Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland 9781472564801, 9781841135007

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In memory of my father

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Preface

T

HIS WORK DRAWS on research that I undertook at the European University Institute (EUI), Florence as the basis for a doctoral dissertation. I am indebted to Professor Gráinne de Búrca and Professor Jacques Ziller who supervised my research at the EUI, and to Professor Ludwig Krämer and Professor Yvonne Scannell who offered expert advice in their role as external examiners. Particular thanks are due to Professor Gráinne de Búrca, who has been a constant source of advice and encouragement. Research grants funded by the Department of Education and Science, Dublin and the EUI supported my doctoral research. Irish planning law is notoriously complex. In attempting to decipher the law, I was assisted greatly by two leading works in the field: Garrett Simons, Planning and Development Law, 2nd edn (Dublin, Thomson Round Hall, 2007) and Yvonne Scannell, Environmental and Land Use Law (Dublin, Thomson Round Hall, 2006). I thank the following people for taking time to read draft material and for providing insightful comments: Liam Cashman; Barry Doherty BL; Tom Flynn BL; Charles George QC; Dr Jane Holder; Gregory Jones; Professor Maria Lee; Tony Lowes; Pat McCarthy; Professor David Gwynn Morgan; Joe Noonan; Lia O’Hegarty; Garrett Simons SC; Siobhán Stack BL and Declan Walsh. Friends and colleagues at University College Cork (UCC) were a constant source of advice and support. Particular thanks are due to: Professor Brian Carroll; Dr Mary Donnelly; Professor Steve Hedley; Professor John Mee; and Brendan O’Sullivan. Students in my planning and environmental law classes at UCC provided a stream of thought-provoking comments and challenging questions while this work was in progress. This book is all the richer as a result of their contributions over the years. A special word of thanks is due to John Healy BL for generously giving his time to review a number of draft chapters and for providing invaluable advice on a range of issues relating to the manuscript. The Annual Conference of the Society of Legal Scholars, held at LSE in September 2008, provided an ideal forum in which to discuss conclusions with participants in the Environmental Law Section under the skilful stewardship of Professor Colin Reid. I am grateful for their input, which was invaluable when fine-tuning my closing proposals – particularly as regards the outlook for the future. I thank Richard Hart and the team at Hart Publishing. It was a pleasure to work with them. Their professionalism, efficiency and enthusiasm are second to none. I am especially indebted to Richard Hart for his encouragement and his vii

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Preface patience while I struggled to determine the most appropriate time to draw a line under this rapidly developing area of law and to submit the manuscript for once and for all. In chapter four, the discussion of Case C-216/05 Commission v Ireland [2006] ECR I-10787 draws on ‘EIA and Public Participation: Determining the Limits of Member State Discretion’ (2007) 19 Journal of Environmental Law 247. The book is based on material available to me as at 1 October 2008. Áine Ryall University College Cork 8 April 2009

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Table of Abbreviations AC All ER Art CFI CJ CLJ CML Rev CMLR DEHLG Dir EA EC ECHR ECJ ECR ECtHR EHRR EIA EIS EL Rev ENDS ENGO EPA EU FIE FOI GMO HRA ICLQ ILRM IMPEL IPPC IR J LQR LRC MLR MPA

Appeal Cases All England Reports Article Court of First Instance Chief Justice Cambridge Law Journal Common Market Law Review Common Market Law Reports Department of the Environment, Heritage and Local Government Directive Environmental Assessment European Community European Convention on Human Rights European Court of Justice European Court Reports European Court of Human Rights European Human Rights Reports Environmental Impact Assessment Environmental Impact Statement European Law Review Environmental Data Services Environmental Non-governmental Organisation Environmental Protection Agency European Union Friends of the Irish Environment Freedom of Information Genetically Modified Organism Human Rights Act International and Comparative Law Quarterly Irish Law Reports Monthly European Union Network for the Implementation and Enforcement of Environmental Law Integrated Pollution Prevention and Control Irish Reports Justice Law Quarterly Review Law Reform Commission Modern Law Review Mineral Planning Authority xiii

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Table of Abbreviations NDP NGO NI NSS OEE OJLS P PCO PDA PL Reg RSC SAC SDS SDZ SEA TD TEU UK UN ECE WLR WWF

National Development Plan Non-governmental Organisation Northern Ireland National Spatial Strategy Office of Environmental Enforcement Oxford Journal of Legal Studies President Protective Costs Order Planning and Development Act Public Law Regulation Rules of the Superior Courts Special Area of Conservation Sustainable Development Strategy Strategic Development Zone Strategic Environmental Assessment Teachta Dála (Member of Dáil Éireann) Treaty on European Union United Kingdom United Nations Economic Commission for Europe Weekly Law Reports World Wildlife Fund

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Table of Cases EUROPEAN COURT OF HUMAN RIGHTS Airey v Ireland (1979) 2 EHRR 305 ............................................................................117, 120 Antonetto v Italy (2003) 36 EHRR 10 .................................................................................117 Bosphorus v Ireland (2006) 42 EHRR 1 ................................................................................24 Bryan v United Kingdom (1995) 21 EHRR 342 ...........................................................118–19 Chapman v United Kingdom (2001) 33 EHRR 18 .............................................................118 Dombo Beheer BV v Netherlands (1994) 18 EHRR 213 ....................................................118 Fadeyeva v Russia (2007) 45 EHRR 10 ...............................................................................117 Fredin v Sweden (1991) 13 EHRR 784 ...............................................................................117 Giacomelli v Italy (2007) 45 EHRR 38 .............................................................32–3, 117, 189 Guerra v Italy (1998) 26 EHRR 357 .....................................................................33, 117, 189 Hatton v United Kingdom (2002) 34 EHRR 1 .............................................................24, 121 Hatton v United Kingdom (2003) 37 EHRR 28 .......................................24, 33, 117, 120–21 Holding and Barnes Ltd v UK (App No 2352/02) .............................................................118 LAM v United Kingdom (App No 41671/98), 5 July 2001 ................................................202 Ledyayeva v Russia, Applications Nos 53157/99, 53247/99, 53695/00 and 56850/00, 26 October 2006 ..............................................................................................................117 López Ostra v Spain (1995) 20 EHRR 277 .........................................................................117 Moreno Gómez v Spain (2005) 41 EHRR 40 ......................................................................117 Neumeister v Austria (1968) 1 EHRR 91 ............................................................................117 Öneryildiz v Turkey (2005) 41 EHRR 20 ............................................................................117 Ortenberg v Austria (1994) 19 EHRR 524 ..........................................................................117 Smith and Grady v United Kingdom (2000) 29 EHRR 493 ...............................................121 Steel and Morris v United Kingdom (2005) 41 EHRR 22 ..........................................118, 120 Tas¸kin v Turkey (2006) 42 EHRR 50 ..................................................................................117 Tsfayo v United Kingdom App No 60860/00, 14 November 2006 ....................................120 EUROPEAN COURT OF JUSTICE

Numerical Case 25/62 Plaumann & Co v Commission [1963] ECR 95 ............................................94–5 Case 26/62 NV Algemene Transport-en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1 ..............................................1 Case 41/74 Van Duyn v Home Office [1974] ECR 1337 ...................................................157 Case 33/76 Rewe-Zentralfinanz eG & Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989 ..................................................................................76 Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 ......................76 Case 51/76 Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113 .........................................................................................159 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629 .............................................................................................................................77 Case 148/78 Ratti [1979] ECR 1629 ...................................................................................164

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Table of Cases Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53 .................................153 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR I-3415 .........................................................................................................208, 240–41, 260 Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 ....................................................................................................................................77 Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 .....64, 67, 77, 84–5, 115, 177 Case 294/83 Parti Ecologiste ‘Les Verts’ v Parliament [1986] ECR 1339 .............................83 Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723 ...............................................................................................154, 164, 173 Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651......................................................... .........................................................18, 77, 83, 85 Case 80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969 ...............................................178–9 Case 222/86 UNECTEF v Heylens [1987] ECR 4097 ..............................................77, 83, 85 Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839 ................154, 175–6 Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest v Hauptzollamt Paderborn [1991] ECR I-415 ..............86 Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135 ..............................................................................................................177, 179 Case C-188/89 Foster v British Gas [1990] ECR I-3313 ................................................154–5 Case C-213/89 R v Secretary of State for Transport ex p Factortame Ltd [1990] ECR I-2433......................................................................................................... 64, 67, 78, 80, 86 Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357 ....78, 86, 157, 179–80, 185, 187–9, 259 Joined Cases C-87/90, C-88/90 and C-89/90 Verholen v Sociale Verzekeringsbank [1991] ECR I-3757 ....................................................................................................90, 91, 92, 122 Case C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269 ...................78, 79 Case C-240/90 Germany v Commission [1992] ECR I-5383 ............................................101 Case C-97/91 Oleificio Borelli SpA v Commission [1992] ECR I-6313 ..................77, 83, 87 Case C-271/91 Marshall v Southampton and South-West Hampshire Area Health Authority [1993] ECR I-4367 ............................................................................................................85 Case C-91/92 Faccini Dori v Recreb Srl [1994] ECR I-3325 .........................................173–4 Case C-236/92 Comitato di Coordinamento per la Difesa della Cava and others v Regione Lombardia [1994] ECR I-483 .........................................................................................153 Case C-396/92 Bund Naturschutz in Bayern eV v Freistaat Bayern [1994] ECR I-3717 ......................................................................................................................126 Case C-431/92 Commission v Germany [1995] ECR I-2189 .........32, 126–7, 132, 140, 158, 171–2, 225 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and R v Secretary of State for Transport, ex p Factortame Ltd and Others [1996] ECR I-1029 87 ...............................................................................................180–84 Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599 ..................................79, 105 Case C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631 ......................................................................................................180, 181, 186 Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705 .........................78, 79, 225, 258 Case C-465/93 Atlanta Fruchthandelsgesellschaft mbH v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761 ...................................................................................86

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Table of Cases Case C-5/94 R v Minister for Agriculture, Fisheries and Food ex p Hedley Lomas (Ireland) Ltd [1996] ECR I-2553 .............................................................................................180–81 Case C-118/94 Associazione Italiana per il WWF v Regione Veneto [1996] ECR I-1223 ...............................................................................................................................153 Case C-133/94 Commission v Belgium [1996] ECR I-2323 ................................128, 140–42 Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others v Germany [1996] ECR I-4845 ...................................................................180, 182 Case C-194/94 CIA Security International SA v Signalson SA and Securitel SPRL [1996] ECR I-2201 ......................................................................................................................173 Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit International BV and Others v Bundesamt für Finanzen [1996] ECR I-5063 ........................................................181, 186 Case C-70/95 Sodemare SA v Regione Lombardia [1997] ECR I-3395 ..............................85 Case C-72/95 Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 .....80, 128, 141–3, 145–6, 156–7, 159–63, 167–8, 171, 174, 183, 191, 196, 215–16, 218–9, 239, 258 Case C-127/95 Norbrook Laboratories Ltd v Ministry of Agriculture, Fisheries and Food [1998] ECR I-1531 ..........................................................................................................182 Case C-168/95 Arcaro [1996] ECR I-4705 .........................................................................179 Case C-188/95 Fantask A/S v Industriministeriet [1997] ECR I-6783 ...............................79 Case C-301/95 Commission v Germany [1998] ECR I-6135 ............................................142 Case C-321/95 P Stichting Greenpeace Council v Commission [1998] ECR I-1651 .....95–6, 156, 159, 184 Case C-334/95 Krüger GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517 ................................................................ ................................................................86 Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft berlin mbH [1997] ECR I-4961 ..........................................................................................................196 Case C-81/96 Burgemeester en Wethouders van Haarlemmerliede en Spaarnwoude v Gedeputeerde Staten van Noord-Holland [1998] ECR I-3923 ..........................126, 130–2 Case C-231/96 Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze [1998] ECR I-4951 ..................................................................................................................78, 79 Joined Cases C-253/96 to C-258/96 Kampelmann v Landschaftsverband Westfalen-Lippe [1997] ECR I-6907 ..........................................................................................................154 Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255 .......................................................................................................................181, 186 Case C-326/96 BS Levez v TH Jennings (Harlow Pools) Ltd [1998] ECR I-7835 ......79, 105 Case C-386/96 P Société Louis Dreyfus & Cie v Commission [1998] ECR I-2309 .............94 Case C-392/96 Commission v Ireland [1999] ECR I-5901 ........................6, 8, 143, 144, 149 Case C-120/97 Upjohn Ltd v The Licensing Authority [1999] ECR I-223 .....105–7, 109–10, 112–13, 119, 123, 148, 167–8, 170, 191 Case C-150/97 Commission v Portugal [1999] ECR I-259 ................................................144 Case C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199 ................................87 Case C-226/97 Lemmens [1998] ECR I-3711 ......................................................................92 Case C-230/97 Awoyemi [1998] ECR I-6781 .......................................................................92 Case C-302/97 Konle v Austria [1999] ECR I-3099 ..........................................................182 Case C-435/97 World Wildlife Fund (WWF) v Autonome Provinz Bozen [1999] ECR I-5613 ..............................39, 42, 128, 138–9, 142, 145, 161, 163–4, 171, 174–6, 219, 241 Case C-17/98 Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-675 ...........................86

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Table of Cases Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial SA v Rocío Murciano Quintero and Salvat Editores SA v José M Sánchez Alcón Prades [2000] ECR I-4941 ..80 Case C-287/98 Luxembourg v Linster [2000] ECR I-6917 ........126, 138–9, 162–4, 174, 241 Case C-343/98 Collino v Telecom Italia SpA [2000] ECR I-6659 .....................................154 Case C-344/98 Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I-11369 .................237–8 Case C-379/98 PreussenElektra AG v Schleswag AG [2001] ECR I-2099 ...........................22 Case C-410/98 Metallgesellschaft & Hoechst v Inland Revenue [2001] ECR I-4727 .........85, 183 Case C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535 ...................173 Case C-456/98 Centrosteel v Adipol [2000] ECR I-6007 ...............................................177–8 Case C-1/99 Kofisa Italia Srl v Ministero delle Finanze [2001] ECR I-207 ........................87 Case C-150/99 Svenska Staten v Stockholm Lindöpark AB [2001] ECR I-493 ...........180–81 Case C-226/99 Siples Srl v Ministero delle Finanze [2001] ECR I-277 ...............................87 Case C-269/99 Kühne v Jütro Konservenfabrik GmbH & Co KG [2001] ECR I-9517 .....83, 87 Case C-424/99 Commission v Austria [2001] ECR I-9285 ................................67, 83, 87, 88 Case C-441/99 Riksskatteverket v Gharehveran [2001] ECR I-7687 ...................................92 Case C-453/99 Courage Ltd v Crehan [2001] ECR I-6297 ......................................1, 79, 123 Case C-462/99 Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission [2003] ECR I-5197 ..................................................89, 178 Case C-472/99 Clear Car Autoservice GmbH v Austria [2001] ECR I-9687 ......................80 Case C-474/99 Commission v Spain [2002] ECR I-5293 ..........................139, 142, 144, 158 Case C-19/00 SIAC Construction Ltd v Mayo County Council [2001] ECR I-7725 .......109, 168 Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 ...24, 83, 90, 97–9 Case C-62/00 Marks and Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325 .....................................................................................................................78–9, 177 Case C-99/00 Criminal proceedings against KR Lyckeskog [2002] ECR I-4839 ...............208 Case C-118/00 Gervais Larsy v Institut national d’assurances sociales pour travailleurs indépendants (Inasti) [2001] ECR I-5063 ..................................................................181–2 Case C-230/00 Commission v Belgium [2001] ECR I-4591 ..............................................139 Case C-253/00 Muñoz y Cia SA, Superior Fruiticola SA v Frumar Ltd [2002] ECR I-7289 ............................................................................................................1, 79, 123 Case C-316/00 Commission v Ireland [2002] ECR I-10527 ..................................................9 Case C-13/01 Safalero Srl v Prefetto di Genova [2004] ECR I-8679 ...................................92 Case C-63/01 Evans v Secretary of State for the Environment, Transport & the Regions [2003] ECR I-14447 ................................................................................................81, 84–5 Case C-224/01 Köbler v Republik Österreich [2003] ECR I-10239 .........88, 123, 182–3, 238 Case C-227/01 Commission v Spain [2004] ECR I-8253 ....................126, 128–30, 144, 146 Joined Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835 .................................88–9, 115, 123, 153–4, 173, 177–9 Case C-494/01 Commission v Ireland [2005] ECR I-3331 ................................8, 144–5, 153 Case C-30/02 Recheio Cash & Carry SA v Fazenda Pública/Registo Nacional de Pessoas Colectivas [2004] ECR I-6051 ...........................................................................................79 Case C-87/02 Commission v Italy [2004] ECR I-5975 ................................42, 143, 145, 153 Case C-117/02 Commission v Portugal [2004] ECR I-5517 ......................................144, 169

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Table of Cases Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405 ...............................................23 Case C-157/02 Rieser Internationale Transporte GmbH v Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) [2004] ECR I-1477 ..................................154 Case C-201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723 .....126, 131–4, 136, 164–6, 176, 185, 187, 191, 196, 210, 215, 229, 231, 239, 241–2, 258 Case C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425 .................83, 99 Case C-282/02 Commission v Ireland [2005] ECR I-4653 ..................................................10 Joined Cases C-387/02, 391/02 and 403/02 Berlusconi [2005] ECR I-3565 ....................179 Case C-416/02 Commission v Spain [2005] ECR I-7487 ..................................................126 Case C-1/03 Van de Walle v Texaco Belgium SA [2004] ECR I-7613 .................................23 Case C-83/03 Commission v Italy [2005] ECR I-4747 ........................................................43 Case C-105/03 Pupino [2005] ECR I-5285 ........................................................................179 Case C-121/03 Commission v Spain [2005] ECR I-7569 ..........................................141, 144 Case C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-5177 ............................................................................................................88, 182–3 Case C-176/03 Commission v Council [2005] ECR I-7879 .................................................22 Joined Cases C-211/03, C-299/03 and C-316/03 to C-318/03 Warenvertriebs GmbH v Bundesrepublik Deutschland [2005] ECR I-5141 ..........................................................106 Case C-213/03 Syndicat professionnel coordination des pêcheurs de l’étang de Berre et de la region v Électricité de France [2004] ECR I-7357 ............................................................55 Case C-239/03 Commission v France [2004] ECR I-9325 ...................................................54 Case C-290/03 R (Barker) v London Borough of Bromley [2006] ECR I-3949 ...133–5, 229, 232 Case C-350/03 Schulte v Deutsche Bausparkasse Badenia AG [2005] ECR-9215 ............178 Case C-459/03 Commission v Ireland (MOX) [2006] ECR I-4635 ....................................54 Case C-495/03 Intermodal Transports BV v Staatssecretaris van Financiën [2005] ECR I-8151....................................................................................................................... 208, 240 Case C-508/03 Commission v United Kingdom [2006] ECR I-3969 .......133, 135, 144, 165, 168–70, 191, 232 Case C-540/03 Parliament v Council [2006] ECR I-5769 ...................................................24 Case C-6/04 Commission v United Kingdom [2005] ECR I-9017 .......................................23 Case C-98/04 Commission v United Kingdom [2006] ECR I-4003 ...................................137 Case C-186/04 Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale [2005] ECR I-3299 ............................................................................................................24, 89–90 Case C-209/04 Commission v Austria [2006] ECR I-2755 ................................................126 Case C-212/04 Adeneler v Ellinikos Organismos Galaktos [2006] ECR I-6057 ....177–9, 253 Case C-234/04 Kapferer v Schlank & Schick GmbH [2006] ECR I-2585 ...........................79 Case C-332/04 Commission v Spain [2006] ECR I-40* ........................................40, 47, 145 Joined Cases C-295/04 to C-298/04 Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I-6619 ............................................................................................................1, 79, 123 Case C-418/04 Commission v Ireland [2007] ECR I-10947 ..................................................9 Case C-486/04 Commission v Italy [2006] ECR I-11025 ............................126, 128–30, 145 Case C-148/05 Commission v Ireland [2007] ECR I-82* ......................................................9 Case C-183/05 Commission v Ireland [2007] ECR I-137 ......................................................9 Case C-216/05 Commission v Ireland [2006] ECR I-10787 .... viii, 6, 46, 57, 58, 148, 150–1 184–5, 236

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Table of Cases Joined Cases C-222/05–225/05 Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233 ...........................................................................79, 80 Case C-248/05 Commission v Ireland [2007] ECR I-9261 ....................................................9 Case C-255/05 Commission v Italy [2007] ECR I-5767 ....................................................129 Case C-278/05 Robins and Others v Secretary of State for Work and Pensions [2007] ECR I-1053 ................................................................................................................................181 Case C-356/05 Farrell v Whitty [2007] ECR I-3067 ..........................................................154 Case C-426/05 Tele2 Telecommunication GmbH v Telekom-Control-Kommission [2008] ECR I-0000 ........................................................................................................................83 Case C-432/05 Unibet London Ltd v Justitiekanslern [2007] ECR I-2271 ......24, 83, 84, 86, 92 Case C-2/06 Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-0000 ................79 Case C-55/06 Arcor AG & Co KG v Bundesrepublik Deutschland [2008] ECR I-0000 .....83, 107 Case C-66/06 Commission v Ireland [2006] OJ C 108/1 .......................................................8 Case C-210/06 Cartesio Oktató és Szolgáltató bt, Opinion delivered 22 May 2008 .........208 Case C-215/06 Commission v Ireland [2008] ECR I-0000 ....7, 126, 135–6, 146–7, 170, 262 Joined Cases C-231/06 to C-233/06 National Pensions Office v Jonkman [2007] ECR I-5149............................................................................................................................... 239 Case C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-0000 ........................................................................................................................24 Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-0000 ...................................................................................................................177–9, 253 Case C-316/06 Commission v Ireland [2008] ECR I-0000 ....................................................9 Case C-458/06 Skatteverket v Gourmet Classic Ltd [2008] ECR I-0000 ...........................208 Case C-2/07 Abraham v Région wallonne [2008] ECR I-0000 ..........38, 127–8, 130, 133–4, 145–6, 170 Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid [2008] ECR I-0000 .................................................................... 126, 128, 130, 140, 146–7, 170–71, 224 Joined Cases C-152/07 to C-154/07 Arcor AG & Co KG v Bundesrepublik Deutschland [2008] ECR I-0000 ..................................................................................................154, 176 Case C-237/07 Janecek v Freistaat Bayern [2008] ECR I-0000 .........................................157 Case C-427/07 Commission v Ireland [2007] OJ C 269/36 ...................................................8 Case C-75/08 Mellor v Secretary of State for Communities and Local Government [2008] OJ C 107/20 ...........................................................................................................................43

Alphabetical Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403 ....80, 128, 141–3, 145–6, 156–7, 159–63, 167–8, 171, 174, 183, 191, 196, 215–16, 218–9, 239, 258 Abraham v Région wallonne (Case C-2/07) [2008] ECR I-0000 .......38, 127–8, 130, 133–4, 145–6, 170 Adeneler v Ellinikos Organismos Galaktos (Case C-212/04) [2006] ECR I-6057 ........177–9, 253 Amministrazione delle Finanze dello Stato v San Giorgio (Case 199/82) [1983] ECR 3595 ...........................................................................................................................77

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Table of Cases Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 629 ......................................................................................................................................77 Arcaro (Case C-168/95) [1996] ECR I-4705 ......................................................................179 Arcor AG & Co KG v Bundesrepublik Deutschland (Case C-55/06) [2008] ECR I-0000 .........................................................................................................................83, 107 Arcor AG & Co KG v Bundesrepublik Deutschland (Joined Cases C-152/07 to C-154/07) [2008] ECR I-0000 ..................................................................................................154, 176 Associazione Italiana per il WWF v Regione Veneto (Case C-118/94) [1996] ECR I-1223 ...........................................................................................................................................153 Atlanta Fruchthandelsgesellschaft mbH v Bundesamt für Ernährung und Forstwirtschaft (Case C-465/93) [1995] ECR I-3761 ...............................................................................86 Awoyemi (Case C-230/97) [1998] ECR I-6781 ....................................................................92 Becker v Finanzamt Münster-Innenstadt (Case 8/81) [1982] ECR 53 ..............................153 Berlusconi (Joined Cases C-387/02, 391/02 and 403/02) [2005] ECR I-3565 .................179 Brasserie du Pêcheur SA v Federal Republic of Germany and R v Secretary of State for Transport, ex p Factortame Ltd and Others (Joined Cases C-46/93 and C-48/93) [1996] ECR I-1029 ..........................................................................................................87, 180–84 Brinkmann Tabakfabriken GmbH v Skatteministeriet (Case C-319/96) [1998] ECR I-5255 ..............................................................................................................181, 186 Bund Naturschutz in Bayern eV v Freistaat Bayern (Case C-396/92) [1994] ECR I-3717 ......................................................................................................................126 Burgemeester en Wethouders van Haarlemmerliede en Spaarnwoude v Gedeputeerde Staten van Noord-Holland (Case C-81/96) [1998] ECR I-3923 ..................................126, 130–2 Cartesio Oktató és Szolgáltató bt (Case C-210/06) Opinion delivered 22 May 2008 ......208 Centrosteel v Adipol (Case C-456/98) [2000] ECR I-6007 ............................................177–8 CIA Security International SA v Signalson SA and Securitel SPRL (Case C-194/94) [1996] ECR I-2201 ......................................................................................................................173 CILFIT (Srl) and Lanificio di Gavardo SpA v Ministry of Health (Case 283/81) [1982] ECR I-3415 ................................................................................................208, 240–41, 260 Clear Car Autoservice GmbH v Austria (Case C-472/99) [2001] ECR I-9687 ...................80 Collino v Telecom Italia SpA (Case C-343/98) [2000] ECR I-6659 ..................................154 Comet BV v Produktschap voor Siergewassen (Case 45/76) [1976] ECR 2043 ...................76 Comitato di Coordinamento per la Difesa della Cava and others v Regione Lombardia (Case C-236/92) [1994] ECR I-483 ...............................................................................153 Commission v Austria (Case C-209/04) [2006] ECR I-2755 .............................................126 Commission v Austria (Case C-424/99) [2001] ECR I-9285 ............................67, 83, 87, 88 Commission v Belgium (Case C-133/94) [1996] ECR I-2323 .............................128, 140–42 Commission v Belgium (Case C-230/00) [2001] ECR I-4591 ...........................................139 Commission v Council (Case C-176/03) [2005] ECR I-7879 ..............................................22 Commission v France (Case C-239/03) [2004] ECR I-9325 ................................................54 Commission v Germany (Case C-301/95) [1998] ECR I-6135 .........................................142 Commission v Germany (Case C-431/92) [1995] ECR I-2189 ......32, 126–7, 132, 140, 158, 171–2, 225 Commission v Ireland (Case C-148/05) [2007] ECR I-82* ...................................................9 Commission v Ireland (Case C-183/05) [2007] ECR I-137 ...................................................9 Commission v Ireland (Case C-215/06) [2008] ECR I-0000 ....7, 126, 135–6, 146–7, 170, 262

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Table of Cases Commission v Ireland (Case C-216/05) [2006] ECR I-10787 ............viii, 6, 46, 57, 58, 148, 150–1, 184–5, 236 Commission v Ireland (Case C-248/05) [2007] ECR I-9261 .................................................9 Commission v Ireland (Case C-282/02) [2005] ECR I-4653 ...............................................10 Commission v Ireland (Case C-316/00) [2002] ECR I-10527 ...............................................9 Commission v Ireland (Case C-316/06) [2008] ECR I-0000 .................................................9 Commission v Ireland (Case C-392/96) [1999] ECR I-5901 .....................6, 8, 143, 144, 149 Commission v Ireland (Case C-418/04) [2007] ECR I-10947 ...............................................9 Commission v Ireland (Case C-427/07) [2007] OJ C 269/36 ................................................8 Commission v Ireland (Case C-494/01) [2005] ECR I-3331 .............................8, 144–5, 153 Commission v Ireland (Case C-66/06) [2006] OJ C 108/1 ....................................................8 Commission v Ireland (MOX) (Case C-459/03) [2006] ECR I-4635 .................................54 Commission v Italy (Case C-255/05) [2007] ECR I-5767 .................................................129 Commission v Italy (Case C-486/04) [2006] ECR I-11025 .........................126, 128–30, 145 Commission v Italy (Case C-83/03) [2005] ECR I-4747 .....................................................43 Commission v Italy (Case C-87/02) [2004] ECR I-5975 .............................42, 143, 145, 153 Commission v Jégo-Quéré & Cie SA (Case C-263/02 P) [2004] ECR I-3425 ..............83, 99 Commission v Portugal (Case C-117/02) [2004] ECR I-5517 ...................................144, 169 Commission v Portugal (Case C-150/97) [1999] ECR I-259 .............................................144 Commission v Spain (Case C-121/03) [2005] ECR I-7569 .......................................141, 144 Commission v Spain (Case C-227/01) [2004] ECR I-8253 .................126, 128–30, 144, 146 Commission v Spain (Case C-332/04) [2006] ECR I-40* .....................................40, 47, 145 Commission v Spain (Case C-416/02) [2005] ECR I-7487 ...............................................126 Commission v Spain (Case C-474/99) [2002] ECR I-5293 .......................139, 142, 144, 158 Commission v United Kingdom (Case C-508/03) [2006] ECR I-3969 ....133, 135, 144, 165, 168–70, 191, 232 Commission v United Kingdom (Case C-6/04) [2005] ECR I-9017 ...................................23 Commission v United Kingdom(Case C-98/04) [2006] ECR I-4003 .................................137 Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission (Case C-462/99) [2003] ECR I-5197 .....................89, 178 Coote v Granada Hospitality Ltd (Case C-185/97) [1998] ECR I-5199 .............................87 Courage Ltd v Crehan (Case C-453/99) [2001] ECR I-6297 ..................................1, 79, 123 Criminal proceedings against KR Lyckeskog (Case C-99/00) [2002] ECR I-4839 ............208 Denkavit International BV and Others v Bundesamt für Finanzen (Joined Cases C-283/94, C-291/94 and C-292/94) [1996] ECR I-5063 .......................................................181, 186 Dillenkofer and Others v Germany (Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94) [1996] ECR I-4845 .......................................................180, 182 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft berlin mbH (Case C-54/96) [1997] ECR I-4961 ..........................................................................................................196 Dynamic Medien Vertriebs GmbH v Avides Media AG (Case C-244/06) [2008] ECR I-0000 .................................................................................................................................24 Ecologistas en Acción-CODA v Ayuntamiento de Madrid (Case C-142/07) [2008] ECR I-0000 .................................................................... 126, 128, 130, 140, 146–7, 170–71, 224 Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze (Case C-231/96) [1998] ECR I-4951 ......................................................................................................78, 79 Emesa Sugar (Free Zone) NV v Aruba (Case C-17/98) [2000] ECR I-675 ........................86 Emmott v Minister for Social Welfare (Case C-208/90) [1991] ECR I-4269 ................78, 79

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Table of Cases Evans v Secretary of State for the Environment, Transport & the Regions (Case C-63/01) [2003] ECR I-14447 ................................................................................................81, 84–5 Faccini Dori v Recreb Srl (Case C-91/92) [1994] ECR I-3325 ......................................173–4 Fantask A/S v Industriministeriet (Case C-188/95) [1997] ECR I-6783 ............................79 Farrell v Whitty (Case C-356/05) [2007] ECR I-3067 .......................................................154 Foster v British Gas (Case C-188/89) [1990] ECR I-3313 .............................................154–5 Francovich and Bonifaci v Italy (Joined Cases C-6/90 and C-9/90) [1991] ECR I-5357 ....78, 86, 157, 179–80, 185, 187–9, 259 Fratelli Costanzo v Comune di Milano (Case 103/88) [1989] ECR 1839 .............154, 175–6 Germany v Commission (Case C-240/90) [1992] ECR I-5383 .........................................101 Gervais Larsy v Institut national d’assurances sociales pour travailleurs indépendants (Inasti) (Case C-118/00) [2001] ECR I-5063 ............................................................181–2 Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale (Case C-186/04) [2005] ECR I-3299 ................................................................................................24, 89–90 Impact v Minister for Agriculture and Food (Case C-268/06) [2008] ECR I-0000 .....177–9, 253 Intermodal Transports BV v Staatssecretaris van Financiën (Case C-495/03) [2005] ECR I-8151 .......................................................................................................................208, 240 Janecek v Freistaat Bayern (Case C-237/07) [2008] ECR I-0000 ......................................157 Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/84) [1986] ECR 1651.................................................................................................................. 18, 77, 83, 85 Kampelmann v Landschaftsverband Westfalen-Lippe (Joined Cases C-253/96 to C-258/96) [1997] ECR I-6907 ..........................................................................................................154 Kapferer v Schlank & Schick GmbH (Case C-234/04) [2006] ECR I-2585 ........................79 Kempter KG v Hauptzollamt Hamburg-Jonas (Case C-2/06) [2008] ECR I-0000 .............79 Köbler v Republik Österreich (Case C-224/01) [2003] ECR I-10239 ......88, 123, 182–3, 238 Kofisa Italia Srl v Ministero delle Finanze (Case C-1/99) [2001] ECR I-207 .....................87 Kolpinghuis Nijmegen BV (Case 80/86) [1987] ECR 3969 ............................................178–9 Konle v Austria(Case C-302/97) [1999] ECR I-3099 ........................................................182 Krüger GmbH & Co KG v Hauptzollamt Hamburg-Jonas (Case C-334/95) [1997] ECR I-4517................................................................................................................................. 86 Kühne v Jütro Konservenfabrik GmbH & Co KG (Case C-269/99) [2001] ECR I-9517 ..83, 87 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-7405 ......................................23 Lemmens (Case C-226/97) [1998] ECR I-3711 ...................................................................92 Levez, BS v TH Jennings (Harlow Pools) Ltd (Case C-326/96) [1998] ECR I-7835 ..79, 105 Luxembourg v Linster (Case C-287/98) [2000] ECR I-6917 .....126, 138–9, 162–4, 174, 241 Manfredi v Lloyd Adriatico Assicurazioni SpA (Joined Cases C-295/04 to C-298/04) [2006] ECR I-6619 ................................................................................................1, 79, 123 Marks and Spencer plc v Commissioners of Customs & Excise (Case C-62/00) [2002] ECR I-6325 .....................................................................................................................78–9, 177 Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135 ..............................................................................................................177, 179 Marshall v Southampton and South-West Hampshire Area Health Authority (Case 152/84) [1986] ECR 723 ...............................................................................................154, 164, 173 Marshall v Southampton and South-West Hampshire Area Health Authority (Case C-271/91) [1993] ECR I-4367 .........................................................................................85

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Table of Cases Masterfoods Ltd v HB Ice Cream Ltd (Case C-344/98) [2000] ECR I-11369 ..............237–8 Mellor v Secretary of State for Communities and Local Government (Case C-75/08) [2008] OJ C107/20 ........................................................................................................................43 Metallgesellschaft & Hoechst v Inland Revenue (Case C-410/98) [2001] ECR I-4727 ......85, 183 Muñoz y Cia SA, Superior Fruiticola SA v Frumar Ltd (Case C-253/00) [2002] ECR I-7289 ............................................................................................................1, 79, 123 National Pensions Office v Jonkman (Joined Cases C-231/06 to C-233/06) [2007] ECR I-5149............................................................................................................................... 239 Norbrook Laboratories Ltd v Ministry of Agriculture, Fisheries and Food (Case C-127/95) [1998] ECR I-1531 ..........................................................................................................182 NV Algemene Transport-en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration (Case 26/62) [1963] ECR 1 ............................................1 Océano Grupo Editorial SA v Rocío Murciano Quintero and Salvat Editores SA v José M Sánchez Alcón Prades (Joined Cases C-240/98 to C-244/98) [2000] ECR I-4941 ........80 Oleificio Borelli SpA v Commission (Case C-97/91) [1992] ECR I-6313 ...............77, 83, 87 Parliament v Council (Case C-540/03) [2006] ECR I-5769 ................................................24 Parti Ecologiste ‘Les Verts’ v Parliament (Case 294/83) [1986] ECR 1339 ..........................83 Peterbroeck v Belgian State(Case C-312/93) [1995] ECR I-4599 ................................79, 105 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (Joined Cases C-397/01 to C-403/01) [2004] ECR I-8835 .....................................88–9, 115, 123, 153–4, 173, 177–9 Plaumann & Co v Commission (Case 25/62) [1963] ECR 95 .........................................94–5 PreussenElektra AG v Schleswag AG (Case C-379/98) [2001] ECR I-2099 ........................22 Pupino (Case C-105/03) [2005] ECR I-5285 .....................................................................179 R (Barker) v London Borough of Bromley (Case C-290/03) [2006] ECR I-3949 ........133–5, 229, 232 R (Wells) v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR I-723 ........126, 131–4, 136, 164–6, 176, 185, 187, 191, 196, 210, 215, 229, 231, 239, 241–2, 258 R v HM Treasury, ex p British Telecommunications plc (Case C-392/93) [1996] ECR I-1631 ...............................................................................................................180, 181, 186 R v Minister for Agriculture, Fisheries and Food ex p Hedley Lomas (Ireland) Ltd (Case C-5/94) [1996] ECR I-2553 .....................................................................................180–81 R v Secretary of State for Transport ex p Factortame Ltd (Case C-213/89) [1990] ECR I-2433..........................................................................................................64, 67, 78, 80, 86 Ratti (Case 148/78) [1979] ECR 1629 ................................................................................164 Recheio Cash & Carry SA v Fazenda Pública/Registo Nacional de Pessoas Colectivas (Case C-30/02) [2004] ECR I-6051 ...........................................................................................79 Rewe-Zentralfinanz eG & Rewe-Zentral AG v Landwirtschaftskammer für das Saarland (Case 33/76) [1976] ECR 1989 ........................................................................................76 Rieser Internationale Transporte GmbH v Autobahnen- und Schnellstraßen-Finanzierungs-AG (Asfinag) (Case C-157/02) [2004] ECR I-1477 .....154 Riksskatteverket v Gharehveran (Case C-441/99) [2001] ECR I-7687 ................................92 Robins and Others v Secretary of State for Work and Pensions (Case C-278/05) [2007] ECR I-1053 ...............................................................................................................................181 Safalero Srl v Prefetto di Genova (Case C-13/01) [2004] ECR I-8679 ................................92 Schulte v Deutsche Bausparkasse Badenia AG (Case C-350/03) [2005] ECR-9215 .........178

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Table of Cases SIAC Construction Ltd v Mayo County Council (Case C-19/00) [2001] ECR I-7725 ....109, 168 Siples Srl v Ministero delle Finanze (Case C-226/99) [2001] ECR I-277 ............................87 Skatteverket v Gourmet Classic Ltd (Case C-458/06) [2008] ECR I-0000 .......................208 Société Louis Dreyfus & Cie v Commission (Case C-386/96 P) [1998] ECR I-2309 ..........94 Sodemare SA v Regione Lombardia (Case C-70/95) [1997] ECR I-3395 ...........................85 Stichting Greenpeace Council v Commission (Case C-321/95 P) [1998] ECR I-1651 ........... 95–6, 156, 159, 184 Svenska Staten v Stockholm Lindöpark AB (Case C-150/99) [2001] ECR I-493 .......180–81 Syndicat professionnel coordination des pêcheurs de l’étang de Berre et de la region v Électricité de France (Case C-213/03) [2004] ECR I-7357 .............................................55 Tele2 Telecommunication GmbH v Telekom-Control-Kommission (Case C-426/05) [2008] ECR I-0000 ........................................................................................................................83 Traghetti del Mediterraneo SpA v Repubblica italiana (Case C-173/03) [2006] ECR I-5177 ............................................................................................................88, 182–3 UNECTEF v Heylens (Case 222/86) [1987] ECR 4097 ...........................................77, 83, 85 Unibet London Ltd v Justitiekanslern (Case C-432/05) [2007] ECR I-2271 ...24, 83, 84, 86, 92 Unilever Italia SpA v Central Food SpA (Case C-443/98) [2000] ECR I-7535 ................173 Unión de Pequeños Agricultores v Council (Case C-50/00 P) [2002] ECR I-6677 ......24, 83, 90, 97–9 Upjohn Ltd v The Licensing Authority (Case C-120/97) [1999] ECR I-223 .105–7, 109–10, 112–13, 119, 123, 148, 167–8, 170, 191 Van de Walle v Texaco Belgium SA (Case C-1/03) [2004] ECR I-7613 ..............................23 Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit (Joined Cases C-222/05–225/05) [2007] ECR I-4233 ......................................................................79, 80 Van Duyn v Home Office (Case 41/74) [1974] ECR 1337 ................................................157 Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten (Joined Cases C-430/93 and C-431/93) [1995] ECR I-4705 ...........................................78, 79, 225, 258 Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen (Case 51/76) [1977] ECR 113 ........................................................................................159 Verholen v Sociale Verzekeringsbank (Joined Cases C-87/90, C-88/90 and C-89/90) [1991] ECR I-3757 ....................................................................................................90, 91, 92, 122 Von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891...... 64, 67, 77, 84–5, 115, 177 Warenvertriebs GmbH v Bundesrepublik Deutschland (Joined Cases C-211/03, C-299/03 and C-316/03 to C-318/03) [2005] ECR I-5141 ...........................................................106 World Wildlife Fund (WWF) v Autonome Provinz Bozen (Case C-435/97) [1999] ECR I-5613 ..............................39, 42, 128, 138–9, 142, 145, 161, 163–4, 171, 174–6, 219, 241 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest v Hauptzollamt Paderborn (Joined Cases C-143/88 and C-92/89) [1991] ECR I-415 ....86 COURT OF FIRST INSTANCE

Numerical Case T-585/93 Stichting Greenpeace Council v Commission [1995] ECR II-2205 .............95 Case T-219/95 R Danielsson v Commission [1995] ECR II-3051 .......................................95

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Table of Cases Case T-177/01 Jégo-Quéré et Cie SA v Commission [2002] ECR II-2365 ..............24, 83, 98 Case T-37/04 Região autónoma dos Açores v Council [2008] ECR II-0000 (appeal pending: Case C-444/08) ..................................................................................................99 Case T-94/04 European Environmental Bureau (EEB) et al v Commission [2005] ECR II-4919 ............................................................................................................................... 99 Joined Cases T-236/04 and T-241/04 European Environmental Bureau (EEB) and Stichting Natuur en Milieu v Commission [2005] ECR II-4945 .............................99, 101 Case T-91/07 WWF-UK Ltd v Council [2008] ECR II-0000 (appeal pending: Case C-355/08)................................................................................................................... 99, 102

Alphabetical Danielsson v Commission (Case T-219/95 R) [1995] ECR II-3051 ....................................95 European Environmental Bureau (EEB) and Stichting Natuur en Milieu v Commission (Joined Cases T-236/04 and T-241/04) [2005] ECR II-4945 .........................................99 European Environmental Bureau (EEB) et al v Commission (Case T-94/04) [2005] ECR II-4919 ............................................................................................................................... 99 Jégo-Quéré et Cie SA v Commission (Case T-177/01) [2002] ECR II-2365 ...........24, 83, 98 Região autónoma dos Açores v Council (Case T-37/04) [2008] ECR II-0000 (appeal pending: Case C-444/08) ..................................................................................................99 Stichting Greenpeace Council v Commission (Case T-585/93) [1995] ECR II-2205 ..........95 WWF-UK Ltd v Council (Case T-91/07) [2008] ECR II-0000 (appeal pending: Case C-355/08)................................................................................................................... 99, 102 IRELAND Adam and Iordache v Minister for Justice, Equality and Law Reform [2001] IESC 38; [2001] 3 IR 53 .................................................................................................................114 Aer Rianta Cpt v Commissioner for Aviation Regulation, unreported, High Court, 16 January, 2003 ...................................................................................................................104 Arklow Holidays Ltd v An Bord Pleanála (No 1) [2006] IEHC 15 ....................202, 224, 230 Arklow Holidays Ltd v An Bord Pleanála (No 2) [2006] IEHC 102 ..........................207, 230 Arklow Holidays Ltd v An Bord Pleanála (No 4) [2007] IEHC 327 ..........................209, 228 Arklow Holidays Ltd v An Bord Pleanála (No 5) [2008] IEHC 2 ..............................210, 229 Arklow Holidays Ltd v Wicklow County Council [2003] IEHC 68 ............................111, 222 Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] IESC 19; [2000] 2 IR 360 ...............................................................................................................202 Beatty v Rent Tribunal [2005] IESC 66; [2006] 2 IR 191 .........................................181, 184 Boyne Valley and Newgrange Environmental Protection League Ltd v EPA, unreported, High Court, 17 April 2002 .............................................................................................252 Brady v Donegal County Council [1989] ILRM 282 ..........................................................226 Brady v EPA [2007] IEHC 58 ................................................................................................23 Broadnet Ireland Ltd v Office of the Director for Telecommunications Regulation [2000] IEHC 46; [2000] 3 IR 281 ..........................................................................................227–8 Browne v An Bord Pleanála [1991] 2 IR 209 .....................................................214, 217, 221 Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88 ...................226–7 Chambers v An Bord Pleanála [1992] 1 IR 134 .................................................................203 Cicol Ltd v An Bord Pleanála [2008] IEHC 146 ..................................................................60

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Table of Cases Clare Civil Engineering Ltd v Mayo County Council [2004] IEHC 135 ...........................111 Clinton v An Bord Pleanála [2007] IESC 19 ......................................................................121 Córas Iompair Éireann v An Bord Pleanála [2008] IEHC 295 ..........................................193 Cosgrave v An Bord Pleanála [2004] 2 IR 435 ...................................................................215 Cumann Thomas Daibhis v South Dublin County Council [2007] IEHC 118 .................204 Curtin v Clerk of Dáil Éireann [2006] IESC 27 .................................................................213 De Búrca v Wicklow County Council, unreported, High Court, 22 March 2002 .............215 Derrybrien Cooperative Society Ltd v Saorgus Energy Ltd, Coillte Teo and Gort Wind Farms Ltd, unreported, High Court, 3 June 2005 .............................................................202 Devlin v Minister for Arts, Culture and the Gaeltacht [1999] 1 IR 47 ..............................104 Doyle v Commissioner of An Gárda Síochana [1999] 1 IR 249 .........................................114 Dublin City Council v Fennell [2005] IESC 33; [2005] 1 IR 604 ................................113–14 Dunne and Lucas v Dún Laoghaire Rathdown County Council [2003] IESC 15; [2003] 1 IR 567....................................................................................................................... 213, 230 Dunne v Minister for the Environment, Heritage and Local Government (No 1) [2004] IEHC 304 .........................................................................................................................212 Dunne v Minister for the Environment, Heritage and Local Government (No 2) [2005] IEHC 79................................................................................................................... 212, 213 Dunne v Minister for the Environment, Heritage and Local Government (No 3) [2006] IESC 49; [2007] 1 IR 194 .........................................................................212, 230–32, 241 Dunne v Minister for the Environment, Heritage and Local Government (No 4) [2007] IESC 60 ........................................................................................ 211, 213, 251, 255–6, 263 Electricity Supply Board v Gormley [1985] IR 129 .............................................................203 Farrell v Whitty [2008] IEHC 124 ......................................................................................154 Friends of the Curragh Environment Ltd v An Bord Pleanála (No 1) [2006] IEHC 243 ....8, 214, 243, 246, 254, 261 Friends of the Curragh Environment Ltd v An Bord Pleanála (No 2) [2006] IEHC 390 ....... 245, 254 Friends of the Irish Environment Ltd v Minister for the Environment, Heritage and Local Government [2005] IEHC 123; [2007] 3 IR 459 ...........................................149, 236, 238 G v Director of Public Prosecutions [1994] 1 IR 374 ..........................................................203 Gallagher and Boyd v An Bord Pleanála, unreported, High Court, 26 July 2001 ............221 Gashi v Minister for Justice, Equality and Law Reform, unreported, High Court, 3 December 2004 ...............................................................................................................248 Glancre Teo v An Bord Pleanála [2006] IEHC 205 ............................................................207 Glencar Explorations plc v Mayo County Council [2001] IESC 64; [2002] 1 IR 84 .....181, 184 187–8 Goonery v Meath County Council, unreported, High Court, 15 July 1999 ......................239 Grealish v An Bord Pleanála (No 2) [2006] IEHC 310 ........................................................60 Greencore v Ireland [2007] IEHC 211 ........................................ ........................................248 Greencore Group Plc v Government of Ireland [2007] IEHC 211 ......................................111 Gregory v Dún Laoghaire Rathdown County Council, unreported, Supreme Court, 28 July 1997 ..................................................................................................................................104 Grianán an Aileach Centre v Donegal County Council (No 2) [2004] IESC 43; [2004] 2 IR 625.................................................................................................................................... 103 Grimes v Punchestown Developments Co Ltd [2002] IESC 79; [2002] 4 IR 515 ..............211 Harding v Cork County Council (No 2) [2006] IEHC 295 ............................................205–7 Harding v Cork County Council (No 3), unreported, High Court, 30 November 2006 .....204

