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TOM FLYNN BARRISTER–AT-LAW

ENFORCEMENT OF EU ENVIRONMENTAL LAW

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Introduction

Effective enforcement of EU environmental law in Ireland a persistent multidimensional problem

Key problem is with access to courts to secure enforcement of EU environmental law with the costs of legal proceedings a particular issue.

Impact of Aarhus Convention & EU Law

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Aarhus Convention (AC)

• AC imposes a number of obligations on parties in respect of public participation in environmental decisions, which include:

• an obligation to ensure that members of the public have access to administrative /judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment

• such procedures must provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not be prohibitively expensive

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Aarhus Convention & EU Law

• EU ratified AC & enacted measures to incorporate it into EU Law

• Directive 2003/35/EC on Public Participation amended EIA & IPPC Directive by inclusion of ‘access to justice clause’ i.e. ‘Not probhitively expensive’ requirement

• Directive 2003/04 on public access to environmental information enacted.

• Krizan (Case C- 416/10) LZ (Case C-240/09)• AC has force in domestic law through the

scope of application of EU law

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Implementing/Transposing AC into Irish Law

• Has/is proving problematic • First moves - AIE Regulations/PDA 2006 s.50A • C-427/07 in Commission v Ireland – existing

discretionary costs rules in breach of EU law• PDA 2010. 50B - special costs rule further

amended by EMPA. • EMPA- Part II – s.3 – new special costs rules

applies to certain civil cases as set out in s.4.• Requirement that judicial notice be taken of

the Aarhus Convention

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Status of the Aarhus Convention in the domestic law of Ireland

• Kimpton Vale Developments Ltd v An Bord Pleanala – Hogan J

• Oireachtas has not chosen to legislate directly to provide that the Aarhus Convention forms part of the law of the State, or to specify it would be enforceable in domestic law under certain conditions contained in the transposing legislation itself.

• AC has binding force as part of the domestic law of State it is only by virtue of the force of and within the proper scope of application of EU law

• EMPA should be interpreted in a manner which best gives effect to the corresponding provisions of the AC

• What is the nature & extent of the interpretative obligation ?

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Scope of application of s.3 of EMPA

S.4(1)(a)(b) –not apply where court proceedings are brought to ensure compliance with planning or environment law in a situation where– in other words in the case no planning permission, consent or licence has been obtained i.e. only applies where there is an existing permission

Appears this was clearly the intention of the Oireachtas from Dail Debates

s.3 EMPA applies to certain JR proceedings s.3 not apply to proceedings instigated by public

authorities

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Hunter v Nuerendale Ltd t/a Panda Waste

• Scope of application of s.3 EMPA considered in context of s.160 proceedings in Hunter - Hedigan J

• “The fact that the applicant claims both the failure to comply with planning permission and the absence of planning permission in the same set of proceedings does not appear to me to take the case out of s. 3. In any event, because s.4 refers to the enforcement of a statutory requirement, it appears to me that s. 3 would cover a situation where there was no planning permission in existence because that would be a situation where there had been a failure to comply with the statutory requirement”

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Procedure under s.7 of EMPA

• Application for determination that s.3 applies may be made at any time before, or during the course of, the proceedings

• Application made on motion – ex parte application not possible - Supreme Crt - Re Coffey’s Application [2013] IESC 31, In Re Maher [2012] IEHC 445.

• The grant of a declaration under s.7 is discretionary – what factors should the court take into account ?

• Is a declaration under s.7 is irreversible ?

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Procedure under s.7 of the EMPA - Hunter

• Hunter [ Para 16] proceedings should be brought by motion on notice supported by an affidavit of the applicant which should set out-

1. broadly the expenses involved in such an application would be; 2. a broad statement of the claimant's financial situation; 3. the reasons why he believes that there is a reasonable

prospect of success;4. set out clearly what is at stake for the claimant and for the

protection of the environment; 5. deal with any possible claim of frivolous proceedings, should

that arise; and 6. applicant should deal with the existence of any possible legal

aid scheme or any contingency arrangement in relation to costs that may have been made with their solicitors.

