Lynn Ruane (Independent) | Oireachtas source

The Minister of State will recall that when Deputy Cian O'Callaghan pointed out at the select committee before the summer recess that there were issues and concerns with the original formulation of the Bill and how it referenced the Environmental (Miscellaneous Provisions) Act 2011, the Minister of State brought forward amendments in a welcome effort to respond to that, which acknowledged that there was an issue with the original formulation of the Bill. However, despite the welcome correction and inclusion of the licence in the lists of section 4(4) of the Environmental (Miscellaneous Provisions) Act 2011, there are still issues and the changes made do not serve to provide for compliant cost protection.

There are two key issues remaining. First, the Minister of State's amendment inserting the necessary change into the Environmental (Miscellaneous Provisions) Act 2011, previously highlighted as needed, limits the application of the cost protection only to licences granted under section 151. The second of the amendments arises given that, because of the way the core Environmental (Miscellaneous Provisions) Act 2011 provisions are drafted, there is an unlawful and problematic further requirement to prove environmental damage. The first issue can be easily resolved by a broadening of this to both leases and licences relating to historic monuments and archaeological heritage granted under the Act, or by explaining on the record of the Oireachtas why the Minister of State does not propose to do so and by explaining the gaps which will, therefore, arise in the implementation of the access to justice obligations.

The second issue is that the way the Environmental (Miscellaneous Provisions) Act 2011 cost protection provisions operate is to incorrectly require proof of the environmental damage as defined in the Act to be proven.However, the European Court of Justice, in the north-east pylons case No. C470/16 as far back as March 2018, indicated in response to the preliminary reference questions Nos. 6 and 7 from the Irish courts that the imposition of this test was not lawful. The Irish Legislature has failed to address this in more than five and a half years since. The Irish courts have, therefore, subsequently interpreted the Environmental (Miscellaneous Provisions) Act 2011 provisions as being a partial implementation for cost protection only where such damage can be proven. This is clearly a problematic situation and one we would trust the Minister of State would not want to perpetuate as the legislation is non-compliant with our obligations on access to justice. In his written response to the select committee on Report and Final Stages, the Minister of State appeared to intend relying on the correction of the underlying issues in the Environmental (Miscellaneous Provisions) Act 2011 provisions at some uncertain point in future. Respectfully, we do not consider this acceptable as the Aarhus Bill he mentioned has been promised since 2014 and has still not surfaced. The planning Bill will also clearly not be enacted until the new year and it will be beset with extraordinary controversy given an unacceptable number of changes proposed to cost provisions in the planning and development Bill approved in Cabinet. The outstanding issues with the Environmental (Miscellaneous Provisions) Act 2011 provisions are, therefore, likely to remain unresolved and it is uncertain when any enactment to correct them will commence.

Amendment No. 21 extends the scope of the cost protection to leases and licences granted in respect of historic monuments and archaeological heritage only but it makes clear that the unlawful environmental damage test does not apply to them.

Amendment No. 22 simply extends the scope to leases and licences but leaves the issues of the environmental damage test unresolved. I urge the Minister of State to accept at least one of these amendments, and I know that Environmental Pillar has written to him today highlighting these concerns.