14/04: WLL Newsletter #37 - 14th April 2006
CONTENTS:
1. Extract: Water Governance in Ireland - Part IV: Access to Justice
2. INSIGHT Online Journal Call for Papers
3. Upcoming Events
4. In the news:
(a) National:
Concerns over tree treatment (Irish Times)
Millennium forests idea one big lie (Irish Times)
Residents resist plans for quarry on Wexford hillside (Irish Times)
Environmental advisory committee appointed by Minister is unbalanced (Irish Times)
5. Contact the Woodland League
1. EXTRACT: WATER GOVERNANCE IN IRELAND - PART III: ACCESS TO JUSTICE
- Michael Ewing, MSc
In the last three issues, we have published sections from Michael Ewing's report, "Water Governance in Ireland". In this issue, we publish the fifth section in the report, "Access to Justice".
5. ACCESS TO JUSTICE
5.1. Description of the case
The case chosen relates to a Piggery at Ballyragget, Co Kilkenny regarding access to information and the prevention of environmental harm. Kilkenny County Council had previousely granted planning permission for this project and the Noreside Environmental Protection Group (the group) appealed the decision to An Bord Pleanála. The interest here is in the role of An Bord Pleanála (the Planning Appeals Board), and the judicial review process.
It was asserted by the group that the piggery in question would potentially have had significant impacts on the River Nore and its tributary the Grange River. These waters are recognised as important spawning grounds for brook lampreys as well as being a habitat for the fresh water pearl mussel. Both of these species are protected under the EU Habitats Directive and the proposed site lies in a nature heritage area. The group also highlighted the potential effects the development would have on groundwater.
On the 20th June, 1997 the the Board then also granted planning permission for the 200 sow integrated pig unit at Ballyconra, Ballyragget, Co Kilkenny. The Board did not request the submission of an Environmental Impact Statement (EIS) by Mr McEvoy, the developer. Neither did it conduct an Environmental Impact Assessment (EIA) prior to reaching its decision to grant the planning permission.
Thomas Maher is a member of the Noreside Environmental protection group, and after the Board’s determination he sought an Order of Certiorari to quash this decision of the Board. That is, he sought a judicial review of the decision of the Board, on the basis that the Board had used the wrong method to count the pigs that it was proposed to house at the piggery. This was critical in that using one method, the project was sub-threshold regarding a requirement for an EIA, whilst using another it was above and so an EIA was required. Mr Justice Kelly ruled:
"I conclude that the interpretation by the Board of the threshold requirement in paragraph 1(e) of Part II of the First Schedule to the Regulations of 1989 is legally incorrect. It follows therefore that an EIS was required for the proposed development. As it was not forthcoming and no EIA was carried out the planning permission granted by the Board is fatally flawed."
This case was chosen because, although it began 9 years ago, it presents a clear example of the workings of the planning appeals and judicial review systems in relation to an ecologically very important freshwater site, and because the legal principles and operation of the two processes is substantially the same to-day.
5.2. Analysis of specific law
Quality and scope of specific legal framework
The planning system includes a comprehensive appeals process. Under this, all planning decisions made by planning authorities may be subject to an independent review by An Bord Pleanála. The jurisdiction of the Board is set out in the Planning and Development Acts and in so far as this case is concerned the Board had sufficient jurisdiction to accept an application for appeal from the Group.
The most important function of the Board is to review the decision made by the planning authority. The ‘standard of review’ is focused on the actual decision, and how it was reached by the authority. The board has the competency to enquire into the archaeological architectural, scientific, and technical, basis of the authority’s decisions as well as the legal interpretation of national and European laws that govern planning and development. This gives the applicant a second chance to convince those appointed by government, able in their chosen field of planning, that the decision was a wrong one to make, considering the grounds set out in the application for appeal.
The validity of the Board’s decision on a planning appeal cannot be questioned otherwise than by way of application to the High Court for judicial review within 8 weeks commencing on the date on which the decision is given in accordance with section 50 of the Planning and Development Act, 2000. The Court will not reopen the planning merits of the case. Leave to apply for a judicial review may not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed and the person seeking the judicial review has a substantial interest in the matter.
Section 50(4) of the Planning and Sevelopment Act, 2000 sets down three conditions which an applicant is required to satisfy before leave to seek judicial review may be granted.
I. ‘Substantial Grounds’
According to the relevant section the applicant must demonstrate that there are ‘substantial grounds’ for contending that the decision is invalid or ought to be quashed by the Court. However, it should be noted that for all other types of ‘judicial review’ cases the equivalent standard is less demanding and requires that the applicant establish ‘an arguable case’.
II. ‘Substantial Interest’
The High Court must be satisfied that the applicant has ‘a substantial interest’ in the matter. This has to be assessed in relation to the previous locus standi requirement which was one of ‘sufficient interest’. The new test appears to entail a more onerous standard.
III. Prior Participation
The final condition is that the applicant for judicial review must establish that they participated in the planning process before applying for the judicial review, or at least demonstrate that there was ‘good and sufficient reasons’ for non-participation. Prior to this provision being introduced, it was not an express requirement under the previous statutory scheme. As we have seen in other Indicators, this provision can be traced back to the decision in Lancefort Ltd. v. An Bord Pleanála ([1999] 2 IR 270).
It must always be remember that judicial review is a discretionary remedy and may not always be available. The onus of establishing all that material is on the applicant for judicial review, and if he fails in that onus, he must fail in his claim for review.
The judicial review process is not a review of the actual decision, but of the legality of the decision making process. This basically means that the applicant must convince the judge that the decision making process was wrong, not the actual decision. Although this seems to be an artificial distinction, the reality is that very rarely does an applicant succeed in overturning a planning decision. Judicial review is not an appeal on the merits; the central question is whether the decision taken by the local planning authority or An Bord Pleanála was "unreasonable" or "irrational" in law?
Quality of specific legal limits on access
In this case the plaintiff wanted to get the necessary planning bodies to require the developer to carry out an environmental impact assessment, and supply an environmental impact statement. The reason why this is important when considering access to confidential information is that if no assessment was carried out, there ultimately would be very little environmental information available to have access to. An Environmental Impact Statement available to the public in the planning authorities’ offices would have allowed the plaintiff to make submissions or observations on the proposed site, and point out any flaws that an EIS might contain. The law clearly provides for such an assessment, but the misinterpretation of the Regulations by the planning bodies, meant that the law was not applied.
Quality and scope of legal requirements to build capacity of government agencies
The Planning and Development Act, 2000 and its daughter regulations are silent on the need to build the capacity of members with regard to access to justice.
Quality and scope of the legal requirements to build capacity of the public
The Law is silent on this requirement; however the DOEHLG, Planning Authorities and the Board itself all provide information regarding the procedures, through leaflets, ENFO, and their individual web-sites.
There are no requirements specifically connected with capacity building for access to justice amongst the members of the Board, only this broad requirement in Section 109 (2) (a) of the Planning and Development Act, 2000
"The Board shall conduct, at such intervals as it thinks fit or as the Minister directs, reviews of its organisation and of the systems and procedures used by it in relation to appeals and referrals."
Legal requirements for timeliness
There is no set timeframe set down for the determination of an appeal to An Bord Pleanala. However the Planning and Development Act, 2000 states:
In Section 126 (1) "It shall be the duty of the Board to ensure that appeals and referrals are disposed of as expeditiously as may be…."
In Section 126 (2) "It shall be the objective of the Board to ensure that every appeal or referral is determined within (a) 18 weeks or (b) such other period set down by the Minister "
And in Section 126 (3) where the necessity for an oral hearing , or because the large volume of information to be examined, then the Board must notify all the parties to the appeal, as well as all those who have made submissions or observations, as to the new deadline for a decision.
And in Section 126 (5) where the Minister considers the development of strategic, economic or social importance, the Minister may direct the Board to give priority to the class or classes of appeals concerned.
5.3. Analysis of the case
EFFORT
Scope and quality of effort
An Bord Pleanála is an independent administrative body which was established in 1977 under the Local Government (Planning and Development) Act, 1976 and is responsible for the determination of planning appeals, referrals, compulsory purchase orders, major local authority infrastructure projects and certain other matters under the Planning and Development Acts, 2000 to 2002. Section 150 of the Planning and Development Act, 2000 requires that the Board adopt a code of conduct for members and employees.
Under this code: No Board member, Chief Officer, Planning Officer, or Secretary may be a member of a political party; Membership of the Board is in a whole-time capacity and so no member shall accept emolument for any outside employment, consultancy or advisory service other than with the written consent of the Chairperson
Section 113 of the Planning and Development Act, 2000 prohibits the disclosure of specified information by Board members or employees without the consent of the Board. Board members and employees should not express an opinion to any member of the public relating to any matter which is before the Board, other than the giving of other information in relation to procedures and compliance with the statutory objective which it is proper to give.
Under section 114 of the 2000 Act it is unlawful for a person to communicate with the Chairperson, an ordinary Board member, an employee, consultant or adviser or other person whose services are availed of by the Board for the purpose of influencing improperly the consideration of matters with which the Board is concerned or a decision of the Board in regard to any such matter. It is a duty of any such person, on receipt of such a communication, not to entertain it further and to bring it to the attention of the Board without delay.
Under the various legislation alluded to above the Board is under statutory duty to draw up, and periodically review its code of conduct.. Largely the code does in fact guarantee the independence of the Board. The one concern however is that the Board is willing to have regard to Government and Ministerial policies when arriving at some of its decisions. This situation can leave some members of the public asking, did the Board just do what the Government wanted them to do? This questioning by members of the public ultimately leads them to taking judicial review proceedings in the High Court.
Although the Judicial Review of the decision-making by An Bord Pleanála decided that the Bord had misinterpreted the Regulations, Kelly J (the judge) did not suggest any doubt about the independence with which it had reached its determination. Similarly, the Applicant for the review did not express any concerns to the court regarding the independence of the Board. However the appellant felt that the staff of the board was less than helpful to them in the appeals process.
In the subsequent Judicial Review, Thomas Maher, the Applicant for the review, made a request to the Board for discovery of documents relating to previous appeals in which the Board had made determinations regarding the necessity to conduct an EIA in the case of piggeries of similar size to the one in question. No such documents were forthcoming. Later, after some research, the appellant was independently able to identify the names of the files that he needed to see, and these were then supplied on request. In relating the above events Thomas Maher said he felt that, to say the least, the Board had been unhelpful. It was stated on behalf of the board that the search possibilities at the time were incapable of complying with the discovery request as initially put, but that with recent changes to systems within the board this problem should not reoccur.
