Ciarán Cuffe (Dún Laoghaire, Green Party)

The Acting Chairman has shown significant, if not exceptional, latitude in allowing speakers to raise significant issues in commenting on a new subsection, inserted in all three sections, which requires An Bord Pleanála to state the reasons for its decisions and it is attaching related conditions. The subsection also empowers it to recover its costs. In the interests of permitting discourse and debate on the significant issues to which the Senators referred, I will refer to section 50B.

The question was asked why the new cost rule was required. Its genesis is in Article 10A of the EIA directive which was inserted by the so-called public participation directive, 2003/35/EC. Member states are required to provide for a review procedure that is not prohibitively expensive. Specifically, the new rule is required to ensure Ireland complies with the judgment of the European Court of Justice. Ireland was the subject of EU infringement proceedings relating to the public participation directive which culminated in the judgment of the European Court of Justice last summer, which upheld the system of judicial review as a suitable review mechanism for the purposes of the directive. The court ruled that the judicial review procedure did not meet the requirement that it not be prohibitively expensive. The amendment seeks to remove the cost barrier by ensuring applicants will only be responsible at most for their own legal costs when they initiate judicial review proceedings. The court retains discretion to make a different cost order in specified circumstances. The amendment aims to avoid providing an undue incentive to initiate judicial review proceedings but also removes the very real risk that if the current cost rules were to be litigated before the European Court of Justice, they would be found to be in breach of the terms of the public participation directive.

How will this impact on individuals and NGOs in seeking to challenge decisions? In practice, anyone seeking a judicial review of a decision covered by the new rule will have clarity in advance on the legal costs to be incurred. Regardless of whether they are successful, such individuals will only be responsible for their own costs. Some have asked if this will have a negative impact on pro bono representation. The legal profession has a proud history of providing its services without charge, pro bono publico. A majority of judicial review applications challenging planning decisions fail and in most cases the lawyers involved will not receive payment. Notwithstanding this, there is no evidence that applicants will not be able to secure legal representation because practitioners are willing to give of their time and provide their services pro bono publico. In practice, the deterrent to engaging in judicial review proceedings is not a supposed difficulty in securing legal representation but rather the risk of exposure to liability for the costs of the other side.