Damien English (Meath West, Fine Gael) | Oireachtas source

Section 50B of the Planning and Development Act 2000 provides for the special legal costs rules set out in sections 2 and 4 of Article 9 of the UN Aarhus Convention as applying to access to justice in environmental litigation, whereby independent judicial review proceedings challenging decisions, acts or omissions subject to the public participation provisions of the convention must not be prohibitively expensive.

Section 50B applies this requirement by providing that, in litigation of this type challenging decisions, etc., made under enactments giving effect to provisions of the environment impact assessment directive and two other directives, the strategic environmental assessment and the industrial emissions directives, each party to the proceedings shall, generally speaking, bear its own costs and may be entitled to costs from the losing party if the former wins. A party to proceedings may also be awarded costs in cases of exceptional importance and where it is in the interest of justice. Section 50B extends beyond the Planning and Development Act 2000 and regulations made thereunder to cover other relevant environmental legislation.

On foot of recent advice from the Office of the Attorney General, amendment No. 38 makes two substantive changes to subsection (1) of section 50B of the 2000 Act. The first substantive change is the substitution of new text in paragraph (a)(i) of the amendment, which removes the possibility that the provision could be interpreted as meaning that the special cost rules apply to challenges to decisions, etc., made under any provision of an Act that includes a provision giving effect to one of the three EU directives specified in the subsection. In this connection, the revised wording makes it clear that the special legal costs rules apply only to challenges to decisions, etc., made under a legislative provision that itself gives effect to one of the three EU directives concerned. This amendment also involves the insertion of a new subsection (6) in section 50B, clarifying the meaning of the term "statutory provision" that is being inserted into subsection (1).

The second substantive change to section 50B(1) is set out in paragraph (a)(iv) of the amendment and implements the November 2016 ruling of the European Court of Justice in the Brown Bears II case that the special costs rules under the Aarhus Convention apply to challenges to decisions, actions or omissions made under statutory provisions giving effect to provisions of a fourth EU directive, that is to say, paragraphs 3 and 4 of Article 6 of the habitats directive relating to appropriate assessment. The effect of the amendment is to apply the section 50B special legal costs rules to those elements of legal challenges to relevant statutory consents, including planning permissions, that are grounded in arguments relating to the requirement for, and carrying out of, appropriate assessment under the requirements of the habitats directive in respect of the projects concerned.

Similarly, Part 2 of the Environment (Miscellaneous Provisions) Act 2011 applies the special legal costs rules set out in sections 3 and 4 of Article 9 of the UN Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters to legal challenges aimed at securing enforcement of statutory provisions relating to the environment that are specified in section 4(4) of the 2011 Act. These special legal costs rules effectively provide that legal challenges on relevant environmental matters shall not be prohibitively expensive for members of the public or environmental organisations.

On the advice of the Office of the Attorney General, amendment No. 51 makes a substantive change to the existing special legal costs provisions by inserting two new paragraphs in subsection (4) of section 4 of the 2000 Act. In this regard, this insertion is aimed at implementing the November 2016 ruling of the European Court of Justice in the Brown Bears II case to the effect that the special costs rules under the Aarhus Convention shall apply to challenges to decisions, actions or omissions made under statutory provisions giving effect to paragraphs 3 and 4 of Article 6 of the habitats directive relating to appropriate assessment.The effect of the amendment is to extend the provisions of section 4 of the 2011 Act, first, to consents for which a screening for appropriate assessment is required under regulation 42 of the European Communities (Birds and Natural Habitats) Regulations 2011 and, second, to consents and notices issued under regulation 43 of those regulations relating to the giving of consent for plans or projects for imperative reasons of overriding public interest, referred to as the IROPI process, notwithstanding that the plan or project will likely have an adverse impact on an important habitat that has been designated for protection or earmarked for such designation.

I should add that my colleague, the Minister for Communications, Climate Action and Environment, Deputy Naughten, is drafting the heads of a Bill to apply the requirements of the Aarhus Convention in a single piece of legislation. Senators will have the opportunity for a fuller debate on Ireland’s obligations under the Aarhus Convention when the Bill comes before the House.