In discussing to what extent the process was transparent to the public, it is necessary to look at the sequence of events in the the planning process.
Prior to making its decision regarding a planning application the Planning Authority should take into account any submissions made by anyone, responding to notices placed on the development site and in newspapers circulating in the area. Section 29.(1)(a) of the Planning and Development Regulations, 2001 states: "Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application."
This then is the window of opportunity.
Having made its decision, the Planning Authority notifies the applicant and anyone who made submissions of their right to appeal the decision to An Bord Pleanala.
On receipt of an appeal, the Board must then notify the other parties and the relevant Planning Authority. The Parties then have 4 weeks to make submissions or observations. Any person may also make submissions or observations during this period. However, there is no requirement to place notices in papers announcing the beginning of the appeals process. If the Board deems that an EIS is required then under Article 105 of the Planning and Development Regulations, 2001 then a notice has to be published in an appropriate newspaper, more effectively opening up the submissions procedure to anyone.
The Board keeps a list of current appeals on its website, and available at its offices.
Under Article 70 of the Regulations, the council must also make available a list of current appeals relating to its decisions in its offices and public libraries (Article 32).
The appellant may request an oral hearing but it is, under Section 134 of the Planning and Development Act, 2000, only granted at the discretion of the Board. Any party to the appeal may request an oral hearing provided the correct non-refundable fee is paid in addition to the appeal fee. The person making the appeal must make the request within the period for lodging the appeal but, and where a party to an appeal other than the person making the appeal is sent a copy of an appeal, he/she may make the request within 4 weeks from the date the copy is sent to him/her.
A person requesting an oral hearing must still state their grounds of appeal in full and comply with the other legal requirements when lodging their appeal.
The Board has absolute discretion to hold an oral hearing with or without a request from a party and will generally only hold one where this will aid its understanding of a particularly complex case or where it considers that significant national or local issues are involved. As in all appeals, an Inspector is appointed by the Board and he gathers the information necessary and makes recommendations, but the Board still meets in private and may overturn the recommendations of the Inspector.
Oral hearings are fora for giving evidence and exploring the issues in public, but the decision-making process then continues in private.
In all cases the appeal is investigated by an inspector appointed to the task by the Board, who then reports to the Board, who then may or may not follow his recommendations.
Other than this, once all submissions and observations are received, the deliberations of the board continue behind closed doors, and nothing emerges until the determination is notified to the parties. In the case in point there was no oral hearing.
Following ther determination of the appeal all the relevant files are open to public inspection for 5 years.
Cost and affordability
The cost for an individual, other than the developer, to take an appeal to An Bord Pleanala is set at €210, which approximates to 1/3 the average weekly industrial wage, or 3/4 of the minimum weekly wage. These are substantial commitments. They are also only the beginning of the process, with the expense in time, telephone, copying, legal advise and expert witnesses adding to this.
Under Section 145 (1) (a) of the Planning and Development Act, 2000, the Board may, if it thinks proper, direct the planning authority to pay the appellant and/or the Board such sums as decided at the Boards discretion as compensation for expenses incurred, irrespective of the result of the appeal.
Conversely under Section 145 (1) (b) the Board can also seek costs from the appellant where it considers that the appeal was made with the intention of delaying the development or securing monetary gain by a third party. These costs could include those of all the other parties, the planning authority and the Board itself. In this case the Board did not seek costs.
The cost then of taking a judicial review of the Board’s decision is potentially crippling if, as is likely, legal aid is unavailable. The costs awarded against the party losing a review could be anywhere from €30,000-120,000 the equivalent to 1-4 years of an average industrial wage.
In the case discussed here Mr Maher, apart from the time, and other ancillary costs, spent c.£15,000, roughly equivalent to a years average industrial wage at the time, on the appeals process with An Bord Pleanala. This represented the legal and expert witness fees.
Despite costs being awarded in favour of the Mr Maher, the legal review process that followed cost in the order of £5000, as the expert witness fees were not paid by the court.
The Mr Maher’s legal team had taken the case for judicial review on a pro bono basis. Had this not been the case Mr Maher might never have taken what was a great financial risk.
Fairness and equitability
In determining individual appeals, the Board acts in a quasi-judicial role in accordance with the principles of natural justice. Unlike most planning appeal systems in Europe, third parties may make appeals under the Irish system. The proportion of such appeals is growing and in 2003, 48% of determined planning appeals involved third parties. Oral hearings were held in 46 cases.
Under Article 37 of the Planning and Development Act, 2000, only the applicant and those that made submissions or observations on the application are allowed to appeal the decision of the Planning Authority.
There are two exceptions to this:
(a) where a prescribed body was entitled to be notified of a planning application by the planning authority and was not notified, the body may lodge an appeal against the decision of the planning authority without having made submissions or observations on the planning application.
(b) a person who has an interest in adjoining lands in respect of which a decision to grant permission has been made, may also apply to the Board for leave to appeal the decision of the planning authority.
Timeliness
Whilst the appeals process to the Board was longer than the 18 weeks recommended in the Planning and Development Act, 2000, it was not excessive. By contrast the judicial review process took just short of two years.
Channels of access
The procedures for challenging a decision by a Planning Authority are clear and unless there is a strictly legal issue An Bord Pleanala is the only route open. Issues relating to the functions of the Planning Authority could also be raised with the Office of the Ombudsman, but these would not deal with the planning decision itself.
Efforts to build capacity of government agencies
The 40 Administrative staff that run the Board’s activities, and that are also the public face of the Board operate under a comprehensive staff guidance manual and take part in regular workshops to improve their awareness of legislation and best practice in customer services. Training on access to justice would not be given as a specific course.
Due to changes in the functions of An Bord Pleanala under the Planning and Development Act, 2000, the workload of the Board has increased considerably. It is Estimated that an approximate increase of 10% in Administrative staff numbers is required.
Effort to build the capacity of the public
Reviews of the websites of An Bord Pleanala, DOEHLG, Planning Authorities, as well as the leaflet published by the DOEHLG, which is widely available make the appeals system accessible and clear.
EFFECTIVENESS
Impacts and outcome of access
There were in essence two decisions. Firstly the Board upheld the initial decision of the Planning Authority, and then the High Court overturned this and quashed the original decision, and so the planning permission was withdrawn, the piggery never built and the potential source of serious pollution not developed.
Effectiveness of capacity building for government agencies
During the appeals process the appellant was very unhappy with the way in which the Board’s Inspector conducted the study of the potential impacts on the water course that was likely to be at risk from the proposed development.
In the subsequent Judicial Review Thomas Maher, the Applicant, made a request for discovery of documents relating to previous appeals in which the Board had made determinations regarding the necessity to conduct an EIA in the case of piggeries of similar size to the one in question. No such documents were forthcoming. Later, after some research, the appellant was able to identify the names of the files that he needed to see, and these were then supplied on request. It was felt by the appellant that, to say the least, the Board had been unhelpful.
The board says that it had limited computer search capacity at the time which has been improved since and is available online.
5.4. Findings
The presentation of values in the findings charts uses colour coding to show the values given in response to each indicator as following :
very good
good
intermediate
poor
very bad
not applicable
LAW
Quality and scope of specific legal framework
95 To what extent does the law require a forum to hear the selected claim type and issue a decision? - very good
96 To what extent does the law enable a party to seek review or appeal of selected claim type to an independent body with the power to reverse a decision? - good
Quality of specific legal limits on access
97 How clear and narrow are the limits on claims of confidentiality regarding information relevant to selected claim type? - good
Quality and scope of legal requirements to build capacity of government agencies
98 To what extent does the law require the selected forum to build the capacity of members with regard to access to justice? - very bad
Quality and scope of the legal requirements to build capacity of the public
101 To what extent does the law require the government to offer the public technical assistance, guidance or training on how to use the selected forum? - very bad
102 To what extent does the law require the government to build the capacity of sub-national government officials to understand and facilitate citizens’ rights within the justice system? - poor
Legal requirement for timeliness
103 How clearly does the law establish a reasonable timeframe for forum decisions? - good
EFFORT
Scope and quality of effort
105s How strong are the forum’s standards, regulations or formal policy to ensure independence and impartiality of the forum? - good
108 To what extent was the forum independent and impartial in the selected case? - good
109 To what extent were both parties able to gain access to information and conduct fact finding in the selected case? - good
110 To what extent was the process transparent to the public in the selected case? - good
Cost and affordability
112 To what extent did the forum keep the costs of bringing a claim low for the parties in the selected case? - very bad
Fairness and equitability
114 How well did the forum take steps to make the forum accessible to[pull-down list including women, poor, minorities, etc] in the selected case? - not applicable
117 How broadly was legal standing interpreted by the forum in the selected case? - intermediate
Timeliness
120 To what extent did the forum minimize delays in processing and reviewing the claim and in issuing a decision? - good
Channels of access
121s To what extent was there a choice of forums which could consider the selected claim? - very bad
Efforts to build capacity of government agencies
123s To what extent were guidelines or training offered regularly over the last 3 years to forum members on access to information, participation? - good
125s How adequate is the government budget allocation to support the forum’s justice functions? - good
Effort to build the capacity of the public
127s How clear and easily accessible are the public guidelines on how to use the forum? - good
EFFECTIVENESS
Impacts of access
129 To what extent was the forum decision implemented in the selected case? - very good
Outcomes of access
131 To what extent did the forum decision in this case lead to measures to avoid or reduce negative impacts on the environment or human health or improve access or participation? - very good
Effectiveness of capacity building for government agencies
132 How well did forum members and staff execute their access to justice responsibilities in the selected case? - intermediate
5.5. Conclusions regarding Access to Justice
The case chosen relates to a Piggery at Ballyragget, Co Kilkenny regarding the prevention of environmental harm. Kilkenny County Council had previousely granted planning permission for this project and the Noreside Environmental Protection Group (the group) appealed the decision to An Bord Pleanála.
The planning system includes a comprehensive appeals process. Under this, all planning decisions made by planning authorities may be subject to an independent review by An Bord Pleanála. The ‘standard of review’ is focused on the actual decision, and how it was reached by the Authority.
