Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

Following advice from senior advisory counsel in the Office of the Attorney General, a range of amendments have been introduced to clarify the alignment of the Bill with the Aarhus Convention and the EIA directive. Substantial amendments have been made to section 41 and I believe it is important to provide some detail on these amendments.

Order 84 of the Rules of the Superior Courts provides for judicial reviews, JRs, of any administrative decision of a public authority. The timelines for the institution of a judicial review under order 84 is three months from the date of decision. Similar to section 50A of the Planning and Development Act 2000, section 41 modifies this time limit by reducing it to eight weeks. The purpose of the reduced time limit is to help ensure judicial reviews are instigated in advance of a licensable activity being carried out or completed. It is very important to note that this eight-week period can be extended by the High Court under section 41(9).

It is in everyone’s interests that any claimed legal faults regarding licensing decisions are brought before the courts for review at the earliest opportunity. This avoids situations where works, for example, urgent conservation works, are delayed pending the elapse of a lengthy period for instigating a JR. It also means that legal errors are identified and corrected at an early date rather than after licensed works are completed when it would be too late to make any practical difference to how the works were carried out or whether they should have been carried out at all.

As part of our review of section 41, it was determined that, as the Bill stood, the eight-week time limit would only apply to license decisions that involve EIA or appropriate assessment, AA. This would mean that for non-EIA or non-AA cases, judicial reviews would be taken under Order 84 and as a result, a three-month time period would apply. It has therefore been decided that in order to avoid two separate judicial review regimes applying to licenses granted under the Bill, the appropriate amendments would be made to ensure that section 41 JR provisions apply to all license decisions, and not just those involving EIA or AA. In addition, further amendments have been made to section 41(6) to ensure the necessary costs protection provisions operate as intended.