Planning Fee

FIE and the 67 groups who joined in its 2002 complaint to the European Commission have found the EU Court's ruling that a fee to comment on planning applications is a 'matter of national law' to be unacceptable.

A spokesman for the organisation said that the Court also failed to address the key issue - that of the polluter pays principle. The Court suggested instead that the fee lies within the 'choice of form and methods' each member state may determine for public participation.

But the restrictions brought in to control objectors by the 2000 Planning Act and later legislation have greatly reduced the value of the protection provided by any of our laws to the natural and built environment. 'A planning system should be open and free. Ireland's, once an example to Europe - is now no longer either.'

Press Release

Judgement
FIE and the 67 groups who joined in its 2002 complaint to the European Commission have found the EU Court's ruling that a fee to comment on planning applications is a 'matter of national law' to be unacceptable.

A spokesman for the organisation said that the Court also failed to address the key issue - that of the polluter pays principle. The Court suggested instead that the fee lies within the 'choice of form and methods' each member state may determine for public participation.

But the restrictions brought in to control objectors by the 2000 Planning Act and later legislation have greatly reduced the value of the protection provided by any of our laws to the natural and built environment. 'A planning system should be open and free. Ireland's, once an example to Europe - is now no longer either.'

Press Release

Judgement
The 20 Euro planning 'participation fee'

A hearing took place today in the European Court of Justice arising from a complaint made by Friends of the Irish Environment to the European Commissions' legal affairs division on behalf of more than 60 community and environmental groups against the €20 planning fee.

The fee was introduced to comment on planning applications by Noel Dempsey in the Planning Act 2000. It was part of a set of new obligations on an objector which included the limiting of planning appeals to those who had paid such a fee to object.

At the hearing today before five judges and the Advocate-General Ireland mounted a well-prepared defence, reiterating its claim that the Commission was overstepping the mark.

The Impact Assessment Directive did not debar the imposition of such fees and Article 6 of the Impact Assessment Directive left the detailed arrangements for the consultation of the public to Member States.

They plugged away at the now familiar arguments, arguing that the fee would contribute to an enhanced service, that it would not discourage participation, that it would be mitigated for certain non-governmental organisations or persons merely seeking information in an EIA process, and that only a minority of developments would attract separate participation fees.

Questioned by the Court, Ireland made it clear that the fee was not intended to deter frivolous or vexatious objectors but merely to defray administrative expenses, a different story to the one that the Minister gave in the Oireachtas, where the deterrence of the frivolous and vexatious was a principle reason for the fee.

It is hard not to be uneasy after today's hearing. The procedural questions, particularly from the Advocate General - were notable if only for the fact that they indicated there was no principle that such a fee would be contrary to community legislation.

While no date was given today for the Advocate General's Opinion which generally guides the final Court Judgement, this Advocate General retires in October and we can expect her Opinion before then.

Friends were not represented in the Court nor were we a party to the case. Our own case in Ireland has been stayed by the Irish Courts pending the EU Judgement, precluding our participation in the legal process.

Nor has Ireland referred our case to the European Court, as is done on questions of European law by other member states on a regular basis. Ireland has not once refered a case to the European Court, denying its citizens the valid right of another legal avenue.

And denying us the right to represent the community groups who supported our complaint.

The 20 Euro planning 'participation fee'

A hearing took place today in the European Court of Justice arising from a complaint made by Friends of the Irish Environment to the European Commissions' legal affairs division on behalf of more than 60 community and environmental groups against the €20 planning fee.

The fee was introduced to comment on planning applications by Noel Dempsey in the Planning Act 2000. It was part of a set of new obligations on an objector which included the limiting of planning appeals to those who had paid such a fee to object.

At the hearing today before five judges and the Advocate-General Ireland mounted a well-prepared defence, reiterating its claim that the Commission was overstepping the mark.