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Table of Cases Harding v Cork County Council (No 5) [2008] IESC 27 ...........204–5, 247, 253, 255–6, 263 Harrington v An Bord Pleanála (No 1) [2005] IEHC 344; [2006] 1 IR 388 ........203–4, 207 Harrington v An Bord Pleanála (No 3) [2006] IEHC 223 ...........................................249–50 Heaney v Ireland [1994] 3 IR 593 .......................................................................................117 Howard v Commissioners of Public Works [1994] 1 IR 101 .......................................217, 224 Hygeia Chemicals Ltd v Irish Medicines Board [2005] IEHC 226 .....................................111 Irish Asphalt Ltd v An Bord Pleanála [1996] 2 IR 179 ......................................................207 Irish Hardware Association v South Dublin County Council [2001] IESC 5; [2001] 2 ILRM 291.................................................................................................................................... 207 Kavanagh v Ireland (No 1) [2007] IEHC 296 ......................................................................70 Kavanagh v Ireland (No 2) [2007] IEHC 389 ....................................................211, 244, 251 Kenny v An Bord Pleanála (No 1) [2000] IEHC 146; [2001] 1 IR 565 ............................221 Kenny v An Bord Pleanála (No 2) [2001] IEHC 39; [2001] 1 IR 704 ..........................221–2 Kildare County Council v An Bord Pleanála [2006] IEHC 173 .........................202, 216, 222 Kinsella v Dundalk Town Council [2004] IEHC 373 .........................................................104 Klohn v An Bord Pleanála [2008] IEHC 111 .................113, 217, 220, 222, 225, 251–2, 261 KSK v An Bord Pleanála [1994] 2 IR 128 ..........................................................................207 Kweder v Minister for Justice [1996] 1 IR 381 ....................................................................109 Laois County Council v Scully [2006] IEHC 2 .....................................................................23 Lancefort Ltd v An Bord Pleanála [1997] 2 ILRM 508 ......................................................215 Lancefort Ltd v An Bord Pleanála [1998] IESC 14; [1999] 2 IR 270 .200–201, 203, 217–20, 223, 225–6, 239, 241, 254 Lancefort Ltd v An Bord Pleanála [1999] IESC 82 .............................................................211 Lanigan v Barry [2008] IEHC 29 .........................................................................................14 Maher v An Bord Pleanála [1999] 2 ILRM 198 ...........................................................216–17 Martin v An Bord Pleanála (No 1) [2002] IEHC 82; [2002] 2 IR 655 .........................226–7 Martin v An Bord Pleanála (No 2) [2004] IEHC 368 ...............................208, 211, 226, 234 Martin v An Bord Pleanála (No 3) [2007] IESC 23 .......................211, 232, 234–7, 239, 241 Max Developments v An Bord Pleanála [1994] 2 IR 121 ...................................................216 McBride v Galway Corporation [1998] 1 IR 485 .................................210–11, 215, 224, 241 McNamara v An Bord Pleanála [1995] 2 ILRM 125 .........................................................202 McNamara v An Bord Pleanála [1998] 3 IR 453 ...........................................208, 211, 225–6 Merck & Co Inc v Searle & Co [2001] IEHC 41; [2002] 3 IR 614 ....................................236 Molumby v Kearns [1999] IEHC 86 .....................................................................................14 Moriarty v South Dublin County Council [2006] IEHC 109 .............................................203 Mulcreevy v Minister for the Environment, Heritage and Local Government [2004] IESC 5; [2004] 1 IR 72 .........................................................................................................213, 230 Mullholland v An Bord Pleanála (No 2) [2005] IEHC 306; [2006] 1 IR 453 ....................59 Murphy v Wicklow County Council, unreported, High Court, 19 March 1999 ...............221 Ní Éilí v EPA [1997] 2 ILRM 458 .......................................................................................211 Ní Éilí v EPA [1999] IESC 64 ................................................................................................14 Ó Nualláin v Dublin Corporation [1999] IEHC 11; [1999] 4 IR 137 ........216–17, 223, 241 O’Brien v Dún Laoghaire Rathdown County Council [2006] IEHC 177 ..........................204 O’Brien v South Tipperary County Council, unreported, High Court, 22 October 2002 ..........................................................................................................215, 227, 239, 245 O’Connell v Dungarvan Energy Ltd, unreported, High Court, 27 February 2001 ..........228 O’Connell v EPA [2001] IEHC 102; [2001] 4 IR 494 ........................................202, 207, 228 O’Connell v EPA [2003] IESC 14; [2003] 1 IR 530 ...........................193, 211, 216, 233, 239

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Table of Cases O’Connell v O’Connell, unreported, High Court, 29 March 2001 ...............................223–4 O’Connor v Dublin Corporation, unreported, High Court, 3 October 2000 ...........104, 229 O’Donoghue v An Bord Pleanála [1991] ILRM 750 ............................................................60 O’Keeffe v An Bord Pleanála [1993] 1 IR 39 ...........102–4, 107–8, 110–11, 123, 167–8, 200, 222–4, 247, 252, 255, 262 O’Leary v An Bord Pleanála and Ringaskiddy and District Residents’ Association Ltd v EPA [2008] IEHC 34 ...............................................................................................................237 O’Leary v An Bord Pleanála and Ringaskiddy and District Residents’ Association Ltd v EPA [2008] IESC 55 ................................................................................................................238 O’Leary v An Bord Pleanála (2004/191 JR) ................................................................121, 237 O’Mahony v An Bord Pleanála [2005] IEHC 39 ..................................................40, 224, 252 O’Shea v Kerry County Council [2003] IEHC 51; [2003] 4 IR 143 ..................................203 Orange Communications Ltd v Director of Telecommunications Regulation (No 1) [1999] IEHC 132; [2000] 4 IR 136 ............................................................................................108 P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701 .............................104 Pesca Valentia Ltd v Minister for Fisheries [1985] IR 193 ..................................................227 Pine Valley Developments Ltd v Minister for the Environment [1987] IR 23 ............181, 188 Power v An Bord Pleanála [2006] IEHC 454 .....................................................................196 Ringaskiddy and District Residents’ Association Ltd v EPA (2006/69 JR) .................121, 237 Ryanair Ltd v An Bord Pleanála [2004] IEHC 52; [2004] 2 IR 334 .........................203, 207 Ryanair Ltd v Flynn [2000] 3 IR 240 ..................................................................................104 Seery v An Bord Pleanála [2001] IEHC 13; [2001] 2 ILRM 151 ..........................207, 227–8 Shannon Regional Fisheries Board v An Bord Pleanála [1994] 3 IR 449 ..........................216 SIAC Construction Ltd v Mayo County Council [1997] IEHC 97 .....................................109 SIAC Construction Ltd (SIAC) v Mayo County Council [2002] IESC 39; [2002] 3 IR 148 ......................................................................................108, 110–11, 119, 168, 248, 252 Siney v Dublin Corporation [1980] IR 400 .........................................................................184 Sloan v An Bord Pleanála [2003] 2 ILRM 61 .....................................................................202 State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381 ..............................245 State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] IR 642 .......................103 Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153 .........8, 55, 113, 207, 217, 245–51, 256, 261 Sweetman v An Bord Pleanála (No 2) [2007] IEHC 361 ............................................250–51 Szabo v ESAT Digifone [1998] 2 ILRM 102. ........................................................................14 T v L [2008] IESC 48 ...........................................................................................................241 Usk v District Residents Association Ltd v EPA [2006] IEHC 272 .....................................222 Veolia Water UK plc v Fingal County Council [2006] IEHC 240 ......................................211 Village Residents Association Ltd v An Bord Pleanála (No 1) [1999] IEHC 258; [2000] 1 IR 65...................................................................................................................................... 203 Village Residents Association Ltd v An Bord Pleanála (No 2) [2000] IEHC 34; [2000] 4 IR 321.................................................................................................................................... 214 Waddington v An Bord Pleanála, unreported, High Court, 21 December 2000 ..............223 Ward v McMaster [1988] 1 IR 337 .....................................................................................184 Wicklow County Council v Fenton [2002] IEHC 102 ..........................................................23 White v Dublin City Council [2004] IESC 35; [2004] 1 IR 545 ................................103, 226

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Table of Cases UNITED KINGDOM Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 ..102, 106 Begum v London Borough of Tower Hamlets [2003] UKHL 5 ..........................................119 Belize Alliance of Conservation Non-Governmental Organizations v Department of the Environment and Belize Electric Company Ltd [2004] UKPC 6 .............................32, 173 Berkeley v Secretary of State for the Environment [2000] UKHL 36 ....31–2, 41, 172–3, 210, 220, 231 Bown v Secretary of State for Transport [2003] EWCA Civ 1170 ......................................173 Cooper v HM Attorney General [2008] EWHC 2178 (QB) ...............................................183 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 ...............102 E v Secretary of State [2004] EWCA Civ 49 .......................................................................119 Griffin v South West Water [1995] IRLR 15 .......................................................................154 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 .......................................184 Henderson v Henderson (1843) 3 Hare 100 ...........................................................208, 228–9 Kincardine and Deeside District Council v Forestry Commissioners [1994] 2 CMLR 869 ....................................................................................................................................155 Murphy v Brentwood DC [1991] 1 AC 398 ........................................................................184 R v Chief Constable of North Wales Police ex p Evans [1982] 1 WLR 1155 .....................102 R v Criminal Injuries Compensation Board ex p A [1999] 2 AC 330 ................................119 R v Durham County Council ex p Huddleston [1999] EWCA Civ 792 ...................32, 174–6 R v Lord Chancellor ex p Child Poverty Action Group [1991] 1 WLR 347 .......................212 R v Minister for Agriculture, Fisheries and Food ex p Bell Lines Ltd v An Bord Bainne Co-Op Ltd [1984] 2 CMLR 502 .....................................................................................109 R v North Yorkshire County Council ex p Brown [1999] UKHL 7 ............132, 174–5, 231–2 R v Rochdale Metropolitan Borough Council ex p Milne, unreported, Court of Appeal, 21 December 2000 ...............................................................................................................222 R v Secretary for the Home Department ex p Daly [2001] UKHL 26 ...............................102 R v Secretary of State for the Environment, Transport and Regions, ex p Challenger [2001] Env LR 12 .........................................................................................................................120 R v Secretary of State for the Environment, Transport and Regions ex p Marson [1998] EWCA Civ 804 ..................................................................................................................42 R (Adlard) v Secretary of State for Environment, Transport and the Regions [2002] EWCA Civ 735 .............................................................................................................................120 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23 ...................................................................................118–19 R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23 ....32, 202 R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192.................................................................................................................................... 214 R (Edwards) v Environment Agency [2008] UKHL 22 ........................................38, 173, 210 R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 ..............................37 R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) .............................................................................................................................50 R (Jones) v Mansfield DC [2003] EWCA Civ 1408 ............................................................173 R (Noble Organisation Ltd) v Thanet DC [2005] EWCA Civ 782 ....................................107 R (Nunn) v First Secretary of State [2005] EWCA Civ 101 ...............................................119

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Table of Cases R (Prokopp) v London Underground Ltd and Strategic Rail Authority [2003] EWCA Civ 961............................................................................................................................ 132, 173 R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860 ....................173 R (Vetterlein) v Hampshire County Council [2001] EWHC (Admin) 560 .......................117 Rylands v Fletcher (1886) LR 1 Ex 265 and (1868) LR 3 HL 330 ......................................14 Seaports Investments Ltd [2007] NIQB 62 ...........................................................................57 South Bucks DC v Porter [2003] UKHL 26 ........................................................................122 Spartan Steel & Alloys Ltd v Martin & Co [1973] 2 QB 27 ..............................................184 Twyford Parish Council v Secretary of State for the Environment [1992] 1 CMLR 276 ...155 Wychavon DC v Secretary of State for the Environment (1994) 6 Journal of Environmental Law 351 ............................................................................................................................155 Younger Homes (Northern) Limited v First Secretary of State [2004] EWCA Civ 1060 ...172

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Table of Conventions United Nations Conference on Environment and Development: Rio Declaration on Environment and Development 31 ILM 874 (1992) Principle 10 ..................................................................................................................... 49 United Nations Convention on the Law of the Sea 21 ILM 1261 (1982) ...................... 54 United Nations Environment Programme Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Convention) 15 ILM 285 (1976) .......................................................................................................................... 54 UNITED NATIONS ECONOMIC COMMISSION FOR EUROPE (UN ECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) 38 ILM 517 (1998) .................................................................................................................. 16–17, 18, 21, 29, 49–69, 194, 256, 259 Recital 7 ........................................................................................................................... 49 Recital 8 ........................................................................................................................... 49 Recital 9 ..................................................................................................................... 51, 53 Recital 12 ......................................................................................................................... 58 Art 1 ............................................................................................................................ 49 Art 2(4) ....................................................................................................................... 55 Art 2(5) ................................................................................................................. 55, 61 Art 3 ............................................................................................................................ 49 Art 3(3) ....................................................................................................................... 49 Art 3(4) ....................................................................................................................... 49 Art 3(8) ................................................................................................. 65, 69, 249, 251 Art 4 ............................................................................................................................ 49 Art 4(8) ....................................................................................................................... 58 Art 5 ............................................................................................................................ 49 Art 6 ................................................................................................................ 49–50, 61 Art 6(5) ................................................................................................................... 58–9 Art 6(11) ..................................................................................................................... 50 Art 7 ...................................................................................................................... 49, 50 Art 8 ...................................................................................................................... 49–50 Art 9 .............................................................................................................. 50, 60, 249 Art 9(1) ........................................................................................................... 60–61, 63 Art 9(2) ................................................................................... 61–3, 65–8, 93, 112, 122 Art 9(3) ................................................................................................. 54, 63, 100–101 Art 9(4) ......................................................................................... 63–5, 67–8, 112, 122 Art 9(5) ......................................................................................................... 65, 69, 122 Art 14(4) ..................................................................................................................... 50 Art 15 .......................................................................................................................... 52 Annex I .................................................................................................................... 55

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Table of Conventions Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) 30 ILM 800 (1991) ............................................................................... 46 Protocol on Strategic Environmental Assessment (Kiev Protocol) (2003) not yet in force ...................................................................................................................................... 46

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Table of Legislation COUNCIL OF EUROPE European Convention on Human Rights ......................................................... 18, 113–22 Art 2 .................................................................................................................................. 117 Art 6 .................................................................................................... 64, 83, 85, 113, 121–2 Art 6(1) ................................................................................................. 18, 117–21, 123, 202 Art 8 ............................................................................................. 32–3, 116–17, 120–21, 189 Art 13 ........................................................................................ 18, 83, 85, 113, 117, 120–23 Art 41 ................................................................................................................................ 116 Protocol 1, Art 1 ............................................................................................................... 117 Protocol 11 ........................................................................................................................ 114 EUROPEAN UNION Treaty establishing the European Community (EC Treaty) Art 2 .................................................................................................................................... 24 Art 6 .............................................................................................................................. 22, 24 Art 10 ...................................................................................................... 78–80, 87, 160, 237 Art 21 .................................................................................................................................. 12 Art 81(1) ........................................................................................................................... 237 Art 82 ................................................................................................................................ 237 Art 94 .................................................................................................................................. 35 Art 174 ................................................................................................................................ 37 Art 174(1) ............................................................................................................... 22, 23, 24 Art 174(2) ........................................................................................................................... 22 Art 175(1) ........................................................................................................................... 36 Art 194 ................................................................................................................................ 12 Art 195 ................................................................................................................................ 12 Art 220 ................................................................................................................................ 99 Art 226 ........................................................................ 1, 9, 12, 149, 159, 186, 237–9, 261–2 Art 228 ........................................................................................................................ 1, 9–10 Art 230 ................................................................................................................................ 94 Art 230(2) ........................................................................................................................... 94 Art 230(3) ........................................................................................................................... 94 Art 230(4) ........................................................................................... 83, 94–7, 99–102, 204 Art 234 ...... 19, 38, 57, 64, 80–82, 93, 131, 140, 149, 196–7, 207–208, 237–8, 240, 260–61 Art 234(2) ......................................................................................................................... 207 Art 234(3) ................................................................................... 182, 207–209, 240–41, 260 Art 249 ........................................................................................................................ 159–60 Art 249(3) ................................................................................................................. 150, 179 Art 252 ................................................................................................................................ 36 Art 288 .............................................................................................................................. 181 Art 308 ................................................................................................................................ 35

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Table of Legislation Treaty on European Union (TEU) Recital 8 ............................................................................................................................... 21 Art 2 .......................................................................................................................... 21, 22 Art 9F .............................................................................................................................. 84 Charter of Fundamental Rights of the European Union [2000] OJ C364/1 ......... 23, 83 Art 37 ........................................................................................................................ 24, 42–3 Art 47 .............................................................................................................................. 83–4 Art 47(3) ............................................................................................................................. 83 Art 51 .................................................................................................................................. 24 Treaty establishing a Constitution for Europe [2004] OJ C310/1 ................................ 23 Treaty of Lisbon [2007] OJ C306/1 .................................................................................. 23 Art 1(20) ............................................................................................................................. 84 Art 2(143) ........................................................................................................................... 23 Art 2(214) ......................................................................................................................... 100 Decisions Commission Decision 2008/50/EC laying down detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the Aarhus Convention as regards requests for the internal review of administrative acts [2008] OJ L13/24 ........................................................................................ 54, 100 Commission Decision 2008/401/EC, Euratom amending its Rules of Procedure as regards detailed rules for the application of Regulation (EC) No 1367/2006 of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institution and bodies [2008] OJ L140/22 ....................................................... 54, 100 Council Decision 2005/370/EC on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2005] OJ L124/1 .................................................................................................................... 52 Council Decision 2006/957/EC on the conclusion, on behalf of the European Community, of an amendment to the Convention on access to information, public participation in decision-making and access to justice in environmental matters [2006] OJ L386/46 ..................................................................................................... 50 Parliament and Council Decision 1600/2002/EC laying down the Sixth Community Environment Action Programme [2002] OJ L242/1 ............................................... 25 Art 1(1) ........................................................................................................................... 25 Art 2(3) ........................................................................................................................... 25 Art 2(4) ........................................................................................................................... 25 Art 3(3) ..................................................................................................................... 25, 30 Art 3(9) ........................................................................................................................... 25 Art 10 .............................................................................................................................. 25 Directives Dir 65/65/EEC relating to proprietary medicinal products [1965–66] OJ English Special Ed 20 Art 11 ............................................................................................................................ 105

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Table of Legislation Art 12 ............................................................................................................................ 105 Dir 71/305/EEC concerning the co-ordination of procedures for the award of public works contracts [1971] OJ L185/5 as amended by Dir 89/440/EEC [1989] OJ L210/1 ....................................................................................................................... 108 Dir 75/442/EEC on waste [1975] OJ L194/39 as amended by Dir 91/156/EEC [1991] OJ L78/32 .........................................................................................................................8 Art 1(a) ........................................................................................................................... 23 Art 4 .............................................................................................................................. 129 Annex II A ................................................................................................................ 129 Annex II B ................................................................................................................ 129 Dir 79/7/EEC on equal treatment in matters of social security [1979] OJ L6/24 ................................................................................................................ 84, 91 Art 6 ............................................................................................................................ 84–5 Dir 79/409/EEC on the conservation of wild birds [1979] OJ L 103/1 as amended by Dir 97/49/EC [1997] OJ L223/9 ......................................................................................... 9 Dir 84/5/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [1984] OJ L8/17 Art 1(4) ........................................................................................................................... 81 Dir 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L 175/40 (original EIA directive) .... 3, 29, 35–7, 48, 69, 137, 147, 157 Recital 1 ................................................................................................................. 133, 234 Recital 5 ........................................................................................................................... 38 Recital 6 .................................................................................................... 36, 45, 126, 150 Recital 11 ......................................................................................................................... 37 Art 1(4) ..................................................................................................................... 138 Art 2 .............................................................................................................. 155, 158–9 Art 2(1) ..................................................................................................... 134, 168, 215 Art 3 .............................................................................................................. 158–9, 171 Art 4(1) ..................................................................................................................... 155 Art 4(2) ................................................. 39, 42–3, 134, 140, 142–3, 147, 155, 168, 215 Art 5 ............................................................................................................................ 44 Art 5(2) ..................................................................................................................... 138 Art 6(2) ....................................................................................................... 95, 152, 156 Art 6(3) ..................................................................................................................... 152 Art 8 .................................................................................................. 47, 95, 158–9, 171 Art 11(3) ..................................................................................................................... 35 Annex I ................................................................................................................. 146 Para 2 .................................................................................................................... 127 Para 6 .................................................................................................................... 128 Para 7 ............................................................................................................ 128, 130 Annex II ......................................................................................... 127, 140, 142, 146 Para 10(e) ............................................................................................................. 128 Para 12 .................................................................................................................. 130 Annex III .............................................................................................................. 138

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Table of Legislation Dir 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 as amended by Dir 97/11/EC [1997] OJ L73/5 ........................................................................................................................ 1 Art 4 .............................................................................................................................. 147 Art 4(2) ......................................................................................................................... 147 Art 4(3) ......................................................................................................................... 147 Annex I Para 9 ........................................................................................................................ 129 Para 10 ...................................................................................................................... 129 Annex II Para 11(b) ................................................................................................................. 129 Annex III ................................................................................................................... 147 Dir 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 as amended by Dir 97/11/EC [1997] OJ L73/5 and Dir 2003/35/EC [2003] OJ L156/17 ............................................................ 1, 257 Art 1(1) ........................................................................................................... 37, 128, 152 Art 1(2) ............................... 37–8, 43, 55, 66, 68, 93, 127, 131–3, 135, 157, 229–30, 234 Art 1(4) ............................................................................................................ 38, 137–139 Art 1(5) .................................................................................................... 38, 137, 139, 164 Art 2 ................................................................................................ 38, 131, 135, 137, 139 Art 2(1) ... 37, 39, 126, 128, 132–3, 135–7, 139–43, 145–7, 160–62, 164, 169, 174, 190, 218–9, 234 Art 2(2) ............................................................................................... 38, 53, 55, 139, 235 Art 2(2a) ......................................................................................................................... 38 Art 2(3) ........................................................................................................................... 38 Art 3 .................................... 40–41, 44, 47, 139–40, 146, 158–9, 164, 171–2, 234–6, 237 Art 4 .................................................................................................... 38, 41, 43, 135, 137 Art 4(1) ......................................................................................................... 128, 136, 145 Art 4(2) ........................... 39, 42, 136–7, 140–42, 144–5, 160–62, 164, 169, 174, 218–19 Art 4(3) ............................................................................................................. 39, 42, 190 Art 4(4) ....................................................................................................................... 41–2 Art 5 ............................................................... 19, 40, 43–4, 46, 163–4, 168, 171, 173, 234 Art 5–9 .................................................................................................................. 139, 175 Art 5–10 .............................................................................................. 135, 139–40, 171–2 Art 5(1) ............................................................................................................... 43–4, 163 Art 5(2) ....................................................................................................................... 44–5 Art 5(3) ........................................................................................................................... 43 Art 5(4) ........................................................................................................................... 44 Art 6 .................................................................................. 46, 55–9, 139, 148–9, 151, 184 Art 6(1) ....................................................................................................................... 44–5 Art 6(2) ........................................................................... 32, 45, 56, 151–2, 163, 175, 184 Art 6(2)(d) ...................................................................................................................... 56 Art 6(3) ..................................................................................... 45, 56, 137, 149, 152, 173 Art 6(4) ............................................................................................... 45, 46, 57, 152, 185 Art 6(5) ......................................................................................................... 45, 57, 152–3 Art 6(6) ......................................................................................................... 45, 57, 152–3 Art 7 .......................................................................................................................... 46, 47 Art 8 ...................................................................................................... 46–7, 59, 149, 151

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Table of Legislation Art 9 ................................................................................................................................ 59 Art 9(1) ................................................................................................................. 47–8, 59 Art 9(2) ........................................................................................................................... 47 Art 10 .............................................................................................................................. 48 Art 10a ..... 8, 48, 65–9, 74–6, 90, 93, 101, 104, 112–13, 122–3, 157, 191, 194, 201, 206, 217, 222, 242–54 Annex I ............................................................................................. 38, 55, 127–9, 131 Annex II ................................................................ 39, 41, 43, 127–9, 137, 140–42, 153 Annex III ................................................................................................ 8, 39, 147, 190 Annex IV ................................................................................................................ 43–4 Dir 89/105/EEC on the inclusion of medicinal products within the scope of national health insurance systems [1989] OJ L40/8 Art 6(2) ....................................................................................................................... 87–8 Dir 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work [1989] OJ L183/1 ......................................... 89 Dir 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/33 ......................................... 168 Art 1 .............................................................................................................................. 108 Dir 90/313/EEC on the freedom of access to information on the environment [1990] OJ L158/56 Art 3(4) ........................................................................................................................... 89 Art 4 .................................................................................................................... 48, 89–90 Art 5 .............................................................................................................................. 151 Dir 91/271/EEC concerning urban waste water treatment [1991] OJ L135/40 ............... 9 Dir 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7 ......................................................................................................... 9 Dir 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7 as amended by Dir 97/62/EC [1997] OJ L305/42 ....................... 4 Art 6(3) ........................................................................................................................... 23 Dir 93/104/EC concerning certain aspects of the organisation of working time [1993] OJ L307/18 ..........................................................................................................................89 Dir 96/61/EC concerning integrated pollution prevention and control [1996] OJ L257/26 as amended by Dir 2003/35/EC [2003] OJ L156/17, codified by Dir 2008/1/EC [2008] OJ L24/8 ...................................................................................................... 4, 38 Art 15a ............................................................................................................................ 48 Dir 96/62/EC on ambient air quality assessment and management [1996] OJ L296/55 Art 7 .............................................................................................................................. 157 Dir 97/11/EC amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1997] OJ L73/5 ....... 36, 125, 127, 147, 184 Recital 1 ..................................................................................................................... 37, 45 Recital 2 ........................................................................................................................... 37 Recital 4 ........................................................................................................................... 36 Art 3(2) ..................................................................................................................... 127 Dir 97/13/EC on a common framework for general authorizations and individual licences in the field of telecommunications services [1997] OJ L117/15 ............ 108

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Table of Legislation Dir 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30 ........................................................... 30, 57, 69, 127 Recital 15 ......................................................................................................................... 45 Art 1 ............................................................................................................................ 70 Art 2(a) ....................................................................................................................... 70 Art 2(b) ................................................................................................................. 40, 70 Art 2(c) ....................................................................................................................... 44 Art 2(1)(d) .................................................................................................................. 53 Art 3 ............................................................................................................................ 70 Art 3(2) ....................................................................................................................... 72 Art 3(8) ....................................................................................................................... 70 Art 3(9) ....................................................................................................................... 70 Art 4 ............................................................................................................................ 70 Art 5 ............................................................................................................................ 70 Art 5(1) ....................................................................................................................... 70 Art 6 ................................................................................................................ 53, 58, 70 Art 8 ............................................................................................................................ 71 Art 9 ............................................................................................................................ 47 Art 9(1)(b) ............................................................................................................ 47, 71 Art 9(1)(c) .................................................................................................................. 71 Art 10(1) ..................................................................................................................... 71 Art 13(1) ..................................................................................................................... 70 Art 13(3) ................................................................................................................... 127 Art 12(2) ..................................................................................................................... 71 Art 12(3) ..................................................................................................................... 73 Art 13(3) ................................................................................................................... 127 Annex I ............................................................................................................. 44, 70 Dir 2003/4/EC on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ L41/26. ............................................. 13, 53, 89, 150 Art 5 ........................................................................................................................ 58, 151 Art 6 .................................................................................................................... 48, 53, 61 Dir 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC [2003] OJ L156/17 .................................. 36, 49, 53, 149, 152, 184, 245 Recital 11 ....................................................................................................................... 185 Art 2 ............................................................................................................................ 53 Art 2(2) ....................................................................................................................... 53 Art 3 ............................................................................................................ 53, 127, 185 Art 3(2) ..................................................................................................................... 138 Art 3(7) ..................................................................................................................... 242 Art 4(4) ....................................................................................................................... 48 Art 5 ............................................................................................................................ 53 Art 6 .......................................................................................................................... 127 Dir 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56 ......................................................... 10 Art 12(1) ......................................................................................................................... 68

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Table of Legislation Dir 2007/66/EC amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts [2007] OJ L335/31 ................................................................................... 108 Dir 2008/1/EC [2008] OJ L24/8 concerning integrated pollution prevention and control (Codified version) .................................................................................................. 4, 38 Regulations Reg 2052/88 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments [1988] OJ L185/9 ......................................................................................................................... 95 Reg 1049/2001 regarding public access to European Parliament, Council and Commission documents [2001] OJ L145/43 ........................................................... 54 Reg 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies [2006] OJ L264/13 .............................................................................................................................. 54, 100 Art 2(1)(c) .................................................................................................................... 100 Art 2(1)(g) .................................................................................................................... 100 Art 2(1)(h) .................................................................................................................... 100 Art 2(2) ......................................................................................................................... 100 Art 10(1) ............................................................................................................... 100–101 Art 10(2) ............................................................................................................... 100–101 Art 10(3) ............................................................................................................... 100–101 Art 11(1) ....................................................................................................................... 101 Art 11(2) ....................................................................................................................... 101 Art 12 ............................................................................................................................ 101 Art 12(2) ....................................................................................................................... 101 Art 13 ............................................................................................................................ 101 Art 14(2) ......................................................................................................................... 54

IRELAND Bunreacht na hÉireann (Constitution of Ireland) Art 10 .................................................................................................................................. 26

Acts of the Oireachtas (Statutes) Civil Legal Aid Act 1995 .................................................................................................. 211 Dublin Docklands Development Authority Act 1997........................................................ 72 Environmental Protection Agency Act 1992 ...................................................... 14, 26, 195 S98 ................................................................................................................................. 233 European Convention on Human Rights Act 2003 ................... 18, 113–14, 116, 121, 123 S1(1) ........................................................................................................................ 114–15 S2(1) .............................................................................................................................. 114 S2(2) .............................................................................................................................. 114 S3(1) ........................................................................................................................ 115–16 S3(2) ........................................................................................................................ 115–16 S4 ................................................................................................................................... 116

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Table of Legislation S(5)(a) ........................................................................................................................... 116 S3(5)(b) ......................................................................................................................... 116 S5 ................................................................................................................................... 115 S5(1) .............................................................................................................................. 116 S5(2)(a) ......................................................................................................................... 116 S5(4) .............................................................................................................................. 116 S6 ................................................................................................................................... 116 Foreshore Acts 1933 to 2005 ............................................................................................ 194 Housing (Miscellaneous Provisions) Act 2004 ............................................................... 195 Human Rights Commission Acts 2000 and 2001 .......................................................... 116 Local Government Act 2001 ...................................................................................... 26, 195 Local Government (Planning and Development) Act 1963 S82(3A) ......................................................................................................................... 201 S82(3B) ......................................................................................................................... 201 Local Government (Planning and Development) Act 1992 S19(3) ............................................................................................................................ 201 Local Government Act 2001 ...................................................................................... 26, 195 National Monuments (Amendment) Act 2004 S8 ........................................................................................................................... 211, 230 Ombudsman Act 1980 ....................................................................................................... 12 Ombudsman (Amendment) Act 1984 .............................................................................. 12 Planning and Development (Amendment) Act 2002 .................................................... 195 Planning and Development (Strategic Infrastructure) Act 2006 ........................ 68, 195–6 S5 ................................................................................................................................... 198 S13 ......................................................................................................................... 201, 243 S35 ................................................................................................................................. 197 S49 ................................................................................................................................. 194 S50 ................................................................................................................................. 194 Planning and Development Act 2000 PDA .................................................... 14, 26, 193–4 S2(1) ................................................................................................................................ 19 S4 ................................................................................................................................... 197 S5 ................................................................................................................................... 198 S10(1) .............................................................................................................................. 26 S10(5)(a) ......................................................................................................................... 72 S19(4)(a) ......................................................................................................................... 72 S23(3)(a) ......................................................................................................................... 72 S33(1) ...................................................................................................................... 46, 149 S33(2)(c) ................................................................................................................. 46, 149 S34(2)(a) ......................................................................................................................... 26 S34(10) ............................................................................................................................ 59 S34(12) ...................................................................................................................... 7, 135 S37(1) ............................................................................................................................ 196 S37(4)(c) ....................................................................................................................... 243 S37(4)(c)-(f) ................................................................................................................. 196 S37(4)(e) ....................................................................................................................... 243 S37A(2) ......................................................................................................................... 198 S37B(1) ......................................................................................................................... 198 S37E(1) ..................................................................................................................... 198–9

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Table of Legislation S37E(3)(a) ..................................................................................................................... 199 S37E(4) .......................................................................................................................... 199 S37F(1)(a) ..................................................................................................................... 199 S37F(2) .......................................................................................................................... 199 S37J(1) ........................................................................................................................... 199 S37J(2) ........................................................................................................................... 199 S50 ......................................................................... 201, 204, 206, 226, 227, 247, 253, 255 S50(1) ............................................................................................................................ 196 S50(2) ............................................................................................................................ 202 S50(4)(c)(i) ................................................................................................................... 206 S50(4)(c)(ii) .................................................................................................................. 206 S50(4)(e) ....................................................................................................................... 207 S50(6) ............................................................................................................................ 202 S50(7) ............................................................................................................................ 202 S50(8) ............................................................................................................................ 202 S50A ...................................................................................................... 201, 206, 227, 255 S50A(2) ......................................................................................................................... 202 S50A(3)(a) .................................................................................................................... 202 S50A(3)(b) .................................................................................................................... 201 S50A(3)(b)(i) ................................................................................................................ 203 S50A(3)(b)(ii) ....................................................................................................... 203, 243 S50A(4) ......................................................................................................................... 203 S50A(5) ......................................................................................................................... 202 S50A(6) ......................................................................................................................... 207 S50A(7) ..................................................................................................................... 207–8 S50A(8) ......................................................................................................................... 208 S50A(10) ....................................................................................................................... 209 S50A(12) ....................................................................................................................... 209 S130 ............................................................................................................................... 196 S166 ................................................................................................................................. 72 S175 ............................................................................................................................... 197 S178 ............................................................................................................................... 197 S179 ............................................................................................................................... 197 S181 ............................................................................................................................... 197 S256 ............................................................................................................................... 233 S257 ............................................................................................................................... 233 Pt III .......................................................................................................................... 148 Pt XV ......................................................................................................................... 194 Sch 7 ...................................................................................................................... 198 Prisons Act 2007 ............................................................................................................... 194 Protection of the Environment Act 2003 ....................................................................... 195 Roads Acts 1993 to 2007 .................................................................................................. 194 Transport (Railway Infrastructure) Act 2001 ................................................................. 194 Waste Management Act 1996 S54 ............................................................................................................................. 233–4 S60 ..................................................................................................................................... 9

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Table of Legislation Statutory Instruments European Communities (Access to Information on the Environment) Regs 2007 (SI No 133 of 2007) ............................................................................................................... 13 European Communities (Award of Public Works Contracts) Regs 1992 (SI No 38 of 1992) ......................................................................................................................... 108 European Communities (Environmental Assessment of Certain Plans and Programmes) Regs 2004 (SI No 435 of 2004) ................................................................................. 72 European Communities (Environmental Impact Assessment) (Amendment) Regs 2001 (SI No 538 of 2001) ................................................................................................. 193 European Communities (Environmental Impact Assessment) (Amendment) Regs 2006 (SI No 659 of 2006) ................................................................................................. 193 European Communities (Natural Habitats) Regs 1997 (SI No 94 of 1997) ................ 228 European Convention on Human Rights Act 2003 (Commencement) Order 2003 (SI No 483 of 2003) ............................................................................................................. 113 Planning and Development Act 2000 (Commencement) (No 3) Order 2001 (SI No 599 of 2001) ..................................................................................................................... 195 Planning and Development (Amendment) Regs 2008 (SI No 256 of 2008) ............... 195 Planning and Development (No 2) Regs 2007 (SI No 135 of 2007) ............................ 195 Planning and Development Regs 2001 (SI No 600 of 2001) Art 2(2) ......................................................................................................................... 195 Art 28 ...................................................................................................................... 46, 149 Art 29(1)(a) .................................................................................................................. 195 Art 31(g) ......................................................................................................................... 60 Art 35(1) ....................................................................................................................... 206 Art 74(2)(j) ..................................................................................................................... 60 Art 96 ............................................................................................................................ 134 Art 96(1) ....................................................................................................................... 229 Art 111 .......................................................................................................................... 197 Art 103(3) ....................................................................................................................... 43 Art 109(1) ..................................................................................................................... 197 Art 109(2) ..................................................................................................................... 197 Art 120(7) ....................................................................................................................... 43 Art 168 .................................................................................................................... 46, 149 Art 168(2) ............................................................................................................... 46, 149 Art 168(3) ..................................................................................................................... 149 Sch 10 .................................................................................................................. 46, 149 Planning and Development Regs 2005 (SI No 364 of 2005) ........................................ 193 Planning and Development Regs 2006 (SI No 685 of 2006) .......................... 60, 149, 195 Art 8 .......................................................................................................... 46, 60, 195, 206 Art 15 .............................................................................................................................. 60 Art 25 .............................................................................................................................. 43 Art 28 .............................................................................................................................. 43 Art 217 .......................................................................................................................... 199 Art 218 .......................................................................................................................... 199 Planning and Development Regs 2007 (SI No 83 of 2007) .......................................... 195 Planning and Development Regs 2008 (SI No 235 of 2008) ........................................ 195

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Table of Legislation Planning and Development (Strategic Environmental Assessment) Regs 2004 (SI No 436 of 2004) ....................................................................................................................... 72 Art 4 ................................................................................................................................ 72 Art 5 ................................................................................................................................ 72 Art 6 ................................................................................................................................ 72 Art 7 ................................................................................................................................ 72 Art 8 ................................................................................................................................ 72 Planning and Development (Strategic Infrastructure) Act 2006 (Commencement) Order 2006 (SI No 525 of 2006) ........................................................................................ 243 Planning and Development (Strategic Infrastructure) Act 2006 (Commencement) (No 3) Order 2006 (SI No 684 of 2006) ....................................................................... 15, 198 Rules of the Superior Courts (SI No 15 of 1986) O84 ........................................................................................................................ 202, 227 O84 r20(4) .................................................................................................................... 203 O84 r20(6) ............................................................................................................ 207, 227 O84 r21 ......................................................................................................................... 202 O99 ................................................................................................................................ 211

UNITED KINGDOM Human Rights Act 1998 ................................................................................................... 118 Medicines Act 1968 .......................................................................................................... 105 Planning and Compensation Act 1991 S22 ................................................................................................................................. 131 Planning etc (Scotland) Act 2006 ...................................................................................... 15 Town and Country Planning Act 1990 ........................................................................... 134 S77 ................................................................................................................................. 172

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1 Introduction

T

HE ENVIRONMENTAL IMPACT Assessment (EIA) directive dates from 1985 and is a cornerstone of European Community (EC) environmental protection policy.1 The main objective of the directive is to ensure that where a proposed project is likely to have significant effects on the environment, those effects are identified and assessed before the competent authority decides to grant development consent. To this end, the directive sets down a structured framework for environmental decision-making. At its simplest, the environmental assessment procedure facilitates the introduction of a broad range of cross-disciplinary information into the decision-making process, and both prescribes and supports a more participatory approach to decision-making, in the hope that this will lead to more environmentally aware outcomes.2 The underlying aim of this book is to examine the extent to which the Irish courts meet the obligation to deliver effective judicial protection for the procedural rights conferred by the EIA directive. At a more general level, it provides a close examination of the enforcement of the EIA directive in the European Union, and the role of national courts in overseeing the correct application of the directive by the competent authorities via the judicial review process. Ever since its ground-breaking Van Gend en Loos3 ruling, the European Court of Justice (ECJ) has vigorously promoted the role of the national courts in supervising the application of Community law at local level.4 Indeed, the traditionally limited scope of the Community infringement procedure (under Articles 226 and 228 EC)5 itself confirms the importance of the national courts as protectors of the 1 Dir 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 as amended by Dir 97/11/EC [1997] OJ L73/5 and Dir 2003/35/EC [2003] OJ L156/17. 2 For a detailed analysis of environmental assessment as a regulatory mechanism see J Holder, Environmental Assessment: The Regulation of Decision Making (Oxford, Oxford University Press, 2004). 3 Case 26/62 NV Algemene Transport-en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1. 4 The role of private parties in the decentralised enforcement of Community law reached a high point in the ECJ’s rulings in Case C-453/99 Courage Ltd v Crehan [2001] ECR I-6297; Case C-253/00 Muñoz y Cia SA, Superior Fruiticola SA v Frumar Ltd [2002] ECR I-7289 and Joined Cases C-295/04 to C-298/04 Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I-6619. 5 P Wennerås, The Enforcement of EC Environmental Law (Oxford, Oxford University Press, 2007) ch 6; M Hedemann-Robinson, Enforcement of European Union Environmental Law (Abingdon,

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Introduction many rights that individuals derive from Community law.6 If individuals and environmental groups are to have any success asserting EC environmental law in their domestic courts, national judges must prove willing to apply and give effect to EC (environmental) norms.7 Environmental directives depend, to a large extent, on national administrative law to support their effectiveness in practice.8 The local procedural rules and remedies that apply in planning and environmental protection cases determine how deeply Community environment rules penetrate the national system.9 Yet authority over national procedural rules and remedies has always been guarded jealously by the Member States. It follows that moulding well-established local rules and remedies to take account of European

Routledge-Cavendish, 2007) ch 5; C Harlow and R Rawlings, ‘Accountability and Law Enforcement: The Centralised EU Infringement Procedure’ (2006) 31 EL Rev 447; L Cashman, ‘Commission Compliance Promotion and Enforcement in the Field of the Environment’ [2006] Journal for European Environmental and Planning Law 385; R Macrory, ‘The Enforcement of EU Environmental Law: Some Proposals for Reform’ in R Macrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2006); S Grohs, ‘Commission Infringement Procedure in Environmental Cases’ in M Onida (ed), Europe and the Environment: Legal Essays in Honour of Ludwig Krämer (Groningen, Europa Law Publishing, 2004); E Hattan, ‘The Implementation of EU Environmental Law’ (2003) 15 Journal of Environmental Law 273; R Rawlings, ‘Engaged Elites: Citizen Action and Institutional Attitudes in Commission Enforcement’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000); R Williams, ‘The European Commission and the Enforcement of Environmental Law: An Invidious Position’ (1994) 14 Yearbook of European Law 352 and ‘Enforcing European Environmental Law: Can the European Commission be Held to Account?’ (2002) 2 Yearbook of European Environmental Law 271. 6 European Commission, Better Monitoring of the Application of Community Law COM (2002) 725 final, especially 16–17 and A Europe of Results—Applying Community Law COM (2007) 502 final. 7 On private enforcement at national level see J Jans and H Vedder, European Environmental Law, 3rd edn (Groningen, Europa Law Publishing, 2008) 167–209; Wennerås, above n 5, chs 2 and 3; H Somsen, ‘The Private Enforcement of Member State Compliance with EC Environmental Law: An Unfulfilled Promise?’ (2000) 1 Yearbook of European Environmental Law 311 and A Ward, ‘Judicial Review of Environmental Misconduct in the European Community: Problems, Prospects and Strategies’ (2000) 1 Yearbook of European Environmental Law 137. 8 J Jans and M de Jong, ‘Between Direct Effect and Rewe/Comet: Remarks on Dutch Administrative Law, Procedural Defects and the EIA Directive’ in K-H Ladeur (ed), The Europeanisation of Administrative Law: Transforming National Decision-making Procedures (Aldershot, Ashgate, 2002); K-H Ladeur and R Prelle, ‘Environmental Assessment and Judicial Approaches to Procedural Errors—A European and Comparative Law Analysis’ (2001) 13 Journal of Environmental Law 185 and F Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56 MLR 19. See generally C Demmke and M Unfried, European Environmental Policy: The Administrative Challenge for the Member States (Maastricht, European Institute of Public Administration, 2001). 9 For an early overview of the shortcomings inherent in decentralised control see D Curtin, ‘The Decentralised Enforcement of Community Law Rights: Judicial Snakes and Ladders’ in D Curtin and D O’Keeffe (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon Mr Justice TF O’Higgins (Dublin, Butterworths, 1992). On the diverse procedures available to challenge planning and environmental decisions in the Member States see Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters (Milieu, 2007), text available at: http://ec.europa.eu/environment/aarhus/study_access.htm; N de Sadeleer, G Roller and M Dross (eds), Access to Justice in Environmental Matters and the Role of NGOs (Groningen, Europa Law Publishing, 2005) and J Ebbesson (ed), Access to Justice in Environmental Matters in the EU (The Hague, Kluwer, 2002).

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Importance of Effective Enforcement at Local Level requirements is a delicate and fraught process.10 The ‘Europeanisation’ of planning and environmental law therefore raises important questions about the ability of national legal systems (in particular rules governing judicial review of administrative decision-making) to deliver l’effet utile of Community environmental law. This work explores the tensions that arise in practice between national planning and administrative law on the one hand and the requirements of Community EIA law on the other. While the scope of the study is narrow in substantive and geographical terms, this sharp focus is necessary in order to provide a full account of the reality of integration at national level.

I.

IMPORTANCE OF EFFECTIVE ENFORCEMENT AT LOCAL LEVEL

Persistent difficulties with the implementation and enforcement of Community environmental law at national level are well documented.11 The Environment Directorate-General continues to have the highest number of open cases in the European Commission. At the end of 2007, the environment sector accounted for almost one quarter (22 per cent) of the total number of open cases concerning non-compliance with Community law.12 Implementation of the EIA directive has proven to be especially challenging. A comprehensive study of the operation of the directive published by the Commission in June 2003 found serious difficulties with application and implementation at local level.13 The specific points identified in the Commission’s review included: a wide diversity of approaches to project screening; a lack of consistency in the levels at which thresholds are set; the absence of a harmonised approach to review of Environmental Impact Statements (EISs); and a lack of formal measures to ensure quality control of the 10 K-H Ladeur, ‘Introduction: Conflict and Co-operation between European Law and the General Administrative Law of the Member States’ in K-H Ladeur (ed), above n 8; I Maher, ‘Community Law in the National Legal Order: A Systems Analysis’ (1998) 36 Journal of Common Market Studies 237 and ‘National Courts as European Community Courts’ (1994) 14 Legal Studies 226. 11 European Commission, 2007 Environment Policy Review COM (2008) 409 final, 6–7; T Flynn, ‘Transposition and Enforcement of European Community Environmental Law in Ireland: Some Key Issues’ (2008) 15 Irish Planning and Environmental Law Journal 58; L Cashman, ‘Key Goals of Commission Enforcement Policy in Relation to the Environment, with Particular Reference to Ireland’ (2008) 15 Irish Planning and Environmental Law Journal 102; L Krämer, EC Environmental Law, 6th edn (London, Thomson Sweet & Maxwell, 2007) ch 12; M Lee, EU Environmental Law: Challenges, Change and Decision-Making (Oxford, Hart Publishing, 2005) ch 3. See generally G Majone, Dilemmas of European Integration: The Ambiguities & Pitfalls of Integration by Stealth (Oxford, Oxford University Press, 2005) 117–24. 12 European Commission, 2007 Environment Policy Review COM (2008) 409 final, 6. 13 European Commission, Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC): How Successful Are the Member States in Implementing the EIA Directive? COM (2003) 334 final, (‘2003 Report’), text available at: http://ec.europa.eu/environment/archives/eia/pdf/report_en.pdf. Two earlier Commission reports had painted a similarly bleak picture of the state of implementation: see Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (93) 28 final and a further review published in 1997, text available at http://ec.europa.eu/ environment/archives/eia/eia-studies-and-reports/5years.pdf.