Under Article 37 of the Planning and Development Act, 2000, only the applicant and those that made submissions or observations on the application are allowed to appeal the decision of the Planning Authority. There are two exceptions to this: (a) where a prescribed body was entitled to be notified of a planning application by the planning authority and was not notified (b) a person who has an interest in adjoining lands.
Unless the Board decides that an EIS is required it isn’t required to publish notices regarding the appeal. Should the Board require an EIS then will give notice in th relevant newspapers that submissions are welcome from anyone. Once the Board’s Inspector has gathered enough information then the Board makes its determination behind closed doors.
The validity of the Board’s decision on a planning appeal cannot be questioned otherwise than by way of application to the High Court for judicial review within 8 weeks of their decision. Section 50(4) of the Planning and Development Act, 2000 sets down three conditions which an applicant is required to satisfy before leave to seek judicial review may be granted. The Applicant must have substantial grounds, substantial interest and prior participation.Judicial review is a discretionary remedy and may not always be available. The judicial review process is not a review of the actual decision, but of the legality of the decision making process.
In the case in question both the Planning Authority and the Board had decided that there was no need for an EIA and these decisions denied Mr Maher his right to access to information. The consecutive decisions to grant permission without an EIA also had the potential to cause serious environmental harm. A judicial review followed in which the judge ruled that there should have been an EIA, and quashed the planning permission.
The law does not require the Board to build the capacity of members with regard to access to justice, nor does it require the government to offer the public technical assistance, guidance or training on how to use the Board, and there is only a limited requirement for the government to offer the public technical assistance, guidance or training on how to use the appeals system.
Although there is no set timeframe for the determination of an appeal to An Bord Pleanala, the Planning and Development Act, 2000 requires their expeditious treatment and sets a target timescale of 18 weeks.
Whilst the Board has very strong codes of conduct in order to maintain its independence, it has to take into account Government and Ministerial policies when arriving at some of its decisions. This situation can leave some members of the public asking, did the Board, just do what the Government wanted them to do? Although in this case in the Judicial Review of the decision-making by An Bord Pleanála it was decided that the Board had misinterpreted the Regulations, Kelly J (the judge) did not show any doubt about the independence with which the Board had reached its determination.
Although the Board has the discretion to award costs to the ‘winning’ side in an appeal, it didn’t do so in this case, and even so it proved a costly affair for Mr Maher.
Whilst in this case the appeals process to the Board was longer than the 18 weeks recommended in the Planning and Development Act, 2000, it was not excessive. By contrast the judicial review process took just short of two years.
The procedures for challenging a decision by a Planning Authority are clear and unless there is a strictly legal issue An Bord Pleanala is the only route to be taken. Issues relating to the functions of the Planning Authority could also be raised with the Office of the Ombudsman, but these would not deal with the planning decision.
The 40 Administrative staff that run the Board’s activities, and that are the public connection operate under a comprehensive staff guidance manual and take part in regular workshops to improve their awareness of legislation and best practice in customer services, though training on access to justice would not be given as a specific course.
Due to changes in the functions of An Bord Pleanala under the Planning and Development Act, 2000, the workload of the Board has increased considerably. It is estimated that an approximate increase of 10% in Administrative staff numbers is required.
Reviews of the websites of An Bord Pleanala, DOEHLG, Planning Authorities, as well as the leaflet published by the DOEHLG, which is widely available, make the appeals system accessible and clear.
It is clear from the outcomes that the appeals process works, and its decisions, unless subject to legal challenge, are final. The appellant however expressed reservations about the capacity of the Board to provide access to justice.
To summarise the, the major problems with the appeals process then are the lack of legislation requiring capacity building with regard to the Board. Legislation on the training of staff regarding access rights and how to facilitate the public in asserting those rights, including the giving of technical assistance, is absent. Mr Maher also faced a serious financial barrier in this case. Legal standing with regard to appeals is also somewhat restrictive.
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2. INSIGHT ONLINE JOURNAL CALL FOR PAPERS
Issue #3 of INSIGHT Online Journal of Irish Heritage Studies is now being readied for publication later this month.
We are now accepting submissions for #4 which will be released at the end of August, and #5 due in December 2006.
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INSIGHT publishes articles, notes and reviews of any length and we welcome work that takes advantage of the opportunities afforded by online publication such as graphics, animations etc.
We welcome any work dealing with Ireland's heritage in the broadest sense,
including:
Archaeology
Architecture
Environment
Folklore
History
Language
Literature
Mythology
Natural History
Performance Arts
Visual Arts
If you are unsure whether your material is appropriate, we will be happy to advise.
Of special interest for Issue #4 are discussions of the interrelationship between community and heritage.
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Initial submissions should be in the form of an abstract, though we will accept completed papers at this stage also.
Submissions should be formatted as plain text, rich text, Word .doc or html.
Final submissions should be delivered in plain text or rich text only.
Please address initial enquiries or submissions to:
calraige@eircom.net
with the word INSIGHT included in the subject line
Note that late submissions of completed articles or reviews for #3 are still being accepted up to 15 April.
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3. UPCOMING EVENTS
April-May 2006: Seminars in Environmental Law at UL
The International Commercial and Economic Law Research Group at the University of Limerick will run a series of seminars on environmental law in the Spring 2006 semester. These seminars will deal with issues such as climate change, environmental enforcement in Ireland, fisheries in the national and international contexts and recent developments in domestic environmental law.
TIMETABLE OF EVENTS:
* Fisheries In Ireland: Lessons From North America, Date: Thursday 27 April 2006, Speaker: Professor Katrina Wyman, School of Law, New York University
* Environmental Impact Assessments, Date: May 2006, Speaker : Garrett Simons, BL,
(All events are subject to change.)
Further details of the Seminars are available at http://www.ul.ie/envirocom/worddocs/EnvironmentalLaw.doc or from the Project Leader: Rónán Kennedy, ICELRG, School of Law, University of Limerick. Email: ronan.kennedy@ul.ie
Further information on the International Commercial and Economic Law Research Group is available by contacting Raymond J Friel, Director, ICELRG, School of Law, University of Limerick. Email: raymond.friel@ul.ie . Limerick.
Friday 28th April -Monday 1st May 06 ''Health, Medicine & The Law'' - A Contemporary and Brehon Perspective
See http://www.burrenlawschool.org/programme.html for programme.
Burren Law School 2006, Burren College of Art, Ballyvaughan, Co. Clare
6th / 7th May 06: Weekend in the Woods – CELT
Another big weekend of traditional and ecological skills training at all levels for adults (age 14+) Courses will include Wood Carving, Dry-stone and Lime-mortar Walling, Basket Weaving, Blacksmithing, Greenwood Furniture making, Natural Building, Coppersmithing, Silversmithing, Herb Lore, Bushcraft, Natural Building, Sugan Chair making and more. For details see http://www.celtnet.org/events-page14233.html. Clare.
22 / 23 / 24 July 06: Summer in the Woods - CELT
Bealkelly Wood, Tuamgraney - 12 courses including Boat-building - see http://www.celtnet.org for more info. Clare.
7th / 8th October 06: Weekend in the Woods – CELT
Bealkelly Wood, Tuamgraney - see http://www.celtnet.org for more info. Clare.
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4(a). IN THE NEWS - National
CONCERNS OVER TREE TREATMENT
Health and safety concerns about a new Coillte treatment for trees in its battle against an insect pest has led to a dispute with the company's 450 tree planters.
Coillte claims the new method, known as pre- treated "dipped plants", is much more effective against the damaging weevil parasite. However, Siptu believes the treatment has "significant" health and safety concerns.
The dispute came before the Labour Court after a conciliation conference at the Labour Relations Commission failed to resolve it. The court recommended yesterday that the new planting system should begin without delay on a three-month trial.
(c) Irish Times, April 13 '06
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MILLENNIUM FORESTS IDEA ONE BIG LIE
Fintan O'Toole
Do you remember your tree? Your own unique Irish native broadleaf tree? The one that the Government planted for you to mark the millennium? You must remember it: Séamus Brennan sent you out a certificate with a scientific-looking number on it and a statement of where your family's very own tree was to be found.
Bertie Ahern launched the project at Avondale in December 1999. The official propaganda described it as "a visionary millennium project to help rescue and restore a number of the country's native forests and woodlands. A unique element of the People's Millennium Forests is that each of the 1.2 million households will be able to identify the exact location of their tree, obtain a certificate of identification and will be encouraged to chart its growth well into the new millennium."
The Taoiseach hailed the idea as "a unique project that will stop the decline of native forests and create a tremendous environmental, educational and cultural resource all over the country for Irish people to enjoy and appreciate for hundreds of years to come."
It was a lovely notion. It recognised that one of the nastiest aspects of the degradation of the Irish environment was the abysmal state of our forests. On average, over 30 per cent of the EU at the time was forestry. In Ireland, the figure was less than 9 per cent. Most of that, moreover, was made up of cheap, nasty evergreens that sustain little in the way of natural diversity and actively harm the environment.
So here was a Government plan that caught the public imagination. Kids in schools all over the country collected the seeds of native tree species to be planted and, according to the official website, "set up small nurseries on their classroom windowsills . . . in this way each school helped to increase the forests of Ireland".
The Government told us: "The trees will be planted using a grid system. A central database will record the precise location of each tree and will allow for households to identify their tree."
It was, of course, a lie. Last month, when Valerie Cox of Today with Pat Kenny on RTÉ radio went with a local resident to look for his tree in Camolin Wood in Co Wexford, they found an area overgrown with furze and brambles. Gerry Egan, company secretary of Coillte, which was given the job of managing the people's forests, explained that the unique, numbered tree they were looking for wasn't, after all, a unique numbered tree. The number referred to a block. No individual tree was identifiable because the vast majority of the trees that had been planted would be "thinned out" - in other words dumped.
The 2,500 trees that had been planted on each hectare would be reduced to about 50. So well over 99 per cent of us were simply lied to.