The Impact Assessment Directive did not debar the imposition of such fees and Article 6 of the Impact Assessment Directive left the detailed arrangements for the consultation of the public to Member States.

They plugged away at the now familiar arguments, arguing that the fee would contribute to an enhanced service, that it would not discourage participation, that it would be mitigated for certain non-governmental organisations or persons merely seeking information in an EIA process, and that only a minority of developments would attract separate participation fees.

Questioned by the Court, Ireland made it clear that the fee was not intended to deter frivolous or vexatious objectors but merely to defray administrative expenses, a different story to the one that the Minister gave in the Oireachtas, where the deterrence of the frivolous and vexatious was a principle reason for the fee.

It is hard not to be uneasy after today's hearing. The procedural questions, particularly from the Advocate General - were notable if only for the fact that they indicated there was no principle that such a fee would be contrary to community legislation.

While no date was given today for the Advocate General's Opinion which generally guides the final Court Judgement, this Advocate General retires in October and we can expect her Opinion before then.

Friends were not represented in the Court nor were we a party to the case. Our own case in Ireland has been stayed by the Irish Courts pending the EU Judgement, precluding our participation in the legal process.

Nor has Ireland referred our case to the European Court, as is done on questions of European law by other member states on a regular basis. Ireland has not once refered a case to the European Court, denying its citizens the valid right of another legal avenue.

And denying us the right to represent the community groups who supported our complaint.
FIE has appealed to the Supreme Court against the High Court ruling to grant the government a stay in our proceedings against the 20 Euro fee to object to planning applications.

The stay was granted on the grounds that the matter was the subject of proceedings in the European Court. This is unconstitutional and denies us our rights to seek justice in our own national courts.

The EU has made it clear that it is contrary to the Environmental Impact Assessment Directive to make comment by the public subject to a "participation fee". Ireland is the only EU member state to have required the payment of a fee for considering the public's opinion.

There is no doubt that the €20 fee will be ruled illegal in the end - the Irish Courts are only delaying judgement day at the expense of citizen's rights to be heard in our own open courts.

READ OUR PRESS RELEASE

READ THE HISTORY OF THIS CAMPAIGN
FIE has appealed to the Supreme Court against the High Court ruling to grant the government a stay in our proceedings against the 20 Euro fee to object to planning applications.

The stay was granted on the grounds that the matter was the subject of proceedings in the European Court. This is unconstitutional and denies us our rights to seek justice in our own national courts.

The EU has made it clear that it is contrary to the Environmental Impact Assessment Directive to make comment by the public subject to a "participation fee". Ireland is the only EU member state to have required the payment of a fee for considering the public's opinion.

There is no doubt that the €20 fee will be ruled illegal in the end - the Irish Courts are only delaying judgement day at the expense of citizen's rights to be heard in our own open courts.

READ OUR PRESS RELEASE

READ THE HISTORY OF THIS CAMPAIGN
The case is being heard today in the European Court of Justice arising from a complaint made by Friends of the Irish Environment to the EU on behalf of more than 60 community and environmental groups against the €20 planning fee.

Read Our Court Report


The fee was introduced to comment on planning applications by Noel Dempsey in the Planning Act 2000.

Commenting on today's hearing in the European Court of Justice, Friends of the Irish Environment expressed disappointment that the Irish authorities had chosen to go to such lengths to fight the Commission's case.

'We are aware that there is no specific prohibition on the charging of fees to comment on planning applications which come under the EIA Directive. However, there is no doubt whatsoever that such a fee acts as a barrier to public participation in decision making.'

The Reasoned Opinion in this case made it clear that "it is contrary to the Environmental Impact Assessment Directive to make comment by the public subject to a participation fee". The Commission pointed out that Ireland is the only EU member state to have required the payment of a fee as a precondition for considering the public's opinion in the development consent procedure.

