Cian O'Callaghan (Dublin Bay North, Social Democrats) | Oireachtas source

I want to address amendments Nos. 110 onwards. I thank the Minister of State for his contribution and for considering the issues I have raised. I thank him for taking these issues seriously, for the written response he gave to the committee on the proposals and for the effort to introduce amendments to address some of the issues I have raised in respect of section 41 and the need for an equivalent to section 160 of the Planning and Development Act, with clear cost protection in accordance with the Aarhus Convention. Given the limited time I have had to review this and consider the amendments in this constrained Report Stage debate, I urge the Minister of State to engage in a very open way on any outstanding issues of concern regarding access to justice rights when the Bill reverts to the Seanad and to engage in the interim to resolve these issues through his own amendments or to be open to considering further amendments to address these issues in the Seanad.

The Minister of State said in his written correspondence to the committee that it is in everyone’s interest that any claimed legal faults regarding licensing decisions be brought before the courts for review at the earliest opportunity and that legal flaws be identified and corrected at an early date rather than, possibly, after the licensed works have been completed. It would appear there are serious incorrect assertions in the written response given. In response to question 3, the Minister of State stated it should be noted that section 160 of the Planning and Development Act 2000 applies only to planning matters concerning that Act. This is not disputed. However, the Minister of State’s response goes on to assert – incorrectly, I believe – that similar provisions do not appear in other administrative or legislative regimes. However, there are such provisions. For example, they are in section 57 of the Waste Management Act and in the Environmental Protection Agency Act.

The Minister of State also asserts that Article 9.3 does not require the replication of section 160 where a right to challenge exists. However, he has entirely failed to recognise that clear and proper implementation of Article 9.3 requires the characteristics for a review specified under Article 9.4 to be addressed. This Bill will not do this. This means there is no clear protection against prohibitive costs in such matters, being one of the characteristics required under Article 9.4 of the Aarhus Convention for Article 9.3 reviews. This raises the most serious concerns in respect of the approach considering the adequacy of provisions in this Bill on judicial review and Aarhus Conventions obligations and rights. I hope and trust that what I am outlining is not the Minister of State's intention.

With respect to the answer to question 4, related to the amendment to section 4(4) of the Environment (Miscellaneous Provisions) Act 2011, I appreciate it acknowledges to some extent the concern raised in my question about the need to provide for cross-protection regarding the types of issues covered by the Act in addition to providing cover under section 50B of the Planning and Development Act, which works across sectors. However, the Minister of State, in simply proposing to modify section 4(4) of the Environment (Miscellaneous Provisions) Act to include relevant matters under this Bill, must be aware of the issues and how Environment (Miscellaneous Provisions) Act provisions are being interpreted in a very limited way by the courts. Amendment No. 117, which would amend page 75, and amendment No. 203, which would amend page 189, will not suffice. It is a further indication - I refer to the Minister of State's response regarding question No. 5 - that the issues identified with respect to the Environment (Miscellaneous Provisions) Act provisions over five years ago by the European Court of Justice in response to questions 6 and 7 of the preliminary reference involved are no comfort. He indicates clearly when and how they are to be addressed. He refers to the Aarhus Bill, which has been promised since 2014 and has now diminished into the realm of myth, albeit marked as work under way in the legislative programme. He might comment on when we will see the Aarhus Bill. He also refers to the new planning Bill. It remains deeply disturbing that the review conducted by the former Attorney General concerning the Planning and Development Act entirely failed to address the correction to which I refer in the draft Planning and Development Bill 2022, published by the Government in January 2003, perhaps because it would have entailed correcting flaws that limited rights rather than limiting rights which the Bill does at length.

I am concerned that the Minister of State is choosing either not to amend the Environment (Miscellaneous Provisions) Act further or to reflect the necessary corrections by replicating it broadly with corrections. The assurances that it will be dealt with are welcome. However, it is unclear why the Minister of State has taken an entirely different approach to cost rules in section 50B and is prepared to tailor them. These are, in fact, being modified in a way that appears to be limiting. As drafted, the measure does not appear to allow for the judicial review of licences where there are flawed screening decisions for EIAs and AAs which the European Court of Justice has made abundantly clear must be provided with cost protection. It also seems to try to limit the extent of the challenge covered, which is likely to lead to preliminary reference issues like in the Enniskerry Alliance case.

It is imperative that more work be done. I acknowledge that some work has been done to address the issues with access to justice rights in this Bill. There are much simpler ways to address the changes required and support compliance with the Aarhus Convention and the high standard of environmental protection, including for historical and archaeological heritage, which we are collectively trying to ensure with this Bill. I am simply asking that the Minister of State will confirm that he will be open to such further work after this Stage.

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