We didn't get a unique tree. We can't "chart its growth well into the new millennium" because it will be thinned out soon. The central database that we were told would identify each of our trees doesn't exist. And all of this was known from the start. Once the trees were planted in the way they were, it was always impossible for each family to have its own tree whose development it could monitor. This matters at a number of levels. Firstly, governments shouldn't get away with large-scale deception of their citizens for the sake of a PR stunt. Secondly, the cynicism involved in getting primary school children all worked up about a big environmental project under false pretences is as corrosive as it is sickening, teaching them the lesson that public ideals are for suckers. And thirdly, the whole episode highlights the unholy mess that continues to be made of forestry policy.
One of the reasons for the millennium forests debacle is the bizarre status of Coillte. When, in late 2000, environmental activist Tony Lowes wrote to Coillte seeking information of the environmental aspects of the millennium project, Coillte replied that it was a private limited company which operated on a commercial basis. It argued it had no public administration functions or responsibilities, and was not obliged to provide any information.
This is an astonishing position for a company whose only shareholders are the Ministers for Finance and Agriculture, and it has been repeatedly rejected by the European Court.
Coillte sees itself as a purely private, commercial operation, with no public responsibilities. So, while the Taoiseach could blather about stopping the decline of native forests and the Heritage Council could demand that 50 per cent of all new planting be native species, Coillte's then chief executive, Martin Lowery, could state baldly that "hardwoods are not commercial, do not produce a return and require good agricultural land" and that the company therefore has no interest in planting them in large numbers. This same logic underlies the company's practice of selling off public forests to private developers in deals that involve very little public scrutiny. The big lie in the whole millennium forests spin was that "we" own our trees. Public ownership of one of our most important environmental and tourism assets is about as real as the teddy bears' picnic.
(c) The Irish Times, April 11 '06
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RESIDENTS RESIST PLANS FOR QUARRY ON WEXFORD HILLSIDE
Frank McDonald, Environment Editor
Plans to extract some two million tonnes of stone from Ballythomas Hill, near Gorey, Co Wexford, are being strongly resisted by local residents who maintain that the proposed quarry would damage the environment.
Hudson Concrete Ltd, based in Arklow, Co Wicklow, has sought planning permission from Wexford County Council to establish a hard rock quarry covering a 42-acre site on the slopes of the hill, which is designated as a "sensitive landscape area" in the county plan.
The planning application and environmental impact statement (EIS) were prepared on Hudson's behalf by Bord na Móna. Coillte Teoranta, the State forestry company, has also consented to give way leave over its land to provide access to the proposed quarry.
The EIS claims that the development will not adversely affect the scenic quality of the landscape because it would be screened on three sides by trees and on the fourth by a ridge, and that it would not be visible except from higher elevations, such as Croghan Hill.
Local residents, many of them living in recently built houses, have formed an action group to oppose the plan. They say there was no prior consultation with them, contrary to the EIS guidelines, which state that all interested parties should be consulted.
The Ballythomas Action Group has held two protest meetings, attended by up to 200 people, and is stepping up the campaign by lobbying local councillors and TDs, leafleting Sunday Masses and holding sponsored runs to raise money for its cause.
"In terms of community activism, it has been one of the most interesting demonstrations of rural people power around here in a while in defence of the countryside", commented Gorey Fianna Fáil councillor Malcolm Byrne, who is backing the local residents.
"This area is close to the Wicklow border, about half way between Gorey and Tinahely, and is one of the most picturesque landscapes in the southeast", he said. "There are huge fears among locals that the planned quarry will destroy the face of the community".
Noting that Ballythomas National School is just half a mile from the site, the action group has expressed concern for the safety of its 55 pupils given that an estimated 228 trucks per week would be servicing the proposed quarry via narrow country roads and bridges.
Local residents are also concerned that the value of their homes will be diminished, although the EIS states that this is "unlikely" as the area of extraction would be some distance away from houses and measures would be taken to minimise its environmental impact.
Under the Wexford county plan, only "small-scale development required to meet the social and economic needs of rural communities and small-scale tourist and outdoor sport and recreational development" is permissable in sensitive lasndscape areas.
The EIS maintains that the quarry would fit into this category - a claim the residents dismiss as "absurd". They point to the fact that 100,000 tonnes of rock would be excavated from Ballythomas Hill annually - a total of two million tonnes over its 20-year lifespan.
They also reject a claim in the EIS that one of the benefits of this development would be the potential to develop the worked-out quarry as a tourism facility. "Old quarries are well-known as wild refuges and are often considered visually interesting in their own right", it says.
A spokesman for Hudson Concrete said the company was "in close consultation with the community and its public representatives". Meetings were being arranged as "the developer is keen to have an open door policy to listen to people's concerns".
(c) The Irish Times, April 06 '06
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ENVIRONMENTAL ADVISORY COMMITTEE APPOINTED BY MINISTER IS UNBALANCED
The Minister for the Environment has shown his true colours with his appointments to the EPA's advisory committee, writes Frank McDonald, Environment Editor
Dick Roche would like people to believe that he cares about the environment, even that he's more sympathetic to the "green agenda" than his predecessor Martin Cullen.
But when it came to choosing nominees to serve on the Environmental Protection Agency's Advisory Committee, he nailed his true colours to the mast.
Not one of the six nominees put forward by 24 groups involved in various aspects of environmental protection was chosen by the Minister.
He passed over all of them - including such prominent figures as Karin Dubsky - in favour of appointing people with little or no discernible track-record in the area.
Section 27 of the 1992 Environmental Protection Agency (EPA) Act specifies that its advisory committee should be broadly representative of professions and organisations concerned with environmental protection, those concerned with social and economic development and those involved in environmental education or research.
Until Mr Roche took over as Minister for the Environment in September 2004, the prescribed organisations under the environmental protection heading were An Taisce, Voice and Eco-Unesco - all three of them actively involved in this area.
However, that was changed by a little-noticed statutory instrument signed by the Minister in December 2004.
Henceforth, the organisations with rights to nominate candidates for selection as members of the EPA advisory committee were to be Fáilte Ireland and the Heritage Council - both State agencies - and Environmental Ecological NGOs Core Funding Ltd, (EENGOCF) an umbrella body for non-governmental organisations involved in environmental protection.
EENGOCF had been set up to administer the relative pittance disbursed annually by the Department of the Environment in "core funding" for 24 environmental NGOs, to enable them to survive. In 2005, it received €80,000 to share out between them, plus a further €115,000 for administration and conference travelling expenses.
In January 2005, EENGOCF was requested by the Minister to nominate six candidates for appointment to the new EPA advisory committee - three of whom should be male and three female, in the interest of "gender balance". The environmental groups had every reason to believe that at least one of their nominees would be chosen.
The previous advisory committee, incidentally, had been allowed to lapse 10 months earlier even though the 1992 legislation under which the EPA was established laid down that "there shall be a committee" with 12 members to advise the agency on such matters as its work programme, standards, guidelines and codes of practice.
EENGOCF submitted six nominees: Jack O'Sullivan, who served on the previous advisory committee; Elizabeth Cullen, of the Irish Doctors' Environmental Association; Karin Dubsky, of Coastwatch; Michael Ewing, of Friends of the Irish Environment; Pat Finnegan, of Grian, and Caroline Lewis, of the Irish Natural Forestry Foundation. Though these nominations were made within a tight timetable, a full year passed before EENGOCF was informed by the Minister's office that the new advisory committee had been appointed, and none of its nominees was selected. Instead, Mr Roche chose the Fáilte Ireland nominee, environmental consultant Jeanne Meldon, from the panel.
He also made four personal appointments: John Dillon, former president of the IFA; John Buckley, a Killarney auctioneer who was on the previous advisory committee, and two of his own constituents - Irene Sweeney, described as a "community representative" from Arklow, and Seán Byrne, of the Wicklow Uplands Council.
Mr Dillon has said he was approached directly by the Minister within weeks of stepping down from the IFA's leadership and asked if he would like to serve on the EPA's advisory committee; he had agreed to accept the appointment "for the good of Irish farmers". At the time, the IFA was at war with the Government over the EU nitrates directive.
Ms Sweeney is married to a Fianna Fáil councillor in Arklow whose family have been active in the party for many years, and was involved in the Special Olympics in 2004, while Mr Buckley is also a board member of Sustainable Energy Ireland, the State agency charged with promoting the adoption of alternatives to fossil fuels.
As reported in today's newspaper, Mr Buckley took an interest in the case of an illegal dump in Co Wicklow and plans by Brownfield Restoration (Ire) Ltd to remediate and develop it; he forwarded a letter from the company's managing director addressed to the Minister to the EPA's deputy director general, Dr Padraic Larkin.
There is no doubt that the committee appointed by the Minister is unbalanced. The farming sector is more than well represented, not just by Mr Dillon, but also by Donal Harte, chairman of the ICMSA in west Cork, who has complained that a "draconian" application of the nitrates directive would put pig and poultry farmers out of business.
Carmel Dawson, of the Irish Countrywomen's Association, is also a member of the new advisory committee, as is Marian Byron of Ibec, which represents companies in the chemical and pharmaceutical sector that must obtain integrated pollution control licences from the EPA - though the committee has no role in relation to individual licences.
According to Frank Corcoran, national chairman of An Taisce, Mr Roche's decision to overlook all six of the nominees put forward by the NGO umbrella group in his appointments to the advisory committee - "sends a clear signal" that the Minister "places no value on the input of civil society" into the whole area of environmental protection.
Ms Dubsky agreed. "There are weaknesses in the way the EPA is being run, such as the requirement that any complaint to its Office of Environmental Enforcement must be in writing.
"A lot of people are afraid to do that because their names would appear on a public file. If we were on the advisory committee, we could change things like that."
(c) Irish Times, March 21 '06
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5. WOODLAND LEAGUE CONTACT DETAILS
www.woodlandleague.org
Andrew St. Ledger, PRO,
+353-(0)87-9933157
Brendan Kelly, Liaison Officer,
+353-(0)91-687778 (evenings)
+353-(0)86-1529176 (mobile)
brendankellywoodlawn@yahoo.ie
Ciarán Hughes, Secretary,
The Woodland League,
c/o Caherawoneen, Kinvara, Co. Galway, Ireland.