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Introduction EIA procedure. Opportunities for public participation remain mixed, and it is difficult to gauge the effectiveness of participation on outcomes. In practice, quality control is left to the relevant competent authorities and, ultimately, the safeguards provided by judicial review. This last point demonstrates the importance of access to effective judicial control to ensure that the formal requirements set down in the EIA directive are respected by the competent authorities in day-to-day environmental decision-making. The Commission also voiced concern over the extent to which biodiversity issues, risk and health impacts are integrated into EIA procedures, and it acknowledged the complex interrelationship between EIA and other control systems14—such as the Habitats directive15 and the Integrated Pollution Prevention and Control (IPPC) directive.16 The 2003 review identified a marked variation in the number of EIAs carried out each year across the Member States. The obvious lack of adequate monitoring and reporting systems at national level was identified as a major deficiency. In the absence of central monitoring, it is impossible for the Member States to ensure that competent authorities apply EIA requirements correctly and consistently. The directive itself is weak on quality control and silent on the question of post-project monitoring—a vital factor in any effort to accurately gauge levels of compliance and the overall effectiveness of the EIA directive in practice.17 As regards access to justice, the review discerned a heavy reliance on the judicial systems of the individual Member States for quality control, and the Commission expressed concern over the costs, delays and restrictive standing rights often associated with judicial procedures. The Commission has also noted that complaints concerning allegedly incorrect applications of the EIA directive tend to engender questions of fact, which would be more effectively determined at a decentralised level via national administrative and judicial bodies.18 The importance of effective local remedies is thus abundantly clear. Turning to the experience in Ireland, in March 2002 the then Commissioner for the Environment, Margot Wallström, took the dramatic step of writing a public letter to the Irish Environment Minister highlighting concerns that had been expressed to her by environmental non-governmental organisations (ENGOs) on a range of issues, including difficulties in securing access to information and access to environmental justice. Ireland remains a rich source of complaints to the Commission in environmental matters. This state of affairs is 14 2003 Report, ibid, para 4.6. See also L Cashman, ‘Environmental Impact Assessment: A Major Instrument in Environmental Integration’ in M Onida (ed), Europe and the Environment: Legal Essays in Honour of Ludwig Krämer (Groningen, Europa Law Publishing, 2004). 15 Dir 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7 as amended by Dir 97/62/EC [1997] OJ L305/42. 16 Dir 96/61/EC concerning integrated pollution prevention and control [1996] OJ L257/26 as amended by Dir 2003/35/EC [2003] OJ L156/17, codified by Dir 2008/1/EC [2008] OJ L24/8. 17 2003 Report, above n 13, at para 4.9. 18 European Commission, Fourth Annual Survey on the Implementation and Enforcement of Community Environmental Law 2002 SEC (2003) 804, 9 and Fifth Annual Survey on the Implementation and Enforcement of Community Environmental Law 2003 SEC (2004) 1025, 10.

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Importance of Effective Enforcement at Local Level most likely a modern manifestation of the strong tradition of public participation in the Irish planning system. Dissatisfaction with responses received from the competent authorities, together with the costs, delay and unpredictability associated with judicial review proceedings are the main catalysts behind complaints. The high level of Irish complaints must also be set in the context of the heavy demands placed on the Irish planning system during a recent period of intense economic development. The number of planning applications submitted to local authorities more than doubled in the period 1992 to 2002, creating unprecedented pressures for planning departments across the country.19 In the Annual Report for 2000, the Ombudsman described the planning system as being ‘in a state of collapse’ due to a shortage of qualified personnel and insufficient resources.20 Difficulties with planning administration have persisted. During 2007, in line with previous years, 860 (33.4 per cent) of the 2,578 (valid) complaints received by the Ombudsman concerned local authorities.21 Of these complaints, 133 related to enforcement of planning legislation and 65 to planning administration.22 As regards the planning appeals system operated by An Bord Pleanála (the Planning Appeals Board), the number of appeals more than doubled between 1994 and 2000, again reflecting the massive scale of development taking place at the height of the ‘Celtic Tiger’ years.23 Output from planning authorities in recent years has been nothing short of phenomenal. The most recent data indicates that planning authorities received 91,654 applications during 2007 and over 87,000 decisions were taken on applications in the same period.24 The volume of appeals to An Bord Pleanála reached a record high of 5,891 in 2007—reflecting the increase in the volume of planning applications in this period rather than a rise in the rate of appeal per se.25 The percentage of local authority planning decisions appealed to the Board is in the region of seven per cent (6.7 per cent in 2007).26 The high volume of planning applications, and subsequent appeals, has put a serious strain on the limited resources of the competent authorities (although the sharp economic downturn has had a marked impact on the number of planning applications and appeals in 2008). Rapid expansion in the level of infrastructural development in recent years (particularly road schemes and waste management facilities, including landfills and incinerators) guarantees protracted controversies at national and local level,

19 Department of the Environment, Heritage and Local Government (DEHLG), Annual Planning Statistics 2003, 3. 20 Annual Report of the Ombudsman 2000, 7. 21 Annual Report of the Ombudsman 2007, 41–2. 22 Ibid, 55. 23 Comptroller and Auditor General, Report on Value for Money Examination Planning Appeals Report No 41, Pn 11436 (2002) para 3.2. 24 DEHLG, Planning Statistics Quarterly 2007 (Oct–Dec), 10. 25 An Bord Pleanála, Annual Report 2007, 17. 26 Ibid, 19.

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Introduction stoking public interest in environmental issues.27 This interest is further sharpened by concerns over the quality of decision-making by the relevant competent authorities. The Commission has brought a number of high-profile cases against Ireland for alleged breaches of environmental obligations. The judgment in Case C-392/96 Commission v Ireland,28 delivered in 1999, remains one of the ECJ’s most significant EIA rulings. On this occasion, the Court emphasised that when considering whether or not a proposed project is likely to have significant effects on the environment, the Member State should not confine its enquiry to the size of the project. The nature of the project at issue and the proposed location are also critical factors.29 A small project located in a particularly sensitive site (for example an area of active blanket bog or other locations identified as valuable for nature conservation or archaeological interest) may well pose significant effects for the environment. In another important judgment (Case C-216/05 Commission v Ireland30), delivered in November 2006, the ECJ concluded that Irish planning participation fees were not in breach of Articles 6 and 8 of the EIA directive. Ireland is the only Member State to levy an upfront administrative fee (€20) as a precondition to the right to participate in certain EIA cases.31 The ECJ’s ruling confirmed that Article 6 of the directive confers a wide discretion on Member States to determine the detailed arrangements governing public participation, subject to the proviso that national arrangements cannot constitute an obstacle to effective participation. The Commission had maintained that the fees undermined the purpose of the directive by restricting the right to participate in the EIA process, particularly in the case of people on low incomes. Under Irish planning law, it is possible for a developer to seek retention planning permission for an unauthorised development, including development

27 See generally, L Leonard, Green Nation: The Irish Environmental Movement from Carnsore Point to the Rossport 5 (Drogheda, Choice Publishing, 2006) and N Stanley, ‘Public Concern: The Decision-makers’ Dilemma’ [1998] Journal of Planning and Environment Law 919. Consider, eg, the ongoing controversy surrounding Shell & EP Ireland Ltd’s proposal to develop a gas terminal at Bellanaboy, County Mayo (‘The battle of the Corrib field’, Irish Times 2 July 2005; ‘An Taisce takes case to Europe in Corrib row’, Irish Times 30 June 2006; ‘Clashes force Shell to halt marine survey’, Irish Times 16 June 2007; ‘Injunction to halt Corrib gas project sought in Europe’, Irish Times 25 May 2008; ‘New forum on Corrib gas project set up’, Irish Times 7 November 2008); and the heated debate over the route for the M3 motorway and its alleged impact on archaeological heritage around the Hill of Tara and the Tara-Skryne Valley (‘Tearing up the past’, Irish Times 27 November 2004; ‘M3 vital for national transport and must go ahead’, Irish Times 28 February 2005; ‘Clashes as M3 route protest is dispersed’, Irish Times 23 May 2007; ‘Is nothing sacred?’, Irish Times 26 May 2007 and ‘NRA restarts work claiming M3 protestors broke truce’, Irish Times 21 March 2008). 28 Case C-392/96 Commission v Ireland [1999] ECR I-5901. 29 Ibid, paras 66–70. 30 Case C-216/05 Commission v Ireland [2006] ECR I-10787. See also Á Ryall, ‘EIA and Public Participation: Determining the Limits of Member State Discretion’ (2007) 19 Journal of Environmental Law 247. 31 See generally Á Ryall, ‘The EIA Directive and the Irish Planning Participation Fee’ (2002) 14 Journal of Environmental Law 317.

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Importance of Effective Enforcement at Local Level subject to EIA, even where no exceptional circumstances are established.32 This state of affairs represented a long-standing and obvious weakness in Irish implementation of the EIA directive. In July 2008, in another ground-breaking EIA judgment—Case C-215/06 Commission v Ireland33—the ECJ ruled that this aspect of Irish planning law breached the requirements of the directive. The ECJ relied on the ‘fundamental objective’ of the directive and the ‘unambiguous’ wording of Article 2(1), which obliges Member States to ensure that projects falling within the scope of the EIA directive are subject to prior assessment. The ECJ determined that the enforcement measures established under Irish planning legislation were inadequate, as the existence of retention planning permission rendered them ineffective. The Commission also alleged that Ireland had breached the EIA directive as regards various development consents relating to the construction of a wind farm at Derrybrien in County Galway (described by the Commission as ‘the largest terrestrial wind-energy development ever planned in Ireland and one of the largest in Europe’).34 While EIAs had been carried out for various constituent parts of the development, the Commission maintained that these were deficient—in particular that environmental risks had not been adequately assessed. The Commission also stressed the failure of the competent authorities to carry out a fresh EIA before resumption of work at Derrybrien following a major landslide, and consequent ecological disaster, in October 2003.35 In a carefully reasoned judgment, the ECJ ruled that Ireland had breached the EIA directive in failing to take all measures necessary to ensure that the development consents for, and the execution of, the wind farm development and associated works at Derrybrien were preceded by an assessment of the environmental effects. It was not sufficient, according to the ECJ, to merely attach EISs (which in any event the Court found were deficient) to the consent applications. With a view to addressing one aspect of this ECJ ruling, the Minister for the Environment, Heritage and Local Government has announced that forthcoming legislation will remove the possibility of retention planning permission for EIA development.36 At the time of writing, the Commission is pursuing Ireland for a number of alleged breaches of the EIA directive including: the manner of the division of jurisdiction between planning authorities and the Environmental Protection Agency (EPA) in the case of projects that require an IPPC licence (alleged breach of, inter alia, Article 3 of the directive); failure to transpose correctly legislation creating a number of land improvement categories (where it is alleged that

32 Planning and Development Act 2000 s 34(12). See generally G Simons, Planning and Development Law, 2nd edn (Dublin, Thomson Round Hall, 2007) paras 5.38–5.43 and 7.08–7.11. 33 Case C-215/06 Commission v Ireland [2008] ECR I-0000. 34 Ibid, para 87. 35 See generally ‘Local fears after Galway landslide’, Irish Times 18 October 2003. 36 ‘Gormley to introduce measures to improve the effectiveness, efficiency and environmental sustainability of the Planning Code’ DEHLG Press Release, 18 July 2008 and ‘New law to tackle unauthorised developments’, Irish Times 7 October 2008.

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Introduction Ireland has retained the legislative approach condemned in Case C-392/96); and alleged failure to transpose Annex III of the EIA directive in relation to fish farm projects.37 In March 2007, the Commission decided to refer Ireland to the ECJ for alleged failure to transpose fully Directive 2003/35/EC (the public participation directive).38 This directive introduced important amendments to the text of the EIA directive including a new Article 10a on access to justice. Ireland maintains that current rules and practices governing judicial review meet the requirements set down in Article 10a and that no additional legislative measures are necessary. A minimalist approach to Article 10a was sanctioned by the High Court in Sweetman v An Bord Pleanála (No 1),39 where Clarke J ruled that it was possible to accommodate any requirements mandated by Article 10a in the existing judicial review regime. The High Court has also refused to accept that the aspects of Article 10a dealing with the costs involved in review proceedings satisfy the requirements for direct effect.40 Beyond EIA law, other significant environmental obligations resulted in a series of embarrassing defeats for the Irish authorities before the ECJ. In an important high-profile decision in April 2005, the ECJ found that Ireland had ‘generally and persistently’ failed to fulfill its obligations under the Waste Framework directive by ignoring and tolerating illegal dumping.41 Of most significance in this landmark judgment was the Court’s finding that a systematically deficient administrative practice, which operates to undermine the application of a directive, can itself amount to a breach of a Member State’s obligation under Community (environmental) law.42 In particular, the ECJ found that the dumping of construction and demolition waste on wetlands in County Limerick, which was tolerated by the relevant local authority, resulted in those wetlands being ‘badly damaged’.43 Unauthorised landfills at Tramore and Kilbarry in County Waterford were found to have ‘encroached upon sensitive wetlands of particular ecological interest, causing in particular impairment of the wetlands and a reduction in their area’.44 The landfills ‘were at the origin of significant environmental pollution of various kinds’.45 Following the ECJ waste ruling, the then Minister for the Environment, Heritage and Local Government, Dick Roche TD,

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Case C-66/06 Commission v Ireland [2006] OJ C108/1. Case C-427/07 Commission v Ireland [2007] OJ C269/36. Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153. 40 Friends of the Curragh Environment Ltd v An Bord Pleanála (No 1) [2006] IEHC 243 and Sweetman v An Bord Pleanála (No 1), para 7.1. 41 Case C-494/01 Commission v Ireland [2005] ECR I-3331 paras 127 and 139 (concerning breach of Dir 75/442/EEC [1975] OJ L194/39 as amended by Dir 91/156/EEC [1991] OJ L78/32). See generally P Wennerås, ‘A New Dawn for Commission Enforcement under Articles 226 and 228 EC: General and Persistent (GAP) Infringements, Lump Sums and Penalty Payments’ (2006) 43 CML Rev 31. 42 Case C-494/01 Commission v Ireland [2005] ECR I-3331 paras 22–39. 43 Ibid, paras 54–5. 44 Ibid, para 84. 45 Ibid. 38 39

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Importance of Effective Enforcement at Local Level moved swiftly to strengthen enforcement activity against illegal waste operators.46 In two noteworthy judgments delivered during 2007,47 the ECJ found that Ireland was in breach of obligations arising under the Wild Birds directive48 and the Habitats directive.49 The ECJ confirmed further environmental infringements in June 2007 (breach of Community rules governing quality of shellfish waters)50 and in October 2007 (failure to protect groundwater from pollution by dangerous substances at Ballymurtagh landfill at Avoca in County Wicklow).51 In September 2008, the ECJ found that Ireland had breached its obligations under the Urban Waste Water Treatment directive52 by failing to provide secondary treatment facilities at six particular agglomerations with populations exceeding 15,000.53 At the time of writing, Ireland has the third highest number of open environmental infringements after Italy and Spain.54 Significant implementation gaps are a direct result of a number of interrelated factors, including: serious under investment in environmental infrastructure in the past—which left Ireland in a difficult ‘catch-up’ situation55; fragmented administrative structures; inadequate quality-control of legislation; deficient administrative practices; poor enforcement policies and weak judicial control. Much Commission enforcement work on the environment in relation to Ireland is now within the framework of Article 228 EC rather than Article 226 EC.56 This is due to the build-up of a number of wide-ranging ECJ judgments against Ireland which are not yet fully satisfied. Polluted drinking water and inadequate controls over local authority water discharges, for example, are persistent problems for the Irish authorities. The Commission is pursuing Ireland for alleged failure to comply fully with an ECJ judgment from 2002 concerning microbiological contamination of water supplies.57 Separate infringement proceedings are in train on foot of a 2005

46 For the first time since the introduction of the Waste Management Act 1996, the Minister issued a policy direction pursuant to s 60 of that Act: Circular WIR: 04/05 Policy Guidance Pursuant to Section 60 Waste Management Act 1996 3 May 2005. See also Policy Guidance Pursuant to Section 60 of the Waste Management Act 1996: Action Against Illegal Waste Activity—The Use of Sanctions Circular WPRR 04/08, 25 July 2008. See generally The Nature and Extent of Unauthorised Waste Activity in Ireland (EPA, 2005). 47 Case C-183/05 Commission v Ireland [2007] ECR I-137 and Case C-418/04 Commission v Ireland [2007] ECR I-10947. 48 Dir 79/409/EEC on the conservation of wild birds [1979] OJ L103/1 as amended by Dir 97/49/EC [1997] OJ L223/9. 49 Dir 92/43/EEC on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7. 50 Case C-148/05 Commission v Ireland [2007] ECR I-82*. 51 Case C-248/05 Commission v Ireland [2007] ECR I-9261. 52 Dir 91/271/EEC concerning urban waste water treatment [1991] OJ L135/40. 53 Case C-316/06 Commission v Ireland [2008] ECR I-0000. 54 European Commission, 2007 Environment Policy Review Annex SEC (2008) 2150, 40. 55 ‘Ireland’s performance in implementing EU environmental legislation could be better’, EPA Press Release, 29 March 2007. See also Ireland’s Environment 2008 (EPA, 2008) and ‘Ireland’s Environment—An Asset under Threat’, EPA Press Release, 8 October 2008. 56 Cashman, above n 11. 57 Case C-316/00 Commission v Ireland [2002] ECR I-10527.

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Introduction ruling58 requiring, amongst other things, an improved set of water quality objectives and the introduction of an authorisation system for local authority discharges. The grave consequences of a contaminated drinking water supply for local communities are, unfortunately, all too familiar in Ireland following recent events in Galway City and its environs.59 In June 2008, the Commission decided to refer Ireland (and eight other Member States) to the ECJ for failing to transpose the Environmental Liability directive.60 One immediate outcome of recent ECJ rulings against Ireland, and the Commission’s insistent enforcement effort, is a greater awareness of Community environmental obligations on the part of the Government, competent authorities and the public. There is also a greater appreciation of the consequences of breach of Community law in light of the strong prospect of substantial fines pursuant to Article 228 EC. This is a most welcome development and demonstrates the positive impact that the Commission’s ‘name, fame and shame’ approach can have on recalcitrant Member States, when coupled with keen media interest in environmental matters.61 Of course, Ireland is not unique in experiencing difficulties with European environmental obligations. Correct implementation of environmental directives represents a fundamental challenge for most Member States, as evidenced by the number of environmental complaints submitted to the Commission. The watchdog role played by individuals and ENGOs via decentralised enforcement mechanisms is an essential complement to Commission enforcement activity. Although infringement proceedings are likely (ultimately) to result in formal transposition and implementation of EC environmental norms, decentralised enforcement through judicial review in the national courts holds the potential to bring about the necessary changes in national administrative practice to ensure the effective application of EC environmental law at local level. Judicial review is one mechanism whereby the practical implications of often vague EC (environmental) norms may be ‘translated’ by the national judiciary into firm, workable principles and guidelines to be applied in subsequent cases by the relevant national authorities. Galligan has noted: While the role of judicial review in correcting errors is bound to be limited to a few cases, its educative impact on administrative processes holds more promise. Unlike some of the other forms of recourse, judicial review not only deals with the case in

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Case C-282/02 Commission v Ireland [2005] ECR I-4653. See, eg, ‘Public water supplies infected by parasite’, Irish Times 21 March 2007 and ‘EPA issues warning to council over water crisis’, Irish Times 25 September 2008. See generally Water Quality in Ireland 2004–2006 (EPA, 2008). 60 Dir 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56. See generally ‘Commission takes nine member states to Court over environmental liability’ IP/08/1025, 26 June 2008. 61 See, eg, ‘Ireland may face 30 cases of environmental law breaches’, Sunday Tribune 20 July 2008. 59

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Alternative Remedies hand, but also contributes to the development of general rules and principles. Individual review decisions are reasoned and often reported and, in so far as they propound general legal principles, administrative officials are bound by them.62

The primary function of judicial review is to uphold the Rule of Law and to supervise and contain the exercise of discretion. If the quality of (environmental) decision-making is to improve, then it is vital that the courts provide clear and consistent guidance to decision-makers as to how particular decision-making processes (such as EIA) should work in practice. The potential of judicial review as a mechanism by which EC environmental norms may be incorporated into the working environment of the national administration depends on the ability of litigants to gain access to the national courts to present arguments based on EC law and the willingness of the national judges to engage with such arguments and to provide the necessary linkage between unfamiliar ‘foreign’ norms and deeply entrenched national legal and administrative culture. All too often, the ECJ simply assumes the willingness of national courts to enforce claims based on Community law. Resistance and reluctance on the part of the national courts to embrace fully their role as Community courts—and to foster the necessary modifications to national administrative and procedural law required to ensure l’effet utile of EC (environmental) norms—undermine the effectiveness of decentralised enforcement. Much more detailed research is required to test the responsiveness of national judges to claims based on EC law.63 To this end, the present work aims to contribute to the existing literature on the interaction between national courts and the Community courts.64

II.

ALTERNATIVE REMEDIES

Apart from judicial review, a number of other remedies are available in the case of alleged breach of the EIA directive. While this work focuses on access to judicial protection or control, the alternative remedies are noted here with a view to sketching the broader remedial landscape in which judicial review operates. First, an alleged breach of Community environmental law may be the subject of a

62 DJ Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford, Clarendon Press, 1996) 409–10 (footnote omitted). 63 See generally, P Legrand, ‘European Legal Systems Are Not Converging’ (1996) 45 ICLQ 52 and C Harlow, ‘Voices of Difference in a Plural Community’ in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002) 205–12. 64 See inter alia: AM Slaughter, A Stone Sweet and JHH Weiler (eds), The European Court and the National Courts—Doctrine and Jurisprudence: Legal Change in Its Social Context (Oxford, Hart Publishing, 1998); K Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press, 2001); L Conant, Justice Contained: Law and Politics in the European Union (Ithaca, Cornell University Press, 2001) and A Stone Sweet, The Judicial Construction of Europe (Oxford, Oxford University Press, 2004).

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Introduction complaint to the Commission.65 Secondly, a complaint may be lodged with the Committee on Petitions of the European Parliament.66 Thirdly, parliamentary questions may be deployed to draw attention to alleged breaches of Community environment rules. Fourthly, the European Ombudsman may investigate alleged ‘maladministration’ on the part of Community institutions and bodies (for example, where a complainant is dissatisfied with the Commission’s handling of a particular complaint).67 At national level, two important avenues of redress are An Bord Pleanála and the Ombudsman. The Board hears appeals from planning decisions taken at first instance by local planning authorities. It was established in 1976 and given the appeal function previously enjoyed by the Minister for Local Government. The Irish planning system is distinctive in that it bestows a right of appeal against decisions taken by local planning authorities on both first and third parties (ie parties other than the developer). An appeal to the Board involves a full re-hearing on the planning merits of the contested decision. The Ombudsman has jurisdiction to investigate claims of ‘maladministration’ on the part of local planning authorities.68 While the Ombudsman’s recommendations are not legally binding, in practice there is a high level of compliance with any such recommendations. The Ombudsman does not have jurisdiction to investigate individual planning decisions as such. The Office has played an important role in highlighting general problems within the planning system however, such as lack of sufficiently qualified personnel and resources; the failure to follow up complaints of illegal development; the level of fees charged by planning authorities for copies of documents relating to planning applications and failure to provide access to information on the environment where this is mandated by law.69 In the specific area of access to information retained by local authorities, the Ombudsman provided a useful alternative to judicial review for individuals and bodies aggrieved by decisions refusing access.70 Following the entry into force of the European Communities (Access to Information on the Environment) 65 Art 226 EC. See generally A Arnull, The European Union and its Court of Justice, 2nd edn (Oxford, Oxford University Press, 2006) ch 2. 66 Arts 21 and 194 EC. In the Irish context see, eg: ‘McManus takes Wicklow dumps issue to European Parliament’, Irish Times 16 October 2004; ‘Ex-FF councillor tries to stop incinerator’, Irish Times 4 July 2006; ‘EU committee to investigate cattle illness’, Irish Times 30 January 2007; ‘Tara campaigners appeal at EU level’, Irish Times 2 April 2008 and ‘More data on Corrib project sought from EU Commission’, Irish Times 26 June 2008. 67 Arts 21 and 195 EC. See, eg, the decision of the European Ombudsman on complaint 1561/2000/PB against the European Commission, 2 October 2001 (Kildare Bypass Motorway). 68 Ombudsman Act 1980 and Ombudsman (Amendment) Act 1984. See generally G Hogan and D Morgan, Administrative Law in Ireland, 3rd edn (Dublin, Round Hall Sweet & Maxwell, 1998) ch 8. 69 See, eg, Annual Report of the Ombudsman 2005, 30 (charges levied for photocopying planning documents); Annual Report of the Ombudsman 2006, 16–17 (incorrect procedure for keeping written records on planning files) and Annual Report of the Ombudsman 2007, 12–13 (planning authority failed to notify an objector to a planning application that an appeal had been lodged). See also ‘Draft county plan fee criticised’, Irish Times 8 August 2006 (€175 fee for hard copy of Meath County Council draft Development Plan). 70 See generally Á Ryall, ‘Access to Information on the Environment: The Challenge of Implementing Directive 2003/4/EC’ (2005) 12 Irish Planning and Environmental Law Journal 162.

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Alternative Remedies Regulations 200771 on 1 May 2007, a new dispute resolution mechanism—the Commissioner for Environmental Information—is now in place. The 2007 regulations purport to give effect to Directive 2003/4/EC on public access to environmental information.72 The Ombudsman has also dealt with complaints concerning alleged non-enforcement of EC environmental law in the context of the Wild Birds and Habitats directives.73 The Ombudsman does not have jurisdiction over An Bord Pleanála or the EPA. While fees are payable in respect of appeals to the Board, the Ombudsman’s service is free of charge. Where a party is unsuccessful in challenging a contested planning decision, or other statutory authorisation, there remains the possibility of bringing enforcement proceedings under planning or pollution control legislation (as the case may be) should the holder of the planning permission, or other authorisation, subsequently act in breach of its terms.74 There is considerable scope for enforcement by private parties under the planning code.75 Public authorities have extensive enforcement powers. There are, however, serious concerns about lack of resources within public authorities to enforce planning controls effectively.76 Private parties may also take action under specific provisions of legislation addressing water pollution, air pollution and waste. In October 2003 the Government established the Office of Environmental Enforcement (OEE) within the framework of the EPA. Its mandate is to deliver effective implementation and enforcement of environmental legislation. The OEE is directly responsible for the enforcement of licences issued by the Agency, including IPPC licences and waste licences, and is also charged with auditing and monitoring the effectiveness of local authorities’ efforts to enforce environmental legislation.77 The evidence available to date indicates that the establishment of this dedicated enforcement body has produced a positive impact, particularly in clamping down on illegal dumping and waste trafficking.78

71 European Communities (Access to Information on the Environment) Regs 2007 (SI No 133 of 2007). 72 Dir 2003/4/EC on public access to environmental information [2003] OJ L41/26. See generally Á Ryall, ‘Access to Information on the Environment Regulations 2007’ (2007) 14 Irish Planning and Environmental Law Journal 57. 73 See, eg, Annual Report of the Ombudsman 2005, 16–17 (Ombudsman found that correct administrative procedures had not been followed in the designation of a Special Protection Area). 74 S Dodd, ‘Duties of Enforcement in Planning and Environmental Law (2008) 15 Irish Planning and Environmental Law Journal 12. 75 See generally, Simons, above n 32, ch 7; Y Scannell, Environmental and Land Use Law (Dublin, Thomson Round Hall, 2006) paras 2.445–2.467. 76 The most recent statistics for planning enforcement are presented in DEHLG, Annual Planning Statistics 2006, 32–6. 77 An Environmental Enforcement Network—which includes the OEE, local authorities, Fisheries Boards and An Garda Síochana (Irish police)—was put in place in 2004 to facilitate enhanced cooperation and information exchange between regulators. 78 See Focus on Waste Enforcement 2007 (EPA, 2007); The Nature and Extent of Unauthorised Waste Activity in Ireland (EPA, 2005). See generally JD Lynott, ‘The Detection and Prosecution of Environmental Crime’ (2008) 1 Judicial Studies Institute Journal 185.

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Introduction Beyond public law, the law of torts is also relevant. The law of nuisance, the tort of trespass to land and the rule in Rylands v Fletcher79 may (either individually or collectively) offer a potential remedy in an appropriate case.80 In Ní Éilí v Environmental Protection Agency81—where the applicant for judicial review was ultimately unsuccessful in her attempt to challenge the decision of the EPA to grant a revised Integrated Pollution Control licence in respect of a hazardous waste incinerator—Murphy J, of the Supreme Court, reminded the applicant that the grant of a licence under the [Environmental Protection Agency Act, 1992]does not confer on the licensee the permission to cause injury to health or damage to the environment or any immunity from any other illegal process. It merely permits an activity to be carried on which would otherwise be illegal. If the conduct of the licensee in any case were to cause injury or damage or otherwise constitute a public nuisance, the persons affected would continue to have available to them a well-stocked arsenal of legal and equitable remedies although one would hope that the conduct of the licensee and the supervision of the Agency would render it unnecessary to have recourse to such remedies.82

While, in principle, there are indeed extensive remedies available to persons affected by actions that damage (or threaten to damage) public health and the environment, in practice it can be very difficult to secure injunctive relief against anticipated harm to health or property.83 Criminal prosecutions and actions for damages, by their very nature, only become relevant after the event. The potential costs involved in mounting proceedings operate as a strong deterrent against private enforcement action. This state of affairs serves to highlight the vital importance of access to effective public law remedies, in particular, judicial review, with a view to ensuring quality decision-making by competent authorities at first instance.84

III.

PLANNING AND DEVELOPMENT ACTS

The Planning and Development Act 2000 (PDA) wrought significant changes to Irish planning law. The underlying objective was to modernise the planning code 79

Rylands v Fletcher (1886) LR 1 Ex 265 and (1868) LR 3 HL 330. B McMahon and W Binchy, Law of Torts, 3rd edn (Dublin, Butterworths, 2000) chs 23, 24 and 25 and J Healy, Principles of Irish Torts (Dublin, Clarus Press, 2006) paras 10.14–10.72. It appears that planning permission is not a defence to an action in private nuisance under Irish law. It does impact on what is considered ‘reasonable’, however—see Molumby v Kearns [1999] IEHC 86 paras 119–21 and Lanigan v Barry [2008] IEHC 29 paras 20–25. 81 Ní Éilí v EPA [1999] IESC 64. 82 Ibid, para 60. 83 See, eg, Szabo v ESAT Digifone [1998] 2 ILRM 102. See generally T Flynn, ‘Injunctions and Environmental Law’ (1998) 5 Irish Planning and Environmental Law Journal 91. 84 For a critical analysis of the various avenues for seeking to enforce environmental law see Law Society of Ireland, Enforcement of Environmental Law: The Case for Reform (2008), text available at: www.lawsociety.ie/documents/committees/lawreform/Envir%20Report.pdf. 80

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Planning and Development Acts and to ensure a central role for the concept of sustainable development in planning and environmental decision-making. A number of controversial provisions aim to streamline the planning process with a view to eliminating unnecessary delays to development. The conflict between the imperatives of economic development and the sensitivities of culture, heritage and environment found clear expression in the controversy enkindled by this reform in Ireland. Certain regressive measures in the PDA do not sit comfortably with the requirements of the EIA directive and further obligations arising under the Aarhus Convention.85 For example, the PDA introduced a planning participation fee payable by any person who wishes to make a submission or observation on a planning application, and imposed fresh restrictions on the right to appeal to An Bord Pleanála. The judicial review procedure was also tightened. These measures shore up significant procedural obstacles to public participation in matters of planning and the environment and they suggest a retreat from the previous liberal approach to public participation in the planning process.86 Delivering a faster and more efficient planning system remains a Government priority, a policy goal that is mirrored in other jurisdictions.87 The main objective behind the most recent set of changes to Irish planning law is to facilitate faster delivery of infrastructure of strategic importance to the economy. To this end, in July 2006, a controversial planning procedure for major infrastructure projects was introduced under the Planning and Development (Strategic Infrastructure) Act 2006. This Act was brought through the Oireachtas (Parliament) in a period of less than six months (the Bill was first published in February 2006). It brings about substantial amendments to the PDA, with the result that an area of law where precision and clarity are critical factors has been reduced to a complex and often inaccessible jumble of legal rules scattered over a series of enactments. The new rules, which came into force on 31 January 2007,88 provide that requests for development consent in respect of developments of ‘strategic’ importance to the State are to be made directly to An Bord Pleanála and not to a local planning authority. The Press Release issued by the Department of the Environment,

85 United Nations Economic Commission for Europe (UN ECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted in Aarhus, Denmark, June 1998, text available at: www.unece.org/env/pp. 86 Consider, eg, ‘Councillors seek register of ‘serial’ planning objectors’, Irish Times 19 January 2005 and ‘Objectors robbing taxpayers—Cullen criticises delays to infrastructure projects caused by legal challenges’, Irish Times 1 July 2005. 87 In England and Wales, the Planning Bill, which was introduced in November 2007, builds on proposals set out in Planning for a Sustainable Future: White Paper (May 2007) Cm 7120. The Bill aims to streamline the consent system for major infrastructure of national importance and also to reform the town and country planning system. In Scotland, a major review of planning law got underway in 2001 and culminated in the enactment of The Planning etc (Scotland) Act 2006. 88 Planning and Development (Strategic Infrastructure) Act 2006 (Commencement) (No 3) Order 2006 (SI No 684 of 2006).

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Introduction Heritage and Local Government (DEHLG) on the publication of the Strategic Infrastructure Bill in February 2006 stated the goal of the legislative changes as follows: The Bill will provide a better service for all stakeholders, infrastructure providers, State bodies and the general public alike, through: —a single stage process of approval for projects, —a rigorous assessment of all projects including their environmental impact, —full public consultation, and —certainty of timeframes.89

Notwithstanding these assertions, concerns have been voiced regarding the impact of the new strategic consent procedure on core principles underlying the Irish planning system including public participation, transparency and fairness.90 At a more general level, the amendments to the planning code aim to establish an overall framework for the expeditious determination of applications for planning permission, including new rules governing judicial review in planning cases. This most recent attempt to further streamline particular aspects of the planning process raises, yet again, the familiar tension between efficient environmental decision-making and meaningful public participation.91 Modern planning and development law attempts to strike an acceptable balance between these fundamental objectives. It is important to recall at the outset, however, that obligations on the State pursuant to the Aarhus Convention and EC environmental law dictate how this balance is to be struck in the case of projects that are subject to EIA.

IV.

AARHUS CONVENTION

Both the EIA directive and the Aarhus Convention acknowledge the importance of effective public publication in environmental decision-making. The Convention is particularly innovative and has been described as a new kind of environmental agreement. It links environmental rights and human rights. It acknowledges that we owe an obligation to future generations. It establishes that sustainable development can be achieved only through the involvement of all stakeholders. It links government accountability and environmental protection. It focuses on interactions between the public and public authorities in a democratic 89 ‘Roche Publishes Planning and Development (Strategic Infrastructure) Bill 2006’, DEHLG Press Release, 16 February 2006. 90 See, eg, Irish Planning Institute, Submission on Planning and Development (Strategic Infrastructure) Bill 2006, 21 June 2006, text available at: http://www.irishplanninginstitute.ie/. 91 See generally B Flynn, The Blame Game: Rethinking Ireland’s Sustainable Development and Environmental Performance (Dublin, Irish Academic Press, 2006).

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Aarhus Convention context and it is forging a new process for public participation in the negotiation and implementation of international agreements.92

The implications of the Convention for Community and national EIA law are significant. In particular, the Convention contains detailed provisions designed to ensure effective access to review procedures. The EIA directive was amended in 2003 to take account of the new access to justice requirements. The result of these initiatives is to create even greater potential for conflict between the restrictive approach to judicial review pursued by the Irish legislature and the more expansive model of judicial protection articulated in the Aarhus Convention and recent Community measures inspired by the Convention. The Irish planning system is traditionally fêted as one of the most open in Europe. There is therefore a real and regrettable irony in the introduction of limitations on participation rights at a time when the momentum at international and European level is towards wider participation and greater access to justice in environmental matters. At the time of writing, Ireland is the only Member State that has failed to ratify the Aahrus Convention. Following a general election in May 2007, the outgoing Fianna Fáil party agreed an historic Joint Programme for Government with the Green Party and the Progressive Democrats.93 An overwhelming majority of Green Party members (86 per cent) voted in support of a motion to enter Government. The Greens, a small party even by Irish standards with only six Dáil (House of Representatives) seats compared with Fianna Fáil’s 79 seats, secured two critical cabinet posts out of 15: Environment, Heritage and Local Government; and Communications, Energy and National Resources.94 For the first time in its history, the Green Party is a party of government, with ministries that place it at the very heart of the decision-making process. It remains to be seen what impact this unexpected and hugely significant development will have on Irish environment policy. It is hoped that the Greens’ influence will encourage a more proactive approach to European environmental obligations at the highest level.95 It is heartening see that implementation of the Aarhus Convention is among the environmental commitments articulated in the Programme for Government.

92 ‘Introducing the Aarhus Convention’, text available at: www.unece.org/env/pp. See generally J Wates, ‘The Aarhus Convention: A Driving Force for Environmental Democracy’ [2005] Journal for European Environmental and Planning Law 2; M Lee and C Abbot, ‘The Usual Suspects? Public Participation under the Aarhus Convention’ (2003) 66 MLR 80 and J Jendroska and S Stec, ‘The Aarhus Convention: Towards a New Era in Environmental Democracy’ [2001] Environmental Liability 140. 93 Programme for Government 2007–2012, text available at: www.taoiseach.gov.ie. 94 ‘Ahern gives Greens two top ministries in Cabinet’, Irish Times 15 June 2007. 95 See generally ‘The Role of the European Union in Developing Irish Environmental Law’ paper presented to Irish Environmental Law Association by John Gormley TD, Minister for the Environment, Heritage and Local Government, Dublin, 1 April 2008; ‘Irish environment lapses to give Gormley tricky EU debut’, Irish Times 26 June 2007 and ‘Gormley asks EU how State could avoid infringement proceedings’, Irish Times 14 July 2007.

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Introduction V.

STRUCTURE OF THE BOOK

The book is organised as follows: chapter two introduces more fully the EIA directive and examines the role and potential of EIA in the pursuit of sustainable development. The value of project-level EIA is considered against the background of recent developments in the field of Strategic Environmental Assessment (SEA). The impact of the Aarhus Convention, especially in terms of improved access to judicial review, is examined in detail. Chapter three provides an overview of the most relevant aspects of the ECJ’s developing jurisprudence on national procedural rules and remedies. This body of case law generally respects national procedural autonomy, subject to the now well-established principles of equivalence and effectiveness. The ECJ is ever conscious of the wide range of rules on procedural and remedial matters operating throughout the Member States. This rich diversity, together with the absence of any general Community measures designed to harmonise national procedural rules and remedies, has prompted the ECJ to adopt a pragmatic and at times flexible approach when faced with questionable national rules. It is also clear, however, that the Court remains willing to intervene and to direct that a restrictive national rule should be set aside where the effectiveness of Community law would be undermined by the application of the contested rule. This chapter also explores the substance of the concept of effective judicial protection first articulated in Johnston,96 and it examines how the concept has evolved in the modern jurisprudence. The European Convention on Human Rights (ECHR) is examined in terms of its impact on domestic judicial review proceedings, in particular the level of scrutiny applied by the national courts to the exercise of discretion by public authorities where Convention rights are at issue. Although Ireland ratified the ECHR in 1953, and was one of the first States to introduce the right of individual petition before the Strasbourg court, the Convention has only recently become part of Irish domestic law. The European Convention on Human Rights Act 2003 (the 2003 Act), which came into force on 31 December 2003, aims to give ‘further effect’ to certain Convention provisions in the domestic legal order. The 2003 Act added a new ground—breach of a Convention right(s)—to the traditional catalogue of grounds for judicial review. Article 6(1) and Article 13 ECHR, which concern the right to a fair trial and the right to an effective remedy respectively, are the most significant elements of the Convention for present purposes. The procedural rights guaranteed under Article 6(1) and Article 13 ECHR hold the potential to augment both the right to fair procedures under national (constitutional) law and the Community law right to an effective remedy. Chapter four examines how the ECJ has interpreted the various requirements of the EIA directive. Overall, the Court has taken a vigorous approach to ensuring that the objectives of the directive are not undermined in practice. To this end,

96

Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651.

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Note on Terminology the discretion left to Member States at a number of points in the directive has been interpreted restrictively. The ECJ has emphasised that this discretion must be exercised within the framework of the substantive aims of the directive. The contemporary case law also provides important guidance on the role of the national courts in judicial review proceedings where parties seek to invoke the directive at local level. Chapter five examines how the Irish courts have treated arguments based on the EIA directive to date. Such arguments usually surface in the context of judicial review proceedings where the validity of a decision taken by a competent authority is challenged by invoking provisions of the EIA directive. An analysis of the case law indicates that the judiciary does not, as yet, fully appreciate the potential of EIA as a tool for environmental protection and that the courts prefer to deal with planning and environmental controversies on the basis of the more familiar principles of national law. The chapter identifies points of tension between the relevant European and domestic sources of legal authority. The analysis also serves to highlight a number of important contextual issues, including the level of understanding and appreciation of EC environmental law generally amongst the judiciary, and the willingness (or otherwise) of the Irish courts to refer questions concerning the interpretation of EC environmental law to the ECJ pursuant to Article 234 EC. Conclusions and future directions are set out in chapter six. Irish rules governing access to justice in planning matters create considerable obstacles for individuals and ENGOs when seeking to enforce Community EIA law. At a more general level, it is also clear that the concept of public interest environmental law remains underdeveloped in Ireland. It is hoped that the Aarhus Convention, and the amendments to the EIA directive dealing with access to justice, will provide a long overdue fillip for this specialised and rapidly developing field of public law.

VI.

NOTE ON TERMINOLOGY

Environmental Impact Assessment (EIA) is used throughout the book to designate the process whereby the likely environmental impacts of proposed projects are subjected to scrutiny by the relevant decision-maker (competent authority). The Environmental Impact Statement (EIS) is the formal document produced by the developer in accordance with Article 5 of the EIA directive. PDA section 2(1) defines the EIS as ‘a statement of the effects, if any, which proposed development, if carried out, would have on the environment’. The provision of specified information by the developer is one part of the EIA process. The term Environmental Statement (ES) is used to describe this document in UK planning law and policy. Strategic Environmental Assessment (SEA) refers to a higher-level, or a more strategic form of EIA, whereby policies, programmes or plans are subject to systematic assessment. SEA is to be contrasted with project-level EIA (ie the assessment of individual, discrete projects). 19

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2 The EIA Directive and Environmental Protection I.

INTRODUCTION

T

HIS CHAPTER BEGINS by locating Environmental Impact Assessment (EIA) within the broader framework of European Community (EC) policy on the environment and the overarching goal of sustainable development. Attention is directed towards the rationales underlying public participation in environmental decision-making and the potential contribution of strong forms of participation to more effective environmental protection measures. The next section introduces the EIA directive and outlines its main provisions. The directive was amended substantially in 2003 to take account of the requirements of the Aarhus Convention.1 The amended provisions are explained and their practical implications are assessed against the backdrop of the relevant provisions of the Convention. The chapter concludes with an account of contemporary developments in Strategic Environmental Assessment (SEA) law and policy.

II.

SUSTAINABLE DEVELOPMENT

A. European Community Perspective Article 2 of the Treaty on European Union (TEU) lists the achievement of ‘balanced and sustainable development’ among the Union’s objectives.2 The EC Treaty (EC), at Article 2, articulates a parallel commitment to the promotion of ‘a harmonious, balanced and sustainable development of economic activities’ and ‘a high level of protection and improvement of the quality of the environment’. Sustainable development is a dynamic concept that is capable of bearing a wide 1 United Nations Economic Commission for Europe (UN ECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted in Aarhus, Denmark in June 1998, text available at: http://www.unece.org/env/pp/. 2 The eighth recital to the TEU also contains a reference to ‘the principle of sustainable development’.

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EIA Directive & Environmental Protection range of interpretations.3 It is not defined in the Treaties. In the most frequently quoted definition (first coined in the 1987 Brundtland Report), it is described as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.4 Essentially, sustainable development seeks to reconcile the competing objectives of economic development and environmental protection. The concept is reflected in Article 6 of the EC Treaty, which provides: Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities … in particular with a view to promoting sustainable development.5

The general commitment to sustainable development articulated in Article 2 TEU and in Article 6 EC is further elaborated in the catalogue of environmental objectives set out in Article 174(1) EC. These objectives include ‘preserving, protecting and improving the quality of the environment’, ‘protecting human health’ and ‘the prudent and rational utilisation of natural resources’. Article 174(2) EC directs that Community policy on the environment must be based on the following principles: the precautionary principle; the principle of prevention; the principle of rectification at source and the ‘polluter pays’ principle.6 The Treaty text does not elaborate further as to the content of these core environmental principles, yet they are frequently deployed in the name of sustainable development in plans, programmes, policies, legislative instruments (especially

3 There is extensive literature on sustainable development. See, inter alia, HC Bugge and C Voigt, Sustainable Development in International and National Law (Groningen, Europa Law Publishing, 2008); K Bosselmann, The Principle of Sustainability: Transforming Law and Governance (Aldershot, Ashgate, 2008); J Dryzek, The Politics of the Earth: Environmental Discourses, 2nd edn (Oxford, Oxford University Press, 2005) ch 7; M Lee, EU Environmental Law: Challenges, Change and Decision-making (Oxford, Hart Publishing, 2005) ch 2; D Pearce and EB Barbier, Blueprint for a Sustainable Economy (London, Earthscan, 2000); A Dobson, Justice and the Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice (Oxford, Oxford University Press, 1998) and Citizenship and the Environment (Oxford, Oxford University Press, 2003); M Jacobs, The Green Economy: Environment, Sustainable Development and the Politics of the Future (London, Pluto Press, 1991); D Pearce, EB Barbier, O Johanson, D Maddison and A Markandya, Blueprint for a Green Economy (London, Earthscan, 1989); M Sagoff, The Economy of the Earth: Philosophy, Law and the Environment (Cambridge, Cambridge University Press, 1988). 4 World Commission on Environment and Development (the ‘Brundtland Commission’), Our Common Future (Oxford, Oxford University Press, 1987). 5 In Case C-176/03 Commission v Council [2005] ECR I-7879 para 42, the ECJ noted that Art 6 emphasises ‘the fundamental nature’ of the objective of environmental protection and its extension across the range of Community policies and activities. In Case C-379/98 PreussenElektra AG v Schleswag AG [2001] ECR I-2099, Advocate General Jacobs observed that ‘Article 6 is not merely programmatic; it imposes legal obligations’ (para 231 of the Opinion). See generally N Dhondt, Integration of Environmental Protection into other EC Policies (Groningen, Europa Law Publishing, 2003) and A Lenschow (ed), Environmental Policy Integration: Greening Sectoral Policies in Europe (London, Earthscan, 2002). 6 See generally L Krämer, EC Environmental Law, 6th edn (London, Thomson Sweet & Maxwell, 2007) ch 1; N de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford, Oxford University Press, 2002) and A Whelan, ‘Fundamental Principles of EU Environmental Law’ (1999) 8 Irish Journal of European Law 37.

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Sustainable Development recitals to environmental directives) and judicial decisions at both Community and national levels. The precautionary principle, in particular, has played, and continues to play, an influential role in the development of modern environmental law and policy and in contemporary approaches to regulation of (environmental) risk.7 One especially noteworthy development here is the deployment of the precautionary principle by the European Court of Justice (ECJ) when called upon to interpret the scope and content of substantive environmental obligations.8 From an environmental perspective, the Treaty establishing a Constitution for Europe, signed in Rome in October 2004, purported to do little more than maintain the status quo.9 In any event, the constitutional Treaty was abandoned following negative results in referenda in France and the Netherlands in summer 2005. Renewed negotiations among the Member States led to the Treaty of Lisbon, signed in December 2007.10 The content of the Treaty is based substantially on the earlier draft EU Constitution, but there is a welcome amendment to the current Article 174(1) EC to include an express reference to combating climate change among the environment policy objectives.11 The Treaty will not come into force until it is ratified by the 27 Member States, a prospect that is looking doubtful following the negative result in the Irish referendum held on 12 June 2008.12 The Charter of Fundamental Rights of the European Union13 (the Charter), signed and formally proclaimed at Nice in December 2000, will gain binding legal status under the Treaty of Lisbon (assuming that the Treaty comes into force).