The Commission rejected Ireland's argument that the fee was an administrative matter devolved to the member state. It also rejected the argument that consideration of the public comments was an entitlement to have a service rendered, stating that "on the contrary, the role can be considered in terms of the public providing supplementary information that can help these authorities make a fully informed decision."

The Commission also noted that the fee reversed the purpose of the polluter pays principal, in that a financial burden was placed on the person who was likely to be most affected.

FIE is concerned, however, that even if Ireland loses this case, projects that are smaller than the very large developments that come under the EIA Directive will still be subject to this unacceptable fee.
The Supreme Court is to hear an appeal against the High Court ruling to grant the government a stay in the proceedings brought by an environmental group against the 20 Euro fee to object to planning applications. The High Court granted the stay to the Minister for the Environment and the Attorney General on the grounds that the matter was the subject of proceedings in the European Court.
In their appeal, Friends of the Irish Environment and a Director, Tony Lowes, have claimed that the High Court's ruling was unconstitutional and frustrated them of their rights as European citizens to seek justice in their own national court.

'Just because the European Union has begun to bring a defaulting nation into line does not remove an individual's right to protect specific legal rights that derive from community law', said a spokesman for the organisation.

'The EU has made it clear that it is contrary to the Environmental Impact Assessment Directive to make comment by the public subject to a "participation fee". Ireland is the only EU member state to have required the payment of a fee for considering the public's opinion.

It is established Community Law that no charge can be made for a service by public officials which is in the public interest.

The 20 euro fee is entirely contrary to the polluter pays principle.

The case against Ireland taken by the Commission follows a complaint brought by FIE on behalf of 67 community and environmental groups in 2002.

'There is no doubt that the €20 fee will be ruled illegal in the end - the Irish Courts are only delaying judgement day at the expense of citizen's rights to be heard in our own open courts', the spokesman concluded.


Further information: Tony Lowes 027 73131 / 087 2176316

Friends Site
http://www.friendsoftheirishenvironment.org/main/index.php


EDITORS NOTES

Reasoned Opinion:
http://www.friendsoftheirishenvironment.org/friendswork/index.php?do=friendswork&action=view&id=315


The Reasoned Opinion preceding this case, which is available on FIE's website, quotes extensively from submissions made to the Minister for the Environment during the public consultation over the Planning Act. This dossier was obtained by FIE under the Freedom of Information Act and provided to the Commission's Legal Affairs Division in support of the complaint.

The General County of County Councils and 14 local authorities passed resolutions opposing the fee.

The Irish General Council of County Councils asked why a resident, faced with a proposed pig farm across the road, "should be forced into any expense, no matter how minimal, because of a third party's unsolicited proposals". The Reasoned Opinion quotes from Anglers Groups, The Georgian Society, The Irish Planning Institute, the Royal Town Planning Institute, and An Taisce.

The Commission also noted that the fee reversed the purpose of the polluter pays principal, in that a financial burden was placed on the person who was likely to be most affected.

The Commission noted from the submissions provided that the planning fees paid by developers do not properly reflect the administrative costs and that as a consequence local authorities are discouraged from engaging the professional expertise that is needed to consider such proposals.

In this context information is especially important when it comes from non-Governmental organisation, "given that many Irish decision-making bodies lack specific expertise to judge environmental impacts." These organisation may have to make many submissions. The Commission also refered to its Reasoned Opinion on Ballymun, where project splitting meant that residents were faced with over twelve applications at each stage of the "Regeneration".


Dail report, 21 February, 2002

THE TAOISEACH

Mr. Cuffe: On the same matter, now that the European Commission has ruled that the €20 planning fee is illegal, will the Minister for the Environment and Local Government be refunding those who paid the fee? Will he introduce regulations to ensure that members of the public will not have to pay this draconian fee in order to participate in the planning process?

The Taoiseach: I understand that the European Commission has given a reasoned opinion but I do not think it has made any statement about the legality of the situation. Obviously, the Minister will now have to examine the judgment.