+353-(0)87-9652992
woodlandleague@yahoo.ie
Yahoo! Discussion Group:
http://www.yahoogroups.com/groups/woodland-league
woodland-league-subscribe@yahoogroups.com
Petition:
http://www.petitiononline.com/rfpii
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1. Extract: Water Governance in Ireland - Part IV: Access to Justice
2. INSIGHT Online Journal Call for Papers
3. Upcoming Events
4. In the news:
(a) National:
Concerns over tree treatment (Irish Times)
Millennium forests idea one big lie (Irish Times)
Residents resist plans for quarry on Wexford hillside (Irish Times)
Environmental advisory committee appointed by Minister is unbalanced (Irish Times)
5. Contact the Woodland League
1. EXTRACT: WATER GOVERNANCE IN IRELAND - PART III: ACCESS TO JUSTICE
- Michael Ewing, MSc
In the last three issues, we have published sections from Michael Ewing's report, "Water Governance in Ireland". In this issue, we publish the fifth section in the report, "Access to Justice".
5. ACCESS TO JUSTICE
5.1. Description of the case
The case chosen relates to a Piggery at Ballyragget, Co Kilkenny regarding access to information and the prevention of environmental harm. Kilkenny County Council had previousely granted planning permission for this project and the Noreside Environmental Protection Group (the group) appealed the decision to An Bord Pleanála. The interest here is in the role of An Bord Pleanála (the Planning Appeals Board), and the judicial review process.
It was asserted by the group that the piggery in question would potentially have had significant impacts on the River Nore and its tributary the Grange River. These waters are recognised as important spawning grounds for brook lampreys as well as being a habitat for the fresh water pearl mussel. Both of these species are protected under the EU Habitats Directive and the proposed site lies in a nature heritage area. The group also highlighted the potential effects the development would have on groundwater.
On the 20th June, 1997 the the Board then also granted planning permission for the 200 sow integrated pig unit at Ballyconra, Ballyragget, Co Kilkenny. The Board did not request the submission of an Environmental Impact Statement (EIS) by Mr McEvoy, the developer. Neither did it conduct an Environmental Impact Assessment (EIA) prior to reaching its decision to grant the planning permission.
Thomas Maher is a member of the Noreside Environmental protection group, and after the Board’s determination he sought an Order of Certiorari to quash this decision of the Board. That is, he sought a judicial review of the decision of the Board, on the basis that the Board had used the wrong method to count the pigs that it was proposed to house at the piggery. This was critical in that using one method, the project was sub-threshold regarding a requirement for an EIA, whilst using another it was above and so an EIA was required. Mr Justice Kelly ruled:
"I conclude that the interpretation by the Board of the threshold requirement in paragraph 1(e) of Part II of the First Schedule to the Regulations of 1989 is legally incorrect. It follows therefore that an EIS was required for the proposed development. As it was not forthcoming and no EIA was carried out the planning permission granted by the Board is fatally flawed."
This case was chosen because, although it began 9 years ago, it presents a clear example of the workings of the planning appeals and judicial review systems in relation to an ecologically very important freshwater site, and because the legal principles and operation of the two processes is substantially the same to-day.
5.2. Analysis of specific law
Quality and scope of specific legal framework
The planning system includes a comprehensive appeals process. Under this, all planning decisions made by planning authorities may be subject to an independent review by An Bord Pleanála. The jurisdiction of the Board is set out in the Planning and Development Acts and in so far as this case is concerned the Board had sufficient jurisdiction to accept an application for appeal from the Group.
The most important function of the Board is to review the decision made by the planning authority. The ‘standard of review’ is focused on the actual decision, and how it was reached by the authority. The board has the competency to enquire into the archaeological architectural, scientific, and technical, basis of the authority’s decisions as well as the legal interpretation of national and European laws that govern planning and development. This gives the applicant a second chance to convince those appointed by government, able in their chosen field of planning, that the decision was a wrong one to make, considering the grounds set out in the application for appeal.
The validity of the Board’s decision on a planning appeal cannot be questioned otherwise than by way of application to the High Court for judicial review within 8 weeks commencing on the date on which the decision is given in accordance with section 50 of the Planning and Development Act, 2000. The Court will not reopen the planning merits of the case. Leave to apply for a judicial review may not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed and the person seeking the judicial review has a substantial interest in the matter.
Section 50(4) of the Planning and Sevelopment Act, 2000 sets down three conditions which an applicant is required to satisfy before leave to seek judicial review may be granted.
I. ‘Substantial Grounds’
According to the relevant section the applicant must demonstrate that there are ‘substantial grounds’ for contending that the decision is invalid or ought to be quashed by the Court. However, it should be noted that for all other types of ‘judicial review’ cases the equivalent standard is less demanding and requires that the applicant establish ‘an arguable case’.
II. ‘Substantial Interest’
The High Court must be satisfied that the applicant has ‘a substantial interest’ in the matter. This has to be assessed in relation to the previous locus standi requirement which was one of ‘sufficient interest’. The new test appears to entail a more onerous standard.
III. Prior Participation
The final condition is that the applicant for judicial review must establish that they participated in the planning process before applying for the judicial review, or at least demonstrate that there was ‘good and sufficient reasons’ for non-participation. Prior to this provision being introduced, it was not an express requirement under the previous statutory scheme. As we have seen in other Indicators, this provision can be traced back to the decision in Lancefort Ltd. v. An Bord Pleanála ([1999] 2 IR 270).
It must always be remember that judicial review is a discretionary remedy and may not always be available. The onus of establishing all that material is on the applicant for judicial review, and if he fails in that onus, he must fail in his claim for review.
The judicial review process is not a review of the actual decision, but of the legality of the decision making process. This basically means that the applicant must convince the judge that the decision making process was wrong, not the actual decision. Although this seems to be an artificial distinction, the reality is that very rarely does an applicant succeed in overturning a planning decision. Judicial review is not an appeal on the merits; the central question is whether the decision taken by the local planning authority or An Bord Pleanála was "unreasonable" or "irrational" in law?
Quality of specific legal limits on access
In this case the plaintiff wanted to get the necessary planning bodies to require the developer to carry out an environmental impact assessment, and supply an environmental impact statement. The reason why this is important when considering access to confidential information is that if no assessment was carried out, there ultimately would be very little environmental information available to have access to. An Environmental Impact Statement available to the public in the planning authorities’ offices would have allowed the plaintiff to make submissions or observations on the proposed site, and point out any flaws that an EIS might contain. The law clearly provides for such an assessment, but the misinterpretation of the Regulations by the planning bodies, meant that the law was not applied.
Quality and scope of legal requirements to build capacity of government agencies
The Planning and Development Act, 2000 and its daughter regulations are silent on the need to build the capacity of members with regard to access to justice.
Quality and scope of the legal requirements to build capacity of the public
The Law is silent on this requirement; however the DOEHLG, Planning Authorities and the Board itself all provide information regarding the procedures, through leaflets, ENFO, and their individual web-sites.
There are no requirements specifically connected with capacity building for access to justice amongst the members of the Board, only this broad requirement in Section 109 (2) (a) of the Planning and Development Act, 2000
"The Board shall conduct, at such intervals as it thinks fit or as the Minister directs, reviews of its organisation and of the systems and procedures used by it in relation to appeals and referrals."
Legal requirements for timeliness
There is no set timeframe set down for the determination of an appeal to An Bord Pleanala. However the Planning and Development Act, 2000 states:
In Section 126 (1) "It shall be the duty of the Board to ensure that appeals and referrals are disposed of as expeditiously as may be…."
In Section 126 (2) "It shall be the objective of the Board to ensure that every appeal or referral is determined within (a) 18 weeks or (b) such other period set down by the Minister "
And in Section 126 (3) where the necessity for an oral hearing , or because the large volume of information to be examined, then the Board must notify all the parties to the appeal, as well as all those who have made submissions or observations, as to the new deadline for a decision.
And in Section 126 (5) where the Minister considers the development of strategic, economic or social importance, the Minister may direct the Board to give priority to the class or classes of appeals concerned.
5.3. Analysis of the case
EFFORT
Scope and quality of effort
An Bord Pleanála is an independent administrative body which was established in 1977 under the Local Government (Planning and Development) Act, 1976 and is responsible for the determination of planning appeals, referrals, compulsory purchase orders, major local authority infrastructure projects and certain other matters under the Planning and Development Acts, 2000 to 2002. Section 150 of the Planning and Development Act, 2000 requires that the Board adopt a code of conduct for members and employees.
Under this code: No Board member, Chief Officer, Planning Officer, or Secretary may be a member of a political party; Membership of the Board is in a whole-time capacity and so no member shall accept emolument for any outside employment, consultancy or advisory service other than with the written consent of the Chairperson
Section 113 of the Planning and Development Act, 2000 prohibits the disclosure of specified information by Board members or employees without the consent of the Board. Board members and employees should not express an opinion to any member of the public relating to any matter which is before the Board, other than the giving of other information in relation to procedures and compliance with the statutory objective which it is proper to give.
Under section 114 of the 2000 Act it is unlawful for a person to communicate with the Chairperson, an ordinary Board member, an employee, consultant or adviser or other person whose services are availed of by the Board for the purpose of influencing improperly the consideration of matters with which the Board is concerned or a decision of the Board in regard to any such matter. It is a duty of any such person, on receipt of such a communication, not to entertain it further and to bring it to the attention of the Board without delay.
Under the various legislation alluded to above the Board is under statutory duty to draw up, and periodically review its code of conduct.. Largely the code does in fact guarantee the independence of the Board. The one concern however is that the Board is willing to have regard to Government and Ministerial policies when arriving at some of its decisions. This situation can leave some members of the public asking, did the Board just do what the Government wanted them to do? This questioning by members of the public ultimately leads them to taking judicial review proceedings in the High Court.
Although the Judicial Review of the decision-making by An Bord Pleanála decided that the Bord had misinterpreted the Regulations, Kelly J (the judge) did not suggest any doubt about the independence with which it had reached its determination. Similarly, the Applicant for the review did not express any concerns to the court regarding the independence of the Board. However the appellant felt that the staff of the board was less than helpful to them in the appeals process.
In the subsequent Judicial Review, Thomas Maher, the Applicant for the review, made a request to the Board for discovery of documents relating to previous appeals in which the Board had made determinations regarding the necessity to conduct an EIA in the case of piggeries of similar size to the one in question. No such documents were forthcoming. Later, after some research, the appellant was independently able to identify the names of the files that he needed to see, and these were then supplied on request. In relating the above events Thomas Maher said he felt that, to say the least, the Board had been unhelpful. It was stated on behalf of the board that the search possibilities at the time were incapable of complying with the discovery request as initially put, but that with recent changes to systems within the board this problem should not reoccur.