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Relationship between s.3 of EMPA and s.50B

• S.50B of PDA applies special costs rule to limited categories of cases: EIA/SEA/IPPC – cases J.C. Savage Supermarket Limited v An Bord Pleanála Shillelagh Quarries Limited v An Board Pleanala – impacted by the EMPA ?

• s.6(a) EMPA new costs rule apply to “proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, of proceedings referred to in s. 4 or s.5”.

• Kimpton Vale – in summary no - JC Savage applies

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Procedure under s.7 of the EMPA

• Hunter requirements taken from CJEU decision in Edwards (para 45)

• Obiter ? – possibly - but in practice must be complied with at least on a without prejudice basis

• Open to criticism that they have no statutory basis & conflate s.7 declaration with an application for a PCO order

• May be difficult to operate in practice • Rules of Court needed ?

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AC & Legal Representation

Does the AC Convention have any impact on the right to be represented by a non-lawyer ?

General rule must be represented by lawyer or may represent yourself – non-parties have no right of audience

In Re Coffey [2013] IESC 11 26 Feb 2013Rule is not altered by the AC convention – “The

fundamental rule is that the only persons who enjoy a right of audience before our courts are the parties themselves, when not legally represented, a solicitor duly and properly instructed by a party and counsel duly instructed by a solicitor to appear for a party”

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AC & Legal Capacity to bring proceedings

Sandymount & Merrion Residents Association v An Bord Pleanala & others (Supreme Crt. 27/11/2013).

Does a residents association have legal capacity to bring JR proceedings ?

The traditional position, at common law, is that an unincorporated body does not have legal personality and, thus, cannot bring either a public or private law action - this can be altered by statute

S. 50A of PDA 2000 provides standing for certain ENGO’s organisations/bodies which meet certain criteria

Not disputed residents association met criteria under s.50A of PDA

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AC & Legal capacity to bring proceedings

“50A(3) The Court shall not grant section 50 leave unless it is satisfied that— (a) there are substantial grounds for contending that the decision or act concerned is

invalid or ought to be quashed, and (b) (i) the applicant has a sufficient interest in the matter which is the subject of the

application, or (ii) where the decision or act concerned relates to a development identified in or under

regulations made under section 176, for the time being in force, as being development which may have significant effects on the environment, the applicant—

(I) is a body or organisation (other than a State authority, a public authority or governmental body or agency) the aims or objectives of which relate to the promotion of environmental protection,

(II) has, during the period of 12 months preceding the date of the application, pursued those aims or objectives, and

(III) satisfies such requirements (if any) as a body or organisation, if it were to make an appeal under section 37(4)(c), would have to satisfy by virtue of section 37(4)(d)(iii) (and, for this purpose, any requirement prescribed under section 37(4)(e)(iv) shall apply as if the reference in it to the class of matter into which the decision, the subject of the appeal, falls were a reference to the class of matter into which the decision or act, the subject of the application for section 50 leave, falls).”

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AC & Capacity to bring legal proceedings

Clarke J, referred to AC, the Public Participation Directive & the wording of s.50A of the PDA and concluded that: “on its proper construction, s. 50A of the 2000 Act (as amended) carried with it a necessary implication that there is thereby provided an exception to the general rule that unincorporated bodies and associations do not have the capacity to bring legal proceedings. Within the parameters of the types of proceedings referred to in the section bodies complying with the criteria therein specified have, in my view, both capacity and standing to bring proceedings”

Minister is empowered by s.50A to bring in regulations to regulate the types of bodies which may bring proceedings subject to compliance with the Public Participation Directive

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Outstanding Issues

Law evolving, uncertain and unsatisfactory Will decision in Hunter re scope of s.3 of the

EMPA be followed ?What are proper procedures under s.7 of

EMPA?What factors should the Courts take into

account when making a declaration under s. 7 ?Costs of an s.7 declaration ?What is the precise scope of s. 5oB & is the

approach adopted re s.50B of the PDA in JC Savage correct ?

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Outstanding Issues

• What is role of AC in context of taxation Klohn v ABP and Kenny v TCD – Impact of Legal Services Bill ?

• Is AC being correctly implemented by Ireland ? – due to ratification Aarhus Convention Compliance Committee now has jurisdiction & complaints anticipated

• Have AC obligations under EU law been correctly transposed particularly in light of Edwards ?

• Further infringement proceedings against Ireland ?