7 European Commission, Communication on the Precautionary Principle COM (2000) 1 final. See generally V Heyvaert, ‘Facing the Consequences of the Precautionary Principle in European Community Law’ (2006) 31 EL Rev 185; M Lee, EU Environmental Law: Challenges, Change and Decision-making (Oxford, Hart Publishing, 2005) ch 4; J Scott, ‘The Precautionary Principle before the European Courts’ in R Macrory (ed), Principles of European Environmental Law (Groningen, Europa Law Publishing, 2004); and L Fisher, ‘Is the Precautionary Principle Justiciable? (2001) 13 Journal of Environmental Law 315. 8 See, eg, Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405 paras 39–45 and 55–9 and Case C-6/04 Commission v United Kingdom [2005] ECR I-9017 para 54 (concerning Art 6(3) of the Habitats directive), and Case C-1/03 Van de Walle v Texaco Belgium SA [2004] ECR I-7613 para 45 (concerning Art 1(a) of Dir 75/442—the Waste Framework directive). For commentary see O McIntyre, ‘The All-Consuming Definition of “Waste” and the End of the “Contaminated Land” Debate?’ (2005) 17 Journal of Environmental Law 109 and J Verschuuren, ‘Shellfish for Fishermen or for Birds? Article 6 Habitats Directive and the Precautionary Principle’ (2005) 17 Journal of Environmental Law 265. In the Irish context see Wicklow County Council v Fenton [2002] IEHC 102 para 123; Laois County Council v Scully [2006] IEHC 2 and Brady v EPA [2007] IEHC 58. 9 Treaty establishing a Constitution for Europe [2004] OJ C310/1. See generally J Jans (ed), The European Convention and the Future of European Environmental Law (Groningen, Europa Law Publishing, 2003). 10 Treaty of Lisbon [2007] OJ C306/1. For an excellent analysis of the core elements of the Treaty see M Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) 45 CML Rev 617. 11 Treaty of Lisbon Art 2 (143). 12 The official turnout was 53% of the electorate. The Treaty was defeated by a margin of 53.4% to 46.6%. 13 Charter of Fundamental Rights of the European Union [2000] OJ C364/1.

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EIA Directive & Environmental Protection The Charter is addressed primarily to the European Union (EU) institutions and bodies, but it also applies to the Member States when implementing European law at national level.14 The potential influence of the Charter on the development of the law is already clear. The ECJ has referred directly to the Charter in its rulings.15 It has also been cited in opinions of Advocates General16 and in judgments delivered by the Court of First Instance (CFI)17 and the European Court of Human Rights (ECtHR).18 The Preamble to the Charter recites the EU’s commitment to the promotion of ‘balanced and sustainable development’. Article 37, which is headed ‘environmental protection’, asserts: A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.19

As is the case with the Treaties, the core concepts of ‘a high level of environmental protection’ and ‘sustainable development’ are not defined. Article 37 does not articulate a right to a healthy environment; nor does it guarantee any procedural right to participate in environmental decision-making. Instead, it restates, in a more condensed form, the environmental objectives set out in Articles 2, 6, and 174(1) EC—without adding anything of real substance. Beyond the Treaties, a series of Environment Action Programmes provide the basic framework for Community environment policy. The Action Programmes have become more elaborate and ambitious over time. The Fifth Action Programme, Towards Sustainability,20 adopted the Brundtland definition of sustainable development and observed that ‘the word “sustainable” is intended to reflect a policy and strategy for continued economic and social development without detriment to the environment, and the natural resources on the quality of which continued human activity and further development depend’.21 The programme

14

Art 51 deals with the scope of the Charter. See, eg, Case C-540/03 Parliament v Council [2006] ECR I-5769 para 38; Case C-432/05 Unibet London Ltd v Justitiekanslern [2007] ECR I-2271 para 37 and Case C-244/06 Dynamic Medien Vertriebs GmbH v Avides Media AG [2008] ECR I-0000 para 41. 16 See, eg, Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 para 39 of the Opinion, and Case C-186/04 Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale [2005] ECR I-3299 (paras 31–2 of the Opinion). 17 See, eg, Case T-177/01 Jégo-Quéré et Cie SA v Commission [2002] ECR II-2365 para 42. 18 Art 37 of the Charter was cited by Judge Costa in his separate Opinion in Hatton v United Kingdom (2002) 34 EHRR 1 para O-I7 and in the joint dissenting opinion delivered in the Grand Chamber in Hatton v United Kingdom (2003) 37 EHRR 28 para O-I4. See also Bosphorus v Ireland (2006) 42 EHRR 1 paras 80 and 159. 19 According to the explanatory notes to the draft Charter text, Art 37 is based on Arts 2, 6 and 174 of the EC Treaty and ‘also draws on the provisions of some national constitutions’. See CHARTE 4473/00 CONVENT 49 (11 October 2000). 20 Fifth Community Environment Action Programme, Towards Sustainability [1993] OJ C138/1, as supplemented by Decision No 2179/98/EC [1998] OJ L275/1. 21 Ibid, 12. 15

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Sustainable Development articulated a broad commitment to the integration of environmental considerations in other policies.22 This commitment was further strengthened in the current Sixth Action Programme, Environment 2010: Our Future, Our Choice,23 which aims to deepen the integration of environmental concerns across sectoral policies.24 This programme also heightened the importance of strengthening the role of citizens and environmental non-governmental organisations (ENGOs) in environmental decision-making,25 and it specifically identified the further ‘greening’ of land-use planning and management decisions as one of its core objectives.26 At Lisbon, in 2000, the European Council set the objective of making the EU ‘the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion’ by the year 2010.27 The strategy for sustainable development adopted by the Göteborg European Council in May 2001 acknowledged that ‘in the long term, economic growth, social cohesion and environmental protection must go hand in hand’28 and it added an environmental dimension to the Lisbon strategy. At Brussels in June 2005, the Council reaffirmed the commitment to sustainable development ‘as a key principle governing all the Union’s policies and activities’, and it approved a ‘Declaration on the guiding principles for sustainable development’.29 This declaration formed the basis for the Renewed EU Sustainable Development Strategy (SDS), adopted by the Council in June 2006, which again sought to deliver a more integrated approach to policy-making.30 Deeper integration, and the on-going challenge of achieving full implementation of Community environmental law within the Member States, remain major concerns of EC environment policy.31 The first progress report on the Renewed SDS, published in October 2007, found that while policy development had advanced significantly, implementation of sustainable development objectives remained elusive.32

22

Ibid, 81. Decision No 1600/2002/EC of the European Parliament and the Council of 22 July 2002, laying down the Sixth Community Environment Action Programme [2002] OJ L242/1. 24 Ibid, Art 1(1), Art 2(3), Art 2(4) and Art 3(3). 25 Art 3(9) and Art 10. See also COM (2001) 31 final, paras 2.4 and 8.1. 26 Art 3(9). See also COM (2001) 31 final, para 2.5. 27 Presidency Conclusions, Lisbon European Council, 23–24 March 2000. 28 European Commission, A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development COM (2001) 264 final, 2. 29 Presidency Conclusions, Brussels European Council, 16–17 June 2005, paras 7–11 and Draft Declaration on Guiding Principles for Sustainable Development COM (2005) 218 final. 30 European Council, Renewed Sustainable Development Strategy (10917/06) 15–16 June 2006. See generally M Lee, ‘Sustainable Development in the EU: The Renewed Sustainable Development Strategy 2006’ (2007) 9 Environmental Law Review 41. 31 European Commission, 2007 Environment Policy Review COM (2008) 409 final. 32 European Commission, Progress Report on the Sustainable Development Strategy 2007 COM (2007) 642 final, para 6. 23

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EIA Directive & Environmental Protection The report confirmed the importance of partnership between the EU, Member States and civil society to work towards achieving sustainable development objectives.33

B. Irish Perspective Bunreacht na hÉireann (the Irish Constitution) does not contain any reference to sustainable development, the environment or environmental rights. A majority of a Constitution Review Group, which was Government appointed and which reported in 1996, was in favour of including ‘a duty on the State and public authorities as far as practicable to protect the environment, to follow sustainable development policies, and to preserve special aspects of our heritage’.34 It was suggested that any such provision could take the form of a new Article in the Constitution or could be incorporated into the existing Article 10 (which deals with natural resources). The Review Group’s report was clear, however, that notwithstanding any such revision to the Constitution, legislative measures would continue to be ‘the chief source of specific provisions aimed at safeguarding the environment’.35 The Group’s recommendation has not been pursued and it is unlikely that any action will be taken to implement this proposal. Sustainable development is mentioned expressly in a number of core legislative measures in the planning and environmental law field, including: the Planning and Development Act 2000 (PDA); the Local Government Act 2001; and the Environmental Protection Agency Act 1992. By way of example, pursuant to section 10(1) of the PDA, development plans must set out ‘an overall strategy for the proper planning and sustainable development of the area of the development plan’. Section 34(2)(a) of the PDA requires a planning authority (and An Bord Pleanála on appeal) to consider ‘the proper planning and sustainable development of the area’ when making a decision on an application for planning permission. Prior to the PDA, there was no express provision obliging the competent authorities to consider a development proposal in terms of sustainable development. No statutory definition of ‘sustainable development’ is provided. During the parliamentary debates on the Planning and Development Bill 1999, the then Minister for the Environment, Noel Dempsey TD, expressed the view that any attempt to define sustainable development in the forthcoming legislation would be unwise. In the words of the Minister, the question arose in the Seanad [Senate] of giving a concrete definition of sustainable development in the Bill. I gave a good deal of thought to this but felt in the end that it was such a dynamic and all embracing concept, and one which will evolve over time, 33 34 35

Ibid, paras 5.1 and 6. Report of the Constitution Review Group (Dublin, Stationary Office, 1996) 434. Ibid.

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Sustainable Development that any legal definition would tend to restrict and stifle it. Infusing the concept through the Bill, as we have done, gives effect to it in a holistic and comprehensive way.36

The scope and content of the concept of sustainable development has not been considered by the Irish courts to date.37 Beyond legislative instruments, a series of policy documents addresses the complex interrelationship between economic development and environmental protection concerns. The first national sustainable development strategy, Sustainable Development: A Strategy for Ireland, published in 1997, articulated the Government’s commitment ‘to apply considerations of sustainability more systematically to Irish economic policies and to integrate them into associated decision making processes’.38 Subsequent policy statements elaborated on commitments given in the original strategy. An analysis of the most significant policy documents confirms that the Brundtland definition is deployed on a regular basis and, in line with European environment policy, the integration principle is stressed repeatedly in strong terms. The National Spatial Strategy 2002–202039 (NSS), and the National Development Plan 2007–2013: Transforming Ireland40 set out and explain contemporary aims and objectives. The NSS is instructive in terms of illustrating the idea of sustainable development that underpins contemporary Irish environment policy: Sustainable development is development that meets the needs of this generation without compromising the ability of future generations to meet their needs. The concept captures the important ideas that development: has economic, social and environmental dimensions which together can contribute to a better quality of life will only be sustainable if a balance is achieved between these three dimensions should allow future generations to enjoy a quality of life at least as high as our own should respect our responsibilities to the wider international community. Sustainable development is more than an environmental concept, although it includes that important element. It also requires a combination of a dynamic economy with

36

Dáil Debates vol 513, col 1006 (2 February 2000). On the potential scope of the concept ‘proper planning and sustainable development’ deployed in the PDA see G Simons, Planning and Development Law, 2nd edn (Dublin, Thomson Round Hall, 2007) paras 4.01–4.33. 38 Sustainable Development: A Strategy for Ireland (Dublin, Department of the Environment, 1997). See also Statement of Strategy 2008–2010 (Dublin, Department of the Environment, Heritage and Local Government, 2008). The National Sustainable Development Partnership (Comhar) produced a set of principles for sustainable development: Principles for Sustainable Development (2002), text available at: www.comharsdc.ie. 39 National Spatial Strategy for Ireland 2002–2020: People, Places and Potential (NSS), text available at: www.irishspatialstrategy.ie. 40 National Development Plan 2007–2013: Transforming Ireland (2007), text available at: www.ndp.ie. 37

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EIA Directive & Environmental Protection social inclusion, giving opportunities for all in a high quality environment … The NSS, through its focus on economic, social and environmental issues and on the interlinkages between them, is a key policy instrument in the pursuit of sustainable development.41

The parallels between this formulation and the concept of sustainable development articulated at European level are clear, in particular by the direct incorporation of the Brundtland definition and by its sharp focus on the three pillars of sustainable development—economic, social and environmental.42 A long overdue, revised national Sustainable Development Strategy is anticipated in 2009.

III.

ENVIRONMENTAL IMPACT ASSESSMENT AS A MECHANISM FOR ENVIRONMENTAL PROTECTION

It is, of course, relatively easy for policy-makers and legislators at both EU and national level to undertake to integrate an environmental perspective into economic and social policies. The challenge lies in moving beyond the commitments articulated in the numerous written strategies and translating the concept of sustainable development into a practical action programme. EIA is one regulatory mechanism with the potential to strengthen the role of planning law and policy in the pursuit of sustainable development.43 It requires the decisionmaker to ensure that, for every proposed development, the likely significant effects on the environment are identified, assessed and taken into consideration before the development is authorised to proceed. The EIA procedure creates an opportunity to adapt or modify a development proposal at an early stage with a view to eliminating or mitigating potentially adverse environmental impacts. It also requires that potentially less harmful alternatives are identified and considered. The process aims to facilitate more open and informed decision-making through the generation and exchange of information and to this extent EIA has been described as ‘an inevitable consequence’ of the politicisation of the environment.44 EIA does not dictate the outcome of the development consent procedure as such. Environmental decision-making remains a highly political process where economic and social considerations may ultimately outweigh environmental 41

NSS, above n 39, at para 1.3. Á Ryall, ‘Sustainable Development in Ireland’ (2005) 12 Irish Planning and Environmental Law Journal 61. See generally, D Liefferink and A Jordan, ‘An ‘Ever Closer Union’ of National Policy? The Convergence of National Environmental Policy in the European Union’ (2005) 15 European Environment 102. 43 J Holder, Environmental Assessment: The Regulation of Decision Making (Oxford, Oxford University Press, 2004) ch 2, especially 56–60 and ch 7; C George, ‘Testing for Sustainable Development through Environmental Assessment’ (1999) 19 Environmental Impact Assessment Review 175 and J Fry, ‘Can EIA Deliver Sustainable Development?’ (1999) 6 Irish Planning and Environmental Law Journal 17. 44 W Sheate, Making an Impact: A Guide to EIA Law and Policy (London, Cameron May, 1994) 10. 42

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EIA as an Environmental Protection Mechanism concerns. The main limitation of project-level EIA is that it comes into play only after strategic decisions have already been taken. Strategic environmental assessment (SEA) is a more holistic instrument activated at the earliest stages of the planning process when policies, plans and programmes are still being formulated. The potential of SEA as a preventative mechanism underpinning greater environmental protection has been accepted since the First EC Environment Action Programme was published in 1973.45 The First Action Programme acknowledged that ‘[e]ffects on the environment should be taken into account at the earliest possible stage in all the technical planning and decision-making processes’.46 It also accepted that greater consideration should be devoted to environmental concerns in planning law and policy.47 This emphasis on preventative action gathered momentum in subsequent Action Programmes. The Third Action Programme foreshadowed the critical role to be played by both SEA and EIA in future environment policy: Environmental impact assessment is the prime instrument for ensuring that environmental data is taken into account in the decision-making process. It should gradually be introduced into the planning and preparation of all forms of human activity likely to have a significant effect on the environment such as public and private development projects, physical planning schemes, economic and regional development programmes, new products, new technologies, and legislation … [If the Commission’s proposal for an EIA Directive is adopted] the Directive will be an important step in achieving the effective integration of the environmental aspect into decision-making in respect of development.48

The Fourth49 and Fifth50 Action Programmes (which were elaborated after the adoption of the original EIA directive in 1985) continued to emphasise the principle of integration and underscored the importance of correct implementation and application of Community environmental directives in the Member States (in particular the EIA directive). The Fifth Action Programme contained a specific commitment to improving and expanding the application of EIA and further pressed the case for the introduction of comprehensive SEA at Community level.51 It acknowledged the importance of ‘practicable access to the courts’ for individuals and public interest groups for the effective enforcement of Community environmental measures.52 Following the lead of the Aarhus Convention, the Sixth Action Programme aimed to locate EIA and SEA within the wider context of citizen empowerment:

45 EC Environment Action Programme [1973] OJ C112/1, 6 (although the term SEA is not used in the Programme). 46 Ibid. 47 Ibid, 5. 48 Third EC Environment Action Programme [1983] OJ C46/1, 6–7. 49 Fourth EC Environment Action Programme [1987] OJ C328/1. 50 Fifth EC Environment Action Programme [1993] OJ C138/1. 51 Ibid, 70 and 81. 52 Ibid, 82.

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EIA Directive & Environmental Protection ‘The full implementation of the directive on Environmental Impact Assessment and the proposed Strategic Environmental Assessment [directive] will help empower citizens by giving greater opportunity for a say in decisions on planning, projects and policies’.53 The Sixth Action Programme included a commitment to full and effective use and implementation of EIA and SEA.54 It also continued the drive towards deeper integration of environmental considerations in sectoral policies. In particular, a commitment was given to put in place additional internal ‘integration’ mechanisms within the Commission to ensure that environmental protection requirements are fully assessed in the preparation of policy.55 The Commission now deploys ex-ante impact assessments for all major policy initiatives.56 This approach is presented by the Commission as ‘a powerful instrument for promoting environmental integration while ensuring that due account is taken of the economic and social dimensions of sustainable development’.57 The extent to which this ambitious objective is achieved in practice has been questioned, however.58 The strong emphasis on EIA and SEA throughout the Sixth Action Programme confirms the fundamental role of both instruments in a Community environment policy committed to achieving a greater level of integration.59 Full and correct implementation of the EIA directive and the SEA directive (which was adopted in 2001)60 by the Member States is critical to advancing environmental integration via projects, plans and programmes at national level.

IV.

ROLE OF PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISION-MAKING

It is important to explore the role of the public and ENGOs in the EIA process and to tease out why adherence to the formal procedures set down in the EIA 53

COM (2001) 31 final, 21. Sixth EC Environment Action Programme, [2002] OJ L242/1 Art 3(3). 55 Ibid. 56 European Commission, Impact Assessment COM (2002) 276 final; Impact Assessment: Next Steps in Support of Competitiveness and Sustainable Development SEC (2004) 1377; Better Regulation for Growth and Jobs in the European Union COM (2005) 97 final; and Impact Assessment Guidelines SEC (2005) 791 (updated March 2006). See generally TF Ruddy and LM Hilty, ‘Impact Assessment and Policy Learning in the European Commission’ (2008) 28 Environmental Impact Assessment Review 90. 57 European Commission, Integrating Environmental Considerations into Other Policy Areas—A Stocktaking of the Cardiff Process COM (2004) 394 final, 36. 58 L Krämer, ‘The Development of Environmental Assessments at the Level of the European Union’ in J Holder and D McGillivray (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (London, Routledge-Cavendish, 2007) 142–7. 59 See also L Cashman, ‘Environmental Impact Assessment: A Major Instrument in Environmental Integration’ in M Onida (ed), Europe and the Environment: Legal Essays in Honour of Ludwig Krämer (Groningen, Europa Law Publishing, 2004). 60 Dir 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30. 54

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Role of Public Participation in Decision-Making directive should be rigorously enforced by the national courts.61 The discussion here provides the background for the analysis of the jurisprudence on the EIA directive presented in chapters four and five. As will become apparent in those chapters, neither the ECJ nor the Irish courts have attempted to explore in any real depth the rationale behind public participation in the EIA process. In the case of the ECJ, the value of public participation is simply assumed and vigorously enforced. The Irish courts have, at times, failed to appreciate that EIA requires more than that the developer simply submit an Environmental Impact Statement (EIS) to the relevant competent authority.62 In sharp contrast, the House of Lords has taken a robust attitude to EIA in general and to participation rights in particular. The decision in Berkeley v Secretary of State for the Environment63 is especially noteworthy in this regard. The House of Lords confirmed that the competent authority’s failure to undertake an EIA in respect of an Annex II project (a substantial urban development project) likely to have significant effects on the environment, could not be excused on the basis that the outcome (the planning decision) would have been the same even if an EIA had been carried out. This rigorous approach underscores the inherent value of environmental assessment as a structured decision-making process. In Berkeley, it was submitted that in the absence of an EIS there was no comprehensive analysis of the likely impact of the contested project, no non-technical summary, and an absence of information about mitigation measures and what (if any) alternatives had been considered.64 It is worth reciting the following key passage from the judgment delivered by Lord Hoffmann, as it provides a rare and refreshing acknowledgement of the vital role of the public in the EIA process: The Directive requires not merely that the planning authority should have the necessary information, but that it should have been obtained by means of a particular procedure, namely that of an EIA. And an essential element in this procedure is that what the [national implementing regulations] call the ‘environmental statement’ by the developer should have been ‘made available to the public’ and that the public should have

61 There is extensive literature on public participation in the environmental context. See inter alia: J Dryzek, The Politics of the Earth: Environmental Discourses, 2nd edn (Oxford, Oxford University Press, 2005), especially chs 5 and 11; Lee, above n 3, chs 5 and 6; Holder, above n 43, ch 6; M Lee and C Abbot, ‘The Usual Suspects? Public Participation under the Aarhus Convention’ (2003) 66 MLR 80; S Foster, ‘Environmental Justice in an Era of Devolved Collaboration’ (2002) 26 Harvard Environmental Law Review 459; J Steele, ‘Participation and Deliberation in Environmental Law: Exploring a Problem-solving Approach’ (2001) 21 OJLS 415; and F Fischer, Citizens, Experts and the Environment: The Politics of Local Knowledge (Durham and London, Duke University Press, 2000). For a more technical account see, eg, D Lawrence, Environmental Impact Assessment: Practical Solutions to Recurrent Problems (New Jersey, Wiley, 2003) chs 7 and 8 and J Glasson, R Therivel and A Chadwick, Introduction to Environmental Impact Assessment, 3rd edn (London, Routledge, 2005) ch 6. 62 See ch 5 pp 217−21. 63 Berkeley v Secretary of State for the Environment [2000] UKHL 36. 64 W Upton, ‘Case Law Analysis: The EIA Process and the Directly Enforceable Rights of Citizens—Berkeley v Secretary of State for the Environment’ (2001) 13 Journal of Environmental Law 89, 102.

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EIA Directive & Environmental Protection been ‘given the opportunity to express an opinion’ in accordance with article 6(2) of the Directive. As Advocate General Elmer said in [Case C-431/92 Commission v Germany [1995] ECR I-2189 para 35]: ‘It must be emphasised that the provisions of the Directive are essentially of a procedural nature. By the inclusion of information on the environment in the consent procedure it is ensured that the environmental impact of the project shall be included in the public debate and that the decision as to whether consent is to be given shall be adopted on an appropriate basis’. The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrong-headed its views may be, is given an opportunity to express its opinion on the environmental issues.65

In R v Durham County Council ex parte Huddleston,66 Brooke LJ in the Court of Appeal (England and Wales) referred to ‘the valuable benefit’ of participating in the EIA process conferred by Article 6(2) of the directive.67 The judge emphasised the value of the non-technical summary in the EIS, which, in his view, would have enabled Mr Huddleston ‘to have taken a much more informed part in the consultation process’.68 Subsequently, in R (Burkett) v Hammersmith and Fulham London Borough Council,69 Lord Steyn emphasised: ‘The Directive seeks to redress to some extent the imbalance in resources between promoters of major developments and those concerned, on behalf of individual or community interests, about the environmental effects of such projects’.70 In a 2004 Privy Council decision concerning a challenge to the adequacy of the EIA that had preceded a decision to authorise construction of the Chalillo Dam on the Machal River in Belize, Lord Hoffmann asserted that the essential feature of modern EIA systems is to ensure that a decision to authorise a project likely to have significant environmental effects ‘is preceded by public disclosure of as much relevant information about such effects as can reasonably be obtained and the opportunity for public discussion of the issues which are raised’.71 The ECtHR has also underscored the importance of effective participation in environmental decision-making, including a right of access to the courts to enforce the right to participate in the decision-making process. In Giacomelli v Italy,72 which concerned alleged breach of Article 8 of the European Convention on 65

Berkeley [2000] UKHL 36 para 8. R v Durham County Council ex p Huddleston [1999] EWCA Civ 792. 67 Ibid, para 38. 68 Ibid, para 39. 69 R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23. 70 Ibid, para 15. 71 Belize Alliance of Conservation Non-Governmental Organizations v Department of the Environment and Belize Electric Company Ltd [2004] UKPC 6 para 12. 72 Giacomelli v Italy (2007) 45 EHRR 38. 66

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Role of Public Participation in Decision-Making Human Rights (ECHR) based on the activities of an illegal waste treatment plant, the Strasbourg court recalled its earlier rulings in Guerra v Italy73 and in Hatton v United Kingdom74 and observed: A governmental decision-making process concerning complex issues of environmental and economic policy must in the first place involve appropriate investigations and studies so that the effects of activities that might damage the environment and infringe individuals’ rights may be predicted and evaluated in advance and a fair balance may accordingly be struck between the various conflicting rights at stake. The importance of public access to the conclusions of such studies and to information enabling members of the public to assess the danger to which they are exposed is beyond question. Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process.75

On the facts in Giacomelli, the Court held unanimously that Article 8 had been breached. Particular emphasis was placed on the fact that the competent authorities’ failure to comply with domestic environmental rules (including EIA requirements) had deprived the applicant’s procedural environmental rights ‘of useful effect’.76 In the absence of a clear understanding and appreciation of the rationale(s) underlying public participation, there is a danger that participation will be treated as a mere formality by the competent authorities and the national courts. It is useful to consider why participation through notification and consultation is important at a general level, before moving on to examine participation in the specific context of environmental decision-making. Galligan has advanced the following justifications for participatory procedures: First, the person whose situation is being inquired into is often the best source of information and explanation; secondly, it is often difficult to have confidence in the accuracy of a decision where the person whose situation is in issue has not been able to provide his side of the case; and thirdly, the argumentative process which is encouraged by participatory procedures may be an effective means to accurate and proper decisions.77

He concludes that, taken together, these reasons make up ‘a strong case for the value of participation in leading to good decisions’.78 Of course, at a more basic level, participation is fundamental to democracy, and closely linked with the idea of ‘active citizenship’.79 This latter concept is defined neatly by Galligan as the

73

Guerra v Italy (1998) 26 EHRR 357. Hatton v United Kingdom (2003) 37 EHRR 28. 75 Giacomelli v Italy (2007) 45 EHRR 38 para 83 (footnotes omitted). 76 Ibid, paras 93–4. 77 DJ Galligan, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford, Clarendon Press, 1996) 132. 78 Ibid. 79 Ibid, 129. 74

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EIA Directive & Environmental Protection idea ‘of people being actively engaged in shaping their communities in all their aspects’.80 It is also acknowledged that participation is a useful means by which both the decision-maker and the participants gain access to information that might not otherwise be available and ‘helps the decision-maker to have a more complete and balanced view of the facts and the issues relating to the facts’.81 In what is widely accepted as the classic framework of analysis, McAuslan identified the role of public participation and debate as an important counterpoint to private property interests and to the public administration’s view of the public interest.82 This perspective surfaces again in the modern literature on new forms of governance, where ‘proceduralisation’ is presented as one means of improving decision-making by facilitating access for different points of view.83 A pluralistic approach to decision-making recognises the complexity inherent in modern decision-making and the increasing ‘fragmentation’ of knowledge.84 In particular, there is a developing recognition and acknowledgement that lay or ‘informal knowledge’ complements expert (technocratic) knowledge and, as such, ought to be accommodated in the decision-making process. The potential contribution of lay opinion has been usefully summarised in the following terms: At the most basic level, … it might represent further empirical information. It might also assist experts in developing more targeted and understandable communications with civil society. More importantly, … however, is the opportunity it provides for a more meaningful exchange, a mutual enhancement of competing perspectives – not just an education of civil society, but a means of forcing expert opinion to justify and explain the assumptions and causal connections of the models its deploys.85

Informing expert judgment by lay opinion promotes a process of ‘collective learning’ or a mutual learning process that in turn facilitates ‘the ongoing enrichment of each representation’.86 This process seeks to ensure that the available alternative views are explored within the appropriate contextual matrix and contributes to more legitimate and effective decision-making. Broad-based participation is now a general concern in EU decision-making and a number of high-profile initiatives aim to involve NGOs and civil society in decision-making at all levels.87 The challenge lies in putting into practice the commitment to

80

Ibid. Ibid, 131. P McAuslan, The Ideologies of Planning Law (Oxford, Pergamon Press, 1980). 83 See, eg J Scott and J Holder, ‘Law and New Environmental Governance in the European Union’ in G de Búrca and J Scott (eds), Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006). 84 On the fragmentation of knowledge, see K-H Ladeur, ‘Proceduralisation and its Use in a Post-modern Legal Policy’ in O de Schutter, N Lebessis and J Paterson (eds), Governance in the European Union (European Commission, Cahiers of the Forward Studies Unit, 2001). 85 N Lebessis and J Paterson, ‘Developing New Modes of Governance’ in O de Schutter et al (eds), ibid, 274–5. 86 Ibid, 277. 87 Consider, eg, European Commission, Debate Europe—Building on the Experience of Plan D for Democracy, Dialogue and Debate COM (2008) 158 final. See also Community Action Programme 81 82

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EIA Directive deeper and broader dialogue, by continuing to improve access to information and by developing and supporting effective mechanisms for meaningful participation.

V.

EIA DIRECTIVE

The EIA directive has been described as ‘one of the most significant achievements by the Community legislature in favour of environmental protection’.88 It was adopted on the basis of Articles 94 and 308 EC (formerly Articles 100 and 235) both of which require unanimity in the Council. The directive had a particularly convoluted legislative history, and Krämer89 has noted that 23 drafts were prepared before a formal draft directive was published in 1980.90 Directive 85/337/EEC was adopted on 27 June 1985 after almost a decade of deliberation.91 Concern over creating additional costs and delays for developers and fear of disrupting existing national development consent procedures were among the main grounds of dispute during the protracted negotiations on the content of the directive.92 The difficulty in securing agreement on the final text of the directive is reflected in the fact that a number of its provisions are drafted in very general terms. This has led (predictably) to considerable uncertainty over the actual content of the obligations imposed on Member States. Pursuant to Article 11(3) of the original EIA directive, the Commission was due to publish a report on its application and effectiveness in 1990. This report was eventually published in 1993 and covered the state of implementation up to July 1991.93 The review highlighted a number of practical problems with implementation. A particular cause for concern was that the EIA process was not starting early enough in the development consent systems operating in the Member States, thereby undermining the preventive and anticipatory objective of Promoting Environmental NGOs [2002] OJ L75/1 and M Heldeweg, ‘Towards Good Environmental Governance in Europe’ [2005] European Environmental Law Review 2. 88 Case C-321/95 P Stichting Greenpeace Council v Commission [1998] ECR I-1651 para 57 of the Opinion (Advocate General Cosmas). 89 L Krämer, ‘The Elaboration of EC Environmental Legislation’ in G Winter (ed), European Environmental Law: A Comparative Perspective (Aldershot, Dartmouth, 1996) 301. 90 Draft EIA directive [1980] OJ C169/14. 91 Dir 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40. Member States were required to implement this directive by 3 July 1988. A detailed analysis of the history of the directive is found elsewhere, see: Sheate, above n 44, ch 2, especially 17–20; Krämer, above n 89, especially at 312–13; N Lee and C Wood, ‘EIA—A European Perspective’ (1978) 4 Built Environment 101 and P Weathern, ‘The EIA Directive of the European Community’ in P Weathern (ed), Environmental Impact Assessment: Theory and Practice (London, Unwin Hyman, 1988). 92 Sheate, above n 44, at 19–20 and N Lee and C Wood, ‘Environmental Impact Assessment of Projects in EEC Countries’ (1978) 6 Journal of Environmental Management 57, 60. 93 European Commission, Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (93) 28 final.

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EIA Directive & Environmental Protection the directive.94 Other notable difficulties with implementation included: failure to adequately integrate mitigation measures into the planning and design process; inconsistencies in the manner in which Member States applied their discretion to determine whether certain projects required assessment at all; shortage of sufficiently experienced staff; and the absence of a system of quality control over the EIA process.95 The review also confirmed the limited ability of project-level EIA to deliver sustainable development in the absence of a comprehensive system of SEA.96 Following this review, the directive was amended in 1997, although securing Member State agreement on the proposed amendments again proved extremely difficult.97 The amended directive was adopted pursuant to Article 175(1) EC (formerly Article 130s(1)), and the Article 252 EC (formerly Article 189c) co-decision procedure applied.98 A number of amendments addressed issues and problems identified previously in practice and by the ECJ when interpreting the original directive.99 The amended directive aimed ‘to clarify, supplement and improve the rules on the assessment procedure, in order to ensure that the Directive is applied in an increasingly harmonized and efficient manner’.100 Ascertaining the precise nature of the obligations imposed on the Member States under Community EIA law is complicated by the fact that the directive was again the subject of detailed amendments in 2003,101 to take account of the requirements of the Aarhus Convention. References to the directive in this chapter are to the amended provisions, unless otherwise indicated. The EIA directive is cast in the mould of a typical framework directive. It sets down the broad principles underlying a system of environmental impact assessment and leaves the practical details to the discretion of the Member States. The first recital to the original EIA directive confirmed the central role of EIA in an environment policy based on prevention, and it emphasised the need to have regard to effects for the environment at the earliest possible stage in the development consent process. The sixth recital explained that the directive aimed

94

Ibid, 64. Ibid, 63–6. 96 Ibid, 64. 97 European Commission, Proposal for a Council Directive Amending Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (93) 575 final and Amended Proposal for a Council Directive Amending Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (95) 720 final. See further W Sheate, ‘Amending the EC Directive (85/337/EEC) on Environmental Impact Assessment’ [1995] European Environmental Law Review 77, 79. 98 Dir 97/11/EC [1997] OJ L73/5. Member States were required to implement the amendments to the original EIA directive by 14 March 1999. 99 For an overview see S Tromans, ‘Environmental Impact Assessment: Recent Cases and Practical Issues’ [2001] Environmental Liability 18; A García Ureta, ‘The EC Environmental Impact Assessment Directive before the European Court of Justice’ [1997] Environmental Liability 1 and R Macrory, ‘The Enforcement of Community Environmental Laws: Some Critical Issues’ (1992) 29 CML Rev 347. 100 Dir 97/11/EC, fourth recital. 101 Dir 2003/35/EC [2003] OJ L156/17. 95

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EIA Directive to establish the principle of ‘prior assessment’ of the likely significant effects of proposed projects on the environment. According to the eleventh recital, environmental effects must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life.

The first and second recitals to the 1997 directive acknowledged the key principles underlying modern Community environment policy: sustainable development; the precautionary principle; the principle of prevention at source; and the ‘polluter pays’ principle. The first recital recalled that [Directive 85/337/EEC] aims at providing the competent authorities with relevant information to enable them to take a decision on a specific project in full knowledge of the project’s likely significant impact on the environment; the assessment procedure is a fundamental instrument of environmental policy as defined in Article 130r of the Treaty [Article 174 EC] and of the Fifth Community Programme of policy and action in relation to the environment and sustainable development.102 (emphasis added)

Pursuant to Article 1(1), the directive applies to the assessment of the environmental effects of public and private projects that are likely to have significant effects on the environment. Article 2(1) is the central provision and provides in relevant part: Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects.

The basic obligation created here is that projects that are likely to have significant effects on the environment must be assessed before development consent is granted. ‘Project’ is defined in Article 1(2) as meaning: –

the execution of construction works or of other installations or schemes,

– other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.

102 Consider also the following extract from the judgment of Buxton LJ in R (Goodman) v London Borough of Lewisham [2003] EWCA Civ 140 para 14: ‘The whole aim and object of the system introduced by Directive 85/337 is that there should be sequential and transparent consideration of the environmental implications of a project; and that decisions whether or not to grant planning permission should be taken by planning authorities in the light either of the information contained in an environmental statement or of the reasons why such a statement is not required. The local authority, when presented with this planning application, did not receive that assistance in proper form. It must now be given the opportunity to re-take the decision whether to grant planning permission in the light of an analysis that accords with the requirements of the [national implementing] Regulations’.

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EIA Directive & Environmental Protection In Abraham,103 the ECJ confirmed that the term ‘project’ refers to works or physical interventions.104 An agreement between public authorities and a private undertaking could not be regarded as a ‘project’ within the meaning of the directive.105 Such an agreement may, however, constitute a ‘development consent’ and it is for the national court to determine this issue.106 In R (Edwards) v Environment Agency,107 Lord Hoffmann, having considered the definition of ‘project’ in Article 1(2), doubted whether the adoption of shredded tyres as fuel in an existing installation fell within the scope of the EIA directive.108 Lord Hoffmann indicated, however, that the answer to this question was not clear and if a decision on the point had been necessary to determine the appeal he would have supported an Article 234 EC reference.109 ‘Development consent’ is defined in Article 1(2) as ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project’. The directive envisages that EIA procedures may be integrated into existing national development consent procedures. Article 2(2) and (2a) confirm that Member States may provide for a single procedure with a view to fulfilling the requirements set down in the EIA directive and in the Integrated Pollution Prevention and Control (IPPC) directive.110 The actual assessment is carried out by the relevant competent authority (or authorities) within each Member State. Special provision is made for projects serving national defence purposes.111 Projects adopted by a specific act of national legislation are not covered by the directive.112 Limited exemptions from the application of the directive are permitted in certain exceptional circumstances.113 Article 2 does not elaborate on the meaning of ‘significant’ effects on the environment.114 Instead, Article 4 defines the projects that fall within the scope of the directive. It refers to two distinct categories of project—Annex I projects and Annex II projects. Assessment is mandatory for the Annex I projects. These projects are deemed likely to have significant environmental effects and, as such, 103

Case C-2/07 Abraham v Région wallonne [2008] ECR I-0000. Ibid, para 23. 105 Ibid. 106 Ibid, para 25. 107 R (Edwards) v Environment Agency [2008] UKHL 22. 108 Ibid, paras 51–7. 109 Ibid, para 58. 110 Dir 96/61/EC concerning integrated pollution prevention and control [1996] OJ L257/26 as amended by Dir 2003/35/EC [2003] OJ L156/17, codified by Dir 2008/1/EC [2008] OJ L24/8. 111 EIA directive Art 1(4). 112 EIA directive Art 1(5). 113 EIA directive Art 2(3). See further European Commission, Clarification of the Application of Article 2(3) of the EIA Directive (2006), text available at: http://ec.europa.eu/environment/archives/eia/pdf/eia_art2_3.pdf. 114 The fifth recital to the original EIA directive refers to public and private projects likely to have a ‘major’ effect on the environment. This is the only point at which the term ‘major’ appears in the text of the dir, however. On the concept of significance, see Holder, above n 43, ch 4 especially at 106–8 and D Lawrence, ‘Impact Significance Determination—Back to Basics’ (2007) 27 Environmental Impact Assessment Review 755. 104

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EIA Directive they must be assessed (eg crude-oil refineries; nuclear power stations; integrated chemical installations; and construction of motorways and express roads). Annex II sets out 13 categories of project (eg agriculture; extractive industry; energy industry; and infrastructure projects), incorporating 81 more detailed subcategories (eg peat extraction, initial afforestation and urban development projects). The original Article 4(2) provided that the Annex II projects were required to be assessed only ‘where Member States consider that their characteristics so require’. Member States were permitted to specify the Annex II projects subject to assessment; or they could opt to establish criteria and/or thresholds for this purpose. Other methods not expressly indicated in the text of Article 4(2) could also be deployed to determine which Annex II projects required assessment.115 This flexible approach led to a high degree of variation among the EIA systems operating at national level, as different criteria and thresholds were fixed throughout the Member States.116 While Article 4(2) in its original form clearly conferred an element of discretion on Member States with regard to the Annex II projects, the ECJ was called upon to interpret the scope of this discretion on a number of occasions. This jurisprudence is examined in chapter four. Difficulties with the practical application of Article 4(2) led to important amendments in 1997, designed to reduce Member State discretion regarding the Annex II projects. In its current form, Article 4(2) expressly provides that Member States are to determine whether Annex II projects require assessment either on a case-by-case basis or by means of thresholds or criteria. Member States may opt to apply both procedures. In determining which Annex II projects require assessment Member States must take account of the relevant selection criteria set out in Annex III to the directive (Article 4(3)). The screening procedure introduced in Article 4(3) clarifies the scope of the general obligation articulated in Article 2(1) and is designed to ensure that any Annex II project likely to have significant effects on the environment will be subject to assessment. The detailed criteria set out in Annex III provide useful practical guidance for competent authorities when determining whether or not an Annex II project is likely to have significant effects. The selection criteria are divided into three categories: characteristics of projects; location of projects; and characteristics of the potential impact. These specific indicators elaborate on the more general criteria of ‘nature, size or location’ found in Article 2(1). The Commission has also published practical guidance on screening, including detailed checklists, to assist competent authorities in assessing the significance of potential impacts.117 Holder has observed that the ‘necessarily predictive quality of the decision

115 Case C-435/97 World Wildlife Fund (WWF) v Autonome Provinz Bozen [1999] ECR I-5613 paras 42–3. 116 European Commission, Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (93) 28 final, especially chs 3 and 5. 117 European Commission, Guidance on EIA: Screening (2001), text available at: http://ec.europa. eu/environment/archives/eia/eia-support.htm.

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EIA Directive & Environmental Protection whether to conduct an assessment in the first place is possibly the “central conundrum” of environmental assessment’.118 The directive does not provide a self-contained definition of environmental impact assessment.119 The process by which relevant projects are to be assessed is prescribed in Article 3 and in Articles 5 to 9. Article 3 provides that the direct and indirect effects of the proposed project on a catalogue of specified factors must be identified, described and assessed ‘in an appropriate manner’ in the light of each particular case. The specified factors include: human beings; fauna and flora; soil; water; air; climate; landscape; material assets; and the cultural heritage. The fourth indent to Article 3 requires that the interaction between these factors must also be considered.120 The directive does not expressly require that the impact assessment conducted by the relevant competent authority must be documented in written form. Krämer has noted that it is difficult to see how the obligation to ‘describe’ the impact of a proposed development on the full range of environmental factors listed in Article 3 can be fulfilled otherwise than in writing121—a view shared by Scannell.122 Yet, competent authorities appear to operate on the basis of a ‘general understanding’ that the assessment is not legally required to be in written form.123 There is nothing in the PDA, or the planning regulations, to suggest that the competent authority is required to produce a written assessment.124 It is curious that the issue of a written assessment has not yet surfaced in the ECJ jurisprudence and that uncertainty still surrounds this important (and very basic) practical question.125 The point was considered by the High Court in O’Mahony v An Bord Pleanála,126 which concerned an application for leave to challenge two decisions of the Board confirming a compulsory purchase order and approving a road improvement scheme. It was submitted that the Board was obliged to identify, describe and assess the direct and indirect effects of the

118

Holder, above n 43, at 13. Compare Art 2(b) of the SEA directive (Dir 2001/42/EC) which contains a definition of ‘environmental assessment’ for the purposes of that directive. 120 In Case C-332/04 Commission v Spain [2006] ECR I-40*, the ECJ ruled that Spain had failed to transpose Art 3 fully. The contested domestic provisions did not expressly require the EIA to evaluate the interaction of the various environmental factors listed in Art 3. 121 Krämer, above n 6, at para 4.26 and Casebook on EU Environmental Law (Oxford, Hart Publishing, 2002) 66. 122 Y Scannell, Environmental and Land Use Law (Dublin, Thomson Round Hall, 2006) para 5.87. 123 Krämer, above n 6, at para 4.26. 124 This point is considered (in the context of the pre-PDA legislation) in A Doyle, ‘Environmental Impact and Who Assesses What’ (1998) 5 Irish Planning and Environmental Law Journal 13, 16–18. Doyle concludes that ‘[t]here is no obligation to publish the assessment, and the EIA must not be confused with the [competent authority’s] decision’. Doyle also maintains however that because the Irish provisions do not tell the competent authorities what EIA involves, it may be open to the Commission to bring infringement proceedings against the State for inadequate transposition of Art 3. 125 In Case C-332/04 Commission v Spain [2006] ECR I-40*, the ECJ noted, in passing, that the directive does not require a written assessment (para 56). This specific point was not at issue in this case, however. 126 O’Mahony v An Bord Pleanála [2005] IEHC 39. 119

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EIA Directive proposed project on the factors listed in Article 3 of the directive and to record the assessment in its decision. If it were otherwise, it would not be possible to determine whether the Board had, in fact, carried out the required assessment. O’Neill J rejected this interpretation of Article 3 as ‘entirely misplaced’. The High Court ruled that the EIA process is set out in various stages and steps, as described in Articles 4 to 9, and the assessment is not confined to Article 3 alone. O’Neill J found support for this approach in dicta by Lord Hoffmann in Berkeley,127 which provided ‘a good illustration or description of how, in fact, this assessment works in a staged way’. Having reached this conclusion, the High Court refused an application for a reference to the ECJ on the Article 3 point. The assessment procedure set down in the EIA directive is indeed a staged process and O’Neill J is correct on this point. The assessment is not to be confused with the EIS submitted by the developer or the competent authority’s decision. The question at issue is more complex than O’Neill J’s conclusions on the Article 3 point suggest, however. Pursuant to Article 3, the competent authority is obliged to assess the environmental effects of the proposed project in accordance with Articles 4 to 9 of the directive, or, to adopt Holder’s pertinent description, it is obliged to carry out an ‘independent appraisal of environmental impacts’.128 While there is no express obligation to produce a written assessment as such, if the courts are to be in a position to exercise their supervisory jurisdiction, then some record of the actual assessment conducted by the competent authority must be provided. In other words, the competent authority must be in a position to demonstrate that it did, in fact, accurately identify and properly assess all of the effects listed in Article 3 of the directive. It is difficult to see how this can be achieved otherwise than by way of a formal written statement. Further support for this view is found in ECJ jurisprudence on the content of competent authorities’ screening determinations under Article 4(4). Screening is defined as ‘the process by which a decision is taken on whether or not an EIA is required for a particular project’.129 Article 4(4) (which was added in 1997) requires the Member States to ensure that the competent authority’s determination as to whether or not an Annex II project requires EIA (the screening determination) is made available to the public. There is no express requirement in the text of the directive to furnish reasons for this determination.130 The obligation set down in Article 4(4) must however be interpreted in light of the ECJ’s insistence that a competent authority’s decision that a particular project is not likely to have significant effects on the environment must be subject

127

Berkeley v Secretary of State for the Environment [2000] UKHL 36. Holder, above n 43, at 98. European Commission, Guidance on EIA: Screening (2001), above n 117. 130 Note that the Commission guidance provides at para A3.4 (headed ‘Recording the Screening Decision’) that ‘the competent authority must keep a record of the decision and the reasons for it and make the decision available to the public’. 128 129

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EIA Directive & Environmental Protection to judicial scrutiny.131 Publication of a reasoned screening determination facilitates judicial review of the exercise of discretion on the critical issue of whether or not an Annex II project is likely to have significant effects on the environment. In Commission v Italy,132 the ECJ confirmed that whatever method is adopted by a Member State to determine whether or not a specific Annex II project requires assessment, the method adopted must not undermine the fundamental objective of the directive. A Member State was not entitled to exclude an Annex II project from assessment unless, following ‘a comprehensive screening’, the project at issue could be regarded as unlikely to have significant effects on the environment.133 On the basis of the documentary evidence presented to it in this case (concerning the ‘Lotto zero’ project involving the construction of an outer ring-road at Teramo), the ECJ concluded that the Italian authorities had not properly screened the project in question in order to determine whether it required assessment.134 The ECJ reasoned that a negative screening decision ‘must contain or be accompanied by all the information that makes it possible to check that it is based on adequate screening’, in accordance with the requirements of the directive.135 This aspect of the ruling reflects the Court’s ongoing drive to facilitate close and effective scrutiny of decisions taken by competent authorities in the EIA field. While the ECJ did not go so far as to require a ‘reasoned’ screening decision as such, the detailed manner in which the Court formulated the obligation to support or justify a negative screening decision comes very close to an obligation to furnish reasons. This must be regarded as one of the Court’s more robust decisions, especially when one bears in mind that the ECJ was examining the scope of the obligations falling on the competent authority under the original directive (in particular original Article 4(2)), before the detailed content and mechanics of the screening obligation were introduced in 1997 (amended Article 4(2) to 4(4)). It is noteworthy that Advocate General RuizJarabo Colomer appeared to go a step further than the Court in terms of the obligation to furnish reasons in this specific context: ‘An administrative decision which concludes that the particular features of a project are not such that it is damaging to the environment must be explained by reasons’136 (emphasis added). 131 Case C-435/97 World Wildlife Fund (WWF) v Autonome Provinz Bozen [1999] ECR I-5613 para 49. In R v Secretary of State for the Environment, Transport and Regions ex p Marson [1998] EWCA Civ 804, a unanimous Court of Appeal (England and Wales) concluded that the competent authority was not under a duty to give detailed reasons for a decision not to require an EIA in respect of an Annex II project and it refused to make a reference to the ECJ on the reasons point. This decision concerned the original EIA directive however, and it pre-dated Bozen. See also Holder, above n 43, at 269–72. 132 Case C-87/02 Commission v Italy [2004] ECR I-5975. 133 Ibid, para 44. 134 Ibid, paras 46–8. 135 Ibid, para 49. 136 Ibid, para 36 of the Opinion. The Advocate General stressed the ‘prominent position’ that environmental protection occupies among Community policies and the Member States’ ‘crucial responsibility’ in this field. Community citizens are entitled to demand fulfilment of that responsibility. Indeed, a number of national constitutions expressly recognise the importance of environmental protection concerns and the Advocate General drew on Art 37 of the Charter of Fundamental Rights

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EIA Directive The ECJ’s decision is not as explicit on this point. The Court preferred to express this duty in terms of an obligation to provide supporting information (in written form) as opposed to a statement of reasons.137 Such reasoning provides strong support for the view (canvassed earlier) that competent authorities are under a similar obligation to provide all the information necessary to facilitate a proper check or review of the adequacy or otherwise of the EIA carried out by the competent authority pursuant to the directive. In Mellor138—a reference for a preliminary ruling from the Court of Appeal (England and Wales)—the ECJ has been asked to determine whether Article 4 requires Member States to make the reasons for a negative screening decision available to the public and, if so, the scope of that obligation. As regards Irish planning law, the Planning and Development Regulations 2006 introduced an important amendment concerning the availability of screening decisions. A planning authority is now required to keep the screening decision, and the main reasons and considerations on which that decision is based, in the planning file.139 Article 5 concerns the information that is to be furnished to the competent authority by the developer. Member States are required to adopt measures to ensure that the developer supplies the information required under the directive.140 ‘Developer’ is defined in Article 1(2) as ‘the applicant for authorization for a private project or the public authority which initiates a project’. Pursuant to Article 5(3), the following information is mandatory: –

a description of the project comprising information on the site, design, and size of the project,

–

a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,

of the European Union (concerning environmental protection) to bolster this point. It followed, in his view, that where a competent authority’s decision departs from ‘the general criteria aimed at protecting the environment’—specifically here a negative screening determination—then that decision must be ‘duly specified’ on the basis that this is a core feature of ‘the rational exercise of power’ and ‘a tool which, if necessary, enables the [determination] to be reviewed subsequently’ (paras 36–41 of the Opinion). The possibility of providing reasons ‘by reference’, and the limits of this option, are considered at paras 38–40 of the Opinion. 137 Case C-83/03 Commission v Italy [2005] ECR I-4747 also concerned a complaint that the Italian authorities had failed to screen an Annex II project for the construction of a marina at Fossacesia. It was not disputed in this case that development consent had been granted before the ad hoc prior screening determination required by national law had been carried out. Accordingly, the ECJ ruled that the Member State had failed to fulfil its obligations under (original) Art 4(2). The Court thereby avoided having to make a finding on the scope of the duty to state reasons for a negative screening decision (para 21). 138 Case C-75/08 Mellor v Secretary of State for Communities and Local Government [2008] OJ C107/20. 139 Planning and Development Regs 2001 (SI No 600 of 2001) Art 103(3) (as amended by Planning and Development Regs 2006 (SI No 685 of 2006) Art 25). See also 2001 Regs Art 120(7) (as amended by 2006 Regs Art 28) as regards availability of the screening decision, and main reasons and considerations on which it is based, in the case of sub-threshold development proposed by a local authority. 140 EIA directive Art 5(1), 5(3) and Annex IV.