In discussing to what extent the process was transparent to the public, it is necessary to look at the sequence of events in the the planning process.
Prior to making its decision regarding a planning application the Planning Authority should take into account any submissions made by anyone, responding to notices placed on the development site and in newspapers circulating in the area. Section 29.(1)(a) of the Planning and Development Regulations, 2001 states: "Any person or body, on payment of the prescribed fee, may make a submission or observation in writing to a planning authority in relation to a planning application within the period of 5 weeks beginning on the date of receipt by the authority of the application."
This then is the window of opportunity.
Having made its decision, the Planning Authority notifies the applicant and anyone who made submissions of their right to appeal the decision to An Bord Pleanala.
On receipt of an appeal, the Board must then notify the other parties and the relevant Planning Authority. The Parties then have 4 weeks to make submissions or observations. Any person may also make submissions or observations during this period. However, there is no requirement to place notices in papers announcing the beginning of the appeals process. If the Board deems that an EIS is required then under Article 105 of the Planning and Development Regulations, 2001 then a notice has to be published in an appropriate newspaper, more effectively opening up the submissions procedure to anyone.
The Board keeps a list of current appeals on its website, and available at its offices.
Under Article 70 of the Regulations, the council must also make available a list of current appeals relating to its decisions in its offices and public libraries (Article 32).
The appellant may request an oral hearing but it is, under Section 134 of the Planning and Development Act, 2000, only granted at the discretion of the Board. Any party to the appeal may request an oral hearing provided the correct non-refundable fee is paid in addition to the appeal fee. The person making the appeal must make the request within the period for lodging the appeal but, and where a party to an appeal other than the person making the appeal is sent a copy of an appeal, he/she may make the request within 4 weeks from the date the copy is sent to him/her.
A person requesting an oral hearing must still state their grounds of appeal in full and comply with the other legal requirements when lodging their appeal.
The Board has absolute discretion to hold an oral hearing with or without a request from a party and will generally only hold one where this will aid its understanding of a particularly complex case or where it considers that significant national or local issues are involved. As in all appeals, an Inspector is appointed by the Board and he gathers the information necessary and makes recommendations, but the Board still meets in private and may overturn the recommendations of the Inspector.
Oral hearings are fora for giving evidence and exploring the issues in public, but the decision-making process then continues in private.
In all cases the appeal is investigated by an inspector appointed to the task by the Board, who then reports to the Board, who then may or may not follow his recommendations.
Other than this, once all submissions and observations are received, the deliberations of the board continue behind closed doors, and nothing emerges until the determination is notified to the parties. In the case in point there was no oral hearing.
Following ther determination of the appeal all the relevant files are open to public inspection for 5 years.
Cost and affordability
The cost for an individual, other than the developer, to take an appeal to An Bord Pleanala is set at €210, which approximates to 1/3 the average weekly industrial wage, or 3/4 of the minimum weekly wage. These are substantial commitments. They are also only the beginning of the process, with the expense in time, telephone, copying, legal advise and expert witnesses adding to this.
Under Section 145 (1) (a) of the Planning and Development Act, 2000, the Board may, if it thinks proper, direct the planning authority to pay the appellant and/or the Board such sums as decided at the Boards discretion as compensation for expenses incurred, irrespective of the result of the appeal.
Conversely under Section 145 (1) (b) the Board can also seek costs from the appellant where it considers that the appeal was made with the intention of delaying the development or securing monetary gain by a third party. These costs could include those of all the other parties, the planning authority and the Board itself. In this case the Board did not seek costs.
The cost then of taking a judicial review of the Board’s decision is potentially crippling if, as is likely, legal aid is unavailable. The costs awarded against the party losing a review could be anywhere from €30,000-120,000 the equivalent to 1-4 years of an average industrial wage.
In the case discussed here Mr Maher, apart from the time, and other ancillary costs, spent c.£15,000, roughly equivalent to a years average industrial wage at the time, on the appeals process with An Bord Pleanala. This represented the legal and expert witness fees.
Despite costs being awarded in favour of the Mr Maher, the legal review process that followed cost in the order of £5000, as the expert witness fees were not paid by the court.
The Mr Maher’s legal team had taken the case for judicial review on a pro bono basis. Had this not been the case Mr Maher might never have taken what was a great financial risk.
Fairness and equitability
In determining individual appeals, the Board acts in a quasi-judicial role in accordance with the principles of natural justice. Unlike most planning appeal systems in Europe, third parties may make appeals under the Irish system. The proportion of such appeals is growing and in 2003, 48% of determined planning appeals involved third parties. Oral hearings were held in 46 cases.
Under Article 37 of the Planning and Development Act, 2000, only the applicant and those that made submissions or observations on the application are allowed to appeal the decision of the Planning Authority.
There are two exceptions to this:
(a) where a prescribed body was entitled to be notified of a planning application by the planning authority and was not notified, the body may lodge an appeal against the decision of the planning authority without having made submissions or observations on the planning application.
(b) a person who has an interest in adjoining lands in respect of which a decision to grant permission has been made, may also apply to the Board for leave to appeal the decision of the planning authority.
Timeliness
Whilst the appeals process to the Board was longer than the 18 weeks recommended in the Planning and Development Act, 2000, it was not excessive. By contrast the judicial review process took just short of two years.
Channels of access
The procedures for challenging a decision by a Planning Authority are clear and unless there is a strictly legal issue An Bord Pleanala is the only route open. Issues relating to the functions of the Planning Authority could also be raised with the Office of the Ombudsman, but these would not deal with the planning decision itself.
Efforts to build capacity of government agencies
The 40 Administrative staff that run the Board’s activities, and that are also the public face of the Board operate under a comprehensive staff guidance manual and take part in regular workshops to improve their awareness of legislation and best practice in customer services. Training on access to justice would not be given as a specific course.
Due to changes in the functions of An Bord Pleanala under the Planning and Development Act, 2000, the workload of the Board has increased considerably. It is Estimated that an approximate increase of 10% in Administrative staff numbers is required.
Effort to build the capacity of the public
Reviews of the websites of An Bord Pleanala, DOEHLG, Planning Authorities, as well as the leaflet published by the DOEHLG, which is widely available make the appeals system accessible and clear.
EFFECTIVENESS
Impacts and outcome of access
There were in essence two decisions. Firstly the Board upheld the initial decision of the Planning Authority, and then the High Court overturned this and quashed the original decision, and so the planning permission was withdrawn, the piggery never built and the potential source of serious pollution not developed.
Effectiveness of capacity building for government agencies
During the appeals process the appellant was very unhappy with the way in which the Board’s Inspector conducted the study of the potential impacts on the water course that was likely to be at risk from the proposed development.
In the subsequent Judicial Review Thomas Maher, the Applicant, made a request for discovery of documents relating to previous appeals in which the Board had made determinations regarding the necessity to conduct an EIA in the case of piggeries of similar size to the one in question. No such documents were forthcoming. Later, after some research, the appellant was able to identify the names of the files that he needed to see, and these were then supplied on request. It was felt by the appellant that, to say the least, the Board had been unhelpful.
The board says that it had limited computer search capacity at the time which has been improved since and is available online.
5.4. Findings
The presentation of values in the findings charts uses colour coding to show the values given in response to each indicator as following :
very good
good
intermediate
poor
very bad
not applicable
LAW
Quality and scope of specific legal framework
95 To what extent does the law require a forum to hear the selected claim type and issue a decision? - very good
96 To what extent does the law enable a party to seek review or appeal of selected claim type to an independent body with the power to reverse a decision? - good
Quality of specific legal limits on access
97 How clear and narrow are the limits on claims of confidentiality regarding information relevant to selected claim type? - good
Quality and scope of legal requirements to build capacity of government agencies
98 To what extent does the law require the selected forum to build the capacity of members with regard to access to justice? - very bad
Quality and scope of the legal requirements to build capacity of the public
101 To what extent does the law require the government to offer the public technical assistance, guidance or training on how to use the selected forum? - very bad
102 To what extent does the law require the government to build the capacity of sub-national government officials to understand and facilitate citizens’ rights within the justice system? - poor
Legal requirement for timeliness
103 How clearly does the law establish a reasonable timeframe for forum decisions? - good
EFFORT
Scope and quality of effort
105s How strong are the forum’s standards, regulations or formal policy to ensure independence and impartiality of the forum? - good
108 To what extent was the forum independent and impartial in the selected case? - good
109 To what extent were both parties able to gain access to information and conduct fact finding in the selected case? - good
110 To what extent was the process transparent to the public in the selected case? - good
Cost and affordability
112 To what extent did the forum keep the costs of bringing a claim low for the parties in the selected case? - very bad
Fairness and equitability
114 How well did the forum take steps to make the forum accessible to[pull-down list including women, poor, minorities, etc] in the selected case? - not applicable
117 How broadly was legal standing interpreted by the forum in the selected case? - intermediate
Timeliness
120 To what extent did the forum minimize delays in processing and reviewing the claim and in issuing a decision? - good
Channels of access
121s To what extent was there a choice of forums which could consider the selected claim? - very bad
Efforts to build capacity of government agencies
123s To what extent were guidelines or training offered regularly over the last 3 years to forum members on access to information, participation? - good
125s How adequate is the government budget allocation to support the forum’s justice functions? - good
Effort to build the capacity of the public
127s How clear and easily accessible are the public guidelines on how to use the forum? - good
EFFECTIVENESS
Impacts of access
129 To what extent was the forum decision implemented in the selected case? - very good
Outcomes of access
131 To what extent did the forum decision in this case lead to measures to avoid or reduce negative impacts on the environment or human health or improve access or participation? - very good
Effectiveness of capacity building for government agencies
132 How well did forum members and staff execute their access to justice responsibilities in the selected case? - intermediate
5.5. Conclusions regarding Access to Justice
The case chosen relates to a Piggery at Ballyragget, Co Kilkenny regarding the prevention of environmental harm. Kilkenny County Council had previousely granted planning permission for this project and the Noreside Environmental Protection Group (the group) appealed the decision to An Bord Pleanála.
