Planning perils part IIn

PLANNING PERILS – PART II

THE SECOND PART OF THIS ARTICLE OUTLINES THE IMPORTANT TAKE HOMES FOR SURVEYORS FROM A RECENT LEGAL DECISION.

he Aarhus Convention of 1998 covers: access to information; public participation in decisionmaking; and, access to justice in environmentalT matters. A case taken before the Aarhus Convention Compliance Committee (ACCC) in relation to an extension of planning permission for a quarry in Meath found, in August 2019, that Meath County Council had failed to comply with Article 6 (10) of the Convention, which relates to public participation in decisions. There are a number of points for

FEATURE

Kieran Cummins

Solicitor and Secretary,

Eco Advocacy surveyors to take away from this ruling.

Rulings are not retrospective: They merely require the State to remedy the impugned law following a successful determination of a case.

Duration: Cases taken to the ACCC take a long time to determine. This complaint was made in 2013 and only determined in August 2019.

Time consuming: A significant amount of time is required to pursue such a case, with no guarantee of success. I always found it very difficult to reconcile the fact that officials in the employ of the State, together with independent contractors (barristers), get paid, while the

complainant (termed the ‘communicant’ by the UN) is expected to act on a voluntary basis.

Costs: Despite winning the case, there is no facility for a complainant to recover costs. Therefore, it would be very difficult for anyone to engage professional lawyers to represent them in such a case. While legal representation is not essential, the State had a full team comprising departmental officials, a solicitor from the Chief State Solicitor’s office and a barrister. I represented myself, but fortunately I have the stated: “…I am satisfied, on the basis of the provisions and authorities referred to above, that European law requires that the public be entitled to participate at the application for leave stage of the substitute consent process. It is worth noting that section 6(4) of the Aarhus Convention provides that ‘Each Party shall provide for early public participation, when all options are open and effective public participation can take place’”. “DESPITE WINNING THE CASE, THERE IS NO FACILITY FOR A COMPLAINANT TO RECOVER COSTS. THEREFORE, IT WOULD BE VERY DIFFICULT FOR ANYONE TO ENGAGE PROFESSIONAL LAWYERS TO REPRESENT THEM IN SUCH A CASE. benefit of legal training. Update – Section 177(c) Has it made a difference? Regarding the quarry at the heart of ACCC/ Looking at the bigger picture, it has made a C/2013/107, in May 2019, I learned that An Bord difference, but at local level it hasn’t. The same Pleanála had granted permission to apply for local authority has continued to construe retention of a significant amount of unauthorised legislation against public participation. development. There had been no mention of this In early August 2020, I became aware of one more application on the new listings months earlier and quarry that had applied for an extension of again no site notice. This time the quarry operator duration. On inquiring of Meath County Council was attempting to rely on s.177 (c) of the Planning whether this was open to public consultation, Act, which provides for substitute consent I was informed that: “Presently you cannot make (a mechanism to regularise planning consent on a submission on an Extension of Duration quarries that did not have appropriate planning in application”. This from the very same County place). It transpired that they had applied directly Council at the centre of ACCC/C/2013/107, one full to An Bord Pleanála on December 21, 2018. year after the Geneva decision and seven years Apart from the public participation element, after I initiated the case with the UN ACCC! unbelievably, An Bord Pleanála granted the applicant’s leave to apply for retention of a whole Recent Supreme Court developments swathe of unauthorised development in one fell The decision on An Taisce, Peter Sweetman & swoop under s.177 (e) among other things, on the Others vs An Bord Pleanála and Others [9/19, 42/19 basis that the applicant might not have known they and 43/19] was delivered by Mr Justice McKechnie needed planning permission. As a gateway to on July 3, 2020. When the determination of case substitute consent, the recent Supreme Court ACCC/C/2013/107 was issued in 2019, it was judgement said of 177C/177D that: “It is not a mere pleaded in the Supreme Court. When the Supreme technical or box-ticking exercise; rather it is a Court ultimately issued its judgment a year later, highly significant aspect of the overall process, it specifically alluded to the relevant provisions of in that the outcome of the leave application will the Aarhus Convention in part of its reasoning, determine whether the application for substitute thereby incorporating the principles of the consent (which is itself an exceptional avenue, given Convention into Irish case law. McKechnie J. the requirements of EU law) can be made at all”. Absence of planning notice at site to be backfilled In October 2019, we became aware that the same local authority (Meath County Council) was considering an application to backfill a disused quarry. The time for lodging a submission had just passed. There was no notice on the roadside outside the site in question, which was on the side of a main road. Instead, a planning notice had apparently been erected on a minor road over three miles away. The local authority had failed to implement the legislation, which specifically provided for the erection of a second notice in such circumstances. Section 19(3) of the planning regulations specifically stated: “Where a planning authority considers that the erection or fixing of a single site notice is not sufficient to comply with the requirements of sub-articles (1) and (2), or does not adequately inform the public, the authority may require the applicant to erect or fix such further site notice or notices in such a manner and in such terms as it may specify and to submit to the authority such evidence as it may specify in relation to compliance with any such requirements”. The facts and the appropriate legislation were brought to the attention of Meath County Council, but they refused to accept that they had erred and thereby denied the public a right to participate. In conclusion, while ACCC/C/2013/107 was successfully fought and has provided important jurisprudence, I have found that even when quoting this case to the very same authority with a similar issue, they have failed to admit their error. As long as there are no consequences for public officials, this will remain the case. It is heartening to see that the recent Supreme Court decision shines some light on the matter. It follows that one must be prepared to pursue any grievances one may have through the courts. This is, however, a very time-consuming process, which requires a significant financial input. Precious court time is also required at a time when courts are very congested. It would be helpful if the legislation was strengthened whereby local authorities are mandated to abide by the Convention’s principles and citizens can avoid having to resort to the courts.