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EIA Directive & Environmental Protection –

the data required to identify and assess the main effects which the project is likely to have on the environment,

–

an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice, taking into account the environmental effects,

–

a non-technical summary [of the above information].141

A study of alternatives was not mandatory under the original Article 5. The amended provision has strengthened the information requirement in this regard and ensures that the public is entitled to consider and comment on the alternatives studied by the developer.142 The required information is to be provided by the developer ‘in an appropriate form’.143 The directive does not specify any particular form and the term ‘Environmental Impact Statement’ (EIS) is not found in Article 5 or at any point in the text of the directive.144 Despite this, the EIA systems in a number of Member States refer to the information provided by the developer as the EIS (or Environmental Statement—‘ES’) and this information is usually presented in the form of a self-contained document. Member States enjoy an element of discretion as to whether or not to require a developer to submit the information specified in Annex IV.145 There is also an obligation on Member States to ensure, if necessary, that any authorities holding relevant information (especially for the purposes of Article 3) make this information available to the developer.146 Scoping is defined as ‘the process of identifying the content and extent of the Environmental Information to be submitted to the competent authority [by the developer] under the EIA procedure’.147 Article 5(2) provides for voluntary scoping: a developer may request that the competent authority gives an opinion on the information required before submitting an application for development consent. The competent authority is obliged to consult with the developer and the environmental authorities referred to in Article 6(1) before issuing its opinion. There is no legal obligation to consult with the public at this early stage of the EIA process, however. It is also open to Member States to require the competent authority to provide a scoping opinion even in cases where such an

141 There is Environmental Protection Agency (EPA) guidance on preparing EISs: Guidelines on the Information to be Contained in Environmental Impact Statements (EPA, 2002) and Advice Notes on Current Practice in the Preparation of Environmental Impact Statements (EPA, 2003), available at: http://www.epa.ie/downloads/advice/ea/guidelines/. 142 On alternatives, see Holder, above n 43, ch 5. 143 EIA directive Art 5(1). 144 Compare the SEA directive (Dir 2001/42/EC) Art 2 (c) which introduces the concept of an ‘environmental report’. This report is defined as the part of the plan or programme documentation containing the information required in the SEA directive Art 5 and Annex I. 145 EIA directive Art 5(1). 146 EIA directive Art 5(4). 147 European Commission, Guidance on EIA: Scoping (2001), text available at: http://ec.europa.eu/ environment/archives/eia/eia-support.htm.

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EIA Directive opinion was not sought by the developer.148 A transparent and effective scoping procedure results in a better, more focused EIS, to the benefit of both the competent authority and the public.149 One of the basic objectives of the directive is to ensure that decisions on applications for development consent are taken ‘in full knowledge’ of the likely environmental impacts.150 The original rules governing participation in the EIA procedure were revised substantially pursuant to Directive 2003/35/EC, which aimed to strengthen this aspect of Community EIA law to meet the requirements of the Aarhus Convention. Pursuant to Article 6(1), Member States are obliged to take measures to ensure that any environmental authorities likely to be concerned by the project are given the opportunity to express an opinion on the application for development consent and the information supplied by the developer. Article 6(2) to (6) governs public participation. Article 6(2) requires Member States to inform the public of certain matters at an early stage in the decision-making procedure. Pursuant to Article 6(3), specified material, including the EIS, must be made available to ‘the public concerned’151 within reasonable time-frames. Article 6(4) confers important participation rights on ‘the public concerned’. The sixth recital to the original directive explained that the information supplied by the developer may be supplemented by the people who may be concerned by the project in question. Article 6(4) and the original sixth recital confirm the role of the public as a potential source of further information on likely impacts. The SEA directive contains a similar justification for public participation. According to the 15th recital to that directive, the participation requirement contributes to more transparent decision-making and seeks to ensure that ‘the information supplied for the assessment is comprehensive and reliable’. Following the principle of subsidiarity, it falls to the Member States under Article 6(5) to determine the ‘detailed arrangements’ governing information and consultation.152 An interesting practical question here is whether or not the discretion conferred by Article 6(5) entitles a Member State to levy an administrative fee as a precondition to participation in the EIA process. The directive is silent on this point: a fee is neither expressly authorised nor expressly prohibited. A controversial planning participation fee was introduced in Ireland in March 2002 pursuant to the PDA. This administrative fee (€20) is payable where a person or body wishes to make a submission or observation to a local planning

148

EIA directive Art 5(2). See also T Snell and R Cowell, ‘Scoping in Environmental Impact Assessment: Balancing Precaution and Efficiency’ (2006) 26 Environmental Impact Assessment Review 359. 150 Dir 97/11/EC, first recital. 151 The concept ‘the public concerned’ is defined in Art 1(2). 152 Cashman, above n 59, at 77 has noted that in practice complaints to the Commission have raised concerns over the shortness of the time within which members of the public are entitled to express an opinion under national rules, and on the degree of publicity given to notices announcing that a consultation process has started. 149

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EIA Directive & Environmental Protection authority on a planning application.153 A fee of 50 euro is payable in respect of a submission to An Bord Pleanála in respect of any subsequent planning appeal.154 The Commission questioned whether these fees were permissible under the EIA directive (as amended by Directive 97/11/EC but prior to amendment by Directive 2003/35/EC). It maintained that in levying fees as a precondition to participation in the EIA process, the Irish authorities exceeded the scope of the discretion conferred by Articles 6 and 8 of the EIA directive. Article 8, which is considered below, provides that the results of the consultation process and the information gathered pursuant to Articles 5, 6 and 7 ‘must be taken into consideration in the development consent procedure’. The ECJ ruled on this matter in November 2006.155 The Court emphasised the ‘broad’ discretion the directive conferred on Member States to determine the ‘detailed arrangements’ for participation. It concluded that Member States were, in principle, free to impose participation fees, but only to the extent that any such fee did not constitute an obstacle to the rights of participation conferred by Article 6.156 According to the ECJ, the Irish fees were not set at such a level as to create an obstacle to participation. The public participation provisions in Article 6 are examined further below in the context of the Aarhus Convention.157 Article 7 imposes specific information and consultation obligations on Member States vis-à-vis neighbouring Member States in the case of projects that are likely to have significant trans-boundary effects.158 Article 8 requires that both the results of consultations and the information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure. This is a critical element of the EIA process. Taken together with Article 6(4), Article 8 confers a further procedural right on ‘the public concerned’ to have its views on the proposed project taken into consideration by the competent authority. The directive does not specify the

153 PDA s 33(1), s 33(2)(c) and Planning and Development Regs 2001 (SI No 600 of 2001) Art 168 and sch 10. Pursuant to 2001 Regs Art 168(2), a limited number of bodies are exempt from paying the fee. These include: a local authority; a State authority (ie a Minister of the Government or the Commissioners of Public Works); a trans-boundary State and prescribed bodies (ie a body notified or entitled to be notified in accordance with Art 28 of the 2001 Regs (as substituted by 2006 Regs (SI No 685 of 2006) Art 8), including eg An Taisce—National Trust for Ireland). 154 This fee was set at €45 at the time when the Commission instituted infringement proceedings against Ireland. 155 Case C-216/05 Commission v Ireland [2006] ECR I-10787. This ruling is considered further in ch 4 pp 148−53. 156 Ibid, para 33. 157 At pp 55−60. 158 See also UN ECE Convention on Environmental Impact Assessment in a Transboundary Context 1991 (the Espoo Convention) and the Protocol on Strategic Environmental Assessment 2003 (the Kiev Protocol – not yet in force), texts available at: www.unece.org/env/eia/welcome.html. See generally K Morrow, ‘Public Participation in the Assessment of the Effects of Certain Plans and Programmes on the Environment—Directive 2001/42/EC, the UN/ECE Espoo Convention, and the Kiev Protocol’ (2005) 4 Yearbook of European Environmental Law 49 and R Macrory and S Turner, ‘Participation Rights, Transboundary Environmental Governance and EC Law’ (2002) 39 CML Rev 489.

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EIA Directive method(s) by which this obligation is to be achieved, however, or the stage(s) during the EIA process at which this ‘consideration’ is to take place. More significantly, Article 8 does not oblige the decision-maker to take the most environmentally favourable decision. The obligation only extends to a consideration of the information gathered in the course of the EIA process.159 The original Article 8 did not make any specific reference to the role of ‘the results of consultations’ in the decision-making process. As currently formulated, Article 8 effectively means that a failure on the part of the competent authority to have regard to the conclusions reached following consultations would leave its decision to grant or refuse development consent open to challenge by way of judicial review. Article 9(1) requires the competent authority to inform the public ‘in accordance with the appropriate procedures’ of a decision to grant or refuse development consent.160 The content of the decision, and any conditions attached to the decision, must be made available. The ‘main reasons and considerations on which the decision is based, including information about the public participation process’ must also be published. The authority is further required to make available ‘where necessary’ a description of ‘the main measures to avoid, reduce and, if possible, offset the major adverse effects’. No guidance is provided as to when it will be ‘necessary’ to furnish a description of mitigation measures. It was noted earlier that Article 3 of the directive does not expressly require that the assessment undertaken by the competent authority must be documented in writing. Article 9(1) is of some assistance on this point as it clearly provides that the competent authority must, at the very minimum, publish the ‘main reasons and considerations’ on which its decision is based. The requirement to publish a reasoned decision aims to facilitate judicial review of the competent authority’s decision.161 It is interesting to compare the scope of the obligation created in Article 9(1) with the more extensive obligation set down in Article 9 of the SEA directive concerning the information that must be published when a decision is taken to adopt a particular plan or programme. The basic obligation is cast in similar terms in both provisions: the public must be informed of the decision and specified information must be published.162 Article 9(1)(b) of the SEA directive requires a more detailed statement summarising how the core elements of the decision-making process have been executed. This statement must explain (in summary form): how environmental considerations have been integrated into the plan or programme; how the information contained in the environmental report and the results of consultations have been taken into account; and the 159

But see Cashman, above n 59, at 77. Art 9(2) provides that any trans-boundary Member State that has been consulted pursuant to Art 7 must also be informed of the competent authority’s decision and must be sent the information specified in Art 9(1). 161 Case C-332/04 Commission v Spain [2006] ECR I-40* para 55. 162 In the case of the SEA directive, the Art 9 obligation only arises where a decision is taken to adopt a plan or programme—a negative decision does not engage this obligation. 160

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EIA Directive & Environmental Protection reasons for choosing the plan or programme in light of the other reasonable alternatives. This detailed information obligation goes far beyond the equivalent duty in Article 9(1) of the EIA directive and enables the public to scrutinise whether or not the requirements of the SEA directive have been fulfilled in the course of the decision-making procedure. The more expansive SEA information obligations serve to highlight the limited scope of the EIA information provisions. As noted earlier in this chapter, however, the ECJ appears to be taking an increasingly strong line on the competent authority’s obligation to provide sufficient information to enable ‘the public concerned’, and ultimately the courts, to check whether or not the EIA directive has been applied correctly in particular cases. This purposive approach is firmly in line with the principle of effective judicial protection examined in chapter three. The net result is to create an obligation on the competent authority to record or document the core elements of the decision-making process in order to facilitate subsequent scrutiny—even though such an obligation is not expressly spelt out in the text of Article 9(1) of the EIA directive. It follows that there is far more to the Article 9(1) obligation than a straightforward reading of the text would suggest. Article 10 clarifies that the directive does not affect the competent authority’s obligation to respect the limitations imposed by national law, administrative provisions and accepted legal practices concerning commercial and industrial confidentiality (including intellectual property) and the safeguarding of the public interest. Article 10a, which was added to the directive in 2003, governs access to justice in EIA matters, and it is considered below in the context of the Aarhus Convention.163 In sum, the EIA directive sets down a basic scheme governing the prior assessment of projects likely to have significant effects on the environment. The analysis presented here demonstrates that there remain considerable pockets of uncertainty concerning the precise scope of the various obligations created in the directive. The detailed review of the operation of the directive, published by the Commission in June 2003, painted a pessimistic picture of the state of implementation and practical application on the ground.164 Neither the original EIA directive nor the 1997 amendments contained specific provisions on the complex but fundamental issue of enforcement.165 Access to effective remedies to enforce

163 Note that a similar provision, Art 15a (headed ‘Access to justice’) was added to the IPPC directive (Dir 96/61/EC) pursuant to Dir 2003/35/EC Art 4(4). 164 European Commission, Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as Amended by Directive 97/11/EC): How Successful are the Member States in Implementing the EIA Directive? COM (2003) 334 final, text available at: http://ec.europa.eu/environment/eia/report_en. pdf. 165 Contrast the position under the original directive on freedom of access to information on the environment adopted in 1990 (Dir 90/313/EEC [1990] OJ L158/56). Art 4 of that directive provided that where a request for information has been refused or ignored, the requester may seek judicial or administrative review of the decision of the competent authority in accordance with the relevant national legal system. Dir 90/313/EEC has now been repealed and replaced by Dir 2003/4/EC [2003] OJ L41/26, and Art 6 of the new directive makes more extensive provision for access to justice.

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Aarhus Convention the right to participate in environmental decision-making has now been addressed, to some degree, following the amendments introduced pursuant to Directive 2003/35/EC. These amendments are designed to bring Community EIA law into line with the requirements of the Aarhus Convention.

VI.

AARHUS CONVENTION

The Convention is an innovative international instrument, designed to improve transparency and to further strengthen the effectiveness of public participation in environmental decision-making.166 It is constructed around the three pillars of public participation. Three closely connected procedural rights—the right to information; the right to participate in decision-making; and the right of access to justice—are identified to support the general right of every person to live in an environment adequate to health and well-being, and the duty (both individually and collectively) to protect and improve the environment for the benefit of present and future generations.167 The Convention, which entered into force on 30 October 2001, has been described as ‘by far the most impressive elaboration of Principle 10 of the Rio Declaration’ and ‘the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations’.168 A key theme running through the Convention is the idea of ‘early and effective’ participation in environmental decision-making. The Convention aims to deliver effective participation by setting minimum standards governing information and participation and by requiring formal review procedures in cases where it is alleged that these standards have not been met. Important general provisions are found in Article 3. In particular, Article 3(3) requires Parties to the Convention to promote environmental education and awareness among the public, with special emphasis on how to use the procedural rights conferred by the Convention. Article 3(4) goes on to require Parties to acknowledge and support ENGOs and to ensure that the national legal system is consistent with this obligation. The information pillar is found in Articles 4 and 5. Articles 6, 7 and 8 together make up the public participation pillar. Article 6 is concerned with public participation in specific environmental decision-making procedures, while Article 7 governs participation in the preparation of plans, programmes and policies relating to the environment. The participation requirements set down in Article 7 are less prescriptive than those found in Article 6, especially as regards opportunities for participation in the preparation of policies relating to the

166 United Nations Economic Commission for Europe (UN ECE), Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted in Aarhus, Denmark, June 1998. 167 Ibid, Art 1 and seventh and eighth recitals. 168 K Annan, ‘Introducing the Aarhus Convention’, text available at: www.unece.org/env/pp.

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EIA Directive & Environmental Protection environment.169 Article 8 makes (limited) provision for public participation during the preparation of regulations and general rules that may have a significant effect on the environment. The access to justice pillar (Article 9) sets down basic requirements for access to review procedures with a view to ensuring that information and participation rights are effective and enforceable in practice. The access to justice provisions are intended to enforce the rights created by the information pillar and the participation process set down in Article 6. The more limited participation rights articulated in Articles 7 and 8 do not engage the access to justice provisions. At the second meeting of the Parties at Almaty, Kazakhstan in May 2005, the Convention was amended to strengthen the provision made for public participation in decisions on the deliberate release and placing on the market of genetically modified organisms (GMOs).170 In its original form, Article 6(11) was noticeably weak in providing for participation in decisions on whether or not to permit the deliberate release of GMOs. Parties were only required to apply the public participation provisions established in Article 6 to such decisions ‘to the extent feasible and appropriate’ and within the framework of national law. In other words, Parties were free to choose which elements of Article 6, if any, to apply in the case of GMOs. The amendment repeals and replaces Article 6(11), and a new Article dealing specifically with GMOs has been inserted after Article 6. The new provisions improve on the original position, but remain substantially weaker than the participation requirements governing activities other than GMOs.171 The amendments will not enter into force until ratified by three quarters of the Parties to the Convention (Article 14(4)).172 The third meeting of the Parties, held at Riga, Latvia in June 2008, reviewed progress to date on the basis of 35 national implementation reports.173 The Parties adopted the Riga Declaration affirming the significance of the Convention as an international legal instrument to promote environmental democracy.174 The declaration acknowledged the progress made towards implementation of the Convention to date, but identified specific challenges including ‘[t]he need to remove or reduce practical barriers to access to justice, such as financial barriers, access to legal services and lack of awareness among the judiciary’.175

169 Note, however, that in R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) para 51, Sullivan J of the High Court (England and Wales) observed that, given the significance of the decision under challenge in that case (whether or not to support new nuclear build), it was difficult to see how anything less that ‘the fullest public consultation’ would have been consistent with the UK Government’s obligations under the Aarhus Convention. 170 Second Meeting of the Parties, Decision II/1 Genetically Modified Organisms ECE/MP.PP/2005/ 2/Add.2, 20 June 2005, text available at: www.unece.org/env/pp. 171 ‘Aarhus Treaty Extended to GMOs’, ENDS Report 365, June 2005, 50. 172 The EC approved the amendments in December 2006: [2006] OJ L386/46. 173 The reports are available at: www.unece.org/env/pp/mop3.htm. 174 Riga Declaration (June 2008), text available at: www.unece.org/env/ppmop3.htm. 175 Ibid, para 4(g).

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Aarhus Convention The Convention highlights the value of participation in environmental decision-making. The ninth recital recognises that effective public participation not only improves the quality of decisions but also contributes to better implementation and greater public awareness of environmental issues. The Aarhus Convention: An Implementation Guide176 explains the content of the ninth recital in the following terms: The ninth preambular paragraph takes a more practical approach to the interaction of the public participation pillars with the right to a healthy environment and the attainment of sustainable development. It sets forth one of the core values of public participation, from the point of view of the public authority. It lists four separate practical benefits of public participation. The first is enhancement of the quality and implementation of decisions. The quality of decisions can be improved by the public’s provision of additional information, as well as through the influence that advocacy of alternative solutions can have on the careful consideration of possible solutions. Members of the public will often have a special knowledge of local conditions and of the practical implications of proposed activities. The implementation of decisions can be improved where the members of the public who are most interested in the result have been included in the process and have had their concerns considered. In such cases they can be expected to support the decision more strongly. Contribution to public awareness of issues is a side benefit of particular procedures that results in an overall increasing sophistication of the public in terms of its involvement and in terms of its potential support for good decisions. The opportunity of the public to express its concerns is a matter of self fulfilment that increases confidence in society generally.177 (emphasis added)

The unique value of local knowledge in environmental decision-making has been explored in depth by Fischer.178 His work raises strikingly similar themes to those presented in the modern literature on new modes of governance mentioned earlier in this chapter. Fischer’s work relates specifically to environmental decision-making and therefore has much to offer in terms of providing a challenging theoretical perspective on the value of participation. Fischer explores the familiar tensions between scientific experts and the lay public and considers various mechanisms by which to bring citizens and experts together in a more participatory or interactive mode of mutual inquiry. This approach gives rise to a detailed investigation of the value of local ‘contextual’ knowledge. ‘Local knowledge’ is loosely defined as a subcategory of ordinary knowledge, situated in its proper social and cultural context and essentially informed by careful observation and common sense.179 Fischer argues convincingly that this local knowledge

176 S Stec and S Casey-Lefkowitz, The Aarhus Convention: An Implementation Guide (New York and Geneva, UNECE, 2000) (‘Implementation Guide’), text available at: www.unece.org/env/pp. 177 Ibid, 18. 178 F Fischer, Citizens, Experts and the Environment: The Politics of Local Knowledge (Durham and London, Duke University Press, 2000). 179 Ibid, 194 and 199.

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EIA Directive & Environmental Protection is ‘a complex, valuable source of largely untapped knowledge’ that can be applied to both scientific inquiry and ‘community problem solving’.180 A similar line of thinking underpins the Aarhus Convention, in particular the public participation pillar.181 Article 15 of the Convention deals with review of compliance and establishes an interesting enforcement mechanism.182 Essentially, it provides that Parties are to establish (on a consensual basis) ‘optional arrangements of a nonconfrontational, non-judicial and consultative nature for reviewing compliance with the provisions of [the] Convention’. These arrangements must ‘allow for appropriate public involvement’ and ‘may include the option of considering communications from members of the public’ on matters related to the Convention. A compliance mechanism, which is stronger in many respects than the ‘rather weak’ text of Article 15, was adopted at the first meeting of the Convention Parties at Lucca, Italy in October 2002.183 Notwithstanding the essentially consensual and non-judicial nature of the enforcement mechanism established in Article 15, the minimum standards for public participation set down in the Convention have been concretised and translated in more readily enforceable legal norms via recent EC legislation aimed at giving effect to obligations arising under the Convention in Community law. The Convention has been signed by the European Community and by all of the Member States. By the end of October 2008, there were 42 Parties to the Convention including the Community itself and 26 of the Member States.184 Though Ireland signed the Convention in June 1998, it is not, as yet, a Party to the Convention. Work towards ratification is ongoing within the Department of the Environment, Heritage and Local Government, but there is no firm indication as to when Ireland intends to ratify the Convention.

VII.

IMPLICATIONS OF AARHUS CONVENTION FOR EUROPEAN COMMUNITY EIA LAW

One of the most significant implications of the Convention is that greater attention must now be devoted to delivering accessible and effective remedies to support environmental rights at Community and Member State level. Considerable progress has been made to align Community environmental law with 180

Ibid, 146. Implementation Guide, above n 176, at 85–6. See generally V Koester, ‘Review of Compliance under the Aarhus Convention: A Rather Unique Compliance Mechanism’ [2005] Journal for European Environmental and Planning Law 31 and S Kravchenko, ‘The Aarhus Convention and Innovation in Compliance with Multilateral Environmental Agreements’ (2007) 7 Yearbook of European Environmental Law 1. See also Guidance Document on Aarhus Convention Compliance Mechanism (2006), text available at: www.unece.org/env/oo/ compliance.htm. 183 Koester, ibid, at 34. 184 The EC approved the Convention in February 2005: [2005] OJ L124/1. 181 182

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Implications of Aarhus Convention for EC EIA Law Convention requirements.185 First, Directive 2003/4/EC repealed and replaced the original directive on freedom of access to information on the environment (Directive 90/313/EEC).186 The new directive strengthens the rules governing access to environmental information in line with Aarhus obligations. In particular, Article 6 sets down detailed provisions governing access to justice in cases where a request for access is ignored or denied.187 Secondly, Directive 2003/35/EC (the public participation directive) introduced significant amendments to both the EIA and IPPC directives to take account of Aarhus requirements. This directive also makes provision for ‘early and effective’ participation in the drawing up of plans and programmes listed in Annex I to the directive.188 The Aarhus Convention is not mentioned in the text of the (earlier) SEA directive, but its influence is clear from the wording of a number of the SEA provisions, including the definition of ‘the public’ in Article 2(1)(d) and Article 6 concerning consultations (which refers to the public being given an ‘early and effective’ opportunity to express an opinion on the draft plan or programme and the environmental report).189 The specific amendments to the EIA directive are found in Article 3 of Directive 2003/35/EC and are considered below. Member States were required to implement the public participation directive by 25 June 2005. Thirdly, an EC regulation to apply the provisions of the Aarhus Convention to Community institutions and bodies was adopted on 6 September 2006.

185 European Commission, Aarhus Convention Implementation Report: European Community SEC (2008) 556. See generally J Jendros´ka, ‘Aarhus Convention and Community Law: the Interplay’ [2005] Journal for European Environmental and Planning Law 12 and ‘Public Information and Participation in EC Environmental Law; Origins, Milestones and Trends’ in R Macrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2006); J Verschuuren, ‘Public Participation Regarding the Elaboration and Approval of Projects in the EU after the Aarhus Convention’ (2005) 4 Yearbook of European Environmental Law 29 and Á Ryall, ‘Strengthening Rights of Participation in Environmental Decision-making’ (2001) 8 Irish Planning and Environmental Law Journal 103. 186 Dir 2003/4/EC on public access to environmental information and repealing Council Directive 90/313/EEC [2003] OJ L41/26. The new directive articulates a right of access to information on the environment instead of ‘freedom of access’ as under the original directive. The first recital to Dir 2003/4/EC substantially echoes the ninth recital to the Aarhus Convention. On Dir 2003/4/EC see L Krämer, ‘Access to Environmental Information in an Open European Society—Directive 2003/4/EC’ (2005) 4 Yearbook of European Environmental Law 1. 187 Á Ryall, ‘Implementation of the Aarhus Convention through Community Environmental Law’ (2004) 6 Environmental Law Review 274. 188 Dir 2003/35/EC Art 2. 189 Compare the detailed public participation provisions set down in Art 2(2) of Dir 2003/35/EC (public participation concerning plans and programmes) with the very general participation provisions articulated in Art 6 of the SEA directive. The question arises as to whether or not the SEA directive is Aarhus compliant. On this point see A Mathiesen, ‘Public Participation in Decisionmaking and Access to Justice in EC Environmental Law: The Case of Certain Plans and Programmes’ [2003] European Environmental Law Review 36. Dir 2003/35/EC Art 5, which deals with reporting and review, expressly provides that the Commission will consider the possibility of extending the scope of that directive to other plans and programmes relating to the environment.

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EIA Directive & Environmental Protection Regulation 1367/2006190 extends the application of Regulation 1049/2001191 on public access to European Parliament, Council and Commission documents to all Community institutions and bodies, in order to meet Aarhus obligations. The regulation also requires those institutions and bodies to provide for public participation in the preparation, modification or review of plans and programmes relating to the environment. Furthermore, it provides that qualified ENGOs may request an internal review of acts adopted under environmental law (or omissions to act, as the case may be) by Community institutions and bodies.192 A fourth (general) measure, aimed at strengthening access to justice in environmental matters at national level, was also proposed as part of the Community response to Aarhus.193 This proposal attracted strong opposition from Member States, however, on the grounds that an access to justice directive would force unwelcome changes to well-established aspects of national legal systems.194 It remains to be seen whether such opposition will lead to an inevitable compromise or indeed to the rejection of the current proposal which, at the time of writing, is still pending before the Community legislature. The EC has been a Party to the Aarhus Convention since May 2005. It follows that the Convention is now an integral part of the Community legal order.195 The question arises as to whether or not certain provisions of the Convention are capable of having direct effect (in the sense of being enforceable against a Party in the absence of any, or any adequate, implementing measures). The loose and general manner in which a significant number of the obligations created in the Convention are cast, together with the obvious discretion left to Parties at a number of points in the text, militates against direct effect. Each Convention provision on which it is sought to rely must meet the well-established clear, 190 [2006] OJ L264/13. Reg 1367/2006 applies from 28 June 2007 (Art 14(2)). The Commission has adopted two decisions concerning the practical implementation of the regulation: Commission Decision 2008/50/EC [2008] OJ L13/24 and Commission Decision 2008/401/EC, Euratom [2008] OJ L140/22. 191 [2001] OJ L145/43. 192 This aspect of Reg 1367/2006 is examined further in ch 3 pp 100−101. 193 European Commission, Proposal for a Directive on Access to Justice in Environmental Matters COM (2003) 624 final. This proposal aims to give effect to Art 9(3) of the Aarhus Convention. See generally M Dross, ‘Access to Justice in EU Member States’ [2005] Journal for European Environmental and Planning Law 22 and N de Sadeleer, G Roller and M Dross (eds), Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal (Groningen, Europa Law Publishing, 2005) ch 4. 194 For a good overview of national provisions on access to justice see Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters (Milieu, 2007), text available at: http://ec.europa.eu/environment/aarhus/study_access.htm. 195 See, by analogy, Case C-239/03 Commission v France [2004] ECR I-9325 paras 25–31 (confirming that the Convention for the protection of the Mediterranean Sea against pollution from land based sources (the Barcelona Convention) and the Protocol for the protection of the Mediterranean Sea against pollution from land based sources are part of Community law) and Case C-459/03 Commission v Ireland (MOX) [2006] ECR I-4635 paras 81–2 (confirming that the provisions of the United Nations Convention on the Law of the Sea form an integral part of the Community legal order).

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Implications of Aarhus Convention for EC EIA Law precise and unconditional criteria if there is to be any possibility of direct effect.196 This is an area which is likely to see interesting future developments. Apart from direct effect, the doctrine of consistent interpretation enables the ECJ and the national courts to interpret Community law, and any national implementing measures, in light of Convention obligations.197 The following sections chart the amendments to the text of the EIA directive which purport to give effect to the public participation and access to justice pillars of the Convention. Holder has observed that these amendments concretise ‘new governance approaches to participation in environmental decision making’ and aim to deliver ‘a more inclusive, less technicist, environmental assessment procedure’.198

A. Public Participation Article 6 of the Convention establishes the right of ‘the public concerned’ to participate in certain environmental decision-making procedures.199 It sets out detailed rules governing public participation in decision-making involving the activities listed in Annex I to the Convention and activities that are not listed in the Annex but may have a significant effect on the environment. The list of activities set out in Annex I is closely modelled on Annex I to the EIA directive. A number of amendments have been introduced to the text of the EIA directive (in particular Article 6 thereof) to reflect the Aarhus public participation requirements. The definitions of ‘the public’ and ‘the public concerned’ set out in Article 2(4) and (5) of the Convention have been added to the definitions section of the EIA directive (Article 1(2)). For the purposes of the directive, ‘the public’ means ‘one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups’. The definition of ‘the public concerned’ reads as follows: [T]he public affected or likely to be affected by, or having an interest in, the environmental decision-making procedures referred to in Article 2(2) [of the EIA directive]; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

It is clear from both definitions that national law continues to play a central role in determining the scope of ‘the public’ and ‘the public concerned’. An individual or body is not required to demonstrate a legal interest or a material interest in the 196 Case C-213/03 Syndicat professionnel coordination des pêcheurs de l’étang de Berre et de la region v Électricité de France [2004] ECR I-7357 para 39. 197 See, eg, Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153 para 7.7. 198 Holder, above n 43, at 185 and 194. See also R McCracken, ‘EIA and Judicial Review: Some Recent Trends’ [2003] Judicial Review 31. 199 On the public participation pillar see Implementation Guide, above n 176, at 85–122.

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EIA Directive & Environmental Protection decision-making procedure in order to qualify as a member of ‘the public concerned’. The exact nature of the required ‘interest’ in the procedure remains unspecified however. It appears that an ‘articulated concern’ regarding the project at issue may be sufficient to bring a person within the scope of the definition. According to the Implementation Guide: The term ‘public concerned’ refers to a subset of the public at large with a special relationship to a particular environmental decision-making procedure … [The concept is] very broad. It appears to go well beyond the kind of language that is usually found in legal tests of ‘sufficient interest’, including not only the members of the public who are likely to be affected, but also members of the public who have an interest in the environmental decision-making … It also applies, however to a category of the public that has an unspecified interest in the decision-making procedure.200

The definition also establishes a liberal approach to the locus standi of nongovernmental organisations ‘promoting environmental protection’. Once such associations satisfy any formal requirements prescribed by national law (eg length of establishment; expertise; membership numbers etc), they are then deemed to have an interest in the decision-making procedure. The Implementation Guide stipulates that any requirements imposed on ENGOs should not be ‘overly burdensome or politically motivated’ and ‘not unnecessarily exclusionary’ and should be consistent with the principles articulated in the Convention.201 The amendments to Article 6 of the EIA directive introduced via Directive 2003/35/EC set out the minimum requirements for effective public participation. Articles 6(2) and (3) were replaced with new paragraphs inspired by Article 6 of the Convention. The aim of these provisions is to ensure that ‘the public concerned’ is given ‘early and effective opportunities’ to participate in the decision-making procedure. Article 6(2) requires that the public must be informed of a wide-range of matters, together with relevant practical arrangements, at an early stage in the decision-making procedure and, ‘at the latest as soon as information can reasonably be provided’.202 There is an express reference to the option of informing the public by electronic media, where this is available. Article 6(3) expands on the range of information that must be made available to ‘the public concerned’, and this information must be made available within reasonable time-frames.203 The following paragraphs were added to Article 6:

200

Ibid, 40. Ibid, 41. 202 The public must be informed, inter alia, of the nature of possible decisions, or, where there is one, the draft decision (Art 6(2)(d)). 203 In addition to the EIS prepared by the developer, and ‘the main reports and advice’ issued to the competent authority (or authorities) at the time when ‘the public concerned’ is informed of the application for development consent, Member States are required to provide ‘the public concerned’ with any relevant information that becomes available after the initial notification of the application for development consent. According to Scott and Holder, above n 83, at 219, ‘[t]his suggests that the framers of the directive conceive of environmental assessment as a process, with participation a feature of several stages of this’. 201

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Implications of Aarhus Convention for EC EIA Law 4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken. 5. The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States. 6. Reasonable time-frames for the different phases shall be provided, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively in environmental decision-making subject to the provisions of this Article.

These amendments operate to strengthen and clarify the previous participation requirements. Article 6(4) articulates the right of ‘the public concerned’ to participate in the decision-making procedure in clear and unequivocal terms. There is a strong emphasis on early intervention by ‘the public concerned’ while ‘all options’ are still open, and this is a most welcome development. As explained earlier in this chapter, Article 6(5) reserves a measure of discretion to the Member States as regards the detailed practical arrangements by which ‘the public concerned’ is notified and consulted. The basic obligation—that national measures on public participation provide opportunities for ‘early and effective’ participation—creates an important constraint on Member State discretion. The express emphasis on ‘effective’ participation, when contrasted with the less demanding text of earlier versions of Article 6, provides the ECJ with an even stronger basis to contain Member State efforts to restrict public participation.204 In Re Seaports Investments Ltd,205 the High Court in Northern Ireland considered the meaning of an ‘early and effective opportunity to participate’ in the context of the SEA directive (Directive 2001/42/EC). In the words of Weatherup J, [the consultation] must occur at a stage that is sufficiently ‘early’ to avoid in effect a settled outcome having been reached and to enable the responses to be capable of influencing the final form. Further this must also be ‘effective’ in that it does in the event actually influence the final form.206

Article 6(6) requires the Member States to provide reasonable time-frames for the different stages of the decision-making procedure. Sufficient time must be allowed to inform the public and to enable ‘the public concerned’ ‘to prepare and participate effectively’ in decision-making. The text of the directive does not

204 This point is explored further in ch 4 pp 148−53 in the context of Case C-216/05 Commission v Ireland [2006] ECR I-10787. 205 Re Seaports Investments Ltd [2007] NIQB 62. This decision is under appeal and the Court of Appeal (Northern Ireland) has referred certain questions to the ECJ pursuant to Art 234 EC concerning interpretation of the SEA directive. 206 Ibid, para 49.

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EIA Directive & Environmental Protection elaborate on what is meant by ‘reasonable’ time-frames or ‘sufficient’ time to prepare and participate, and the Convention does not provide any firm guidance on this point. Whether or not the requirements of the directive have been met in this regard will turn on the facts of each particular case (eg the relative complexity of the legal and technical issues involved), but it will be difficult to enforce this rather vague requirement in practice.207 Neither Article 6 of the Convention, nor the revised Article 6 in the EIA directive, expressly address the question of an administrative charge or fee as a precondition to the right to participate. As is to be expected, the directive simply provides that the ‘detailed arrangements’ governing the mechanics of participation fall to be determined by Member States. This position stands in sharp contrast to the detailed rules governing charges in the context of access to environmental information. Article 4(8) of the Convention, and the equivalent provision in the directive on public access to environmental information (Directive 2003/4/EC,208 Article 5), expressly provide that public authorities may levy a ‘reasonable’ charge for supplying information on the environment. Some guidance as to permissible charges is provided in the 12th recital in the preamble to the Convention. This recital states that the public must have ‘free access’ to procedures for participation in environmental decision-making. The Implementation Guide elaborates on this point as follows: Free access may be understood to mean free, open, unfettered and non-discriminatory access to procedures for public participation. It does not imply that the government should subsidize all the costs of any member of the public to participate in a given procedure. However, the costs borne by the member of the public should be the normal costs associated with participation in any procedure. The State should not impose financial constraints on members of the public who wish to participate.209

It is not entirely clear what the guide intends by the term ‘the normal costs associated with participation in any procedure’ in the above extract. This could include the costs incurred by a member of the public when preparing a submission or objection concerning a proposed project, such as commissioning an expert opinion or obtaining legal advice. What is clear, however, is that even in the limited circumstances where Parties are permitted to levy a charge, any such charge must not operate to deter or restrict members of the public from participating in decision-making procedures.210 In the event of a dispute as to the scope and limits of Member State discretion under the improved participation provisions, it is open to the ECJ to draw on the text of the Aarhus Convention, including its strong recitals, as an aid to interpretation. Article 6(5) of the Convention is cast in permissive rather than mandatory terms, and it urges 207 See also N Hartley and C Wood, ‘Public Participation in Environmental Impact Assessment— Implementing the Aarhus Convention’ (2005) 25 Environmental Impact Assessment Review 319. 208 Dir 2003/4/EC [2003] OJ L41/126. 209 Implementation Guide, above n 176, at 19. 210 Case C-216/05 Commission v Ireland [2006] ECR I-10787.

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Implications of Aarhus Convention for EC EIA Law Parties to encourage prospective developers to identify ‘the public concerned’, to enter into discussions, and to provide information regarding the objectives of their application, before applying for consent. This provision aims to deliver early and informed participation and is a very welcome initiative. It is therefore disappointing to note that the content of Article 6(5) of the Convention is not reflected in the amendments to Article 6 of the EIA directive. Article 9 of the directive, which concerns the information that must be provided to the public by the competent authority once a decision is taken on the application for development consent, was also amended pursuant to Directive 2003/35/EC. The basic obligation in Article 9(1)—to provide the main reasons and considerations on which the decision is based—was recast to impose a more extensive notification obligation on the competent authority. The new formulation recognises the valuable role of the public in the decision-making procedure and requires that the reasons furnished by the authority must reflect ‘the concerns and opinions expressed by the public concerned’. Scott and Holder have observed that this obligation ‘potentially requires the decision maker to internalise the participatory elements of environmental assessment’.211 Information about the public participation process must also be included in the statement of reasons. The obligations created here are significant in that a more detailed statement of reasons will facilitate members of ‘the public concerned’ in scrutinising the extent to which their opinions and concerns were actually taken into consideration by the competent authority in the course of the decision-making process. In other words, the requirement to furnish reasons under Article 9 enables members of ‘the public concerned’ to verify whether the duty to take the results of consultations into consideration (pursuant to Article 8 of the directive) has been fulfilled in practice. The obligation to provide reasons for planning decisions under Irish law has been interpreted narrowly by the courts.212 The basic duty is set down in section 34(10) of the PDA, which provides that planning authorities, and An Bord Pleanála on appeal, are required to state ‘the main reasons and considerations’ on which the decision is based. Where conditions are imposed in relation to the grant of permission, the decision must state the main reasons for the imposition of any such conditions. In Mulholland v An Bord Pleanála (No 2),213 Kelly J of the High Court determined that in order to be sufficient, the statement of reasons and considerations must provide information to enable an applicant: to consider whether he has a reasonable chance of success in obtaining judicial review of the decision; to arm himself for such a review; and to know if the decision-maker directed its mind adequately to the issues it had to consider. The statement must also provide sufficient information to enable the court to review the contested

211 212 213

Scott and Holder, above n 83, at 219. Simons, above n 37, at paras 12.119–12.163 and paras 13.238–13.244. Mullholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453.

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EIA Directive & Environmental Protection decision. There is no obligation to provide a discursive judgment.214 These principles were approved in Grealish v An Bord Pleanála (No 2),215 where O’Neill J concluded that the legal obligation resting on the Board to explain its decisions is ‘a very light one, one could even say almost minimal’.216 The Planning and Development Regulations 2006217 introduced a further dimension to the duty to provide reasons. The notification of a decision must specify that the planning authority, or the Board on appeal ‘has regard to submissions or observations received’ in accordance with the planning regulations.218 This specific requirement appears to be a diluted version of the obligation in Article 9(1) of the EIA directive that the reasons furnished by the authority must address ‘the concerns and opinions expressed by the public concerned’ and must include information about the participation process. Simons maintains that the relevant national provisions must be interpreted in light of Article 9(1).219 In particular, a ‘more discursive decision will be required, making reference in specific terms to the principal concerns raised by the public concerned’.220 The scope of the duty to give reasons under Article 9(1), and the extent to which the competent authority’s decision must address the issues raised during the consultation process, has not been considered by the courts to date.

B.

Access to Justice

One of the most interesting features of the Aarhus Convention is the access to justice pillar (Article 9).221 It was noted in the introductory chapter that local administrative law may operate to restrict access to judicial review and thereby undermine the ability of individuals and ENGOs to enforce the requirements of the EIA directive before the national courts. The access to justice provisions aim to deliver effective enforcement of the rights and obligations created in the Convention. Article 9(1) of the Convention sets down the minimum standards for review procedures where it is alleged that the rights conferred under the information pillar have been breached. The central obligation here is to ensure that any person who is dissatisfied with the manner in which a public authority has dealt with a request for access to information ‘has access to a review procedure before a court of law or another independent and impartial body 214

See also O’Donoghue v An Bord Pleanála [1991] ILRM 750. Grealish v An Bord Pleanála (No 2) [2006] IEHC 310. 216 See also Cicol Ltd v An Bord Pleanála [2008] IEHC 146. 217 Planning and Development Regs 2006 (SI No 685 of 2006). 218 Planning and Development Regs, 2001 (SI No 600 of 2001) Art 31(g) (as substituted by 2006 Regs Art 8) and Art 74(2)(j) (as amended by 2006 Regs Art 15). 219 Simons, above n 37, at para 13.240. 220 Ibid, para 13.241. 221 On the access to justice pillar see Implementation Guide, above n 176, at 123–36. See also S Stec (ed), Handbook on Access to Justice under the Aarhus Convention (New York and Geneva, UN ECE, 2003), text available at: www.unece.org/env/pp/a.to.j/handbook.final.pdf. 215

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Implications of Aarhus Convention for EC EIA Law established by law’. Article 9(1) further requires that where a Party provides for review by a court, a non-judicial option must also be available to an aggrieved requester. This non-judicial option is to take the form of an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.

Following this template, it is not open to a Party to provide for exclusively judicial remedies in respect of disputes over access to information. An accessible and effective alternative avenue of redress must be put in place. Final decisions on requests for access must be binding on the public authority concerned. Where access to information is refused, reasons must be stated in writing. Article 6 of Directive 2003/4/EC on public access to environmental information (which is headed ‘Access to justice’) purports to give effect to the Article 9(1) obligations in Community law.222 A different review structure applies in the case of the public participation pillar, and the essential requirements are set out in Article 9(2) of the Convention, which provides: Each Party shall, within the framework of its national legislation, ensure that members of the public concerned (a)

Having a sufficient interest

or, alternatively, (b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the [public participation] provisions of Article 6 [of the Convention] and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention. What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any [NGO] meeting the requirements referred to in [Article 2(5)], shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

222 Á Ryall, ‘Implementation of the Aarhus Convention through Community Environmental Law’ (2004) 6 Environmental Law Review 274.