The planning system includes a comprehensive appeals process. Under this, all planning decisions made by planning authorities may be subject to an independent review by An Bord Pleanála. The ‘standard of review’ is focused on the actual decision, and how it was reached by the Authority.
Under Article 37 of the Planning and Development Act, 2000, only the applicant and those that made submissions or observations on the application are allowed to appeal the decision of the Planning Authority. There are two exceptions to this: (a) where a prescribed body was entitled to be notified of a planning application by the planning authority and was not notified (b) a person who has an interest in adjoining lands.
Unless the Board decides that an EIS is required it isn’t required to publish notices regarding the appeal. Should the Board require an EIS then will give notice in th relevant newspapers that submissions are welcome from anyone. Once the Board’s Inspector has gathered enough information then the Board makes its determination behind closed doors.
The validity of the Board’s decision on a planning appeal cannot be questioned otherwise than by way of application to the High Court for judicial review within 8 weeks of their decision. Section 50(4) of the Planning and Development Act, 2000 sets down three conditions which an applicant is required to satisfy before leave to seek judicial review may be granted. The Applicant must have substantial grounds, substantial interest and prior participation.Judicial review is a discretionary remedy and may not always be available. The judicial review process is not a review of the actual decision, but of the legality of the decision making process.
In the case in question both the Planning Authority and the Board had decided that there was no need for an EIA and these decisions denied Mr Maher his right to access to information. The consecutive decisions to grant permission without an EIA also had the potential to cause serious environmental harm. A judicial review followed in which the judge ruled that there should have been an EIA, and quashed the planning permission.
The law does not require the Board to build the capacity of members with regard to access to justice, nor does it require the government to offer the public technical assistance, guidance or training on how to use the Board, and there is only a limited requirement for the government to offer the public technical assistance, guidance or training on how to use the appeals system.
Although there is no set timeframe for the determination of an appeal to An Bord Pleanala, the Planning and Development Act, 2000 requires their expeditious treatment and sets a target timescale of 18 weeks.
Whilst the Board has very strong codes of conduct in order to maintain its independence, it has to take into account Government and Ministerial policies when arriving at some of its decisions. This situation can leave some members of the public asking, did the Board, just do what the Government wanted them to do? Although in this case in the Judicial Review of the decision-making by An Bord Pleanála it was decided that the Board had misinterpreted the Regulations, Kelly J (the judge) did not show any doubt about the independence with which the Board had reached its determination.
Although the Board has the discretion to award costs to the ‘winning’ side in an appeal, it didn’t do so in this case, and even so it proved a costly affair for Mr Maher.
Whilst in this case the appeals process to the Board was longer than the 18 weeks recommended in the Planning and Development Act, 2000, it was not excessive. By contrast the judicial review process took just short of two years.
The procedures for challenging a decision by a Planning Authority are clear and unless there is a strictly legal issue An Bord Pleanala is the only route to be taken. Issues relating to the functions of the Planning Authority could also be raised with the Office of the Ombudsman, but these would not deal with the planning decision.
The 40 Administrative staff that run the Board’s activities, and that are the public connection operate under a comprehensive staff guidance manual and take part in regular workshops to improve their awareness of legislation and best practice in customer services, though training on access to justice would not be given as a specific course.
Due to changes in the functions of An Bord Pleanala under the Planning and Development Act, 2000, the workload of the Board has increased considerably. It is estimated that an approximate increase of 10% in Administrative staff numbers is required.
Reviews of the websites of An Bord Pleanala, DOEHLG, Planning Authorities, as well as the leaflet published by the DOEHLG, which is widely available, make the appeals system accessible and clear.
It is clear from the outcomes that the appeals process works, and its decisions, unless subject to legal challenge, are final. The appellant however expressed reservations about the capacity of the Board to provide access to justice.
To summarise the, the major problems with the appeals process then are the lack of legislation requiring capacity building with regard to the Board. Legislation on the training of staff regarding access rights and how to facilitate the public in asserting those rights, including the giving of technical assistance, is absent. Mr Maher also faced a serious financial barrier in this case. Legal standing with regard to appeals is also somewhat restrictive.
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2. INSIGHT ONLINE JOURNAL CALL FOR PAPERS
Issue #3 of INSIGHT Online Journal of Irish Heritage Studies is now being readied for publication later this month.
We are now accepting submissions for #4 which will be released at the end of August, and #5 due in December 2006.
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INSIGHT publishes articles, notes and reviews of any length and we welcome work that takes advantage of the opportunities afforded by online publication such as graphics, animations etc.
We welcome any work dealing with Ireland's heritage in the broadest sense,
including:
Archaeology
Architecture
Environment
Folklore
History
Language
Literature
Mythology
Natural History
Performance Arts
Visual Arts
If you are unsure whether your material is appropriate, we will be happy to advise.
Of special interest for Issue #4 are discussions of the interrelationship between community and heritage.
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Initial submissions should be in the form of an abstract, though we will accept completed papers at this stage also.
Submissions should be formatted as plain text, rich text, Word .doc or html.
Final submissions should be delivered in plain text or rich text only.
Please address initial enquiries or submissions to:
calraige@eircom.net
with the word INSIGHT included in the subject line
Note that late submissions of completed articles or reviews for #3 are still being accepted up to 15 April.
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3. UPCOMING EVENTS
April-May 2006: Seminars in Environmental Law at UL
The International Commercial and Economic Law Research Group at the University of Limerick will run a series of seminars on environmental law in the Spring 2006 semester. These seminars will deal with issues such as climate change, environmental enforcement in Ireland, fisheries in the national and international contexts and recent developments in domestic environmental law.
TIMETABLE OF EVENTS:
* Fisheries In Ireland: Lessons From North America, Date: Thursday 27 April 2006, Speaker: Professor Katrina Wyman, School of Law, New York University
* Environmental Impact Assessments, Date: May 2006, Speaker : Garrett Simons, BL,
(All events are subject to change.)
Further details of the Seminars are available at http://www.ul.ie/envirocom/worddocs/EnvironmentalLaw.doc or from the Project Leader: Rónán Kennedy, ICELRG, School of Law, University of Limerick. Email: ronan.kennedy@ul.ie
Further information on the International Commercial and Economic Law Research Group is available by contacting Raymond J Friel, Director, ICELRG, School of Law, University of Limerick. Email: raymond.friel@ul.ie . Limerick.
Friday 28th April -Monday 1st May 06 ''Health, Medicine & The Law'' - A Contemporary and Brehon Perspective
See http://www.burrenlawschool.org/programme.html for programme.
Burren Law School 2006, Burren College of Art, Ballyvaughan, Co. Clare
6th / 7th May 06: Weekend in the Woods – CELT
Another big weekend of traditional and ecological skills training at all levels for adults (age 14+) Courses will include Wood Carving, Dry-stone and Lime-mortar Walling, Basket Weaving, Blacksmithing, Greenwood Furniture making, Natural Building, Coppersmithing, Silversmithing, Herb Lore, Bushcraft, Natural Building, Sugan Chair making and more. For details see http://www.celtnet.org/events-page14233.html. Clare.
22 / 23 / 24 July 06: Summer in the Woods - CELT
Bealkelly Wood, Tuamgraney - 12 courses including Boat-building - see http://www.celtnet.org for more info. Clare.
7th / 8th October 06: Weekend in the Woods – CELT
Bealkelly Wood, Tuamgraney - see http://www.celtnet.org for more info. Clare.
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4(a). IN THE NEWS - National
CONCERNS OVER TREE TREATMENT
Health and safety concerns about a new Coillte treatment for trees in its battle against an insect pest has led to a dispute with the company's 450 tree planters.
Coillte claims the new method, known as pre- treated "dipped plants", is much more effective against the damaging weevil parasite. However, Siptu believes the treatment has "significant" health and safety concerns.
The dispute came before the Labour Court after a conciliation conference at the Labour Relations Commission failed to resolve it. The court recommended yesterday that the new planting system should begin without delay on a three-month trial.
(c) Irish Times, April 13 '06
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MILLENNIUM FORESTS IDEA ONE BIG LIE
Fintan O'Toole
Do you remember your tree? Your own unique Irish native broadleaf tree? The one that the Government planted for you to mark the millennium? You must remember it: Séamus Brennan sent you out a certificate with a scientific-looking number on it and a statement of where your family's very own tree was to be found.
Bertie Ahern launched the project at Avondale in December 1999. The official propaganda described it as "a visionary millennium project to help rescue and restore a number of the country's native forests and woodlands. A unique element of the People's Millennium Forests is that each of the 1.2 million households will be able to identify the exact location of their tree, obtain a certificate of identification and will be encouraged to chart its growth well into the new millennium."
The Taoiseach hailed the idea as "a unique project that will stop the decline of native forests and create a tremendous environmental, educational and cultural resource all over the country for Irish people to enjoy and appreciate for hundreds of years to come."
It was a lovely notion. It recognised that one of the nastiest aspects of the degradation of the Irish environment was the abysmal state of our forests. On average, over 30 per cent of the EU at the time was forestry. In Ireland, the figure was less than 9 per cent. Most of that, moreover, was made up of cheap, nasty evergreens that sustain little in the way of natural diversity and actively harm the environment.
So here was a Government plan that caught the public imagination. Kids in schools all over the country collected the seeds of native tree species to be planted and, according to the official website, "set up small nurseries on their classroom windowsills . . . in this way each school helped to increase the forests of Ireland".
The Government told us: "The trees will be planted using a grid system. A central database will record the precise location of each tree and will allow for households to identify their tree."
It was, of course, a lie. Last month, when Valerie Cox of Today with Pat Kenny on RTÉ radio went with a local resident to look for his tree in Camolin Wood in Co Wexford, they found an area overgrown with furze and brambles. Gerry Egan, company secretary of Coillte, which was given the job of managing the people's forests, explained that the unique, numbered tree they were looking for wasn't, after all, a unique numbered tree. The number referred to a block. No individual tree was identifiable because the vast majority of the trees that had been planted would be "thinned out" - in other words dumped.
The 2,500 trees that had been planted on each hectare would be reduced to about 50. So well over 99 per cent of us were simply lied to.
