Information & Participation

Information about the Environment

An international convention, the Aarhus Convention and European Union rules support the enforcement of environmental rules and standards by members of the public. They apply to information held by public authorities. This includes government departments and also local authorities and bodies which have any public function in relation to the environment

Environmental information is very broad. It includes information in written or electronic or other forms relating to most aspects of the environment, including

• the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements, factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
• measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to above as well as measures or activities designed to protect those elements,
• reports on the implementation of environmental legislation,
• cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to , and
• the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to above, through those elements, by any of the matters above.

Sometimes, there are disputes about the scope of what is included.

Public authorities may charge for supplying environmental information, but this must not exceed a reasonable amount. Access to public registers or lists maintained by public authorities must be free of charge.

States must put in place procedures to ensure that an applicant for information who believes the requirements have not been complied with has access to a review procedure.

Information Enforcement

The Access to Information on the Environment Regulations 2007 to 2018 gives citizens the right to access information on the environment from public authorities. Under the Regulations, information relating to the environment held by, or for, a public authority must, subject to certain exceptions, be provided on request to any person.

The Regulations provide a definition of environmental information and outline the manner in which requests for information should be provided to public authorities.

Requests under the AIE Regulations should be provided to the public authority concerned.

The Regulations provide for a formal appeals procedure in the event that a person is unhappy with a decision on their request. The Commissioner for Environmental Information provides the appeal mechanism to an independent body rather than a court.

Participation in Decision Making

Under the Aarhus Convention, the public has a right to participate in decision-making in environmental matters.  Public authorities should enable the public to comment on, for example, proposals for projects affecting the environment or plans and programmes relating to the environment.

The outcome of the public participation process should be taken into consideration in the decision-making process. To facilitate this, information should be made available to help members of the public participate in on the decision-making process and understand the reasons for it.

In the European Union, this part of the Aarhus Convention has been implemented by Directive 2003/35/EC   on public participation, also known as ‘the Public Participation Directive’.

Several pieces of legislation have been used to transpose the Public Participation Directive into Irish law, including integrating its requirements into Irish planning law and legislation governing other environmental consents. For example, in the planning system, members of the public may submit observations on planning applications and may appeal planning decisions to An Bord Pleanála

Article 9 of the Convention requires that adequate review procedures are in place to safeguard the rights granted by the other pillars of the Convention and under national law.

Challenging Public Authority  Decisions

Court reviews of planning permission processes do not usually consider the merits of the application. They are concerned with the legality of the decision with reference to the criteria that apply to making it.

A decision of an administrative body such as the planning authority (county council department or other body) may be set aside on procedural and technical grounds. It will only be set aside on its merits if it is shown to be wholly unreasonable and irrational. If there is any material basis for the decision, it will not usually be set aside.

Planning and other authorities are under an obligation under Human Rights and other principles to give reasons for decisions. Often, however, the reasons are very general and generic. Some recent cases have challenged this approach and required more forensic reasoning based on an assessment of the findings and conclusions reached. On that basis, they should include the main rationale/reason for the findings or conclusions

In some recent cases, the courts have looked at the proportionality of administrative decisions such as planning. Where a decision interferes in a significant way with an individual’s rights and interests, there is an onus on the authority to justify the interference by showing that it pursues a legitimate public interest and strikes a proportionate balance between the public interest and the individual’s rights.

The courts apply the O’Keeffe v An Bord Pleanála principles. Judicial review may be available where decisions are wholly unreasonableness or irrational, beyond the scope of a legitimate decision. It may also be available to correct errors of law. Therefore, an incorrect finding on a legal question can properly be corrected by the High Court.

In Ogalas Ltd v An Bord Pleanála, the question was whether the Board had properly interpreted a planning permission.

“It is not my function to substitute my decision for that of the Board and my role is confined to asking itself whether the decision of the Board was arrived at following improper considerations or as a result of a failure to take into account relevant considerations or as a result of an incorrect interpretation of the planning permission.”

Legal Costs in Environmental Matters

The Aarhus Convention deals both with access to information on the environment and legal costs. States are obliged to ensure that members of the public have access to review procedures before a court of law or another independent or impartial body to challenge the legality of any decision act or omission in areas covered by the convention.

This includes decisions on certain types of activity and other decisions which have a significant impact on the environment.  The list of categories includes certain larger projects, e.g. industrial installations in various sectors.

States must procure that the remedies, including an injunction, are to be fair, timely, and not prohibitively expensive.  Generally, the principle that the winner pays both side’s costs is not objectionable in itself, provided that in some cases, protective costs orders should be made in cases of public importance. Protective cost orders would not be automatically available, but there should be clear directions and guidance as to their availability.

The convention is reflected in various EU legislation, including that relating to environmental impact assessments. The Convention is reflected in the public participation directives. The Supreme Court rejected a claim in 2017 that the legislation required the State to provide free legal aid in planning and environmental matters.

Practical Aspects of Private Legal Action

Often the position will be relatively clear, and each side might agree that the law requires them to act in a particular way. However, if there is a dispute, the legal process can be a frustrating and costly way of dealing with it. Disputes about legal rights in relation to land are decided almost always in the Circuit Court. There can be considerable time and cost in bringing cases.

Many land disputes over rights can be bitter as well as costly and time-consuming. The legal process tends to exacerbate tensions and differences. Sometimes, by the time matters come to court, the original reason and the frustration and emotions concerned may have passed.

In the case of some disputes where the law is in open terms and/or the facts are unclear, the judge may have considerable discretion. Both sides might think they are right and have good reasons, but the case sometimes could quite literally go either way.

The legal teams may not fully examine all the facts and arguments and understand how the case is likely to go until very late in the day when the case is about to run. Often, settlements are made on the doorstep of the court when significant legal fees have already been incurred.

Mediation

There can be a very heavy caseload in the Circuit Court. Courts of cases might be as adjourned a number of times for several months.

Mediation has become a significant feature of property disputes in the last decade. The courts may adjourn cases to facilitate mediation. Because of the types of issues in land disputes, judges may direct the parties to consider mediation. Ultimately, it is voluntary.

Mediation may be a better way of resolving property disputes than litigation in many cases. The mediator must be paid, but if mediation is undertaken at an early stage, it may save significantly on costs. The mediator tries to facilitate a negotiated solution with which each side can be satisfied.

The mediator will often be a lawyer. The legislation provides that things done in the mediation do not undermine the parties’ position if mediation does not succeed and it ultimately goes to a court hearing.