Author: Alice Whittaker, partner, Philip Lee Solicitors  The Department of Environment, Community and Local Government (DECLG) has just concluded a public consultation on Access to Justice and Implementation of Article 9 of the Aarhus Convention. The Aarhus Convention guarantees rights to citizens to access information on the environment, and to participate in decision-making relating to the environment, including decisions to grant consent for projects and activities to be carried out which are likely to have a significant effect on the environment. Underpinning these rights is the right found in Article 9 of the Convention to a review or appeal procedure to challenge the substantive and procedural legality of decisions, acts and omissions with respect to access to information requests, and the granting of consent for projects and activities covered by the Convention. The Consultation on Article 9 is important for anyone interested in the access to environmental information and the development of projects likely to have significant effects on the environment. The Convention covers projects and activities requiring Strategic Environmental Assessment, Environmental Impact Assessment, Integrated Pollution Prevention and Control/Industrial Emissions Directive (IPPC/IED) licences and other projects and activities likely to have a significant effect on the environment. This includes infrastructure, energy, waste, water and industrial projects and activities, and substantial accommodation projects.

Article 9 of the Convention

Among other things, Article 9 gives members of the public and environmental NGOs a right to a review or appeal procedure to challenge the substantive and procedural legality of decisions, acts and omissions with respect to the granting of consent for certain projects and activities. The review or appeal procedure must “provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive”. The Convention does not define “not prohibitively expensive”. The European Court and the Courts in the UK and Ireland have set out certain principles:
  • The costs of proceedings must not exceed the financial resources of the person bringing the proceedings;
  • They must not be objectively unreasonable;
  • The costs must not prevent someone from seeking a remedy or pursuing a claim by reason of the financial burden that might arise as a result;
  • When estimating the level of costs, all of the costs of participating in the proceedings must be taken into account, including the costs of any preliminary applications.
The Courts have held that an undertaking as to damages may not be appropriate where an applicant is seeking an injunction to prevent or limit a non-compliance with the Strategic Environmental Assessment, Environmental Impact Assessment and IPPC/IED Directive, as this would impose a financial burden or risk for the applicant. In such cases, the developer or operator would be liable for any damages that occur, even if the applicant’s case fails. Certain consent decisions may be appealed to An Bord Pleanála (the Board) or other appeals body. Other decisions, such as decisions of the Board itself and the Environmental Protection Agency (EPA), can only be challenged by making an application to the High Court for judicial review. The Consultation Paper asked:
  • Should an administrative appeals process be provided in all cases, which would reduce the number of judicial reviews?
  • Should the judicial review process be reformed in order to facilitate wider access to justice at lower cost?
  • What changes, if any, should be made to the legislation and court rules to ensure full compliance with Article 9?
A person wishing to challenge a decision to grant consent for a project or activity must generally do so by bringing an application to the High Court for permission to judicially review the decision. The application for permission is called the ‘leave’ stage. To get leave, the Applicant must show that it has:
  • Substantial grounds that the decision or act concerned is invalid or ought to be quashed; and
  • A sufficient interest in the matter that is the subject of the application (not limited to an interest in the land or financial interest in the matter).
It used to be quite difficult to meet these tests, but the Aarhus Convention has made it a lot easier for Applicants to obtain leave to judicially review decisions of the Board, the EPA and other environmental decision-makers. For example, the High Court and the Supreme Court recently confirmed in a decision relating to the proposed extension of the Ringsend Waste Water Treatment Plant that a local residents association have the requisite legal capacity to pursue judicial review proceedings, in spite of the fact that they were an unincorporated body with no ordinary capacity to sue or to be sued. The Court held that they had standing in this case because they were involved in the earlier planning process and had established a substantial interest in the subject matter of the proceedings, and that they were a member of what the Convention refers to as the ‘public concerned’. As a result, no member of the residents association was at any risk of being hit by an adverse costs order when the actual challenge to the project failed.

Special costs rules

Article 9 has resulted in the adoption of special costs rules for certain kinds of cases involving the SEA, EIA and IPPC/IED Directives. Whereas usually the successful party will win their costs from the unsuccessful party, in proceedings covered by Article 9 (‘Aarhus Litigation’) each party will be liable for their own costs and will have no liability for the other party’s costs, regardless of the outcome. If the Applicant is successful in its challenge to the decision, act or omission, the Court may award the Applicant its costs, or a portion of its costs. It was recognised that unless Applicants are reimbursed when their claims are successful, they will struggle to find lawyers to act on a ‘no foal, no fee’ basis. However, the Courts have held that well-resourced developers may also get the benefit of the special costs rules. The Consultation Paper asked whether this should be addressed in new rules. The Court can also penalise a party with costs if it unnecessarily delays or prolongs the proceedings, or if it makes unnecessary applications to Court or abuses the processes of the Court. The Consultation Paper asked whether these measures are enough to meet the ‘not prohibitively expensive’ test, or whether other measures are required in order to meet Ireland’s obligations under the Convention. ‘Aarhus Litigation’ includes judicial reviews, injunctions and appeals to the Supreme Court grounded on arguments under the EIA, SEA, IPPC/IED Directive. Where the case involves some ‘Aarhus’ grounds and other normal planning grounds, only the Aarhus grounds will benefit from the special costs rules. This was recently confirmed in the McCallig v An Bord Pleanála case in relation to a wind farm in Donegal. The Consultation Paper asked whether legislation is required to define when the special costs rules will apply, and whether any other measures are required to comply with the Convention.