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EIA Directive & Environmental Protection The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

This provision articulates a right of access to justice to enforce the public participation requirements established in the Convention. This right may be invoked by ‘members of the public concerned’ but is subject to a locus standi test. Alternative standing requirements are presented in Article 9(2), and Parties may opt for the approach that is best suited to their particular domestic legal and administrative systems. Parties are obliged to ensure that ‘members of the public concerned’ who can demonstrate either (1) a ‘sufficient interest’ or (2) impairment of a right (where this is a requirement of national administrative law) have effective access to justice. The alternative standing tests embody ‘two ways of trying to reach the same result, given the different legal systems to be accommodated among the Parties’.223 Article 9(2) provides that what constitutes ‘sufficient interest’ and impairment of a right is to be determined in accordance with national law, thereby reserving considerable discretion to Parties over local standing rules. There is an additional requirement, however. Both criteria (‘sufficient interest’ and impairment of a right) are to be determined ‘consistently with the objective of giving the public concerned wide access to justice within the scope of [the] Convention’ (emphasis added).224 According to the Implementation Guide, this important proviso ‘indicates that Parties should interpret the application of their national law requirements within the light of the general obligations of the Convention’.225 NGOs that promote environmental protection and meet any formal requirements levied by national law are deemed to have a ‘sufficient interest’ and to have rights that are capable of being impaired for the purposes of the Article 9(2) locus standi requirement. While Article 9(2) establishes minimum standards for access to justice, it leaves considerable discretion to Parties regarding institutional arrangements. Parties have a choice and may establish either an administrative review procedure or a judicial review procedure or both. Where Parties rely on bodies other than courts to fulfil the requirements of Article 9(2), such bodies must be independent and ‘must be quasi-judicial, with safeguards to guarantee due process’.226 Article 9(2) provides that Parties may provide for a preliminary review before an administrative authority and that an applicant may be required to exhaust the available administrative remedies before proceeding to judicial review. Both ‘the substantive and procedural legality’ of a contested decision must be subject to review.227 223

Implementation Guide, above n 176, at 129. Art 9(2). See also the decision of the Aarhus Compliance Committee in a complaint against Belgium: ACCC/C/2005/11, 16 June 2006, text available at: www.unece.org/env/pp/pubcom.htm. 225 Implementation Guide, above n 176, at 129 (in particular the obligations articulated in Arts 1, 3 and 9). 226 Ibid, 126. 227 Ibid, 128–9. 224

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Implications of Aarhus Convention for EC EIA Law It is not entirely clear whether this provision requires that both the merits and the legality of a contested decision must be open to judicial review. In Ireland, judicial review is concerned with the legality of public decision-making. It does not usually proceed to a reconsideration of the merits of such decisions. Indeed, the courts are very careful to avoid revisiting findings of fact made by expert competent authorities, particularly in complex and specialised fields including planning and environmental matters. It appears that the main focus of Article 9(2) is on the review of legality. It is therefore difficult to see how the provision could be deployed to support full-blown merits review. At the same time, it is certainly arguable that the phrase ‘substantive and procedural legality’ requires more robust judicial scrutiny than the traditional, limited grounds for review of legality. The principle of effective judicial protection, as elaborated in the case law of the ECJ, provides a strong legal basis on which to build an argument for a more intensive approach to judicial review on the part of the national courts where EC law rights are at issue. The implications of this evolving principle for the scope and intensity of national judicial review procedures is examined in chapter three. Article 9(3) obliges Parties to provide members of the public (who meet the criteria, if any, set down in national law) with access to administrative or judicial procedures to challenges acts (or omissions) by private persons and public authorities which contravene national law relating to the environment.228 This obligation is expressed to be ‘[i]n addition to and without prejudice to’ the more specific review procedures referred to in Article 9(1) and (2). Article 9(3) raises particular challenges at both Community and national levels.229 As noted earlier, the proposal for a directive designed to implement Article 9(3) by setting minimum standards for enforcement of environmental law at national level230 has not been adopted as yet due to opposition from Member States. In the Irish context, Doyle has concluded that in order to comply with Article 9(3) Ireland will need to make provision for administrative procedures to enforce environmental law and will also need to address the costs involved in bringing judicial enforcement proceedings.231 Article 9(4) sets down the minimum qualitative standards for review procedures and explains the nature of the remedies that must be available. It provides that the review procedures ‘shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’. The reference to ‘adequate and effective’ remedies in

228

See also Implementation Guide, above n 176, at 130–31. Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters (Milieu, 2007), text available at: http://ec.europa.eu/environment/aarhus/study_access.htm. 230 COM (2003) 624 final, above n 193. 231 O Doyle, Measures on Access to Justice in Environmental Matters (Article 9(3)): Country Report for Ireland (Milieu, 2007), text available at: http://ec.europa.eu/environment/aarhus/study_access. htm. 229

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EIA Directive & Environmental Protection Article 9(4) has a clear parallel in the ECJ case law on effective judicial protection.232 Although the ECJ regularly deploys the terms ‘adequate and effective’ to describe the nature of the remedies that must be made available, it is difficult to pin-point the exact content of these rather loose concepts. In practice, everything will turn on the facts of the particular case at issue. While the general nature of the ‘adequate and effective’ requirement provides an important element of flexibility, it also renders the obligation more difficult to enforce in practice. A core element of an ‘adequate and effective’ system of remedies is the availability of injunctive relief, and this requirement is expressly mentioned in Article 9(4). Injunctive relief, where appropriate, has also been recognised as a core element of the principle of effective judicial protection developed by the ECJ.233 One of the most intriguing aspects of Article 9(4) is the express requirement that the review procedures provided be ‘fair, equitable, timely and not prohibitively expensive’. Again, these are flexible concepts that are open to interpretation and highly dependent on context. So it is difficult to identify what exactly is required in practice if the standards set down in Article 9(4) are to be fulfilled. The requirement that the procedures adopted must be ‘fair’ evokes the wellestablished principles of constitutional justice (natural justice or fair procedures) and the principle of ‘equality of arms’ elaborated under Article 6 ECHR. As regards the ‘timely’ criterion, it is again difficult to identify the precise terms of this obligation. Presumably, this constraint is aimed at eliminating unreasonable delays in review proceedings. The excessive delay often associated with references for preliminary rulings pursuant to Article 234 EC is one practical issue that is likely to raise very interesting questions in this context. The final requirement set out in Article 9(4) is that the review procedure must not be ‘prohibitively expensive’. This is a welcome innovation. It is generally accepted that judicial review proceedings may be beyond the means of an individual or ENGO with limited financial resources. Even where a would-be applicant for judicial review engages lawyers who are prepared to pursue a case on a pro bono publico basis, the traditional rule whereby the losing party is liable for the successful party’s (or parties’) costs continues to act as a powerful deterrent to individuals or bodies who would otherwise launch judicial review proceedings.234 The practical difficulty lies in identifying the content of the concept ‘prohibitively expensive’.235 The

232 See, eg, Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891 para 23. 233 Case C-213/89 R v Secretary of State for Transport ex p Factortame Ltd [1990] ECR I-2433 para 21. 234 See generally Friends of the Irish Environment, The Transposition into Irish Law of Directive 2003/35/EC: Discussion Basis to Inform a Submission by Comhar to the Department of the Environment on the Implementation in Ireland of Directive 2003/35/EC on Public Participation and Access to Justice (2005), text available at: www.friendsoftheirishenvironment.org. 235 The Aarhus Compliance Committee will be required to consider this aspect of the Convention in the context of two Communications concerning the UK: ACCC/C/2008/23, submitted on 21 February 2008 and ACCC/C/2008/27, submitted on 18 August 2008. In both cases the communicants allege that their rights under Art 9(4) were breached in circumstances where they were ordered to pay

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Implications of Aarhus Convention for EC EIA Law use of the phrase ‘prohibitively’ appears to set a high threshold: just how expensive is ‘prohibitively’ expensive? By what criteria is this standard to be measured? The whole tenor of the Aarhus Convention indicates a purposive approach to interpretation, in line with the rights-based scheme of the Convention. By Article 3(8), the Convention provides that the national courts may still award ‘reasonable costs’, and this provides a measure of concrete guidance. Yet how does the concept of ‘reasonable costs’ relate to the ‘not prohibitively expensive’ requirement? A court may award ‘reasonable costs’ and such costs may still far exceed the resources available to the losing party. Article 9(5) indicates how Parties should facilitate effective access to justice: In order to further the effectiveness of the provisions of this Article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

This provision, which seeks to promote ‘appropriate assistance mechanisms’ by removing or alleviating the financial burden of bringing administrative and judicial review proceedings, is a clear acknowledgement that costs may prove to be a significant obstacle to effective access to justice. Parties are only required to ‘consider’ the establishment of these mechanisms, however, and there is no formal obligation to actually put such mechanisms in place. Despite this, there is a clear link between Article 9(4) and Article 9(5). While the establishment of appropriate assistance mechanisms is within the Parties’ discretion under the terms of Article 9(5), actually delivering on Article 9(4)’s obligation to provide fair and accessible review procedures may well require Parties to put such assistance mechanisms in place. It is difficult to see how Parties could give effect to the Article 9(4) obligation without some form of assistance mechanisms. With a view to aligning the EIA directive with Article 9(2), (4) and (5) of the Convention, Article 10a has been inserted into the text. It provides as follows236: [1] Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned [as defined in Article 1(2) of the directive]: (a) having a sufficient interest, or alternatively, (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition,

substantial legal costs. In a further Communication involving Spain, ACCC/C/2008/24, submitted on 13 May 2008, the communicant alleges, inter alia, that the imposition of legal costs on a non-profit organisation in connection with court proceedings, in the absence of assistance mechanisms, violates Art 9 (4) and (5) of the Convention. 236 The author has added paragraph numbers to the text of Art 10a for ease of reference.

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EIA Directive & Environmental Protection have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive. [2] Member States shall determine at what stage the decisions, acts or omissions may be challenged. [3] What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any [NGO], meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article. [4] The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. [5] Any such procedure shall be fair, equitable, timely and not prohibitively expensive. [6] In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.

The core obligation is articulated in Article 10a[1]. It requires Member States to provide access to a review procedure wherein qualified members of ‘the public concerned’ can challenge ‘the substantive or procedural legality’ of decisions that are subject to the participation requirements mandated by the EIA directive.237 This obligation is qualified by an express reference to ‘the relevant national legal system’, thus confirming that Member State discretion continues to play a powerful role in determining the structure and characteristics of review procedures at local level. A number of aspects of Article 10a are noteworthy.238 In line with Article 9(2) of the Convention, Article 10a[1] of the directive leaves it to the Member States to choose the most appropriate institutional arrangements to facilitate access to justice. The choices are: (1) review before a court of law or (2) review before an ‘independent and impartial body established by law’. The obligation to provide access to a review procedure must be read in light of the overarching principle of effective judicial protection developed by the ECJ. This principle is examined in detail in chapter three. For present purposes, it is 237 Art 9(2) of the Aarhus Convention (on which this provision is based) refers to ‘the substantive and procedural legality’ of contested decisions being subject to review. In contrast, Art 10a refers to review of ‘the substantive or procedural legality’ of contested decisions. The significance, if any, of the difference between the two texts is unclear. In any event, the ECJ is likely to interpret Art 10a in light of Art 9(2) of the Convention. 238 See also Á Ryall, ‘Access to Justice and the EIA Directive: The Implications of the Aarhus Convention’ in J Holder and D McGillivray (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (London, Routledge-Cavendish, 2007) 195–202.

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Implications of Aarhus Convention for EC EIA Law sufficient to note that the principle of effective judicial protection aims to give effect to the Rule of Law by requiring access to judicial control where Community law rights are at issue. Where a Member State purports to comply with the requirements of Article 10a[1] by providing a system of review before a body that is not a court, the principle of effective judicial protection demands that access to a judicial remedy must also be available. A right of appeal to an administrative tribunal is not sufficient to satisfy this fundamental principle of Community law.239 The principle of effective judicial protection therefore provides an important supplement to the minimum requirements articulated in Article 10a[1]. Article 10a[2] provides that Member States remain free to determine the stage at which contested decisions may be challenged. There is no equivalent provision in the Convention. Article 10a[4] clarifies that a requirement under national law to exhaust any available administrative remedies, before proceeding to judicial review, is not affected. Article 10[6] requires Member States to provide the public with practical information on access to administrative and judicial review procedures. Article 10a[1] does not elaborate on the standard or intensity of review that is to be applied in the course of the review procedure. The text simply provides that ‘the substantive or procedural legality’ of a contested decision must be open to challenge. In contrast to Article 9(4) of the Convention, Article 10a does not include any express reference to the requirement that the review procedure provide ‘adequate and effective remedies, including injunctive relief ’. This omission may not be of great significance in practice, as the ECJ has consistently ruled that national remedies for breach of EC law rights must be both adequate and effective.240 Furthermore, any rule of national law that prevents a national court from granting interim relief where EC law rights are at stake must be set aside.241 Article 10a[1] does not incorporate a standard, harmonising locus standi test. Rather, following the template set in Article 9(2) of the Convention, it provides considerable flexibility for Member States. It is clear from the text of Article 10a[1] that the mechanics of the review procedure fall to be determined ‘in accordance with the relevant national legal system’. Two alternative tests for standing are presented and Member States are free to choose the test that best fits their national legal system. Member States may require ‘the public concerned’ to demonstrate a ‘sufficient interest’ in the contested decision. In the alternative, ‘the public concerned’ may be required to demonstrate the impairment of a right— where this is a requirement under national administrative law. This flexible approach recognises and respects the diverse approaches to locus standi in the legal systems of the Member States and respects the principle of subsidiarity. The absence of uniform locus standi rules increases the likelihood of (continued) divergent levels of judicial protection throughout the Member States, however. 239 240 241

Case C-424/99 Commission v Austria [2001] ECR I-9285 para 42. See, eg, Case 14/83 Von Colson [1984] ECR 1891 para 23. Case C-213/89 Factortame [1990] ECR I-2433 paras 21–2.

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EIA Directive & Environmental Protection An attempt is made to rein in Member State discretion in Article 10a[3]. According to this provision, Member States are required to determine standing requirements in a manner that is consistent with the objective of giving ‘the public concerned’ ‘wide access to justice’. This proviso creates a potentially interesting constraint on Member State discretion when elaborating national standing rules. While it is difficult to identify the exact content of the concept ‘wide access to justice’, this proviso mandates a liberal attitude to standing. It is difficult to reconcile this mandate with the far more deferential approach to national standing requirements articulated in Article 10a[1]. This contradiction will lead to difficulties of interpretation in cases where a challenge is mounted to a restrictive (national) standing rule on the basis of alleged non-compliance with Article 10a[1] and [3]. One of the most notable features of Article 10a is that, again, following Article 9(2) of the Convention, it mandates a liberal approach to the locus standi of ENGOs. It will be recalled that the definition of ‘the public concerned’ found in Article 1(2) of the EIA directive provides that NGOs that promote environmental protection and meet any requirements specified under national law are deemed to have an interest in the decision-making procedure. Article 10a[3] provides that ENGOs that meet any requirements set under national law automatically enjoy standing to invoke the review procedure. This important concession holds the potential to expand access to review procedures for qualified ENGOs in a rather dramatic way.242 At the same time, however, the fact that Member States remain free to prescribe the criteria that must be met before ENGOs will qualify for the benefit of the relaxed standing requirement creates an important limitation that could be exploited by Member States. In response to the obligation created in Article 10a[3], Ireland introduced new provisions pursuant to the Planning and Development (Strategic Infrastructure) Act 2006 to the effect that certain ENGOs are automatically deemed to have standing in EIA cases. The new standing rules are examined in chapter five. The review procedures prescribed in Article 10a[1] must meet the minimum standards set down in Article 10a[5]. The procedures put in place by the Member States must be ‘fair, equitable, timely and not prohibitively expensive’. This formula is modelled closely on the text of Article 9(4) of the Convention. The express reference to cost in Article 10a[5] is significant, especially in light of the potential ‘chilling effect’ of legal costs at national level. It is difficult to elaborate on the meaning of the ‘not prohibitively expensive’ requirement, however. In Member States where the legality of a decision may only be challenged before a court, much will depend on the means of the parties seeking to mount judicial review proceedings. In the case of voluntary ENGOs with limited funds, national procedural rules and judicial practice (governing such matters as security for 242 See also Art 12(1) of Dir 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage [2004] OJ L143/56, which contains a similar provision on the automatic standing of qualified ENGOs.

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Strategic Environmental Assessment costs, undertakings as to damages and liability for costs) may well operate to obstruct effective access to justice. Article 3(8) of the Convention acknowledges that national courts may award ‘reasonable costs’. The concept of ‘reasonable costs’ is not defined, however, and there is no express mention of costs in the text of Article 10a. It is also disappointing to note that the reference to ‘the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice’ in Article 9(5) of the Convention is not mirrored in Article 10a of the directive. Article 10a does not provide a self-contained source of the rules governing remedies in EIA cases. It is necessary to look beyond the text of the EIA directive for a more complete picture of the relevant Community law principles. The next chapter provides an account of the ECJ’s general approach to national procedural rules and remedies where parties seek to rely on Community law before the national courts. The ECJ’s jurisprudence on remedies provides a good indication of how the Court is likely to approach the various requirements set out in Article 10a.

VIII.

STRATEGIC ENVIRONMENTAL ASSESSMENT

A. European Community Perspective While attempts to incorporate SEA in the original EIA directive were unsuccessful, the Commission began work on a draft SEA directive in the early 1990s.243 Following lengthy negotiations, a directive providing for the assessment of the effects of certain plans and programmes on the environment was finally adopted in June 2001.244 Directive 2001/42/EC (the SEA directive) sets out the basic scheme for a system of environmental assessment of certain plans and programmes.245 It is a framework directive that leaves the detailed points of local

243

Sheate, above n 44, at 17–20. Dir 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L197/30. See also Proposal for a Council Directive on the Assessment of the Effects of Certain Plans and Programmes on the Environment COM (96) 511 final. 245 See, inter alia: S Marsden, Strategic Environmental Assessment in International and European Law: A Practitioner’s Guide (London, Earthscan, 2008) ch 10; Scannell, above n 122, at paras 5.193–5.199; I Gilder, ‘The Impact of the SEA Directive’ [2005] Journal of Planning and Environment Law 121 (Occasional Papers No 33); Holder, above n 43, at 60–65; R Therivel, Strategic Environmental Assessment in Action (London, Earthscan, 2004); K Morrow, ‘Public Participation in the Assessment of the Effects of Certain Plans and Programmes on the Environment—Directive 2001/42/EC, the UN/ECE Espoo Convention, and the Kiev Protocol’ (2005) 4 Yearbook of European Environmental Law 49 and W Sheate, ‘The EC Directive on Strategic Environmental Assessment: A Much-Needed Boost for Environmental Integration’ [2003] European Environmental Law Review 331. 244

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EIA Directive & Environmental Protection implementation to the Member States.246 The directive was to be implemented by 21 July 2004.247 The objective is set out in Article 1 as being: [T]o provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that … an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment.

This Article confirms the role of SEA in delivering the core objectives of Community environment policy (including a high level of environmental protection, integration and sustainable development). The directive requires that the likely significant effects of implementing certain plans and programmes must be systematically assessed before a decision is taken on whether or not to adopt a particular plan or programme.248 The assessment procedure set out in the SEA directive involves a number of stages.249 First, an environmental report is prepared.250 This report must identify, describe and evaluate the likely significant effects of implementing the (draft) plan or programme and of implementing any ‘reasonable alternatives’, taking into account objectives and geographical scope. The full contents of the environmental report are specified in Article 5 and Annex I (it must include, inter alia, proposed mitigation measures and an outline of the reasons for selecting the relevant alternatives). Secondly, the public and relevant environmental authorities must be consulted on the draft plan or programme and the environmental report.251 Thirdly, the environmental report and the results of consultations must be taken into account during the preparation of the

246 European Commission, Implementation of Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment (2003), text available at: http://ec.europa.eu/ environment/eia/pdf/030923_sea_guidance.pdf and N Risse, M Crowley, P Vincke and J-P Waaub, ‘Implementing the European SEA Directive: The Member States’ Margin of Discretion’ (2003) 23 Environmental Impact Assessment Review 453. 247 SEA directive Art 13(1). 248 ‘Plans and programmes’ are defined in Art 2(a) as including those co-financed by the EC, as well as any modifications to them: ‘- which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government and - which are required by legislative, regulatory or administrative provisions’. Art 3 defines the scope of the directive and identifies the plans and programmes subject to SEA, but note the exemptions set down in Art 3(8) and (9). In Kavanagh v Ireland (No 1) [2007] IEHC 296, the High Court determined that the National Development Plan 2007–2013 was essentially a financial and budgetary programme setting out Government investment priorities to which the SEA directive had no application by virtue of Art 3(8). 249 Art 2(b) provides the following definition of ‘environmental assessment’: ‘[T]he preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision-making and the provision of information on the decision in accordance with Arts 4 to 9’. 250 SEA directive Art 5(1). 251 SEA directive Art 6.

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Strategic Environmental Assessment plan or programme and before its adoption.252 Where a decision is taken to adopt a plan or programme, then a statement which sets out a summary of how environmental considerations have been integrated into the plan or programme, and the extent to which the environmental report and the results of consultations were taken into consideration in the decision-making process, must be made available.253 The requirement to produce such a statement is significant. It creates a firm obligation to articulate (in written form) precisely how environmental considerations have been integrated into a specific plan or programme. This obligation gives practical force to the political commitment to integration found in the Treaties and the EC Environment Action Programmes. The various reasons for not choosing other reasonable alternatives must also be articulated in the published statement. Again, this requirement aims to ensure that alternatives are formally considered before a decision is taken to go down a particular strategic route. It serves to promote greater transparency. The SEA directive also creates important post-implementation monitoring obligations to facilitate early identification of any unanticipated adverse environmental effects.254 This measure results in an ongoing evaluation process and aims to strengthen the role of SEA in delivering more environmentally aware plans and programmes. The monitoring measures put in place in respect of a particular plan or programme must also be included in the published statement.255 It follows that the public will be made aware of monitoring arrangements and can exercise a valuable ‘watch-dog’ role here. Member States are required to ensure that environmental reports are of ‘a sufficient quality’ to meet the requirements of the SEA directive.256 The text of the directive does not elaborate on any specific steps to be taken by the Member States in this regard, however. The benefits of SEA are potentially far-reaching. The obligations created in the SEA directive put in place an overarching structure within which environmental concerns can be articulated and taken into account at the earliest stages of the planning process, when a range of strategic options are still open. It also enables the public and environmental authorities to get involved from the earliest stages of the decision-making process. In providing for the systematic assessment of plans and programmes, the SEA directive aims to deliver an improved framework for project-level decision-making. It is generally accepted that project-level EIA becomes a more effective tool in the pursuit of sustainable development when it operates in the context of plans and programmes already subject to assessment.

252

SEA directive Art 8. SEA directive Art 9(1)(b). 254 SEA directive Art 10(1). See also European Union Network for the Implementation and Enforcement of Environmental Law (IMPEL), Implementing Article 10 of the SEA Directive 2001/ 42/EC (Darmstadt, Öko-Institut, 2002). 255 SEA directive Art 9(1)(c). 256 SEA directive Art 12(2). Member States are also required to inform the Commission of any measures taken concerning the quality of environmental reports. 253

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EIA Directive & Environmental Protection B. Irish Perspective At national level, the drafters of the PDA were aware of the imminent arrival of SEA obligations from Europe. The provisions of the PDA governing the making of development plans required the plan to contain ‘information on the likely significant effects on the environment of implementing the plan’.257 A similar requirement was put in place in respect of Local Area Plans and Regional Planning Guidelines.258 These early SEA provisions pre-dated the formal adoption of the SEA directive (June 2001) and were rather basic. They succeeded in raising awareness of the more elaborate and impending SEA obligations among competent authorities, however, while the Department of the Environment, Heritage and Local Government (DEHLG) continued to prepare for formal transposition of the SEA directive before the 21 July 2004 deadline. The European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations 2004259 and the Planning and Development (Strategic Environmental Assessment) Regulations 2004260 purport to transpose the requirements of the SEA directive into Irish law.261 The SEA regulations, which came into force on 21 July 2004, amend relevant provisions of the Planning and Development Regulations to take account of SEA requirements. The SEA regulations set out detailed procedures for the assessment of the environmental effects of implementing development plans (including variations of development plans),262 Local Area Plans, Regional Planning Guidelines and planning schemes for Strategic Development Zones.263 The regulations follow the scheme of the SEA directive closely and appear to transpose the core requirements of the directive faithfully. How the new requirements are applied in practice by the 257

PDA s 10(5)(a). PDA s 19(4)(a) and s 23(3)(a) respectively. 259 European Communities (Environmental Assessment of Certain Plans and Programmes) Regs 2004 (SI No 435 of 2004). 260 Planning and Development (Strategic Environmental Assessment) Regs 2004 (SI No 436 of 2004). 261 SI No 435 of 2004 aims to transpose SEA obligations in respect of plans and programmes for the various sectors listed in Art 3(2) of the directive (including any review of the master plan for the Dublin Docklands area under the Dublin Docklands Development Authority Act 1997) apart from land-use planning. While the Regs provide the statutory basis for transposition of the SEA directive in respect of land-use planning (Arts 4, 5, 6, 7, and 8 of the SEA Regs amend the relevant provisions of the PDA), the detailed provisions governing SEA obligations in the context of land-use planning are found in a separate statutory instrument—SI No 436 of 2004. See generally Circular Letter BC 8/2004, 16 July 2004 and Scannell, above n 122, at paras 5.200–5.211. 262 See also DEHLG, Development Plans: Guidelines for Planning Authorities (2007) 56–68, text available at: www.environ.ie. 263 PDA, Part IX introduced the concept of a Strategic Development Zone (SDZ) into Irish planning law. Essentially, this involves the Minister for the Environment, Heritage and Local Government proposing that the Government designate a particular site as a SDZ because of its potential to facilitate development that is of economic or social importance to the State (PDA, s166). The relevant development agency is required to prepare a draft planning scheme in respect of the site and to submit it to the relevant planning authority. See generally Simons, above n 37, at paras 8.176–8.209. 258

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Closing Observations relevant competent authorities is, of course, another matter. The DEHLG published guidelines for competent authorities on the implementation of the directive in the land-use planning context.264 The guidelines deal with the various stages of the SEA process and explain how SEA requirements should be integrated into existing plan-making procedures. These guidelines, together with detailed SEA guidance notes published by the Commission, provide valuable pointers for competent authorities and should go someway towards ensuring faithful and consistent application of SEA in practice. While issues of interpretation arise in the day-to-day application of SEA obligations, the SEA directive goes into more detail than the EIA directive in spelling out the particulars of the SEA procedure and specifying what is required of Member States and competent authorities. This greater level of detail, together with the availability of official guidance from the outset, should help to reduce the scope for disputes concerning the practical implementation of the directive. Anecdotal evidence indicates that Irish competent authorities are struggling to come to terms with SEA obligations and it will take some considerable time before SEA is integrated into national planning law and practice. The Environmental Protection Agency has observed that [w]hile many of the economic sectors are now beginning to address the requirements of the SEA Directive, it is notable that a number of significant sectors, in particular the forestry, tourism and transport sectors have yet to engage meaningfully in the process.265

The Agency has also noted that the statutory authorities do not have any enforcement powers under the national legislation implementing the SEA directive to require plan/programme-makers to undertake SEA.266 Pursuant to Article 12(3) of the SEA Directive, the Commission was required to send a first report on the application and effectiveness of the directive to the European Parliament and the Council before 21 July 2006, but this deadline has not been met. This report, together with the individual national reports, should provide a more detailed and authoritative account of the state of implementation and a solid framework for more detailed analysis of the integration of SEA requirements at national level.267 IX.

CLOSING OBSERVATIONS

EIA is an important regulatory mechanism in the pursuit of sustainable development. The EIA directive aims to ensure that projects likely to have significant effects on the environment are subjected to careful and systematic assessment 264 DEHLG, Implementation of SEA Directive 2001/42/EC: Assessment of the Effects of Certain Plans and Programmes on the Environment—Guidelines for Regional Authorities and Planning Authorities (2004), text available at: www.environ.ie. 265 Ireland’s Environment 2008 (EPA, 2008) 254, text available at: www.epa.ie. 266 Ibid, 256. 267 In the Irish context see T O’Mahony, ‘SEA-Mechanism for Sustainable Development and Environmental Protection?’ paper presented at Irish Planning Institute Annual Conference, 3 April 2008, text available at: www.irishplanninginstitute.ie.

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EIA Directive & Environmental Protection before development consent is granted. The directive prescribes a structured decision-making procedure in respect of projects falling within its scope. The inquiry is more focused on potential negative impacts, and means of avoiding or mitigating such impacts, than is the case in ordinary development consent procedures. The assessment is based on specified information submitted by the developer (the EIS), supplemented by the comments and observations of environmental authorities and the public. The EIS must include a description of the measures designed to avoid or reduce significant adverse impacts of the proposed project and the data necessary to identify and assess the main effects the project is likely to have on the environment. It must also provide an outline of the main alternatives studied by the developer. The opportunity to study and comment on the developer’s approach to alternative options is a particularly valuable feature of the EIA process from the point of view of the public and ENGOs. The information gathered as a result of the consultation process must be taken into account by the decision-maker. The aim is to ensure that decisions are taken in full knowledge of the likely environmental impacts. To this end, public participation is a key value underpinning the directive. Although the EIA directive is essentially a procedural measure, the various components of the EIA process operate to facilitate and promote environmentally sustainable decision-making. It is therefore critical that individuals and ENGOs have access to effective review mechanisms to ensure that decision-makers adhere to the procedural requirements mandated by the directive. The progressive strengthening of participation rights catalogued in this chapter is a clear acknowledgement that the public is ideally placed to contribute expert locally-based knowledge and values to the decision-making process. Annual Reports on Monitoring of the Application of Community Law consistently draw attention to the problem of incorrect application of the EIA directive by national authorities. Judicial review before the national courts is one method by which individuals and ENGOs may seek to enforce the requirements of the directive. Restrictive national procedural rules may, however, operate to undermine the effectiveness of attempts to enforce the directive locally. The amendments to the EIA directive based on the access to justice pillar of the Aarhus Convention are therefore very significant. Notwithstanding the ever-present references to national law, Article 10a supports the idea of ‘wide access to justice’ in EIA matters and provides a firm base on which to question the effectiveness of national review procedures and local remedies. It remains to be seen how the ECJ will interpret the new provisions and the extent to which the amendments will augment the Court’s existing case law on effective judicial protection for the rights that individuals derive from Community EIA law. As will become clear in chapter five, the first series of decisions from the Irish courts concerning Article 10a suggest a minimalist approach to the obligations articulated therein.

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3 The ECJ and National Procedural Rules and Remedies I.

INTRODUCTION

T

HE ENVIRONMENTAL IMPACT Assessment (EIA) directive depends, to a considerable extent, on national planning and administrative law for its practical implementation.1 Judicial review is the main avenue by which individuals and environmental non-governmental organisations (ENGOs) seek to challenge the legality of planning decisions allegedly taken in breach of the procedural requirements mandated by the directive. The rules governing judicial review determine whether or not individuals and ENGOs have effective access to the national courts to raise arguments based on Community law. Chapter two explained that recent amendments to the EIA directive establish minimum standards for access to review procedures to challenge ‘the substantive or procedural legality’ of decisions concerning projects that are subject to EIA. Apart from this recent legislative initiative, the European Court of Justice (ECJ) has consistently ruled that national courts must provide effective judicial protection for the rights that individuals derive from Community law. This principle is broader than the right of access to a review procedure articulated in the EIA directive. Pursuant to Article 10a of the directive, a Member State’s obligation is limited to providing access to administrative or judicial review (ie the two distinct avenues of review are presented as alternative options). Even where a Member State purports to comply with the requirements of Article 10a by putting in place a system of review before a body that is not a court, the principle of effective judicial protection demands that access to judicial control must also be available. The principle of effective judicial protection therefore provides an important supplement to the minimum requirements set down in Article 10a. Article 10a specifically addresses the question of locus standi (provision is made for ‘wide access to justice’) and the scope of the review procedure (the ‘substantive or procedural legality’ of the contested decision must be open to 1 For an overview of the impact of European Community law on national procedural rules in the context of EIA see G de Búrca and Á Ryall, ‘The ECJ and Judicial Review of National Administrative Procedure in the Field of EIA’ in K-H Ladeur (ed), The Europeanisation of Administrative Law: Transforming National Decision-making Procedures (Aldershot, Ashgate, 2002).

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ECJ and National Procedural Rules & Remedies review). It also prescribes minimum requirements for review procedures that go beyond the general principles articulated in the ECJ case law to date. Pursuant to Article 10a[5], the review procedure must be ‘fair, equitable, timely and not prohibitively expensive’. Until such time as the ECJ interprets the enhanced access to justice provisions, the Court’s evolving jurisprudence on national procedural rules and remedies provides important guidance when considering whether or not national review procedures are compatible with Article 10a. It is therefore necessary to look beyond the text of Article 10a and to examine the intricacies of the principle of effective judicial protection in order to get a more complete picture of the Community law principles governing access to review procedures and the availability of appropriate remedies. There is extensive literature on the ECJ’s jurisprudence on national procedures and remedies.2 The aim of this chapter is to draw out themes that merit special attention in the specific context of local enforcement of the EIA directive. The chapter begins with an overview of the ECJ’s general approach to national procedural rules and remedies. It then presents an outline of the main elements of the principle of effective judicial protection developed by the ECJ. Two procedural issues are especially relevant where individuals seek to enforce the EIA directive locally: (1) locus standi and (2) the standard of review applied by the national courts when called upon to examine decisions taken by public authorities. The ECJ’s approach to both issues merits careful analysis and is examined separately below.

II.

GENERAL PRINCIPLES

In its early case law, the ECJ took the firm view that it fell to the national legal orders to determine local rules governing claims based on Community law.3 While emphasising the role of the national courts as protectors of the rights that individuals derive from Community law, the Court’s laissez-faire approach was 2 See, inter alia: T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006) ch 9; A Arnull, The European Union and its Court of Justice, 2nd edn (Oxford, Oxford University Press, 2006) ch 9; S Prechal, Directives in EC Law, 2nd edn (Oxford, Oxford University Press, 2005) especially ch 7; M Dougan, National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation (Oxford, Hart Publishing, 2004); W Van Gerven, ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev 501; C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000); A Ward, Judicial Review and the Rights of Private Parties in EC Law, 2nd edn (Oxford, Oxford University Press, 2007) especially chs 3 and 4; R Craufurd Smith, ‘Remedies for Breaches of EC Law in National Courts: Legal Variation and Selection’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1999); CN Kakouris, ‘Do the Member States Possess Judicial Procedural “Autonomy”?’ (1997) 34 CML Rev 1389; J Lonbay and A Biondi (eds), Remedies for Breach of EC Law (Chichester, Wiley, 1997); and M Hoskins, ‘Tilting the Balance: Supremacy and National Procedural Rules’ (1996) 21 EL Rev 365. 3 Case 33/76 Rewe-Zentralfinanz eG & Rewe-Zentral AG v Landwirtschaftskammer für das Saarland [1976] ECR 1989 para 5 and Case 45/76 Comet BV v Produktschap voor Siergewassen [1976] ECR 2043 paras 12–16.

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General Principles motivated by the lack of a clear legislative mandate in this complex and contested area of legal policy. The ECJ did, however, articulate two overarching conditions that national provisions were required to meet. First, it identified the principle of equivalence, whereby claims based on Community law may not be treated less favourably than similar claims based on national law. Secondly, it developed a principle of ‘practical possibility’, addressing whether the operation of a procedural rule makes it possible or not to exercise a particular Community law right.4 The Court’s early case law is generally acknowledged as respecting the principle of ‘national procedural autonomy’.5 Nevertheless, subsequent developments have indicated a less deferential attitude on the part of the ECJ and a new emphasis on promoting the effectiveness of Community law. In Simmenthal,6 the Court ruled that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. Accordingly any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law.7

A similarly forceful approach to the effectiveness of national remedies emerged in decisions such as Von Colson,8 Johnston,9 Heylens10 and Borelli,11 where the ECJ emphasised the national courts’ duty ‘to guarantee real and effective judicial protection’12 for Community law rights. The early principle of ‘practical possibility’ gradually strengthened into a more uncompromising requirement that the conditions imposed by national law must not make it ‘virtually impossible or excessively difficult’ to enforce Community law.13 This obligation is generally

4 This phrase is borrowed from P Craig and G de Búrca, EU Law: Text, Cases and Materials, 4th edn (Oxford, Oxford University Press, 2007) 307. 5 But see Kakouris, above n 2, at 1390, who argues: ‘[T]he case law of the Court does not recognize an “autonomy” reserved to the Member States, and that, in point of fact, the Court has tended to regard national procedural law merely as an ancillary body of law the function of which is to ensure the effective application of substantive Community law’. 6 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629. 7 Ibid, paras 21–2. 8 Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891. 9 Case 222/84 Johnston v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651. 10 Case 222/86 UNECTEF v Heylens [1987] ECR 4097. 11 Case C-97/91 Oleificio Borelli SpA v Commission [1992] ECR I-6313. 12 Case 14/83 Von Colson [1984] ECR 1891 para 23. 13 Case 199/82 Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595 para 14.

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ECJ and National Procedural Rules & Remedies described as ‘the principle of effectiveness’. The decisions in Factortame,14 Emmott,15 and Francovich16 provided further evidence of an interventionist approach on the part of the ECJ. The Court’s accelerating preoccupation with effectiveness and with ensuring the adequacy of national remedies was grounded firmly on Article 10 EC, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure the fulfilment of their obligations under Community law. Subsequent decisions indicate that the ECJ has adopted a more ambivalent position. In Van Schijndel,17 the Court began by affirming the principles of equivalence and effectiveness. It then went on to provide practical guidance for the national courts as to how a contested procedural rule should be scrutinised in light of the twin principles: For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of the procedure, must, where appropriate, be taken into consideration.18

This passage indicates a more deferential approach to procedures operating in the legal systems of the Member States. In determining whether or not a particular national provision renders the application of Community law ‘virtually impossible’ or ‘excessively difficult’, the national court must consider the contested rule in its proper context. First, the national court is required to examine the purpose(s) that the rule is designed to serve (eg, protection of the rights of the defence; legal certainty; the proper conduct of proceedings; or the avoidance of unnecessary delay). Secondly, the national court must weigh this objective against the potential impact of the rule on the enforcement of the Community law right at issue. The principle of effectiveness does not dictate that potentially restrictive national rules must be set aside in all circumstances. For example, depending on the particular context, a reasonable time limit may be applied to a claim based on Community law in the interests of legal certainty and sound administration.19 A

14

Case C-213/89 R v Secretary of State for Transport ex p Factortame Ltd [1990] ECR I-2433. Case C-208/90 Emmott v Minister for Social Welfare [1991] ECR I-4269. 16 Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357. 17 Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705. 18 Ibid, para 19. See also S Prechal, ‘Community Law in National Courts: The Lessons from Van Schijndel’ (1998) 35 CML Rev 681 and Advocate General Jacobs in an extra-judicial contribution, ‘Enforcing Community Rights and Obligations in National Courts: Striking the Balance’ in J Lonbay and A Biondi (eds), Remedies for Breach of EC Law (Chichester, Wiley, 1997). 19 See, eg, Case C-231/96 Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze [1998] ECR I-4951 para 35; Case C-62/00 Marks and Spencer plc v Commissioners of Customs & Excise 15

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General Principles further example is found in Van Schijndel, where the ECJ ruled that a procedural rule that precluded the national court from raising certain points of law of its own motion (ex officio) did not infringe the principle of effectiveness. The Court noted that this limitation on the power of the national court was justified by reason of the fact that it facilitated the proper conduct of the proceedings and avoided undue delay.20 Later developments, such as the retreat from Emmott 21 (as evidenced in Fantask22 and Edis23), lend further support to the development of a less intrusive approach on the part of the ECJ. In Kapferer,24 the ECJ ruled that the duty of co-operation in Article 10 EC did not require a national court to disapply its internal procedural rules in order to review and set aside a final judicial decision that is contrary to Community law. The Court grounded this conclusion on the fundamental importance of the principle of res judicata. Nevertheless, it is clear that the ECJ remains willing to intervene and to direct that a restrictive rule of procedure must be set aside in circumstances where the effectiveness of Community law would be undermined by the application of the rule in question. The rulings in Levez,25 Courage26 and Muñoz,27 for example, demonstrate a markedly prescriptive approach. Muñoz, in particular, provides a striking example of the principle of effectiveness in action. This case concerned access to the national courts to enforce Community regulations on the common organisation of the fruit and vegetable market. The ECJ recalled its strong rulings in Simmenthal, Factortame and Courage and confirmed that the national courts must ensure that the provisions of Community law ‘take full effect’.28 The Court stressed that the possibility of instituting civil proceedings in such cases served to strengthen the practical working of the Community rules on quality standards and provided an important supplement to enforcement action by national authorities.29 While the

[2002] ECR I-6325 para 35; Case C-30/02 Recheio Cash & Carry SA v Fazenda Pública/Registo Nacional de Pessoas Colectivas [2004] ECR I-6051 paras 18–25 and Case C-2/06 Kempter KG v Hauptzollamt Hamburg-Jonas [2008] ECR I-0000 paras 57–9. See further Ward, above n 2, at 113–54; Dougan, above n 2, at 267–93 and Prechal, above n 2, at 152–6. 20 Joined Cases C-430/93 and C-431/93 Van Schijndel [1995] ECR I-4705 para 21. See also Joined Cases C-222/05–225/05 Van der Weerd v Minister van Landbouw, Natuur en Voedselkwaliteit [2007] ECR I-4233 paras 34–6. Compare Case C-312/93 Peterbroeck v Belgian State [1995] ECR I-4599 (this ruling was based on ‘the special features’ of the procedure in question). 21 Case C-208/90 Emmott [1991] ECR I-4269. 22 Case C-188/95 Fantask A/S v Industriministeriet [1997] ECR I-6783. 23 Case C-231/96 Edis [1998] ECR I-4951. 24 Case C-234/04 Kapferer v Schlank & Schick GmbH [2006] ECR I-2585. 25 Case C-326/96 BS Levez v TH Jennings (Harlow Pools) Ltd [1998] ECR I-7835. 26 Case C-453/99 Courage Ltd v Crehan [2001] ECR I-6297. 27 Case C-253/00 Muñoz y Cia SA, Superior Fruiticola SA v Frumar Ltd [2002] ECR I-7289. 28 Ibid, para 28. 29 Ibid, para 31. See also Joined Cases C-295/04 to C-298/04 Manfredi v Lloyd Adriatico Assicurazioni SpA [2006] ECR I-6619 paras 89–91.

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ECJ and National Procedural Rules & Remedies full impacts of this landmark ruling remain to be teased out, it provides a welcome fillip for the private enforcement of Community law rights and obligations.30 The extent to which national courts are obliged to raise points of Community law of their own motion (ex officio) remains unclear. The jurisprudence on this practical issue reveals the fine balance that the ECJ attempts to maintain between national procedural autonomy on the one hand, and the effective application of Community law at local level on the other. Kraaijeveld 31 (which concerned enforcement of the EIA directive) provides that where national law permits a court to raise points of law of its own motion, then that court is obliged to raise any relevant points of Community law, even where such points have not been raised by the parties.32 In other words, the court’s discretion to act of its own motion becomes a binding obligation when Community law is at stake. The reasoning in Kraaijeveld is based firmly on Factortame where the ECJ, drawing on Article 10 EC, stressed the national courts’ duty ‘to ensure the legal protection which persons derive from the direct effect of provisions of Community law’.33 There is an interesting line of authority in the field of consumer protection, where the ECJ confirmed that national courts enjoy an inherent power to raise points of Community law of their own motion.34 In Van der Weerd,35 however, the ECJ recalled its earlier Van Schijndel ruling and determined that the principle of effectiveness did not impose a duty on national courts to raise a plea based on Community law ex officio where parties to the proceedings are given ‘a genuine opportunity’ to plead Community law before the national court.36 While the ECJ has not expressly ruled that national courts are under a general duty to raise points of Community law of their own motion, the evolving case law on this point exhorts national courts to be alert and ready to intervene in circumstances where Community law is applicable. There is little in the way of specific guidance from the ECJ on the question of costs. The Court has held that in the absence of Community rules, liability for the costs incurred by the parties to the main proceedings as a result of an Article 234 EC reference is governed by national law. As ever, the national rules must comply with the principles of equivalence and effectiveness. In Clean Car,37 the relevant Austrian rules provided that the successful party in the main proceedings could

30 See also Dougan, above n 2, at 42–5 and G Betlem, ‘Torts, A European Ius Commune and the Private Enforcement of Community Law’ (2005) 64 CLJ 126. 31 Case C-72/95 Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403. 32 Ibid, para 60. 33 Ibid, para 58. Case C-213/89 Factortame [1990] ECR I-2433. 34 Consider, eg, Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial SA v Rocío Murciano Quintero and Salvat Editores SA v José M Sánchez Alcón Prades [2000] ECR I-4941 para 29. 35 Joined Cases C-222/05–225/05 Van der Weerd [2007] ECR I-4233, above n 20. 36 Ibid, para 41. See also J Engström, ‘National Courts’ Obligation to Apply Community Law Ex Officio—The Court Showing New Respect for Party Autonomy and National Procedural Autonomy? (2008) 1 Review of European Administrative Law 67. 37 Case C-472/99 Clean Car Autoservice GmbH v Austria [2001] ECR I-9687.

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General Principles recover certain costs. The domestic rules did not include specific provision for the costs of an Article 234 EC reference so the general rule—that each party bear their own costs—was applied. The ECJ was of the view that this rule did ‘not appear to be of such a kind as to render virtually impossible or excessively difficult the exercise of rights conferred by Community law’.38 Subsequently, in Evans,39 the ECJ was asked to consider whether reimbursement of costs incurred in pursuing a claim for compensation pursuant to Directive 84/5/EEC40 was an essential component of the right to compensation. The Court began by observing that the directive in question did not make any express provision for reimbursement of costs and that the majority of Member States considered the question of costs to be a procedural matter.41 In the absence of specific Community measures, it fell to the Member States to establish the detailed procedural rules governing compensation claims under the directive, subject again to the principles of equivalence and effectiveness. The Court was careful to highlight, however, the critical role of the national court in verifying whether or not local procedural rules actually complied with those principles.42 In light of ‘the less advantageous position’ of accident victims vis-à-vis the competent authority (in this case the Motor Insurers’ Bureau), the ECJ required the national court to assess whether it was ‘reasonable’ or ‘necessary’ for such victims to be provided with legal assistance. It followed from this analysis that reimbursement of costs pursuant to Article 1(4) of Directive 84/5/EEC was only required where reimbursement was ‘necessary to safeguard the rights’ conferred by the directive in accordance with the principles of equivalence and effectiveness.43 Evans is interesting for the reason that the ECJ provided a more expansive account of what is expected of the national courts when called upon to consider contested procedural rules. Following Evans, the national court is required to engage in a meaningful evaluation of the national provision at issue in order to ascertain its impact on access to judicial control. A number of points emerge from the synthesis of the case law presented above. First, the broad manner in which the principle of effectiveness has been articulated by the ECJ creates considerable scope for flexibility and differentiation at national level. The now well-established principle—that the national provision(s) at issue must not render the enforcement of Community law ‘virtually impossible’ or ‘excessively difficult’—has created a malleable standard, which leaves the national courts with plenty of room to manoeuvre. The Court’s use of the qualifications ‘virtually impossible’ or ‘excessively difficult’ sets down an onerous

38

Ibid, para 29. Case C-63/01 Evans v Secretary of State for the Environment, Transport & the Regions [2003] ECR I-14447. 40 Dir 84/5/EEC on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles [1984] OJ L8/17. 41 Case C-63/01 Evans [2003] ECR I-14447 paras 74–5. 42 Ibid, para 77. 43 Ibid, para 78. 39

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ECJ and National Procedural Rules & Remedies test for parties who maintain that a restrictive local rule is incompatible with the principle of effectiveness. A national court may take the view that a contested rule meets the Community law requirements articulated in the principle of effectiveness without making a reference pursuant to Article 234 EC. As it falls to the national court to decide whether or not to make a reference, there is no guarantee that a dubious national rule will ever be subject to scrutiny by the ECJ. Secondly, the principle of effectiveness leads to considerable uncertainty in practice because (following Van Schijndel), the compatibility of a contested national rule with Community law standards falls to be assessed on a case-by-case basis. Thirdly, it is clear that the Van Schijndel formula does very little to facilitate the uniform application and enforcement of Community law across the Member States. The legality of a particular national rule or condition will depend on the local context in which that rule operates. As against this, it is important to recall that a degree of diversity in the application and enforcement of Community law is inevitable in the absence of specific legislative measures harmonising national procedures and remedies. It is inherent in the Van Schijndel formula that procedural rules cannot be neatly detached from their national context. This point is emphasised by Harlow, who challenges the feasibility of approximation of European remedies by means of ECJ initiatives founded on the preliminary ruling procedure. The way forward, in Harlow’s view, ‘is to trust national courts, best fitted to understand the national context, to decide routine points of EC law for themselves’.44 There are obvious limits to the uniform application of Community law, which are sometimes overlooked. Prechal maintains that the pursuit of uniformity is ‘unrealistic’ and does not make sense in light of how the relationship between Community law and national law is structured at present.45 This is a sensible view. The effectiveness of Community law cannot be isolated from local legal and administrative culture. The overall national context in which procedural rules operate is critical from an effectiveness perspective. There is a serious risk that ignoring this reality in the name of uniformity will simply aggravate existing tensions between national and Community law at local level.46 III.

PRINCIPLE OF EFFECTIVE JUDICIAL PROTECTION

A review of the case law indicates that the twin principles of equivalence and effectiveness are, in effect, sub-elements of the broader principle of effective 44 C Harlow, ‘A Common European Law of Remedies?’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 82. See also C Harlow, ‘Voices of Difference in a Plural Community’ and P Legrand, ‘Public Law, Europeanisation and Convergence: Can Comparatists Contribute?’ in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002). Compare J Schwarze, ‘The Convergence of the Administrative Laws of the EU Member States’ (1998) 4 European Public Law 191. 45 Prechal, above n 2, at 178. 46 See also the detailed critique of the pursuit of a uniform system of remedies and procedures driven by an ‘integration through law’ approach presented in Dougan, above n 2.

