargent, the leader of the Green Party's, subsequent statement that this decision made the Government "in my mind in contempt of Court."
Work began on the construction earlier this month.
FIE's said the cases they had taken "were no longer worth putting the Company at risk in the Irish Courts. We will, however, be pursuing the Government's unauthorised extension of the PSO to the European authorities as an abuse of a national judiciary process".
The Commission is investiaging FIE's complaints over the inadequate EIA of the power plants and has issued a Reasoned Opinion over Ireland's failure under the EIAs lgislation, the last step before a Judgement from the European Court.. The spokesperson for FIE said they were "determined to continue to fight the destruction of Ireland's peatlands and the consequent damage to the global climate in breach of EU law."
NOTE TO EDITORS
PSOs: The "Public Service Obligation" is an agreement approved by the EU last year allows the ESB to recoup the uneconomical cost of the production of electricity by peat from the consumers as a surcharge on each bill.
The PSO was given on the grounds of "national security", a deregulation that can be invoked by which a member state may source 15% of its national fuel supply from national sources. Ireland currently produces 7% of its electricity from peat.
WHAT THE CASE WAS ABOUT
The matter of substance in the legal proceedings was the failure of either the planning appeals board or the environmental protection agency to require an environmental impact assessment [EIA] of the extraction of peat.
The Government's contention is that the extraction does not require an EIA as it predates the implementation of the EIA Directive in 1988.