Alice-Mary Higgins (Independent) | Oireachtas source

The amendment relates to language I was concerned about in section 41(2), which states, "A person shall not question the validity of ... an act done by the Minister under this Chapter in the performance or purported performance of a function under this Chapter for which an EIA or an AA is required, or ... a relevant licence granted in relation to a matter referred to in this Chapter that is a matter for which an EIA or an AA is required but only to the extent that the licence relates to that matter, otherwise than by way of an application for judicial review".

I am concerned about the way this is phrased. While I do not think it is intentional, it almost suggests a person will not be able to question the validity of an act except through a judicial review process, which is a very substantial process. I believe, from my engagement with the Minister of State's officials and others, that the intention was that a person will not be able to take a legal challenge to the validity of a decision except through the mechanism of a judicial review, but the way it has been framed suggests that no questioning whatsoever of the validity of an act will be permitted. For example, civil society groups or NGOs might want to highlight a concern about an action, a pattern of decisions or a key component of an EIA directive not having been reflected. Similarly, they might even wish to highlight an inadvertent consequence that might arise from a certain kind of licence being issued. There are multiple ways that people, as good faith actors, might want to question whether a decision was the correct one that are different from the very substantial and expensive route of a judicial review. As the provision is currently phrased, we will lose the potential for learning. Not everybody has the means to pursue a case through the courts. It would be good if there were some other form of appeal. I would prefer if some form of appeal could be made but, at a minimum, questioning should be allowed.

Amendment No. 29 seeks to amend section 41(6) by deleting the phrase "with all necessary modifications" from the provisions of the Planning and Development Act 2000 that shall apply to the questioning of a decision referred to in the section that has been subject to an EIA, an AA or both an EIA and an AA.The use of this phrase is highly unusual because it seeks to legislate in anticipation of potential changes to our planning laws that have not yet been legislated for. It seems extremely unusual to specify that future modifications would apply, especially given that if an amendment is made to law, it only becomes law once it is commenced. This is a real cart-before-the-horse situation. If this needs to be adjusted, it should be adjusted as part of that discussion.

As I said, and to be frank, there is a lot that is very positive in this legislation. I have at times sought to strengthen it and to improve its focus and effectiveness. However, the planning changes which are currently being examined by the committee are far more problematic and there are huge concerns in regard to them. I do not think we should anticipate. This seems extremely unusual, and I do not know that it is legislatively sound. I would hate to have a situation whereby this essentially very constructive and positive Bill, which puts forward a new vision in terms of historic and archaeological heritage, would find itself in some ways tied to the fate or commencement of other changes to other Bills.

What does the word “necessary” mean in the context of necessary modifications? The modification that may or may not be made to the planning laws will be made because they are agreed by the Houses, if they are agreed, and if they prove to be compatible with EU law, for example, or any other laws. However, the term “necessary modifications” is a subjective interpretive piece that has been included. It is not even saying that this is in anticipation of future legislation. It is just odd and would create a hostage to fortune. I would hate to end up in a situation, which I have seen happen, where there is good legislation and an entire section or part of it ends up not being commenced because it is in a weird limbo relating to something else. We do not want a situation whereby, effectively, that whole section ends up not being capable of being commenced.

That is a caution in the context of amendment No. 29. Again, I am sure the Minister of State will have other legislative advice in that regard but I urge that this matter be is examined in the Dáil because it could create an unnecessary hostage to fortune. I do not know why these amendments were grouped because they are quite different. Those are my thoughts on amendments Nos. 28 and 29.