Legal actions

FIE is challenging in the High Court the first decision to be given for a project under the new ‘fast track' Strategic Infrastructure Act, a Liquefied Natural Gas [LNG] Terminal near Tarbert on the Shannon estuary.

Until recently, a planning decision given by a local authority can be appealed to An Bord Pleanala. But under the 2006 Strategic Infrastructure Act An Bord Pleanala itself makes the planning decision in the first instance and there is no further appeal.

Since the Aarhus Convention, European Directives have given citizens the right to a review of a decision that is ‘timely, equitable, and not prohibitive expensive'. It must be of all ‘substantive and procedural' legal matters.

That is what FIE is seeking in its application to the Court. In another application to the High Court a member of the Kilcolgan Residents Association is also seeking a Judicial Review with ‘safety, environmental and procedural' grounds for the action.

In fact, the decision infringes at least five European Directives - the Strategic Environmental Assessment Directive, the Seveso Directive on Major Accidents, the Environmental Impact Assessment Directive, the Habitats Directive and the Water Framework Directive.

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The High Court will tomorrow hear a critical environmental Judicial Review case when environmentalist (and one of FIE's founding members) Peter Sweetman will seek a Judicial Review of An Bord Pleanala's decision to allow a link road from the Ennis bypass to Ennis town to cut through a designated nature conservation area.

The proposed road will require the destruction of a section of karst limestone which has been designated as an EU Special Area of Conservation. Under European law, developments in these areas can only be permitted if the proposed project is of overriding public importance or the permission of the European Commission has been given. The Judicial Review claims that neither is the case here.

The road project was approved in the first instance by An Bord Pleanala under Section 50 of the Planning Act 2000 which fast tracks projects without the necessity of having to go first through County Council planning departments. The result of this system, however, is that no planning appeal is possible and the only remedy open is to bring extremely expensive proceedings before the High Court by way of Judicial Review.

Aside from the issue of the protected habitats, the case will be closely watched in Brussels as it comes a week after the Commission has announced that it is bringing proceedings against Ireland for its failure to implement the Aarhus Convention and its implementing European Directive. This assures citizens of a 'right to bring legal challenges without prohibitive expense' with the 'objective of giving the public concerned wide access to justice'. Neither is the case here.

For background, see: EU COURT ACTION POSES PROBLEM FOR ATTORNEY GENERAL.
The High Court will tomorrow hear a critical environmental Judicial Review case when environmentalist (and one of FIE's founding members) Peter Sweetman will seek a Judicial Review of An Bord Pleanala's decision to allow a link road from the Ennis bypass to Ennis town to cut through a designated nature conservation area.

The proposed road will require the destruction of a section of karst limestone which has been designated as an EU Special Area of Conservation. Under European law, developments in these areas can only be permitted if the proposed project is of overriding public importance or the permission of the European Commission has been given. The Judicial Review claims that neither is the case here.

The road project was approved in the first instance by An Bord Pleanala under Section 50 of the Planning Act 2000 which fast tracks projects without the necessity of having to go first through County Council planning departments. The result of this system, however, is that no planning appeal is possible and the only remedy open is to bring extremely expensive proceedings before the High Court by way of Judicial Review.

Aside from the issue of the protected habitats, the case will be closely watched in Brussels as it comes a week after the Commission has announced that it is bringing proceedings against Ireland for its failure to implement the Aarhus Convention and its implementing European Directive. This assures citizens of a 'right to bring legal challenges without prohibitive expense' with the 'objective of giving the public concerned wide access to justice'. Neither is the case here.

For background, see: EU COURT ACTION POSES PROBLEM FOR ATTORNEY GENERAL.
FIE has offered to support MEP Kathy Sinnott call for an investigation into the EPA. The MEP has articulated the 'frustration and outrage' of communities all around Ireland who are suffering adverse environmental impacts through uncontrolled activities and unenforced regulations. If the EPA takes legal action against Ms Sinnott, FIE would like to be there right beside her.
Read Our Press Release, and Ms Sinnott's!
FIE has offered to support MEP Kathy Sinnott call for an investigation into the EPA. The MEP has articulated the 'frustration and outrage' of communities all around Ireland who are suffering adverse environmental impacts through uncontrolled activities and unenforced regulations. If the EPA takes legal action against Ms Sinnott, FIE would like to be there right beside her.
Read Our Press Release, and Ms Sinnott's!
The announcement by the European Commission that it is to bring action against Ireland over the failure to ensure citizen's legal rights has the potential to severely embarrass the Government.