Consultation Paper – discussion points

The Consultation Paper considered the options to ensure full implementation of Article 9, for example: (I) No change If everyone is happy that the current rules and procedures are fine, then there is no need to make any change. However, it seems that the current court procedures and costs rules do not benefit anyone, except perhaps a small cohort of lawyers. People wishing to challenge planning and other consents must generally fund their own litigation, usually to the tune of tens of thousands of euro. While they might get a portion of this back if their case is successful, there is no guarantee that they will get any of it back. Proceedings in the High Court are always going to be expensive for a number of reasons. Progress is usually slow. There are often highly technical and legally complex issues to be addressed. Procedural formalities make it difficult for lay litigants, and many cases involve solicitors and barristers, with junior and senior counsel. Experts need to be paid and evidence needs to be gathered. It all adds up. For the other parties to the proceedings, often the Board and a project developer, challenges cost time and money. In most cases, neither the Board nor the Developer will be able to recover their costs from the Applicant, and must fund the litigation themselves. They may also be liable to pay costs if the Applicant is wholly or partly successful. The special costs rules do not make the Courts work more efficiently or reduce the costs associated with High Court litigation. (II) Circuit Court, High Court or Specialist Environment/Regulatory Appeals Court As an alternative to the High Court, the Paper suggests the possibility of cases being heard in the Circuit Court, or in a Specialist Environmental or Regulatory Appeals Court established specifically for the purpose of providing access to justice under the Convention and other EU legislation. These options are worth exploring, but only if they are guaranteed to make the proceedings more efficient and less costly, while maintaining an effective right of appeal. There would need to be rules about case-management like in the Commercial Court. It would require significant resources, which may not be available to the Courts Service at present. Lessons may be learned from the establishment of a Strategic Infrastructure Court in the UK which is aimed at reducing the length of time taken to deal with legal challenges to consent decisions for significant infrastructure and strategic development projects. (III) Administrative appeals body As noted above, the Paper considers whether an administrative appeals body should be established to hear appeals from decisions of bodies such as the Planning Board and the EPA. This might result in decisions of the Board being subject to a decision by a further Appeals Board. An Appeals Board would reduce the number of judicial review cases, but it would not preclude parties from judicially reviewing decisions of the Appeals Board. It is likely that in significant cases, particularly those involving a certain level of controversy, it would result in an appeal plus a judicial review, thus lengthening the process even further. (IV) Independent and impartial tribunal Another possibility is the creation of a new independent and impartial tribunal, an ‘Environmental Appeals Tribunal (akin to the Employment Appeals Tribunal). In order to replace the High Court judicial review process, the EAT would need to be established by law, and the judge or judges would need to have authority to make binding decisions and grant effective remedies, including injunctions. This option is attractive insofar as it might open up the appeal / review process to more lay litigants, with less need for multiple lawyers or senior counsel. It might be less formal and procedurally complex, greater emphasis could be placed on technology to improve efficiency, reduce paperwork and costs. Parties would only be permitted to appeal decisions of the Tribunal on limited points of law.

Other options

Other options that are not explicitly mentioned in the Consultation Paper include legal aid, alternative dispute resolution (ADR) and certainty. (I) Legal aid – Legal aid is not readily available outside of criminal law proceedings. The Court in Browne v Fingal County Council held that Article 9 of the Convention does not oblige the State to provide legal aid for Aarhus litigation. If legal aid were made available for Aarhus litigation, it would certainly provide inexpensive access to the courts, but it would make the court proceedings any less prohibitively expensive – it would simply transfer the costs to the State and ultimately the taxpayer. (II) Alternative dispute resolution (ADR) - Judicial review often results in the consent decision being quashed and remitted back to the Board or the EPA for re-determination. This suggests that there is merit in exploring mediated or adjudicated solutions in advance of Court proceedings in order to resolve as many issues as possible by negotiation and agreement. The Board has no power to revoke its own decisions, however, so if its decision is to be reversed, a Court order is required pursuant to judicial review proceedings. It may be appropriate to give the Board a power to quash and remit its own decisions in certain limited cases, and this might also facilitate ADR. (III) Certainty – For projects where more than one consent decision is required, Applicants may have more than one opportunity to bring proceedings to challenge the project. This can lead to multiple sets of proceedings arguing the same legal points in relation to the same project, which is costly and burdensome and in most cases, inappropriate. Court judgments should provide certainty, either that the project cannot go ahead, or that it can go ahead. The Aarhus Convention should not be used as a veil for abusing the processes of the Courts. Equally, some measure of restraint needs to be applied in relation to who may bring proceedings. At the very least, the party bringing the legal proceedings should have participated during the decision-making process. ALICEWHIT-133x133Alice Whittaker is a partner in Philip Lee Solicitors and head of the firm’s Environment, Planning and Climate Group, ranked ‘Top Tier’ by independent law firm ranking guide Legal 500. For further information, please contact the author (T: 01 237 3700, E: awhittaker@philiplee.ie, @WhittakerAlice).  Alice Whittaker is set to present at a seminar entitled 'Permitting of Energy Projects'on 20 October. Other speakers include: Philip Greene, Assistant Director, ABP and Caitríona Diviney, chief operating officer, Irish Wind Energy Association. Case Study 1: The Corrib Gas Pipeline, Ciaran Butler, RPS               Case Study 2: Transmission Projects, Eirgrid (speaker TBC) Case Study 3: Wind Farms, SSE Renewables (speaker TBC) Case Study 4: Shannon LNG terminal, Martin Regan, Shannon LNG More speakers and booking information to be confirmed shortly...please check the Engineers Ireland Events Page for updates.