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Principle of Effective Judicial Protection judicial protection developed by the ECJ. The twin principles establish the Community law standard that national procedures must meet if they are to be lawfully applied by national courts in cases involving claims based on Community law. National remedies and sanctions must, in turn, be adequate, proportionate and effective. The principle of effective judicial protection constitutes a fundamental principle of Community law. In essence, it requires that ‘an individual who considers himself wronged by a measure which deprives him of a right or advantage under Community law must have access to a remedy against that measure and be able to obtain complete judicial protection’.47 The principle is constructed around the core requirement of ‘access to justice’ or ‘access to judicial control’. It has a clear basis in the Rule of Law.48 The ECJ has consistently acknowledged that the principle of effective judicial protection is grounded in the constitutional traditions of the Member States and in Articles 6 and 13 of the European Convention on Human Rights (ECHR).49 The principle has gained further significance following the elaboration of the Charter of Fundamental Rights of the European Union (the Charter).50 Article 47 (the right to an effective remedy and to a fair trial), provides at paragraphs 1 and 3 that [e]veryone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article … Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. (emphasis added)

Article 47 confirms the fundamental nature of the right to an effective remedy in the Community legal order.51 More specifically, Article 47(3) recognises an express right to legal aid (at least in certain circumstances) in order to give

47 Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 para 38 of the Opinion: Advocate General Jacobs (citing Advocate General Darmon in Case C-97/91 Borelli [1992] ECR I-6313 para 31 of the Opinion). 48 Case C-50/00 P Unión de Pequeños Agricultores [2002] ECR I-6677 para 38. See also Case 294/83 Parti Ecologiste ‘Les Verts’ v Parliament [1986] ECR 1339 para 23, where the ECJ explained that ‘the European Economic Community is a Community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’. 49 Case 222/84 Johnston [1986] ECR 1651 para 18; Case 222/86 Heylens [1987] ECR 4097 para 14; Case C-97/91 Borelli [1992] ECR I-6313 para 14; Case C-424/99 Commission v Austria [2001] ECR I-9285 para 45; Case C-269/99 Kühne v Jütro Konservenfabrik GmbH & Co KG [2001] ECR I-9517 para 57; Case C-50/00 P Unión de Pequeños Agricultores [2002] ECR I-6677 paras 38–9; Case C-432/05 Unibet London Ltd v Justitiekanslern [2007] ECR I-2271 para 37 (Unibet); Case C-426/05 Tele2 Telecommunication GmbH v Telekom-Control-Kommission [2008] ECR I-0000 para 30 and Case C-55/06 Arcor AG & Co KG v Bundesrepublik Deutschland [2008] ECR I-0000 para 174. 50 Charter of Fundamental Rights of the European Union [2000] OJ C364/1. 51 In Case T-177/01 Jégo-Quéré & Cie SA v Commission [2002] ECR II-2365, the Court of First Instance (CFI) deployed Arts 6 and 13 ECHR and Art 47 of the Charter to justify a departure from the restrictive interpretation of the concept of ‘individual’ concern in the established case law on Art 230(4) EC. The ECJ subsequently set aside the judgment of the CFI: Case C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425.

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ECJ and National Procedural Rules & Remedies substance to the right to an effective remedy. This right is a welcome acknowledgement that the cost of legal proceedings may well be prohibitive, depending on the means and circumstances of a potential litigant. It is open to the ECJ to draw on this provision to justify close scrutiny of restrictive national provisions governing entitlement to legal aid. In Evans,52 Advocate General Alber took the view that Article 47 may be deployed as ‘a standard of comparison, at least in so far as it addresses generally recognised principles of law’.53 In Unibet,54 the ECJ observed that the principle of effective judicial protection was reaffirmed by Article 47 of the Charter.55 As explained in chapter two, the Charter will gain binding legal status under the Treaty of Lisbon56 (assuming the Treaty comes into force). Furthermore, Article 1(20) of the Treaty of Lisbon inserts a new Article 9F in the Treaty on European Union which provides, inter alia, that Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

This provision reflects the established ECJ jurisprudence on the principle of effective judicial protection. Apart from the welcome references to effective remedies in both the Charter and the Treaty of Lisbon, this is an area that is capable of interesting future developments following the recent amendments to the EIA directive based on the access to justice provisions of the Aarhus Convention, considered earlier in chapter two.

A.

Evolution

The initial formulation of the principle of effective judicial protection can be traced back to the 1984 Von Colson ruling.57 On this occasion, the ECJ acknowledged that the Equal Treatment directive did not specify any particular form of sanction for unlawful discrimination. Article 6 of the directive merely required Member States to introduce the measures necessary to ensure that persons who considered that they had suffered unlawful discrimination could ‘pursue their claims by judicial process’. In other words, it provided for a right of recourse to the national courts to enforce the right to equal treatment. Notwithstanding the clear choice left to Member States in determining the appropriate sanction, the Court ruled that the sanction must be such as ‘to guarantee real and effective judicial protection’ and must have ‘a real deterrent effect on the employer’.58 The sanction must also be adequate having regard to the damage sustained by the 52 53 54 55 56 57 58

Case C-63/01 Evans [2003] ECR I-14447. Ibid, para 80. Case C-432/05 Unibet [2007] ECR I-2271. Ibid, para 37. Treaty of Lisbon [2007] OJ C306/1. Case 14/83 Von Colson [1984] ECR 1891. Ibid, para 23.

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Principle of Effective Judicial Protection complainant.59 In setting these constraints to the apparently broad discretion left to Member States pursuant to Article 6, the Court emphasised that the purpose of the directive would be undermined in the absence of ‘an appropriate system of sanctions’. The ECJ has also confirmed that, depending on the circumstances, the payment of interest is ‘an essential component’ of the right to full and adequate reparation.60 Subsequently, in Johnston,61 the ECJ recalled that Article 6 of the Equal Treatment directive requires that the rights conferred by that directive ‘may be effectively relied upon before the national courts’.62 The Court continued: The requirement of judicial control stipulated by [Article 6 of the Equal Treatment directive] reflects a general principle of law which underlies the constitutional traditions common to the Member States. That principle is also laid down in Articles 6 and 13 [ECHR] … By virtue of Article 6 of Directive No 76/207, interpreted in the light of the general principle stated above, all persons have the right to obtain an effective remedy in a competent court against measures which they consider to be contrary to the principle of equal treatment for men and women laid down in the directive. It is for the Member States to ensure effective judicial control as regards compliance with the applicable provisions of Community law and of national legislation intended to give effect to the rights for which the directive provides.63

Johnston is significant to the extent that the ECJ recognised the right to effective judicial control as a fundamental principle of Community law. The ruling also emphasised the national courts’ duty to provide ‘an effective remedy’ for breach of Community law rights. It is clear from the broad scope of the Johnston ruling that the principle of effective judicial protection applies regardless of whether a directive contains a specific provision concerning enforcement and remedies. The scope of the principle of effective judicial protection, and its implications for national judicial review procedures, have gradually been elaborated in the post-Johnston ECJ case law. In Heylens,64 the Court ruled that a competent authority is required to state the reasons for its decision in order to facilitate effective judicial review.65 Those affected by the decision must be in a position to defend their Community law right(s) ‘under the best possible conditions and [must] have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in their applying to the courts’.66 Reasons are to be furnished either in the decision of the competent authority itself or in a 59

Ibid. Case C-271/91 Marshall v Southampton and South-West Hampshire AHA [1993] ECR I-4367 para 31. See also Case C-410/98 Metallgesellschaft & Hoechst v Inland Revenue [2001] ECR I-4727 paras 94–5 and Case C-63/01 Evans [2003] ECR I-14447 paras 65–71. 61 Case 222/84 Johnston [1986] ECR 1651. 62 Ibid, para 17. 63 Ibid, paras 18–19. 64 Case 222/86 Heylens [1987] ECR 4097. 65 Ibid, para 15. See also Case C-70/95 Sodemare SA v Regione Lombardia [1997] ECR I-3395 para 17 of the Opinion (Advocate General Fennelly). 66 Case 222/86 Heylens [1987] ECR 4097 para 15. 60

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ECJ and National Procedural Rules & Remedies subsequent document following a request from the individual affected.67 The Court has also clarified that the requirement of an adequate remedy, and the duty to state reasons, are limited to ‘final decisions’ and do not apply ‘to opinions and other measures occurring in the preparation and investigation stage’.68 In Housieaux,69 Advocate General Kokott observed: The right to good administration creates for the administration an obligation to give reasons for its decisions. Such a statement of reasons is not merely a general expression of the transparency of the administration’s actions, but is also intended, in particular, to give the individual the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in his applying to the courts. There is therefore a close connection between the obligation to give reasons and the fundamental right to effective legal protection.70

The decisions in Factortame71 and Francovich72 articulated additional elements of the principle of effective judicial protection. Factortame required a national court to set aside a procedural rule that prevented the court from granting interim protection in circumstances where interim relief was necessary in order to ensure the effective protection of Community law rights pending a full hearing of the matter. The ECJ did not on this occasion prescribe the criteria to be applied by the national court in determining whether or not to grant interim relief where it is alleged that a provision of national law is incompatible with Community law.73 Subsequently, in Unibet,74 the ECJ determined that, in the absence of Community rules governing this matter, it was for each Member State to determine the conditions under which interim relief is to be granted in such cases.75 It therefore falls to the national courts to determine the appropriate criteria, subject to the principles of equivalence and effectiveness. Francovich76 is a particularly strong manifestation of the right to an effective remedy. On this occasion the ECJ ruled that

67

Ibid. Ibid, para 16. Case C-186/04 Housieaux v Délégués du conseil de la Région de Bruxelles-Capitale [2005] ECR I-3299. 70 Ibid, para 32 of the Opinion (footnotes omitted). 71 Case C-213/89 Factortame [1990] ECR I-2433. 72 Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357. 73 Contrast the position where interim relief is sought before a national court where the validity of a Community measure is challenged. The ECJ has prescribed detailed criteria that must be applied by the national courts in such cases: Joined Cases C-143/88 and C-92/89 Zuckerfabrik Süderdithmarschen AG v Hauptzollamt Itzehoe and Zuckerfabrik Soest v Hauptzollamt Paderborn [1991] ECR I-415 para 33; Case C-465/93 Atlanta Fruchthandelsgesellschaft mbH v Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761 para 51; Case C-334/95 Krüger GmbH & Co KG v Hauptzollamt Hamburg-Jonas [1997] ECR I-4517 para 47 and Case C-17/98 Emesa Sugar (Free Zone) NV v Aruba [2000] ECR I-675 para 69. 74 Case C-432/05 Unibet [2007] ECR I-2271. 75 Ibid, paras 80–81. 76 Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357. 68 69

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Principle of Effective Judicial Protection [t]he full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain redress when their rights are infringed by a breach of Community law for which a Member State can be held responsible.77

This theme was developed further in Brasserie du Pêcheur,78 where the Court explained the origin of the conditions governing State liability in the following terms: In order to determine those conditions, account should first be taken of the principles inherent in the Community legal order which form the basis for State liability, namely, first, the full effectiveness of Community rules and the effective protection of the rights which they confer, and second, the obligation to cooperate imposed on Member States by Article 5 of the Treaty [Article 10 EC].79

In Borelli,80 the Court drew on the principle of effective judicial protection to require the national court to review an act of a competent authority even though national law provided that the act in question (a preparatory measure) was not subject to review.81 The ECJ added a further dimension to the principle in Coote.82 On this occasion the Court confirmed that the principle of effective judicial protection extended to retaliatory measures which an employer might take where an employee brought proceedings alleging unlawful discrimination.83 Coote demonstrates that the principle has far-reaching implications for the range of remedies available within the national legal order. In Kofisa Italia84 and Siples,85 the Court insisted that even though the clear wording of Article 244 of the Community Customs Code conferred exclusive power on the national custom authorities to suspend the implementation of a contested decision (concerning the application of customs legislation), that provision could not restrict the right to effective judicial protection.86 The rulings in Kofisa Italia and Siples confirm the basic principle that any decision of a national authority in an area governed by Community law must be subject to judicial control. In Commission v Austria,87 the ECJ was asked whether a right of appeal to an administrative authority (as opposed to a court) complied with the principle of effective judicial protection in the specific context of Article 6(2) of Directive 89/105/EEC on the inclusion of

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Ibid, para 33. Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029. 79 Ibid, para 39. 80 Case C-97/91 Borelli [1992] ECR I-6313. 81 Ibid, para 13. See also Case C-269/99 Kühne [2001] ECR I-9517 para 58. 82 Case C-185/97 Coote v Granada Hospitality Ltd [1998] ECR I-5199. 83 Ibid, para 24. 84 Case C-1/99 Kofisa Italia Srl v Ministero delle Finanze [2001] ECR I-207. 85 Case C-226/99 Siples Srl v Ministero delle Finanze [2001] ECR I-277. 86 Case C-1/99 Kofisa Italia [2001] ECR I-207 paras 45–6 and Case C-226/99 Siples [2001] ECR I-277 paras 16–17. 87 Case C-424/99 Commission v Austria [2001] ECR I-9285. 78

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ECJ and National Procedural Rules & Remedies medicinal products within the scope of national health insurance systems.88 The Court ruled that ‘appeals to independent experts cannot be equated with the remedies mentioned in the directive’.89 It followed that the contested Austrian measures (providing for review by an administrative board which had no power to issue binding determinations and was not independent) were not compatible with the principle. This ruling is significant because it confirms that the right to protection under that directive entails a right of recourse to judicial control. A mere right of appeal to an administrative authority (however expert) is not sufficient. The position is the same even where an administrative authority is independent and has the power to take binding decisions (unlike the Austrian boards in the case at hand). This broad application of the principle finds further support in the Opinion of Advocate General Tizzano: [W]here a Community provision, as in the present case, requires the Member States to provide remedies against decisions by national authorities in order to protect rights stemming from Community law, although that provision leaves the State free to choose the appropriate methods for implementing the requirement, it has in contemplation some real ‘system of judicial review’ before independent courts and not administrative or similar appeals.90

Although (in support of its reasoning) the Court drew on the express reference to ‘remedies’ in Article 6(2) of Directive 89/105/EEC, it is clear that the principle of effective judicial protection, as a general principle of Community law, also extends to cases where a directive is silent on enforcement and remedies. In Köbler,91 the ECJ again stressed ‘the essential role’ of the national courts in protecting Community law rights.92 The Court did not hesitate in ruling that the principle of State liability also applied where the alleged infringement of Community law stemmed from a decision of a national court adjudicating at last instance. This reasoning flowed from the necessity to ensure the ‘full effectiveness’ of Community law.93 A robust approach to the effectiveness of Community law and the onerous duties falling on national courts in this regard is again clear from Pfeiffer.94 In the words of the Court, ‘[i]t is the responsibility of the national courts in particular to provide the legal protection which individuals derive from

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Dir 89/105/EEC [1989] OJ L40/8. Case C-424/99 Commission v Austria [2001] ECR I-9285 para 42. Ibid, para 45 of the Opinion. 91 Case C-224/01 Köbler v Republik Österreich [2003] ECR I-10239 (Köbler). 92 Ibid, para 33. See also Case C-173/03 Traghetti del Mediterraneo SpA v Repubblica italiana [2006] ECR I-5177 paras 30–31 and PJ Wattel, ‘Köbler, CILFIT and Welthgrove: We Can’t Go on Meeting Like This’ (2004) 41 CML Rev 177. 93 Case C-224/01 Köbler [2003] ECR I-10239 paras 33–6. 94 Joined Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2004] ECR I-8835. 89 90

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Principle of Effective Judicial Protection the rules of Community law and to ensure that those rules are fully effective’.95 The ECJ took the opportunity presented by this case to ground the doctrine of consistent interpretation in the Treaty: The requirement for national law to be interpreted in conformity with Community law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it.96

Pfeiffer concerned the correct interpretation of Directive 89/391/EEC concerning the health and safety of workers and Directive 93/104/EC on working time.97 The ECJ ruled that the principle of consistent interpretation required the national court ‘to do whatever lies within its jurisdiction, having regard to the whole body of rules of national law, to ensure that Directive 93/104 is fully effective’.98 When applying domestic provisions purporting to implement that directive, the national court was required to consider the whole body of rules of national law and to interpret those rules, in so far as possible, in light of the wording and purpose of the directive in order to ensure that the objective of the directive was achieved. In Housieaux,99 the ECJ was required to interpret the scope of Article 3(4) of Directive 90/313/EEC on the freedom of access to information on the environment.100 Article 3(4) required a public authority to respond to a request for access ‘as soon as possible’ but within an outer time-limit of two months. Reasons had to be provided for a decision to refuse access. The referring court asked whether the two-month time-limit was mandatory or directory. The ECJ adopted its characteristically purposive approach to this vitally important environmental directive and ruled that the time-limit was indeed mandatory.101 Otherwise, the Court reasoned, Article 4 of the directive, which provided expressly for judicial protection for the requester, would be ineffective because the requester would not know the exact date from which a review of the public authority’s decision could

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Ibid, para 111. Ibid, para 114. See also Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-0000 para 99. 97 Dir 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work [1989] OJ L 183/1 and Dir 93/104/EC concerning certain aspects of the organisation of working time [1993] OJ L 307/18. 98 Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 para 118. Drake suggests that this aspect of Pfeiffer ‘signifies the Court’s commitment to the principle of indirect effect as a characteristic of the principle of effective judicial protection’: S Drake, ‘Twenty Years After Von Colson: The Impact of “Indirect Effect” on the Protection of the Individual’s Community Rights’ (2005) 30 EL Rev 329, 334. See also Case C-462/99 Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission [2003] ECR I-5197 for a further example of the lengths to which the ECJ expects the national courts to go in terms of the principle of consistent interpretation in order to deliver effective judicial protection. 99 Case C-186/04 Housieaux [2005] ECR I-3299. 100 Dir 90/313/EEC has now been repealed and replaced by Dir 2003/4/EC [2003] OJ L 41/26. 101 Case C-186/04 Housieaux [2005] ECR I-3299 paras 24–9. 96

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ECJ and National Procedural Rules & Remedies be initiated.102 The Court also found that where a public authority failed to respond to a request within the two-month period, then the requester was entitled to seek an administrative or judicial review of that implied refusal pursuant to Article 4 of the directive. In his Opinion in Unión de Pequeños Agricultores, Advocate General Jacobs summarised the intense impact of the principle of effective judicial protection on national legal systems in the following terms: While [the principle] was enunciated in 1986, in the case of Johnston, its implications have only gradually been spelt out in the Court’s case-law in the subsequent period. It is now clear from the judgments in Factortame and Verholen103 that the principle of effective judicial protection may require national courts to review all national legislative measures, to grant interim relief and to grant individuals standing to bring proceedings, even where they would be unable to do so under national law.104

The Advocate General observed that long delays within the national systems may be ‘incompatible with the principle of effective judicial protection and with the need for legal certainty’.105 This point was not addressed by the Court, which confined itself to re-stating the general principle that it is incumbent on the national courts to provide effective judicial protection, without going into further detail.

B. Future Directions In sum, the principle of effective judicial protection encompasses the following key elements: 1.

A right of recourse to judicial review or genuine judicial control of a decision taken by a national authority in the field of Community law; A national authority is required to state the reasons for its decision in order to facilitate judicial review; National courts must have jurisdiction to grant adequate and effective remedies, including interim relief where appropriate; The procedural conditions governing judicial review are governed by national law, subject to the twin principles of equivalence and effectiveness.

2. 3. 4.

Article 10a of the EIA directive adds a number of new elements to the general principle of effective judicial protection. It will be recalled from chapter two that Article 10a[5] requires Member States to put in place review procedures that are 102

Ibid, para 26. Joined Cases C-87/90, C-88/90 and C-89/90 Verholen v Sociale Verzekeringsbank [1991] ECR I-3757 (Verholen). 104 Case C-50/00 P Unión de Pequeños Agricultores [2002] ECR I-6677 para 97 of the Opinion (footnotes omitted). 105 Ibid, para 42. 103

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Principle of Effective Judicial Protection ‘fair, equitable, timely and not prohibitively expensive’. The express requirement that the review procedures must be ‘timely’ raises the interesting question of whether unreasonable delays in having a case determined at national level will infringe the right to effective judicial protection. The impact of the ‘not prohibitively expensive’ obligation on national provisions governing liability for costs remains uncertain in the absence of guidance from the ECJ.

C. Specific Themes This section examines the ECJ’s approach to two core aspects of national judicial review proceedings which are of particular relevance when parties seek to enforce the EIA directive before the national courts: (1) locus standi and (2) the standard of review applied by national courts when examining decisions of competent authorities in the field of Community law. (i) Locus Standi at National Level The ECJ has provided limited guidance on the issue of legal standing to invoke a directive before the national courts. Where a directive expressly confers rights on individuals, or where the text of a directive specifies the persons (or category of persons) that fall within its scope, then determining who has standing to invoke the directive is usually a straightforward task. The situation is not always as clear, however, in the case of environmental directives which do not expressly confer rights on a clearly-defined category of persons. The 1991 Verholen106 ruling remains the leading authority on locus standi to invoke a directive at national level. On this occasion, the ECJ was asked whether an individual could rely on the provisions of Directive 79/7/EEC (on equal treatment in matters of social security) before the national court where he bore the effects of a discriminatory national provision regarding his spouse, even though his spouse was not a party to the proceedings. The Court replied in the affirmative as follows: [T]he right to rely on the provisions of Directive 79/7 is not confined to individuals coming within the scope ratione personae of the directive, in so far as the possibility cannot be ruled out that other persons may have a direct interest in ensuring that the principle of non-discrimination is respected as regards persons who are protected.107 (emphasis added)

This ruling demonstrates that persons who do not fall within the scope of a directive may yet, depending on the particular circumstances, have ‘a direct interest’ in ensuring that the directive is applied correctly. The result sought to be achieved by a particular directive would be put in jeopardy if affected individuals 106 107

Joined Cases C-87/90, C-88/90 and C-89/90 Verholen [1991] ECR I-3757. Ibid, para 23.

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ECJ and National Procedural Rules & Remedies were not permitted to rely on the directive before their national courts.108 In Lemmens,109 Advocate General Fennelly took the view that ‘[t]he provisions of a directive which have direct effect may be relied upon by persons other than those for whose primary benefit it was adopted, where this is justified to achieve the result intended’.110 The Advocate General went on to suggest that the expression ‘direct interest’ deployed by the ECJ in Verholen did not cover ‘merely consequential effects’ but instead referred to ‘an interest which arises by virtue of Community law’.111 In other words, an individual seeking to rely on a directive must demonstrate ‘a Community-law interest’ in ensuring the correct application of its provisions. The Advocate General did not elaborate further on the concept of a ‘direct interest’, however, and did not provide any concrete examples to help identify the scope of this difficult concept. In Verholen, the ECJ expressly acknowledged that it fell to the Member States to determine the question of locus standi, but national standing rules must comply with the principle of effective judicial protection. In the words of the Court, [w]hile it is, in principle, for national law to determine an individual’s standing and legal interest in bringing proceedings, Community law nevertheless requires that the national legislation does not undermine the right to effective judicial protection … and the application of national legislation cannot render virtually impossible the exercise of the rights conferred by Community law.112

This approach, which was reaffirmed in Unibet,113 appears to establish (or at least to support) a broad concept of standing to invoke a directive at national level. It is clear from Verholen that standing to invoke a directive before the national courts will depend on the wording of the particular directive at issue; the objective prescribed by the directive; and the circumstances of the case. In Unibet, the ECJ confirmed that the national courts are obliged to interpret procedural requirements, including standing rules, ‘in such a way as to enable those rules, wherever possible, to be implemented in such a manner as to contribute to the attainment of the objective … of ensuring effective judicial protection of an individual’s rights under Community law’.114

108 See also Case C-230/97 Awoyemi [1998] ECR I-6781 and Case C-441/99 Riksskatteverket v Gharehveran [2001] ECR I-7687. 109 Case C-226/97 Lemmens [1998] ECR I-3711. 110 Ibid, para 28 of the Opinion. See also M Lenz, D Tynes and L Young, ‘Horizontal What? Back to Basics’ (2000) 25 EL Rev 509, 512 where it is suggested that ‘individuals will be in a position to invoke direct effect when they have an interest, the protection of which will further the objectives of the directive upon which they seek to rely. Where a directive expressly creates individual rights this will always be the case, albeit not the only one. An individual’s interest may suffice provided that … it can be linked to the aim of the directive and the objective it seeks to attain’. 111 Case C-226/97 Lemmens [1998] ECR I-3711 para 29 of the Opinion. 112 Joined Cases C-87/90, C-88/90 and C-89/90 Verholen [1991] ECR I-3757 para 24. See also Case C-13/01 Safalero Srl v Prefetto di Genova [2004] ECR I-8679 para 50. 113 Case C-432/05 Unibet [2007] ECR I-2271 paras 42–3. 114 Ibid, para 44.

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Principle of Effective Judicial Protection In sum, contested national standing rules fall to be scrutinised in light of the principles of equivalence and effectiveness prescribed by the ECJ. Where a national court is uncertain as to the compatibility of a national standing requirement with the Community law standard, it may request a preliminary ruling. The paucity of ECJ case law on this important practical issue may be explained by the malleability of the principle of effectiveness articulated in the Court’s remedies case law to date. Drawing on the loose guidance provided by the ECJ, a national court may well take the view that a restrictive standing rule is compatible with the principle of effectiveness without making a reference. National courts may be especially reluctant to refer questions concerning locus standi for fear of losing an element of control over the fundamental question of who has access to the courts. There is also, of course, an obvious practical concern over the delay inherent in an Article 234 EC reference.115 Article 10a of the EIA directive now expressly addresses the question of locus standi to invoke review procedures where it is alleged that the requirements of the EIA directive have not been met in a particular case. While a specific provision dealing with standing in the EIA context is most welcome, it must be recalled that Article 10a defers, in large part, to the national legal systems and provides considerable flexibility for Member States on the standing question. As explained in chapter two, Member States are free to choose between the two alternative standing tests presented in Article 10a[1] and can select the test that best fits the national legal system. According to Article 10a[3], Member States must determine standing requirements in a manner that is consistent with the objective of giving ‘the public concerned’ (defined in Article 1(2) of the directive) ‘wide access to justice’. This proviso creates a constraint on Member State discretion when elaborating national standing rules.116 While it is difficult to identify what exactly is envisaged by the concept ‘wide access to justice’ deployed here, the proviso essentially stipulates a liberal approach to standing. Specific provision is made for ENGOs. Article 10a[3] provides that ENGOs meeting any formal requirements set down in national law are deemed to have standing to invoke the EIA directive in review proceedings. Beyond Article 10a, the overarching principle of effectiveness articulated by the ECJ continues to provide the essential ‘baseline’ standard on which to ground a challenge to national standing requirements. Article 10a fleshes out the principle of effectiveness in the EIA context and provides the ECJ with a solid and specific legal basis on which to scrutinise restrictive national standing rules.

115 According to the Annual Report of the European Court of Justice for 2007, the average duration of proceedings in the case of references for a preliminary ruling was 19.3 months. 116 See also, in the context of Art 9(2) of the Aarhus Convention (which Art 10a purports to implement), the decision of the Aarhus Compliance Committee in a complaint against Belgium: ACCC/C/2005/11 16 June 2006, text available at: www.unece.org/env/pp/pubcom.htm.

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ECJ and National Procedural Rules & Remedies (ii) Locus Standi at European Community Level It is instructive to examine the ECJ’s distinctive approach to the standing of ENGOs to invoke judicial review at Community level. Article 230 EC concerns review (by the Community courts) of the legality of certain acts adopted by the Community institutions including regulations, directives and decisions.117 While the ECJ has insisted that procedural rules must not be allowed to undermine effective access to judicial control at national level, the Court has adopted a strict approach to the standing of private parties under Article 230 EC. The general scheme of Article 230 EC distinguishes between the so-called ‘privileged’ applicants (Member States and the Community institutions)118 and ‘non-privileged’ applicants (including, for example, ENGOs and other private parties). Pursuant to Article 230(4) EC, a ‘non-privileged’ applicant is entitled to challenge ‘a decision addressed to that person’. A challenge to a Community measure of general application, however, will only be admissible where the applicant can demonstrate that the contested act is of ‘direct and individual concern’. The ‘direct’ element of the standing test requires that the contested measure must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules.119

As regards the ‘individual’ concern requirement, the classic interpretation is found in Plaumann,120 where the ECJ ruled that [p]ersons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of the circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed.121

Environmental protection often involves the public interest or a general interest. Such interests tend to be collective rather than individual.122 This state of affairs

117

See generally Arnull, above n 2, ch 3. The European Parliament, the Council and the Commission have automatic access to the Community courts (Art 230(2) EC). The Court of Auditors and the European Central Bank enjoy standing for the purpose of protecting their prerogatives (Art 230(3) EC). 119 Case C-386/96 P Société Louis Dreyfus & Cie v Commission [1998] ECR I-2309 para 43. 120 Case 25/62 Plaumann & Co v Commission [1963] ECR 95. 121 See generally J Cooke, ‘Locus standi of Private Parties under Article 173(4)’ (1997) 6 Irish Journal of European Law 4. 122 See generally J Goodie and G Wickham, ‘Calculating “Public Interest”: Common Law and the Legal Governance of the Environment’ (2002) 11 Social and Legal Studies 37 and P Cane, ‘Standing Up for the Public’ [1995] PL 276. 118

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Principle of Effective Judicial Protection results in special problems in the case of applicants for judicial review who claim to act in the interest of the environment. As Advocate General Cosmas explained in Greenpeace,123 environmental protection is indeed a matter of general interest. Conservation of the environment is a legal interest theoretically shared by all natural persons; it thus has a communal dimension. Furthermore, the more significant is the intervention in or impingement on the environment, the greater is the number of persons affected thereby.124

Where a decision affects, or may affect, a large category of persons in a general or abstract manner, then it will be difficult to find a sufficiently closed class of persons who are individually concerned within the meaning of that concept as per the Plaumann line of authority. Given the importance attached to the goal of environmental protection in the Treaties, and, indeed, in the ECJ’s own case law, one would expect the Court to take a more relaxed view of the Article 230(4) EC standing requirement in order to facilitate environmental protection concerns. In Greenpeace, three environmental associations and a number of individuals challenged a Commission decision to provide funding under the European Regional Development Fund for the construction of two power stations on the Canary Islands. It was alleged that construction of the power stations had commenced without a prior assessment of environmental effects (in breach of the requirements of the EIA directive) and that the decision to continue financing the project was in breach of Community environmental protection rules.125 The applicants could not point to any specific financial or economic interest of their own that was affected by the contested decision. They attempted instead to base their claim to locus standi on the consequences for the environment which they alleged would flow from the Commission’s decision. Particular emphasis was placed on the right to participate in the environmental assessment procedure, which the applicants claimed they enjoyed by virtue of Article 6(2) and Article 8 of the (original) EIA directive. The ECJ refused to adopt a liberal approach to the concept of ‘direct and individual concern’ in the special context of environmental protection. Applying Plaumann, the Court concluded that the applicants had not established that they were ‘individually’ concerned within the meaning of Article 230(4) EC.126

123

Case C-321/95 P Stichting Greenpeace Council v Commission [1998] ECR I-1651 (Greenpeace). Ibid, para 102 of the Opinion (footnote omitted). 125 The relevant regulation, the Structural Funds Reg 2052/88 [1988] OJ L 185/9, provided: ‘Measures financed by the Funds … shall be in keeping with the provisions of the Treaties, with the instruments adopted pursuant thereto and with Community policies, including those concerning … environmental protection’. 126 This was also the conclusion of the CFI: Case T-585/93 Stichting Greenpeace Council v Commission [1995] ECR II-2205. A similar outcome was reached in Case T-219/95 R Danielsson v Commission [1995] ECR II-3051. It is interesting to consider the ‘alternative interpretation’ of Article 230(4) proposed by Advocate General Cosmas on appeal in Greenpeace [1998] ECR I-1651, which takes account of ‘the particular characteristics of the legal interest in the environment and its 124

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ECJ and National Procedural Rules & Remedies (a) Interaction Between Community Courts and National Courts In ruling against the applicants in Greenpeace, the ECJ was especially influenced by the fact that Greenpeace had also instituted judicial review proceedings before the (Spanish) national courts, challenging the validity of the authorisations for construction of the power stations granted by the national authorities. In these circumstances, the Court took the view that the applicants’ rights under the EIA directive were ‘fully protected by the national courts’ which could, if necessary, refer a question to the ECJ for a preliminary ruling.127 In effect, the ECJ drew on the existence of an avenue of redress at national level in order to counter the applicants’ argument that denying them standing to pursue a direct challenge before the Community courts created a vacuum in the system of judicial protection. The Court also found that it was the decisions of the national authorities granting development consent for the construction of the power stations (rather than the Commission’s decision to disburse funding for the project) that were liable to affect the applicants’ rights under the EIA directive. It followed, in the ECJ’s view, that the decision concerning the financing of the power stations could affect those rights ‘only indirectly’.128 The applicants therefore failed to satisfy both elements of the locus standi test. The ECJ’s reasoning in Greenpeace is strained to say the least. The applicants had sought to challenge the validity of the Commission’s decision to finance the construction of the power stations before the Community courts. The proceedings instituted before the national courts concerned a challenge to the decisions of the national authorities authorising the construction of the power stations. While both proceedings concerned the applicants’ rights under the EIA directive, each challenge purported to attack a different decision. In declaring the application inadmissible, the ECJ effectively insulated the Commission’s decision to fund the projects from legal challenge. It is impossible to square this result with the Court’s assertion that denying standing in this case did not create a vacuum in the system of judicial protection. Moreover, even though the ECJ asserted that the applicants’ rights under the EIA directive would be fully protected by the national courts, it did not engage in any form of inquiry as to the effectiveness of domestic judicial review proceedings (for example: How closely do the national courts scrutinise decisions taken by public authorities? What remedies are available at

protection’ (paras 104–9 of the Opinion). The Advocate General proposed that within the general and abstract class of persons affected or likely to be affected by a decision having consequences for the environment, it was possible to identify a ‘closed class’ of persons who would be particularly affected, and thus distinguishable for the purposes of Art 230(4) EC. The criteria to be deployed in order to discover the scope of this ‘closed class’ could include: geographical proximity to the proposed development; the nature of the consequences which the development is likely to have on the environment; and the gravity of those consequences (para 105 of the Opinion). The decisive criterion in this proposed approach centres around the ‘the applicant’s individual relationship to the contested act’ (para 107 of the Opinion). 127 Case C-321/95 P Greenpeace [1998] ECR I-1651 paras 32–3. 128 Ibid, paras 30–31.

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Principle of Effective Judicial Protection national level? Is interim relief available in appropriate cases?). Instead, the Court simply assumed that the national courts would deliver effective protection for rights arising under Community EIA law. This is a highly questionable assumption on the part of the Court. After all, access to effective judicial control at national level depends, to a large extent, on the willingness of the national courts to apply Community (environmental) norms and to make a reference to the ECJ where necessary. The analysis of the degree to which the Irish courts engage with Community EIA law (presented in chapter five), demonstrates that the principle of effective judicial protection has proven to be difficult to deliver in practice for a host of complex reasons linked to local legal culture. (b) Moves towards Liberalisation In Unión de Pequeños Agricultores,129 which involved a challenge to an EC regulation on the establishment of a common organisation in the market for oils and fats, Advocate General Jacobs proposed a liberalisation of standing under Article 230(4) EC. The Advocate General highlighted the sharp divergence in the ECJ’s case law on effective judicial protection. On the one hand, the Court is unrelenting in its insistence that the national courts should provide effective protection for the rights that individuals derive from Community law. Yet, on the other hand, the Court persists in taking a narrow approach to standing before the Community courts. The Advocate General concluded that the restrictive interpretation of the ‘direct and individual concern’ test appeared ‘increasingly untenable in light of the Court’s case-law on the principle of effective judicial protection’130 and recommended that the ECJ adopt ‘a more satisfactory interpretation of the concept of individual concern’.131 In his view, an applicant should be regarded as individually concerned by a Community measure ‘where by reason of his particular circumstances, the measure has, or is liable to have, a substantial adverse effect on his interests’.132 It is difficult to calculate how the Advocate General’s approach would operate where an applicant sought to base his claim to standing on a general interest in protecting the environment. There is nothing in the Opinion to suggest that the concept of ‘interest’ is intended to be confined to economic or financial interests. Indeed, the reference to the individual’s ‘interests’, as apposed to ‘rights’, indicates that a liberal approach to standing is envisaged here. As against this, it could be argued that requiring an applicant to demonstrate that the contested measure has, or is likely to have, ‘a substantial adverse effect’ on his ‘interests’ could give rise to difficulties in the environmental context. For example, an applicant may be required to demonstrate that he lives in close proximity to the proposed development or that his health and quality of life are 129 130 131 132

Case C-50/00 P Unión de Pequeños Agricultores [2002] ECR I-6677. Ibid, para 98 of the Opinion. Ibid, para 101. Ibid, para 60.

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ECJ and National Procedural Rules & Remedies likely to be particularly affected. It is not at all clear whether a person claiming a substantial adverse effect on the environment in general terms would come within the scope of the test for individual concern proposed by Advocate General Jacobs in Unión des Pequeños Agricultores. The Advocate General’s Opinion exerted a strong influence on the Court of First Instance (CFI) in its subsequent ground-breaking ruling in Jégo-Quéré.133 This case concerned a challenge to a regulation setting minimum mesh sizes for fishing nets. The CFI took this opportunity to reformulate the test for individual concern in the following terms: [A] natural or legal person is to be regarded as individually concerned by a Community measure of general application that concerns him directly if the measure in question affects his legal position, in a manner which is both definite and immediate, by restricting his rights or by imposing obligations on him. The number and position of other persons who are likewise affected by the measure, or who may be so, are of no relevance in that regard.134

This test appears to be more restrictive than that proposed by Advocate General Jacobs in Unión des Pequeños Agricultores. The specific reference to a restriction of ‘rights’ is problematic where an applicant seeks to rely on a general environmental interest as opposed to a specific right conferred by, for example, an environmental directive. (c) Retrenchment It is not necessary to explore further the likely implications of the more flexible approach to standing proposed by Advocate General Jacobs and by the CFI, as the ECJ (on appeal in Unión des Pequeños Agricultores) declined to adopt a liberal interpretation of the ‘individual’ concern requirement.135 The Court chose instead to leave it to the national courts to provide effective judicial protection for the parties seeking to challenge the validity of the regulation at issue in that case. In the words of the Court, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the right to effective judicial protection. In that context, in accordance with the principle of sincere cooperation laid down in Article 5 of the Treaty, national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act.136 133 134 135 136

Case T-177/01 Jégo-Quéré & Cie SA v Commission [2002] ECR II-2365. Ibid, para 51. Case C-50/00 P Unión des Pequeños Agricultores [2002] ECR I-6677. Ibid, paras 41–2.

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Principle of Effective Judicial Protection The difficulty with shifting the burden to the national courts is that there is no guarantee that national judges will deliver effective protection for Community law rights. The ECJ subsequently affirmed its strict approach to the ‘direct and individual concern’ test on appeal in Jégo-Quéré.137 So the gap in the system of judicial protection persists, notwithstanding the cogent arguments in favour of a relaxation of the standing rules presented by Advocate General Jacobs in Unión des Pequeños Agricultores and by the CFI in Jégo-Quéré.138 Indeed, the decisions of the CFI in a series of more recent cases involving ENGOs demonstrate the practical consequences that flow from the restrictive approach to standing under Article 230(4) EC.139 In all of these cases, the ENGOs involved were denied standing to challenge the contested measures. The Unión des Pequeños Agricultores judgment revealed the ECJ’s firm conviction that any change to the Article 230(4) EC standing requirement should be accomplished by way of an amendment to the Treaty.140 At one level, this was a practical approach for the Court to adopt, given that the work of the Convention on the Future of Europe was well underway at the time of its Unión des Pequeños Agricultores ruling. The ECJ’s primary function, however, is to uphold the Rule of Law and to ensure that the law is observed in the interpretation and application of the Treaty.141 Decisions such as Greenpeace expose the gap in the system of judicial protection created by the ECJ’s strict approach to standing and reveal the ‘double standard’ that has emerged in the judicial review case law to date.142 While the ECJ has adopted an active and expansive approach towards the enforcement of Community norms within national legal systems, attempts by private parties to challenge the legality of Community measures have generally met with a cool response from the Community courts. Ward has charted how the ECJ has sought to justify a steady erosion of Member State autonomy in the field of national procedural rules and remedies by drawing on the concepts of effective judicial protection and individual rights.143 But the Court has not deployed these

137

Case C-263/02 P Commission v Jégo-Quéré & Cie SA [2004] ECR I-3425. See generally B Dette, ‘Access to Justice in Environmental Matters: A Fundamental Democratic Right’ in M Onida (ed), Europe and the Environment: Legal Essays in Honour of Ludwig Krämer (Groningen, Europa Law Publishing, 2004); F Ragolle, ‘Access to Justice for Private Applicants in the Community Legal Order: Recent Revolutions (2003) 28 EL Rev 90; J Usher, ‘Direct and Individual Concern—An Effective Remedy or a Conventional Solution?’ (2003) 28 EL Rev 575; and R Lane and N Nic Shuibhne, ‘European Law—Oil and Troubled Waters’ (2002) 24 Dublin University Law Journal 251. 139 Joined Cases T-236/04 and T-241/04 European Environmental Bureau (EEB) and Stichting Natuur en Milieu v Commission [2005] ECR II-4945; Case T-94/04 European Environmental Bureau (EEB) et al v Commission [2005] ECR II-4919; Case T-91/07 WWF-UK Ltd v Council [2008] ECR II-0000 (appeal pending: Case C-355/08) and Case T-37/04 Região autónoma dos Açores v Council [2008] ECR II-0000 (appeal pending: Case C-444/08). 140 Case C-50/00 P Unión des Pequeños Agricultores [2002] ECR I-6677 paras 44–5. 141 Art 220 EC. 142 N Gérard, ‘Access to Justice on Environmental Matters—A Case of Double Standards?’ (1996) 8 Journal of Environmental Law 139. 143 Ward, above n 2. 138

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ECJ and National Procedural Rules & Remedies concepts with any great enthusiasm in the context of judicial review of Community acts.144 Contemporary efforts to reform the Treaties envisage the retention of the ‘direct and individual concern’ formula, subject only to minor modifications which will not resolve the locus standi problem for ENGOs.145 Yet, a measure of hope remains following recent legislative intervention designed to implement the Aarhus Convention. (d) Contemporary Developments The Aarhus Convention inspired a new regulation to apply the provisions of the Convention to Community institutions and bodies. With a view to implementing Article 9(3) of the Convention, Regulation 1367/2006146 attempts to establish a basic scheme for internal review and access to justice.147 The scheme is built around a right for ENGOs to request an internal review of a contested administrative act or an omission to act.148 Put simply, the Community institution in question is given an opportunity to reconsider its original decision. To this end, Article 10(1) of the regulation provides that qualified ENGOs may request a Community institution that has adopted an administrative act under environmental law, or that has allegedly failed to adopt an act, to conduct an internal review. The institution in question is obliged to ‘consider’ any such request (unless it is ‘clearly unsubstantiated’) and is required to state its reasons in a written reply as soon as possible, but no later than 12 weeks after receipt of the request (Article 10(2)).149 Apart from the vague reference to the institution’s obligation to ‘consider’ a request for review, the regulation is silent on the 144 145

Ibid. Treaty of Lisbon, Art 2 (214) replaces the current Art 230(4) EC with the following formula-

tion: ‘Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’. One immediate difficulty here is to identify precisely what is contemplated by the concept of a ‘regulatory act’—which is not defined at any point in the Treaty of Lisbon. 146 Reg 1367/2006 [2006] OJ L264/13. See also Commission Decision 2008/50/EC [2008] OJ L13/24 and Commission Decision 2008/401/EC, Euratom [2008] OJ L140/22. See generally J Jans and H Vedder, European Environmental Law, 3rd edn (Groningen, Europa Law Publishing, 2008) 214–19 and F de Lange, ‘Beyond Greenpeace, Courtesy of the Aarhus Convention’ (2003) 3 Yearbook of European Environmental Law 227. 147 The regulation only deals with acts and omissions by public authorities (ie Community institutions and bodies). Access to justice to challenge acts and omissions of private parties is to be addressed at Member State level in the context of the proposed directive on access to justice in environmental matters (COM (2003) 624 final). 148 The scope of the acts or omissions that are open to challenge via the internal review procedure is very narrow. Art 2(1)(c) excludes acts/omissions to act when the institution or body in question is acting in a judicial or legislative capacity. Art 2(1)(g) and (h) and Art 2(2) further circumscribe the scope of the acts or omissions subject to internal review. 149 There is provision for this period to be extended to an upper limit of 18 weeks in certain circumstances (Art 10(3)).

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Principle of Effective Judicial Protection appropriate standard of review. Article 12 of the regulation provides that the ENGO which made a request for internal review under Article 10(1) may institute proceedings before the ECJ ‘in accordance with the relevant provisions of the Treaty’.150 The regulation endeavours to avoid a direct conflict with the EC Treaty. Secondary legislation cannot override the standing requirement articulated in Article 230(4) EC.151 Rather than attempting to expand standing for ENGOs, the regulation offers a limited right to request an internal review, backed up by the possibility of recourse to the ECJ.152 Article 11(1) establishes a set of criteria that ENGOs are required to satisfy if they are to qualify for the right to request an internal review under Article 10(1). An ENGO will qualify provided that: it is an independent, non-profit-making legal person in accordance with a Member State’s national law or practice; it has the primary stated objective of promoting environmental protection in the context of environmental law; it has existed for more than two years and is actively pursuing the objective of promoting environmental protection; and the subject-matter in respect of which the request for internal review was made is covered by the ENGO’s objective and activities. Article 11(2) requires the Commission to adopt the necessary provisions to ensure that these criteria are applied in a transparent and consistent manner. Community institutions and bodies were required to adapt their rules of procedure to the provisions of Regulation 1367/2006 by 28 June 2007.153

(e) Appraisal Given that it is not proposed to amend Article 230(4) EC to reflect Article 9(3) of the Aarhus Convention, and given that the ECJ has firmly refused (to date) to broaden standing for private parties, the efficacy of national standing requirements assumes paramount importance. The ECJ is prepared to assume that national courts will apply local procedural rules (including standing requirements) to deliver effective protection for Community law rights. It remains to be seen whether the national courts will rise to the many challenges posed by the Aarhus Convention and the Community measures purporting to implement Aarhus access to justice obligations, including Article 10a of the EIA directive. As noted earlier in this chapter, the directions on national procedural rules issued by the ECJ to date leave the national courts with plenty of room to manoeuvre when faced with contested standing tests. Now that the EC is a Party to the Aarhus 150 Reg 1367/2006 Art 12(2) provides that this option is also available where a Community institution fails to act in accordance with Article 10(2) or (3). 151 Case C-240/90 Germany v Commission [1992] ECR I-5383 para 42, applied by the CFI in Joined Cases T-236/04 and T-241/04 European Environmental Bureau (EEB) and Stichting Natuur en Milieu v Commission [2005] ECR II-4945. 152 See generally J Jans, ‘Did Baron von Munchhausen ever Visit Aarhus?’ in R Macrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2006). 153 Reg 1367/2006 Art 13.