The Commission announced last week that is referring Ireland to the European Court of Justice for 'failing to adopt and provide correct information on measures to give effect to the EU's Public Participation Directive and the Aarhus Convention which it implements'.
The Convention was adopted in Aarhus, Denmark, in June 1998 and signed by 39 European and Central Asian countries and the European Community. The Directive which implements this Convention requires Member States to give citizens the right to challenge the legality of public authority decisions under EU legislation. The deadline for its implementation was June 2005. Since January of this year when Germany implemented the Convention, Ireland has became the only EU country not to have implemented it.

Normally provisions such as those contained in the Convention and the Directive would lead to the adoption and communication of new laws. However, Ireland argued that no new laws were necessary for the access to justice provisions because these rights were already provided for in Ireland's system of judicial review. In other words, the Irish Courts were already in line with the Directive.

However, the position conveyed by Ireland came after the Irish High Court had plainly said that it was not bound by the Directive and that it would not be giving effect to it.

The Commission's announcement of proceedings specifically referred to a ruling by Justice Kelly in a Judicial Review taken by the NGO Friends of the Curragh last July challenging a development proposed by the Turf Club. While agreeing that 'It is not to the credit of this State that it has failed to give effect to its legal obligations under the Directive', the Judge concluded that 'The language is not sufficiently precise, clear or unconditional to render it of direct effect.'

Cost were awarded against the NGO. NGOs are specifically given rights to challenge administrative decisions in the Directive.

The other case on which the Commission is basing its actions on is one taken by a residents against the siting of a dump on the River Lickey in County Waterford. The High Court rejected this Judicial Review last year. It refused leave to appeal and awarded the costs against the resident.

This directly contradicts the Directive which the Commission states is to ensure the 'Right of citizens to bring legal challenges without prohibitive expense' and the 'objective of giving the public concerned wide access to justice'.

Ireland defence that no new laws were necessary for the access to justice provisions because these rights were already provided for in Ireland's system of judicial review came after these cases. Neither case was mentioned in the Irish defence.

Both cases have been appealed the cost to the Supreme Court. It will be of interest to see whether the Government will now come to the assistance of these plaintiffs in the Supreme Court and urge the granting of the appeals against cost in order to be consistent with the position communicated to the Commission.

Further information: 027 73131 / 087 2176316.
19 APRIL: A High Court judgement against Friends of the Irish Environment has handed the Government another weapon in the arsenal used to prevent citizens seeking their rights under European Directives in Irish Courts. The Ministers for the Environment and the Attorney General were granted a stay to FIE's proceedings against the €20 planning fee charged for commenting on Environmental Impact Statements. Ironically, the stay was sought by the State because the Commission has sent Ireland a Reasoned Opinion concluding the fee is a barrier to public participation and infringes the EIA Directive. The Directive seeks to involve citizens in the planning process. FIE contends that the High Court is a European Court and that the case must be heard. This is particularly true as 6 years have now passed since FIE first complained to the European Commission and two years since its Reasoned Opinion upheld the FIE complaint, yet no proceedings have been taken by the Commission in the European Court and now the High Court has ruled that none are to proceed here. FIE is taking legal advice on the possibility of an appeal to the Supreme Court.

Read The Judgement
19 APRIL: A High Court judgement against Friends of the Irish Environment has handed the Government another weapon in the arsenal used to prevent citizens seeking their rights under European Directives in Irish Courts. The Ministers for the Environment and the Attorney General were granted a stay to FIE's proceedings against the €20 planning fee charged for commenting on Environmental Impact Statements. Ironically, the stay was sought by the State because the Commission has sent Ireland a Reasoned Opinion concluding the fee is a barrier to public participation and infringes the EIA Directive. The Directive seeks to involve citizens in the planning process. FIE contends that the High Court is a European Court and that the case must be heard. This is particularly true as 6 years have now passed since FIE first complained to the European Commission and two years since its Reasoned Opinion upheld the FIE complaint, yet no proceedings have been taken by the Commission in the European Court and now the High Court has ruled that none are to proceed here. FIE is taking legal advice on the possibility of an appeal to the Supreme Court.

Read The Judgement