We didn't get a unique tree. We can't "chart its growth well into the new millennium" because it will be thinned out soon. The central database that we were told would identify each of our trees doesn't exist. And all of this was known from the start. Once the trees were planted in the way they were, it was always impossible for each family to have its own tree whose development it could monitor. This matters at a number of levels. Firstly, governments shouldn't get away with large-scale deception of their citizens for the sake of a PR stunt. Secondly, the cynicism involved in getting primary school children all worked up about a big environmental project under false pretences is as corrosive as it is sickening, teaching them the lesson that public ideals are for suckers. And thirdly, the whole episode highlights the unholy mess that continues to be made of forestry policy.
One of the reasons for the millennium forests debacle is the bizarre status of Coillte. When, in late 2000, environmental activist Tony Lowes wrote to Coillte seeking information of the environmental aspects of the millennium project, Coillte replied that it was a private limited company which operated on a commercial basis. It argued it had no public administration functions or responsibilities, and was not obliged to provide any information.
This is an astonishing position for a company whose only shareholders are the Ministers for Finance and Agriculture, and it has been repeatedly rejected by the European Court.
Coillte sees itself as a purely private, commercial operation, with no public responsibilities. So, while the Taoiseach could blather about stopping the decline of native forests and the Heritage Council could demand that 50 per cent of all new planting be native species, Coillte's then chief executive, Martin Lowery, could state baldly that "hardwoods are not commercial, do not produce a return and require good agricultural land" and that the company therefore has no interest in planting them in large numbers. This same logic underlies the company's practice of selling off public forests to private developers in deals that involve very little public scrutiny. The big lie in the whole millennium forests spin was that "we" own our trees. Public ownership of one of our most important environmental and tourism assets is about as real as the teddy bears' picnic.
(c) The Irish Times, April 11 '06
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RESIDENTS RESIST PLANS FOR QUARRY ON WEXFORD HILLSIDE
Frank McDonald, Environment Editor
Plans to extract some two million tonnes of stone from Ballythomas Hill, near Gorey, Co Wexford, are being strongly resisted by local residents who maintain that the proposed quarry would damage the environment.
Hudson Concrete Ltd, based in Arklow, Co Wicklow, has sought planning permission from Wexford County Council to establish a hard rock quarry covering a 42-acre site on the slopes of the hill, which is designated as a "sensitive landscape area" in the county plan.
The planning application and environmental impact statement (EIS) were prepared on Hudson's behalf by Bord na Móna. Coillte Teoranta, the State forestry company, has also consented to give way leave over its land to provide access to the proposed quarry.
The EIS claims that the development will not adversely affect the scenic quality of the landscape because it would be screened on three sides by trees and on the fourth by a ridge, and that it would not be visible except from higher elevations, such as Croghan Hill.
Local residents, many of them living in recently built houses, have formed an action group to oppose the plan. They say there was no prior consultation with them, contrary to the EIS guidelines, which state that all interested parties should be consulted.
The Ballythomas Action Group has held two protest meetings, attended by up to 200 people, and is stepping up the campaign by lobbying local councillors and TDs, leafleting Sunday Masses and holding sponsored runs to raise money for its cause.
"In terms of community activism, it has been one of the most interesting demonstrations of rural people power around here in a while in defence of the countryside", commented Gorey Fianna Fáil councillor Malcolm Byrne, who is backing the local residents.
"This area is close to the Wicklow border, about half way between Gorey and Tinahely, and is one of the most picturesque landscapes in the southeast", he said. "There are huge fears among locals that the planned quarry will destroy the face of the community".
Noting that Ballythomas National School is just half a mile from the site, the action group has expressed concern for the safety of its 55 pupils given that an estimated 228 trucks per week would be servicing the proposed quarry via narrow country roads and bridges.
Local residents are also concerned that the value of their homes will be diminished, although the EIS states that this is "unlikely" as the area of extraction would be some distance away from houses and measures would be taken to minimise its environmental impact.
Under the Wexford county plan, only "small-scale development required to meet the social and economic needs of rural communities and small-scale tourist and outdoor sport and recreational development" is permissable in sensitive lasndscape areas.
The EIS maintains that the quarry would fit into this category - a claim the residents dismiss as "absurd". They point to the fact that 100,000 tonnes of rock would be excavated from Ballythomas Hill annually - a total of two million tonnes over its 20-year lifespan.
They also reject a claim in the EIS that one of the benefits of this development would be the potential to develop the worked-out quarry as a tourism facility. "Old quarries are well-known as wild refuges and are often considered visually interesting in their own right", it says.
A spokesman for Hudson Concrete said the company was "in close consultation with the community and its public representatives". Meetings were being arranged as "the developer is keen to have an open door policy to listen to people's concerns".
(c) The Irish Times, April 06 '06
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ENVIRONMENTAL ADVISORY COMMITTEE APPOINTED BY MINISTER IS UNBALANCED
The Minister for the Environment has shown his true colours with his appointments to the EPA's advisory committee, writes Frank McDonald, Environment Editor
Dick Roche would like people to believe that he cares about the environment, even that he's more sympathetic to the "green agenda" than his predecessor Martin Cullen.
But when it came to choosing nominees to serve on the Environmental Protection Agency's Advisory Committee, he nailed his true colours to the mast.
Not one of the six nominees put forward by 24 groups involved in various aspects of environmental protection was chosen by the Minister.
He passed over all of them - including such prominent figures as Karin Dubsky - in favour of appointing people with little or no discernible track-record in the area.
Section 27 of the 1992 Environmental Protection Agency (EPA) Act specifies that its advisory committee should be broadly representative of professions and organisations concerned with environmental protection, those concerned with social and economic development and those involved in environmental education or research.
Until Mr Roche took over as Minister for the Environment in September 2004, the prescribed organisations under the environmental protection heading were An Taisce, Voice and Eco-Unesco - all three of them actively involved in this area.
However, that was changed by a little-noticed statutory instrument signed by the Minister in December 2004.
Henceforth, the organisations with rights to nominate candidates for selection as members of the EPA advisory committee were to be Fáilte Ireland and the Heritage Council - both State agencies - and Environmental Ecological NGOs Core Funding Ltd, (EENGOCF) an umbrella body for non-governmental organisations involved in environmental protection.
EENGOCF had been set up to administer the relative pittance disbursed annually by the Department of the Environment in "core funding" for 24 environmental NGOs, to enable them to survive. In 2005, it received €80,000 to share out between them, plus a further €115,000 for administration and conference travelling expenses.
In January 2005, EENGOCF was requested by the Minister to nominate six candidates for appointment to the new EPA advisory committee - three of whom should be male and three female, in the interest of "gender balance". The environmental groups had every reason to believe that at least one of their nominees would be chosen.
The previous advisory committee, incidentally, had been allowed to lapse 10 months earlier even though the 1992 legislation under which the EPA was established laid down that "there shall be a committee" with 12 members to advise the agency on such matters as its work programme, standards, guidelines and codes of practice.
EENGOCF submitted six nominees: Jack O'Sullivan, who served on the previous advisory committee; Elizabeth Cullen, of the Irish Doctors' Environmental Association; Karin Dubsky, of Coastwatch; Michael Ewing, of Friends of the Irish Environment; Pat Finnegan, of Grian, and Caroline Lewis, of the Irish Natural Forestry Foundation. Though these nominations were made within a tight timetable, a full year passed before EENGOCF was informed by the Minister's office that the new advisory committee had been appointed, and none of its nominees was selected. Instead, Mr Roche chose the Fáilte Ireland nominee, environmental consultant Jeanne Meldon, from the panel.
He also made four personal appointments: John Dillon, former president of the IFA; John Buckley, a Killarney auctioneer who was on the previous advisory committee, and two of his own constituents - Irene Sweeney, described as a "community representative" from Arklow, and Seán Byrne, of the Wicklow Uplands Council.
Mr Dillon has said he was approached directly by the Minister within weeks of stepping down from the IFA's leadership and asked if he would like to serve on the EPA's advisory committee; he had agreed to accept the appointment "for the good of Irish farmers". At the time, the IFA was at war with the Government over the EU nitrates directive.
Ms Sweeney is married to a Fianna Fáil councillor in Arklow whose family have been active in the party for many years, and was involved in the Special Olympics in 2004, while Mr Buckley is also a board member of Sustainable Energy Ireland, the State agency charged with promoting the adoption of alternatives to fossil fuels.
As reported in today's newspaper, Mr Buckley took an interest in the case of an illegal dump in Co Wicklow and plans by Brownfield Restoration (Ire) Ltd to remediate and develop it; he forwarded a letter from the company's managing director addressed to the Minister to the EPA's deputy director general, Dr Padraic Larkin.
There is no doubt that the committee appointed by the Minister is unbalanced. The farming sector is more than well represented, not just by Mr Dillon, but also by Donal Harte, chairman of the ICMSA in west Cork, who has complained that a "draconian" application of the nitrates directive would put pig and poultry farmers out of business.
Carmel Dawson, of the Irish Countrywomen's Association, is also a member of the new advisory committee, as is Marian Byron of Ibec, which represents companies in the chemical and pharmaceutical sector that must obtain integrated pollution control licences from the EPA - though the committee has no role in relation to individual licences.
According to Frank Corcoran, national chairman of An Taisce, Mr Roche's decision to overlook all six of the nominees put forward by the NGO umbrella group in his appointments to the advisory committee - "sends a clear signal" that the Minister "places no value on the input of civil society" into the whole area of environmental protection.
Ms Dubsky agreed. "There are weaknesses in the way the EPA is being run, such as the requirement that any complaint to its Office of Environmental Enforcement must be in writing.
"A lot of people are afraid to do that because their names would appear on a public file. If we were on the advisory committee, we could change things like that."
(c) Irish Times, March 21 '06
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5. WOODLAND LEAGUE CONTACT DETAILS
www.woodlandleague.org
Andrew St. Ledger, PRO,
+353-(0)87-9933157
Brendan Kelly, Liaison Officer,
+353-(0)91-687778 (evenings)
+353-(0)86-1529176 (mobile)
brendankellywoodlawn@yahoo.ie
Ciarán Hughes, Secretary,
The Woodland League,
c/o Caherawoneen, Kinvara, Co. Galway, Ireland.
+353-(0)87-9652992
woodlandleague@yahoo.ie
Yahoo! Discussion Group:
http://www.yahoogroups.com/groups/woodland-league
woodland-league-subscribe@yahoogroups.com
Petition:
http://www.petitiononline.com/rfpii
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