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ECJ and National Procedural Rules & Remedies Convention, the ECJ may take the view that some recalibration of the traditionally harsh approach to the standing of private parties under Article 230(4) EC is mandated in the environmental field—although early indications in this regard are far from promising. In WWF,154 the CFI determined that any entitlements which an ENGO may derive from the Aarhus Convention and from Regulation 1367/2006 are granted to it in its capacity as a member of the public.155 It followed from this analysis that such entitlements did not operate to differentiate the ENGO from all other persons within the meaning of the strict Plaumann line of authority.156

(iii) Standard of Review to be Applied by National Courts Even in cases where individuals and ENGOs succeed in gaining access to the courts, the level of scrutiny applied to the contested decision by the reviewing court ultimately determines whether or not judicial review is an effective remedy in a particular case. Judicial review involves the national court inquiring into the legality of the decision taken by an administrative authority as opposed to the merits of the decision.157 The substantive merits may only be called into question indirectly by arguing that the decision taken by the public authority is unreasonable or irrational. The Wednesbury ruling established the threshold of unreasonableness that an applicant is required to establish before a court in England and Wales will intervene and quash a decision taken by a public authority.158 Lord Greene MR suggested that there were different degrees of unreasonableness and that ‘only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation’.159 The test of unreasonableness or irrationality in Irish administrative law is even narrower than that articulated in Wednesbury, and the courts show considerable deference towards decisions taken by expert public authorities. This deference is particularly marked in the planning and environmental law field. As explained in chapter one, the Irish planning 154

Case T-91/07 WWF-UK Ltd v Council [2008] ECR I-0000 (appeal pending: Case C-344/08). Ibid, para 82. 156 Ibid. 157 The classic statement of principle is found in R v Chief Constable of North Wales Police ex p Evans [1982] 1 WLR 1155, 1160 (Lord Brightman): ‘Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power … Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made’. This passage was cited with approval by Finlay CJ in the leading Supreme Court decision O’Keeffe v An Bord Pleanála [1993] 1 IR 39, 71. 158 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 229 and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 (Lord Diplock). See generally H Woolf, J Jowell, A Le Sueur and CM Donnelly, De Smith’s Judicial Review, 6th edn (London, Thomson Sweet & Maxwell, 2007) paras 11.18–11.24. 159 Wednesbury, ibid, as interpreted by Lord Cooke in R v Secretary for the Home Department ex p Daly [2001] UKHL 26 para 32. 155

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Principle of Effective Judicial Protection system is distinctive in that it has long provided for a third party right of appeal from planning decisions taken at local level by planning authorities. Both the applicant for development consent (the developer) and third party ‘objectors’ enjoy a right to appeal a decision taken by a local planning authority to An Bord Pleanála (the Planning Appeals Board). Established in 1976, the Board determines appeals de novo (ie there is a full re-hearing on the planning merits of the original decision taken at local level). The availability of a full right of appeal to a specialist Board has had a marked influence on the Irish courts’ approach to judicial review of planning decisions. The courts have consistently referred to the expertise of planning authorities, and of the Board on appeal, in order to justify a non-interventionist stance in the event that a challenge is mounted against a planning decision. In State (Keegan) v Stardust Compensation Tribunal,160 Henchy J in the Supreme Court took the view that ‘the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense’.161 The leading modern authority is O’Keeffe v An Bord Pleanála.162 In the words of Finlay CJ, the circumstances under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare … The court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case for it. These considerations … are of particular importance in relation to questions of the decisions of planning authorities. Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning, questions of the balance between development and the environment and the proper convenience and amenities of an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill, competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected to, nor can it, exercise discretion with regard to planning matters.163

It is now well established that in order to convince the court that the decisionmaker acted unreasonably or irrationally ‘it is necessary that the applicant should establish to the satisfaction of the court that the decision-making authority had

160

State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] IR 642. Ibid, 658. O’Keeffe v An Bord Pleanála [1993] 1 IR 39. 163 Ibid, 71–2. This statement was cited with approval by the Supreme Court in Grianán an Aileach Centre v Donegal County Council (No 2) [2004] IESC 43, [2004] 2 IR 625, 639–40. See also White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545, 559–60. 161 162

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ECJ and National Procedural Rules & Remedies before it no relevant material which would support its decision’.164 The onus of establishing this material lies on the applicant who is seeking judicial review.165 The straitened view of the scope of judicial review favoured by O’Keeffe (which the courts have subsequently endorsed) is highly contentious. Scannell has observed that ‘[t]he O’Keeffe standard is practically impossible to satisfy in Ireland so that it is almost true to say that in practice the courts will not invalidate an environmental decision because it is unreasonable’.166 Simons maintains that [t]he standard of review set by O’Keeffe is so high that it effectively stymies any challenge to the decision and there is a danger that if the O’Keeffe principles are applied indiscriminately to all decisions of a planning authority, this would actually undermine the rule of law.167

Simons argues that the O’Keeffe standard should be reserved for situations where a competent authority is exercising a statutory discretion (usually involving issues of ‘fact and degree’).168 Where a challenge is mounted to a question of law, however, the High Court should engage in full-blooded review of the contested decision.169 This view of the limited application of O’Keeffe has a firm basis in the case law. It is important to recall that Finlay CJ’s opinion in O’Keeffe linked the weak or deferential mode of review to ‘planning questions’.170 Decisions concerning the application of the EIA directive often involve complex, mixed questions of law and fact. How closely are national courts required to scrutinise such decisions in order to deliver effective protection for the rights conferred by the EIA directive? In other words, what is the appropriate standard or intensity of review in such cases? It will be recalled from chapter two that Article 10a[1] of the EIA directive requires that ‘the substantive or procedural legality’ of contested decisions must be open to challenge. The directive does not elaborate on the level of scrutiny to be applied by a court when conducting a review, however.

164 O’Keeffe, ibid, 72. See also Devlin v Minister for Arts, Culture and the Gaeltacht [1999] 1 IR 47, 58; Ryanair Ltd v Flynn [2000] 3 IR 240, 264–7; Aer Rianta Cpt v Commissioner for Aviation Regulation, unreported, High Court, 16 January 2003, O’Sullivan J and Kinsella v Dundalk Town Council [2004] IEHC 373. 165 O’Keeffe, ibid, 72. See also P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701, 718–19. 166 Y Scannell, Environmental and Land Use Law (Dublin, Thomson Round Hall, 2006) para 2.429. 167 G Simons, ‘The Unreasonable Planning Authority: A Review of the Application of O’Keeffe v An Bord Pleanála’ (Part I) (2000) 7 Irish Planning and Environmental Law Journal 164 at 165. 168 G Simons, Planning and Development Law, 2nd edn (Dublin, Thomson Round Hall, 2007) paras 12.90–12.110. 169 Ibid. 170 O’Keeffe v An Bord Pleanála [1993] 1 IR 39, 71–2. See, eg, O’Connor v Dublin Corporation, unreported, High Court, 3 October 2000, where O’Neill J ruled (following Gregory v Dún Laoghaire Rathdown County Council, unreported, Supreme Court, 28 July 1997) that the O’Keeffe test did not apply where it was alleged that the local authority had misinterpreted conditions that had been attached to a planning permission. The appropriate test to be applied in this context was whether or not the conclusion reached by the local authority was ‘correct in law’.

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Principle of Effective Judicial Protection The ECJ has provided very limited guidance to national courts on the appropriate standard of review in cases involving claims based on Community law. The leading authority is Upjohn.171 On this occasion, the Court was called upon to consider the nature and scope of judicial review proceedings in the United Kingdom. Upjohn Ltd had challenged the decision of a national regulatory authority revoking a marketing authorisation for a medicinal product. The relevant national legislation provided that any person concerned by a decision of the authority could make an application to the High Court contesting its validity.172 As judicial review is not an appeal on the merits, the national court was only required to examine whether or not the regulatory authority had followed the correct procedures. This limitation on the power of review was the subject of a preliminary ruling in Upjohn. The Court of Appeal (England and Wales) inquired whether either Directive 65/65/EEC (relating to proprietary medicinal products) or general Community law required Member States to introduce a procedure for judicial review that would enable the national courts ‘to verify, on the basis of a fresh, comprehensive assessment of the issues of fact and of law’ whether the decision taken by the competent authority was the correct decision, as opposed to a decision that the authority could reasonably have reached on the basis of the material before it. The ECJ replied in the negative. The Court observed that Article 12 of the directive at issue merely required Member States to ensure that decisions of a competent authority are amenable to legal challenge. It did not set down detailed rules on the scope of that right to challenge an authority’s decision in the courts, but left it open to the Member States to organise a system of judicial review of decisions refusing, suspending or revoking marketing authorisations. Upjohn maintained that the effectiveness of Article 11 of the directive (which has direct effect and provides that Member States may only revoke marketing licences in certain specified circumstances) would be frustrated if the national court was confined to carrying out a limited review of the contested decision. In response, the ECJ recited its earlier rulings in Peterbroeck173 and Levez,174 and it confirmed that [i]t is settled case-law that in the absence of Community rules governing the matter it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, however, that such rules are not less favourable than those governing similar domestic actions (the principle of equivalence) and do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (the principle of effectiveness).175

171 172 173 174 175

Case C-120/97 Upjohn Ltd v The Licensing Authority [1999] ECR I-223. Medicines Act 1968. Case C-312/93 Peterbroeck [1995] ECR I-4599. Case C-326/96 Levez [1998] ECR I-7835. Case C-120/97 Upjohn [1999] ECR I-223 para 32.

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ECJ and National Procedural Rules & Remedies The Court noted that the regulatory authority took its decisions following ‘complex assessments in the medico-pharmacological field’.176 It did not share Upjohn’s view that the only way of preventing the exercise of the directive rights from being rendered ‘virtually impossible or excessively difficult’ was to facilitate judicial review that empowered national courts to determine questions of fact and hear evidence de novo. The ECJ justified its conclusion by referring to its own case law in the area of review of decisions of Community authorities whose duties require them to make complex assessments. Community authorities enjoy a wide measure of discretion in such cases, and this discretion is subject to limited review by the Community judicature. The Court will only intervene where the exercise of such discretion is vitiated by ‘a manifest error or a misuse of powers’ or where the decision-maker clearly exceeded the bounds of its discretion.177 It followed that Community law did not require Member States to establish a procedure for judicial review that involved a more extensive review than that earmarked for the ECJ itself in similar cases.178 In other words, limited judicial review (as opposed to de novo review of the merits) is acceptable in certain circumstances. Even though the ECJ’s reasoning in Upjohn demonstrated considerable deference to national procedural autonomy, the Court concluded, characteristically, by emphasising the overriding importance of the principle of effectiveness in the following terms: [A]ny national procedure for judicial review of decisions of national authorities revoking marketing authorisations must enable the court or tribunal seised of an application for annulment of such a decision effectively to apply the relevant principles and rules of Community law when reviewing its legality.179 (emphasis added)

This is the most interesting element of the Upjohn ruling.180 The ECJ endeavours to balance the need for an element of flexibility at national level with the overarching obligation on the national courts to deliver effective protection for Community law rights.181 The principle of national procedural autonomy remains relevant, but the ECJ has set down an important proviso in Upjohn. While the basic structures and procedures governing judicial review lie, for the most part, in the discretion of the Member States, judicial review practice and procedure must facilitate effective enforcement of Community law rights. The traditional limited approach to judicial review (as per Wednesbury in England

176

Ibid, para 33. Ibid, para 34. 178 See also Joined Cases C-211/03, C-299/03 and C-316/03 to C-318/03 Warenvertriebs GmbH v Bundesrepublik Deutschland [2005] ECR I-5141 paras 75–9 and Case C-55/06 Arcor [2008] ECR I-0000 paras 91–101 of the Opinion. 179 Case C-120/97 Upjohn [1999] ECR I-223 para 36. 180 See also C Costello, ‘European Community Judicial Review in the Irish Courts—Scope, Standards and Separation of Powers’ in MC Lucey and C Keville (eds), Irish Perspectives on EC Law (Dublin, Round Hall Sweet & Maxwell, 2003) 39–43. 181 See also J-M Woehrling ‘Judicial Control of Public Authorities in Europe: Progressive Construction of a Common Model’ [2005] Judicial Review 311. 177

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Principle of Effective Judicial Protection and Wales and O’Keeffe in Ireland) may therefore need to be recalibrated to take account of the Upjohn obligation, particularly in Member States where national courts are inclined to defer automatically to the expertise of competent authorities. The practical difficulty with this aspect of Upjohn lies in the fact that the ECJ did not specify any particular standard of review to be applied by the national courts where complex decisions are taken by expert competent authorities. In Arcor,182 the ECJ confirmed that where Community law does not require Member States to put in place a specific means of review of decisions taken by national regulatory authorities, then it is a matter solely for the Member States, within the context of their procedural autonomy, to determine, in accordance with the principles of equivalence and effectiveness of judicial protection, the competent court, the nature of the dispute and, consequently, the detailed rules of judicial review with respect to decisions [of the relevant regulatory authorities].183

While Upjohn confirms that a merits-review, as such, is not necessarily required in all cases, it is not clear how closely decisions must be scrutinised by national courts if the obligation to deliver effective protection for Community law rights is to be satisfied. In other words, what level of review, short of merits-review, is enough to meet the effectiveness requirement? The overall context in which the contested decision was taken, and the procedural safeguards attending the decision-making process, will be important factors to be weighed in determining the appropriate standard of review. This flexible approach, while attractive and practical in terms of accommodating the different structures and procedures operating at national level, leaves the overall legal position hopelessly uncertain and fails to provide concrete guidance for national courts.184 Planning and environmental decision-making appears to fall squarely within the category of ‘complex’ decisions contemplated in Upjohn. It follows that Member States are not required to put in place a system of judicial review that empowers the national courts to reassess the merits of planning and environmental decisions taken by the relevant (and usually expert) national authorities. Nevertheless, the ECJ requires, at the very minimum, that the national system of judicial review must provide effective protection for Community law rights. The essential requirement of a system of review that provides effective protection set down by the ECJ in Upjohn leaves considerable scope for differentiation at national level. National judges will be reluctant to declare that a well-established system of judicial review is not effective in the absence of clear guidance from the ECJ on

182 183 184

Case C-55/06 Arcor [2008] ECR I-0000. Ibid, para 170. See also R (Noble Organisation Ltd) v Thanet DC [2005] EWCA Civ 782 paras 58–60.

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ECJ and National Procedural Rules & Remedies the appropriate standard of review. There is also a potential problem of doublestandards if a more intense level of scrutiny is applied to administrative decisions with a Community law dimension when compared with decisions involving purely national law.185 The decision of the Irish Supreme Court in SIAC Construction Ltd (SIAC) v Mayo County Council186 is instructive on the scope of judicial review at domestic level in cases involving the application of Community law.187 On this occasion, the applicant challenged the county council’s decision rejecting its tender for a public works contract on the ground that the council had acted in breach of Community public procurement law and the relevant national implementing regulations.188 Article 1 of Directive 89/665/EEC (the Remedies directive)189 required the Member States to take the measures necessary to ensure that … decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with [the provisions of the directive] on the grounds that such decisions have infringed Community law in the field of public procurement or national rules implementing that law.

Pursuant to the relevant Irish implementing measures, the review procedures referred to in the Remedies directive are exercised by the High Court. As noted earlier, it is a basic principle of Irish administrative law that judicial review is limited to review of the legality of the contested decision. It is not an appeal on the merits. Furthermore, the threshold of unreasonableness or irrationality in Irish law is set at a very high standard following the decision of the Supreme Court in O’Keeffe.190 In SIAC, the applicant argued that because the case at bar involved Community law rights, the High Court was required to embark on ‘a

185 See the discussion in SA de Smith, H Woolf and J Jowell, Judicial Review of Administrative Action, 5th edn (London, Sweet & Maxwell, 1995) paras 21.199–21.204. 186 SIAC Construction Ltd (SIAC) v Mayo County Council [2002] IESC 39, [2002] 3 IR 148. 187 See also the detailed discussion of the scope of a statutory appeal to the High Court from a decision of the Director of Telecoms (in the context of Dir 97/13/EC on a common framework for general authorizations and individual licences in the field of telecommunications services [1997] OJ L117/15) in Orange Communications Ltd v Director of Telecommunications Regulation (No 1) [1999] IEHC 132, [2000] 4 IR 136. 188 At the time, the relevant provisions were Dir 71/305/EEC concerning the co-ordination of procedures for the award of public works contracts [1971] OJ L185/5 (as amended by Dir 89/440/EEC [1989] OJ L210/1) and the European Communities (Award of Public Works Contracts) Regs 1992 (SI No 38 of 1992). 189 Dir 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/33. The remedies directive has since been amended by Dir 2007/66/EC [2007] OJ L335/31. 190 O’Keeffe v An Bord Pleanála [1993] 1 IR 39. See generally AM Collins and J O’Reilly, Civil Proceedings and the State, 2nd edn (Dublin, Thomson Round Hall, 2004) paras 4.15–4.21.

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Principle of Effective Judicial Protection more extensive review than would be permissible under ordinary administrative law principles’.191 Laffoy J (whose decision pre-dated the ECJ’s Upjohn ruling) disagreed and held: In point of principle, in my view, there is no reason why the Court should adopt a different method of review of that decision than it would adopt in reviewing an administrative decision which it is alleged contravenes a [national] regulation the genesis of which is not Community law.192

The High Court emphasised that [n]either the Remedies Directive nor the [national] Regulations, either expressly or by implication, suggests that the review is to be in the form of an appeal on the merits. The requirement in the Remedies Directive that the review should be effective, in my view, goes to the procedural aspects of the review and the efficacy of the remedies available to give effect to the review . . . rather than to the substantive nature of the review process and the principles applicable in its conduct.193

The contested decision therefore fell to be scrutinised in accordance with the well-established Keegan/O’Keeffe principles. Laffoy J was clearly impressed by the fact that the tendering process involved ‘a large measure of professional judgment and expertise’ on the part of the adjudicator. The judge concluded that SIAC had not discharged the onus of establishing that the contested decision was unreasonable. SIAC appealed to the Supreme Court and that court referred a question to the ECJ on the correct interpretation of the award criteria set out in Article 29 of the Public Procurement directive.194 The Supreme Court did not, however, refer a question on the appropriate standard of review to be applied by the national court in such cases and so this issue does not feature in the ECJ’s ruling. Advocate General Jacobs addressed the appropriate standard of review in his opinion in SIAC in the following terms: It is . . . for the national court to determine whether the criterion [of likely ultimate cost] was applied objectively [by the County Council]. That issue is related, but not identical, to the question of unreasonableness, which was addressed in some detail by the High Court by considering whether the award decision ‘plainly and unambiguously

191 The applicant referred to passages from two English texts in support of this proposition: C Lewis, Judicial Remedies in Public Law (London, Sweet & Maxwell, 1992) 462 and R D’Sa, European Community Law and Civil Remedies in England and Wales (London, Sweet & Maxwell, 1994) 194. Both authors had cited the decision of the High Court (England and Wales) in R v Minister for Agriculture, Fisheries and Food ex p Bell Lines Ltd v An Bord Bainne Co-Op Ltd [1984] 2 CMLR 502 in support of this view. Laffoy J distinguished Bell Lines Ltd on the basis that the Community law point at issue in that case was whether the contested measure infringed a basic Treaty provision. By contrast, SIAC involved an allegation that the contested decision infringed a directive. See also Kweder v Minister for Justice [1996] 1 IR 381, an earlier High Court decision concerning free movement of persons, cited in M de Blacam, Judicial Review (Dublin, Butterworths, 2001) para 16.16. 192 SIAC Construction Ltd v Mayo County Council [1997] IEHC 97 para 31. 193 Ibid. 194 Case C-19/00 SIAC Construction Ltd v Mayo County Council [2001] ECR I-7725.

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ECJ and National Procedural Rules & Remedies flew in the face of fundamental reason and common sense’ [the Keegan/O’Keeffe formula]. The test for objectivity should be, I consider, rather less extreme. The essential question here is whether the factors taken into account are capable of supporting the conclusions drawn from them.195

This passage suggests that the Irish standard of unreasonableness (or irrationality) may be set too high, at least in so far as public procurement cases are concerned. Yet it is difficult to identify the extent to which the Advocate General’s approach differs from the requirement set in O’Keeffe that the applicant must demonstrate that there was no evidence before the decision-maker to support the contested decision. In the Supreme Court in SIAC, the applicant argued for a modified approach to judicial review in cases ‘involving the protection of rights derived from Community law’ (especially, on this occasion, in light of the express requirements of the Remedies directive). Fennelly J reviewed a series of decisions from the CFI concerning the standard applied by that court when reviewing the legality of decisions taken by Community institutions acting in their capacity as awarding authorities.196 The judge concluded that the Community institutions enjoy ‘a wide discretion’ in assessing the factors to be considered in determining the award of a public works contract and that such decisions will be annulled only if a ‘manifest error’ can be demonstrated.197 It followed that Member States were required to apply the same standard of review to national awarding authorities. Fennelly J found further support for this conclusion in paragraphs 34 to 36 of Upjohn and he observed: There are obvious common threads which run through any system of review of administrative decisions, especially where the primary decision-making function is administrative or governmental. The function of the courts is to guarantee legality, though that notion itself has a number of elements, some procedural and some substantive.198

SIAC indicates that the ‘manifest error’ test is the standard that applies ‘to the appreciation of facts by the decision-maker’ in procurement cases. Having noted that the word ‘manifest’, as deployed by the Community courts, ‘should not be equated with any exaggerated description of obviousness’, Fennelly J held that the test of ‘manifest error’ was not the same as the standard of review which had been applied by Laffoy J in the High Court.199 In reaching this conclusion, Fennelly J was clearly influenced by the Advocate General’s view that the test should be ‘rather less extreme’ than that applied by Laffoy J. Fennelly J observed that the Keegan/O’Keeffe standard ‘would run the risk of not offering what the Remedies Directive clearly mandates, namely a judicial remedy which will be effective in the

195 196 197 198 199

Ibid, paras 53–5 of the Opinion (footnote omitted). SIAC [2002] IESC 39, [2002] 3 IR 148, 173–4. Ibid, 174. Ibid, 175. Ibid, 176.

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Principle of Effective Judicial Protection protection of the interests of disappointed tenderers’ (emphasis added).200 The judge then summarised the position in the following terms: I am satisfied that the courts, while recognising that awarding authorities have a wide margin of discretion, must recognise that this cannot be unlimited. The courts must exercise their function of judicial review so as to make the principles of the public procurement directives effective. In the case of clearly established error, they must exercise their powers. The application of these principles may not, in practice, lead to any real difference in result between the judicial review of purely national decisions and of those which require the application of Community law principles.201 (emphasis added)

There is an element of ambiguity here. At one point in his judgment Fennelly J expressed the clear view that the Community law test of ‘manifest error’ is not the same as the Keegan/O’Keeffe standard of unreasonableness or irrationality. In the above passage, however, Fennelly J appears to concede that the application of the two distinct tests may result in the same outcome in practice.202 In SIAC, the Supreme Court reached the same conclusion as the High Court (ie that the national awarding authority had not exceeded its margin of discretion). The real difficulty here is that Fennelly J’s analysis fails to provide clear guidance for future cases. In particular, the judge failed to clarify the essential differences between the two alternative tests. How does the ‘manifest error’ test connect with wellestablished principles of judicial review? Does the ‘manifest error’ test require deeper scrutiny than the test for unreasonableness/irrationality established in O’Keeffe? How close does the ‘manifest error’ test come to merits review? It is remarkable that these basic questions remain unresolved following a Supreme Court decision involving a reference to the ECJ. Fennelly J stressed that the national courts must be ready to provide ‘effective’ protection where Community law rights are at stake. But what specific impact does this overarching obligation have on the standard of review? SIAC, unfortunately, does not provide a clear answer to this question.203

200

Ibid. Ibid. In Arklow Holidays Ltd v Wicklow County Council [2003] IEHC 68, Murphy J of the High Court cited Fennelly J’s analysis of the ‘manifest error’ test in SIAC, but concluded that even if this test were applied it was not for the High Court to impose its own planning judgment on a planning authority once the authority’s decision was ‘reasonable’. 202 See also Greencore Group Plc v Government of Ireland [2007] IEHC 211 para 6.3. 203 Post-SIAC procurement cases include: Hygeia Chemicals Ltd v Irish Medicines Board [2005] IEHC 226, where Finnegan P referred in passing to the ‘heightened standards’ of judicial review which the applicant for judicial review, relying on SIAC sought to have applied, but ultimately held against the applicant; and Clare Civil Engineering Ltd v Mayo County Council [2004] IEHC 135, where O’Neill J interpreted Fennelly J’s ruling in SIAC as requiring the applicant for judicial review to ‘satisfy the court that the decision of which he complains has been made in clear error’. The High Court defined ‘clear error’ in this context as follows: ‘Clearly established error must mean in my view more than being simply wrong; ie error resulting from a mere difference of opinion. It must be shown that the decision or step taken which gives rise to 201

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ECJ and National Procedural Rules & Remedies IV.

IMPACT OF AARHUS CONVENTION

It will be recalled from chapter two that Article 9(2) of the Aarhus Convention requires a review procedure in which ‘the substantive and procedural legality’ of a contested decision is open to challenge. The Convention is silent on the appropriate standard of review, however. Article 9(4) simply states that review procedures must provide ‘adequate and effective remedies’. The similarity between this formula and the language deployed in the ECJ’s case law on effective judicial protection, considered earlier in this chapter, is striking. While it is unlikely that the obligation articulated in Article 9(2) and (4) of the Convention stretches to merits review, taken together, both provisions could be deployed to support a more intense form of review than that articulated in O’Keeffe. The Article 9(2) requirement of a remedy involving review of ‘the substantive and procedural legality’ of a contested decision is mirrored in Article 10a of the EIA directive. While this formula is more specific than the general principle articulated in Upjohn,204 the actual content of this important obligation remains uncertain. The reference to ‘legality’ indicates that Article 10a does not require merits review as such. This begs the question—what, if anything, does Article 10a add to the principle already established by the ECJ in Upjohn? At the very minimum, an inquiry into ‘the substantive or procedural legality’ of a contested decision should require the reviewing court to verify, objectively, whether or not the decisionmaker (competent authority) has complied with the substantive requirements of Community (environmental) law. Determining the merits of a particular application for development consent lies in the discretion of the expert competent authority, and so limited review is acceptable. In sharp contrast, the correct application of the EIA directive in a particular case is a firm legal obligation under Community law and the relevant national implementing measures (if any). The competent authority’s discretion is not unfettered in such cases. Rather, it is constrained by the fundamental requirements of Community EIA law, and a deferential approach to judicial review is therefore inappropriate. Whether or not EIA is required for a particular project, or whether the EIS submitted by the developer is adequate, are plainly questions of Community law and as such should be subject to robust review. This obligation could be satisfied by a system of judicial review encompassing the following features: first, review for any error of law; secondly, an obligation on competent authorities to provide detailed reasons for decisions taken in the EIA field (in order to facilitate effective scrutiny of the exercise of discretion); and thirdly, review for error of fact, where a fact or facts are material to the authority’s decision. This approach is also consistent with

complaint was plainly, unambiguously, or unarguably wrong’. Notwithstanding the strong reliance on SIAC, this formulation of the standard of review appears very similar to the classic Keegan/O’Keeffe test. 204 Case C-120/97 Upjohn [1999] ECR I-223.

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Impact of European Convention on Human Rights the core elements of the principle of effective judicial protection identified by the ECJ in its remedies case law, considered earlier in this chapter. It remains to be seen how the question of the appropriate standard of review will be developed by the ECJ under Article 10a of the EIA directive. The current position is that Upjohn provides only limited guidance on the correct standard of review to be applied by the national courts in cases involving Community law. The practical implications of this lack of guidance are well illustrated by the confusion and complexity generated in SIAC, where the judiciary struggled to identify the appropriate standard of review. In Sweetman v An Bord Pleanála (No 1)205 (an application for leave to bring judicial review proceedings wherein it was alleged that Ireland had failed to transpose elements of Article 10a), the High Court ruled that Article 10a did not require a complete review of the merits of the contested decision. Clarke J observed, without determining the matter, that any greater level of scrutiny that might be required under the EIA directive could be accommodated within the existing judicial review regime. In Klohn v An Bord Pleanála,206 McMahon J of the High Court noted obiter that if a Community law measure is at issue, it may be more appropriate to adopt the ‘manifest error’ test. Sweetman (No 1) and Klohn, which are considered further in chapter five, indicate that this aspect of judicial review is likely to see interesting future developments. Beyond Upjohn, there is a more prescriptive line of authority in which the ECJ has clarified the role of the national courts in judicial review proceedings where the parties seek to rely on the rights conferred by the EIA directive. This jurisprudence is examined in the next chapter. Before moving to the EIA jurisprudence, however, it is necessary to consider the impact of the ECHR on national judicial review procedures. It will be recalled from the earlier sections of this chapter that the principle of effective judicial protection crafted by the ECJ has its roots in the ECHR, in particular Article 6 (the right to a fair trial) and Article 13 (the right to an effective remedy).

V.

A.

IMPACT OF EUROPEAN CONVENTION ON HUMAN RIGHTS

ECHR and Irish Law

The European Convention on Human Rights Act 2003 (the 2003 Act) came into effect on 31 December 2003.207 According to its long title, the Act aims ‘to enable further effect to be given’, subject to the Constitution, to certain provisions of the European Convention on Human Rights. Prior to the 2003 Act, the ECHR was 205

Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153. Klohn v An Bord Pleanála [2008] IEHC 111. 207 European Convention on Human Rights Act 2003 (Commencement) Order 2003 (SI No 483 of 2003). The Act is not retrospective: Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604. 206

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ECJ and National Procedural Rules & Remedies not part of Irish law.208 A litigant seeking to enforce Convention rights was obliged to exhaust local remedies and then attempt to bring the alleged breach before the European Court of Human Rights (ECtHR) in Strasbourg. Convention rights may now be pleaded directly before the Irish courts and effective remedies for breach of Convention rights should be available locally.209 It must be recalled at the outset that Bunreacht na hÉireann (the Irish Constitution) already provides extensive protection for most of the rights articulated in the Convention.210 Accordingly, while there are interesting points of departure in the manner in which certain rights are expressed in the two instruments, the 2003 Act has not had a dramatic impact on Irish law and policy. Under the scheme established in the 2003 Act, the Convention remains subordinate to the Constitution. The 2003 Act does not purport to incorporate the Convention directly into Irish domestic law.211 Instead, section 2(1) imposes an obligation on the courts to interpret and apply any statutory provision or rule of law ‘in so far as is possible, subject to the rules of law relating to such interpretation and application’ in a manner compatible with the State’s obligations under Convention provisions.212 ‘Statutory provision’ is defined broadly in section 1(1) as embracing any provision of an Act ‘or of any order, regulation, rule, licence, bye-law or other like document made, issued or otherwise created thereunder.’ The concept of ‘rule of law’ includes the common law.213 The interpretative obligation applies to all courts and arises irrespective of whether section 2(1) has been specifically pleaded by the parties. The fact that the section requires courts to interpret all statutory provisions and rules of law in light of Convention provisions (subject to the provisos mentioned in the section) means that the interpretative obligation also applies in so-called ‘horizontal’ situations (ie in proceedings or disputes between private parties) in so far as the ECHR is relevant in such cases. As noted above, the interpretative obligation is not absolute and applies only ‘in so far as is possible’. This important qualification recognises that in certain cases it simply may not be feasible to interpret a statutory provision (or rule of law) to bring it into line with Convention requirements. The interpretative obligation created in section 2(1) may be compared with the well-established 208 Doyle v Commissioner of An Gárda Síochana [1999] 1 IR 249, 269 and Adam and Iordache v Minister for Justice, Equality and Law Reform [2001] IESC 38, [2001] 3 IR 53, 81. 209 See generally Collins and O’Reilly, above n 190, ch 11 and U Kilkelly (ed), ECHR and Irish Law, 2nd edn (Bristol, Jordan Publishing, 2009). For a critical overview see S Egan, ‘The European Convention on Human Rights Act 2003: A Missed Opportunity for Domestic Human Rights Litigation’ (2003) 25 Dublin University Law Journal 230. 210 On the Constitution see G Hogan and G Whyte (eds), JM Kelly: The Irish Constitution, 4th edn (Dublin, LexisNexis Butterworths, 2003). 211 Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604. 212 According to s 1(1), the term ‘Convention provisions’, which is employed throughout the Act, means Arts 2 to 14 of the Convention (as amended by Protocol No 11), together with a number of specific protocols thereto. Section 2(2) confirms that the interpretative obligation applies to any statutory provision or rule of law that was in force immediately before the passing of the 2003 Act and to any provision that comes into force after its enactment. 213 Section 1(1).

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Impact of European Convention on Human Rights principle of Community law that requires national courts (and competent authorities) to interpret provisions of national law in light of the requirements of Community law, at least in so far as this is possible (the principle of consistent interpretation).214 Section 3(1) of the 2003 Act imposes a duty on every ‘organ of the State’, subject to any statutory provision or rule of law,215 to perform its functions in a manner compatible with the State’s obligations under Convention provisions. There is an obvious parallel here with the obligation falling on organs of the State to perform their functions in a manner compatible with directly effective provisions of Community law. The section 3(1) obligation is not absolute and is expressed to be ‘subject to any statutory provision … or rule of law’. This qualification would cover a situation where a statutory provision (or rule of law) may require an organ of the State to perform its functions in a manner inconsistent with Convention requirements and it is not possible to interpret that provision in a manner compatible with the Convention. In such a case, the domestic provision would stand, but it would be open to a party to the proceedings to seek a declaration of incompatibility pursuant to section 5 of the 2003 Act (which option is considered below). Pursuant to section 1(1), the concept ‘organ of the State’ includes a tribunal or any other body (other than the President or the Oireachtas [Parliament] or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised.

It is clear from this definition that tribunals are included but courts are not. The question then arises as to what bodies, beyond tribunals, fall within the scope of the concept ‘organ of the State’? Two points arise here. First, a body must satisfy only one of the two criteria listed in the definition. It must either be ‘established by law’ or it must be a body ‘through which any of the legislative, executive or judicial powers of the State are exercised’. The two criteria are not presented as cumulative requirements. Secondly, the use of the expression ‘includes’ indicates that the definition is not intended to be exhaustive. It is therefore open to the courts, in an appropriate case, to rule that a body that does not satisfy either of the criteria mentioned in the definition should still be considered an organ of the State. It is clear that the following fall within the scope of the definition: Government Departments, Ministers, local authorities, planning authorities, An Bord Pleanála, and the Environmental Protection Agency (EPA). As regards remedies, section 3(2) of the 2003 Act creates a new cause of action where a person suffers injury, loss or damage as a result of a contravention of the

214 Case 14/83 Von Colson [1984] ECR 1891 para 26 and Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 paras 113–16. 215 Apart, of course, from the 2003 Act itself.

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ECJ and National Procedural Rules & Remedies obligation set down in section 3(1).216 Such a person may institute proceedings to recover damages in the Circuit Court in respect of a contravention of section 3(1), provided no other remedy in damages is available. Proceedings may also be instituted in the High Court depending on the amount of damages claimed. Jurisdiction is determined by reference to the present scope of torts and civil causes of action. The court may award ‘such damages (if any) as it considers appropriate’. Section 4 requires a court to take judicial notice of Convention provisions and a range of other Convention-related instruments. The section also requires that in interpreting and applying Convention provisions a court must ‘take due account of ’ the principles established in the Strasbourg jurisprudence. Pursuant to section 5(1), the High Court, or the Supreme Court when exercising its appellate jurisdiction, may, on application to it by a party to the proceedings (or of its own motion) make a declaration that a statutory provision or rule of law is incompatible with the State’s obligations under Convention provisions. Such a declaration may only be made ‘where no other legal remedy is adequate and available’. Both the Attorney General and the Human Rights Commission217 must be given notice before a court decides to make a declaration of incompatibility, and the Attorney General is entitled to appear in the proceedings and become a party to them in so far as the declaration of incompatibility is concerned.218 Any declaration of incompatibility will not operate to affect the validity, continuing operation or enforcement of the statutory provision or rule of law in question.219 There is provision to apply for an ex gratia compensation payment where a party to the proceedings suffers loss, injury or damage as a result of the incompatibility.220 The amount of any such payment is to be that which the Government in its discretion considers appropriate in the circumstances. The Government may request an adviser to recommend the appropriate amount of compensation, and any such adviser is required to take account of the principles and practice applied by the ECtHR in the context of Article 41 of the Convention concerning ‘just satisfaction’.

B. Implications for Judicial Review While the text of the ECHR does not mention the environment or environmental rights, this has not deterred the Strasbourg Court from crafting an innovative environmental jurisprudence based primarily on Article 8 ECHR concerning the 216 Proceedings under s 3(2) must be brought within one year of the alleged contravention of s 3(1) (see s 3(5)(a)). The Court may, however, extend this period ‘if it considers it appropriate to do so in the interests of justice’ (s 3(5)(b)). 217 Human Rights Commission Acts 2000 and 2001, as amended by the 2003 Act. See generally www.ihrc.ie. 218 Section 6. 219 Section 5(2)(a). 220 Section 5(4).

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Impact of European Convention on Human Rights right to respect for private and family life, including the home.221 While the main activity to date has been under Article 8, other Convention provisions are also relevant in the planning and environmental context including: Article 2 (right to life)222; Article 6 (right to a fair trial)223; Article 13 (right to an effective remedy)224; and Article 1 of Protocol No 1 (protection of property).225 Returning to the Irish context, the 2003 Act has added a further ground—breach of a Convention right(s)—to the traditional catalogue of grounds for judicial review. Any interference with a qualified Convention right (such as the rights protected under Article 8 and Article 1 of Protocol No 1) must be justifiable and proportionate.226 Article 6(1) ECHR is of particular relevance in the context of planning and environmental judicial review.227 It provides in relevant part: In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

This provision comes into play when ‘civil rights and obligations’ are engaged.228 An important dimension to the right to a fair trial—though it is not expressly mentioned in the text of Article 6(1)—is the concept of ‘equality of arms’ (in the sense of a ‘fair balance’ between the parties) first articulated by the ECtHR in Neumeister v Austria.229 Essentially, this important principle demands that ‘each party must be afforded a reasonable opportunity to present his case—including

221 López Ostra v Spain (1995) 20 EHRR 277; Guerra v Italy (1998) 26 EHRR 357; Hatton v United Kingdom (2003) 37 EHRR 28; Moreno Gómez v Spain (2005) 41 EHRR 40; Tas¸kin v Turkey (2006) 42 EHRR 50; Fadeyeva v Russia (2007) 45 EHRR 10; Ledyayeva v Russia, Applications Nos 53157/99, 53247/99, 53695/00 and 56850/00, 26 October 2006; and Giacomelli v Italy (2007) 45 EHRR 38. On the limitations of Article 8 ECHR in the specific context of objectors’ rights see R (Vetterlein) v Hampshire County Council [2001] EWHC (Admin) 560. See generally Simons, above n 168, at paras 14.39–14.67 and Council of Europe, Manual on Human Rights and the Environment: Principles Emerging from the Case Law of the European Court of Human Rights (Strasbourg, Council of Europe, 2006). 222 Öneryildiz v Turkey (2005) 41 EHRR 20. 223 Airey v Ireland (1979) 2 EHRR 305 and Ortenberg v Austria (1994) 19 EHRR 524. 224 Hatton v United Kingdom (2003) 37 EHRR 28. For commentary see J Hyam, ‘Hatton v United Kingdom in the Grand Chamber: One Step Forward, Two Steps Back?’ (2003) 6 European Human Rights Law Review 631. 225 Fredin v Sweden (1991) 13 EHRR 784 and Antonetto v Italy (2003) 36 EHRR 10. 226 The principle of proportionality is a well-established principle of Irish constitutional and administrative law. See generally Hogan and Whyte, above n 210, paras 7.1.56–7.1.67 and Heaney v Ireland [1994] 3 IR 593. 227 See generally J Maurici, ‘Planning and Article 6: Where Are We Now?’ [2003] Judicial Review 21; P Sales, ‘The Civil Limb of ECHR, Article 6’ [2005] Judicial Review 52 and P Craig, ‘The Human Rights Act, Article 6 and Procedural Rights’ [2003] PL 753. 228 See Simons, above n 168, at paras 14.100–14.113 for an account of the different situations in which Art 6 may apply in the planning context. 229 Neumeister v Austria (1968) 1 EHRR 91.

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ECJ and National Procedural Rules & Remedies his evidence—under conditions that do not place him at a substantial disadvantage vis-á-vis his opponent’. It is left to the national authorities to ensure in each individual case that the requirements of a ‘fair hearing’ are met.230 Following the introduction of the Human Rights Act 1998 (HRA) in England and Wales, the courts in that jurisdiction have been required to consider the impact of Article 6(1) on the domestic planning system.231 Alconbury232 is the leading authority. On this occasion, the House of Lords ruled unanimously that there was no violation of Article 6(1) where the Secretary of State determined planning matters in which he had an interest.233 Even though the proceedings before the Secretary did not meet the ‘independent and impartial tribunal’ requirement prescribed in Article 6(1), the determination was subject to subsequent review by the High Court, and regard had to be paid to both stages of the process in considering whether or not Convention requirements had been met. This ‘schematic’ or ‘composite approach’ to the application of Article 6(1) had been endorsed by the Strasbourg Court in earlier rulings, particularly Bryan v United Kingdom234 and Chapman v United Kingdom.235 In Bryan, the ECtHR was particularly impressed by what it described as ‘the uncontested safeguards attending the procedure before the [planning] inspector’.236 The Strasbourg Court noted that even though the High Court could not substitute its own findings of fact for those of the inspector, it had ‘the power to satisfy itself that the inspector’s findings of fact or the inferences based on them were neither perverse nor irrational’.237 The ECtHR went on to observe: Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by Article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe Member States. Indeed, in the instant case, the subject matter of the contested decision

230 Dombo Beheer BV v Netherlands (1994) 18 EHRR 213 para 33. See also Steel and Morris v United Kingdom (2005) 41 EHRR 22 paras 59–62. 231 See generally C George, ‘The Effect of the Human Rights Act 1998 on the Approach of the UK Courts to Environmental Issues’ paper presented at Law and the Environment Conference, Faculty of Law, University College Cork, 27 April 2006; and R Drabble, J Maurici and T Buley (eds), Local Authorities and Human Rights (Oxford, Oxford University Press, 2004) ch 5. 232 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23. See generally D Elvin and J Maurici, ‘The Alconbury Litigation: Principle and Pragmatism’ [2001] Journal of Planning and Environment Law 883. 233 In Holding and Barnes Ltd v UK (App No 2352/02), the ECtHR declared an application by one of the parties to the Alconbury litigation, which sought to raise in Strasbourg the Art 6 points that had been decided by the House of Lords, to be inadmissible. 234 Bryan v United Kingdom (1995) 21 EHRR 342. 235 Chapman v United Kingdom (2001) 33 EHRR 18. 236 Bryan v United Kingdom (1995) 21 EHRR 342 para 46. 237 Ibid, para 47.

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Impact of European Convention on Human Rights by the inspector was a typical example of the exercise of discretionary judgement in the regulation of citizens’ conduct in the sphere of town and country planning.238

There is an obvious parallel between this pragmatic approach, with its strong emphasis on the ‘specialised’ nature of decision-making in the planning field, and the similar line of reasoning deployed by the ECJ in its Upjohn239 ruling (considered earlier in this chapter). Following Bryan, the availability of judicial review may operate to ‘cure’ alleged non-compliance with Article 6(1) at the initial stages of the decision-making process. According to Alconbury, the question of whether or not there is ‘adequate judicial control’ for the purposes of satisfying Article 6(1) depends on the particular context in which the contested decision is taken, including: the subject-matter at issue; the nature of the decision-making procedure; and the safeguards attending the procedure.240 In Alconbury, the House of Lords took the view that Article 6(1) (as interpreted by the ECtHR in Bryan and Chapman) did not require that judicial review extend to a re-hearing on the merits of the Secretary’s decision. In the words of Lord Slynn: ‘What is required on the part of [the courts] is that there should be a sufficient review of the legality of the decisions and of the procedures followed’.241 Lord Clyde observed that attempts to enlarge the scope of judicial review to encompass merits review risked ‘jeopardising the constitutional balance between the role of the courts and the role of the executive’. In his view, ‘[t]he supervisory jurisdiction of the court as it has now developed seems to me adequate to deal with a wide range of complaints which can properly be seen as directed to the legality of a decision’.242 Passages in the judgments delivered in Alconbury also acknowledged that the courts may intervene and quash a decision on the basis of ‘material error of fact’, although Lord Nolan noted that reversal of a finding of fact in the planning field would be ‘highly unusual’.243 The ‘material error of fact’ doctrine may well be developed to underpin closer judicial control of decision-makers’ findings of fact in future cases.244

238

Ibid. Case C-120/97 Upjohn [1999] ECR I-223. See also Begum v London Borough of Tower Hamlets [2003] UKHL 5; R (Nunn) v First Secretary of State [2005] EWCA Civ 101 para 22 and R Clayton and V Sachdeva, ‘The Role of Judicial Review in Curing Breaches of Article 6’ [2003] Judicial Review 90. 241 Alconbury [2001] UKHL 23 para 49. 242 Ibid, para 169. 243 Ibid, para 62. See also Lord Slynn, ibid, para 53 (citing his earlier ruling in R v Criminal Injuries Compensation Board ex p A [1999] 2 AC 330, 334). 244 See also Begum [2003] UKHL 5 para 7 (Lord Bingham) and the detailed analysis presented in E v Secretary of State [2004] EWCA Civ 49 (Carnwath LJ). For commentary see P Craig, ‘Judicial Review, Appeal and Factual Error’ [2004] PL 788 and H Woolf et al, above n 158, at paras 11.41–11.56. In the Irish context see SIAC [2002] IESC 39, [2002] 3 IR 148 and Collins and O’Reilly, above n 190, at para 4.21. 239 240

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ECJ and National Procedural Rules & Remedies The ruling of the Strasbourg Court in Tsfayo v United Kingdom245 (which involved administrative decision-making in the field of social welfare law) generated considerable uncertainty as to the scope of application of the ‘composite approach’, particularly in cases where the decision-maker is required to make findings of fact as opposed to exercising discretion pursuant to wider policy aims.246 In Tsfayo, the decision-maker was not independent of the executive and was directly connected to one of the parties to the dispute. The ECtHR found that the limited scope of the remedy of judicial review meant that there was no possibility that primary findings of fact could be adequately scrutinised by an independent tribunal. The Court proceeded to rule unanimously that there had been a breach of Article 6(1). The implications of Tsfayo for the principles established in the Alconbury line of authority remain to be teased out fully.247 In Adlard,248 the Court of Appeal (England and Wales) held that objectors’ Article 6(1) rights had not been violated where a local planning authority refused to call a public inquiry or any form of oral hearing. In the words of Dyson LJ, ‘[t]his is because a combination of the authority’s initial decision-making process and judicial review by the High Court is sufficient to ensure compliance with Article 6’.249 Simon Brown LJ noted obiter that ‘exceptionally, on the facts of a particular case’, it would be open to a court to hold that a local planning authority had acted unfairly or unreasonably in denying an objector any oral hearing, or any ‘sufficient’ oral hearing, and would be open to a court to proceed to quash the authority’s decision on this basis and direct that such a hearing be provided.250 The ‘equality of arms’ requirement may be deployed to supplement traditional natural/constitutional justice arguments in support of the right to an oral hearing in a complex case or, in certain circumstances, to ground a right to civil legal aid in order to ensure effective access to justice.251 The decision of the Grand Chamber of the ECtHR in Hatton252 is instructive on the level of national judicial scrutiny required to satisfy Article 13 ECHR (the right to an effective remedy) in the case of an alleged interference with substantive Convention rights. In Hatton, the applicants maintained that UK policy on night flights at Heathrow violated their Article 8 rights (the specific complaint

245

Tsfayo v United Kingdom App No 60860/00, 14 November 2006. J Howell, ‘Alconbury Crumbles’ [2007] Judicial Review 9. J Maurici and S Blackmore, ‘Focus on Article 6’ [2007] Judicial Review 56. 248 R (Adlard) v Secretary of State for Environment, Transport and the Regions [2002] EWCA Civ 735 (leave to appeal to the House of Lords was refused). 249 Ibid, para 46. 250 Ibid, para 32. 251 See, eg, Airey v Ireland (1979) 2 EHRR 305; Steel and Morris v United Kingdom (2005) 41 EHRR 22; C George, ‘Fragments from a Changing Legal Landscape—Planning Law Update’ [2005] Journal of Planning and Environment Law 91 (Occasional Papers No 33), para 80 and J Cooper, ‘Procedural Due Process, Human Rights and the Added Value of the Right to a Fair Trial’ [2006] Judicial Review 78. Note, however, the decision in R v Secretary of State for the Environment, Transport and Regions, ex p Challenger [2001] Env LR 12 paras 47–52. 252 Hatton v United Kingdom (2003) 37 EHRR 28. 246 247

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Impact of European Convention on Human Rights centred on the noise nuisance generated by night-time flights). A majority of the Grand Chamber ruled that the UK had not exceeded its margin of appreciation by failing to strike a fair balance between the applicants’ rights and the important economic interests at stake in this case. The majority stressed ‘the fundamentally subsidiary role of the Convention’ and reiterated that the margin of appreciation enjoyed by the national legislature in implementing social and economic policy was ‘a wide one’.253 The applicants had also maintained that judicial review proceedings before the English courts did not provide an effective remedy in relation to their Article 8 rights, and they succeeded on this point. A majority of the Strasbourg Court (Sir Brian Kerr dissenting) found that the applicable national law did not provide an effective remedy for the applicants in this case due to the restrictive nature of the remedy of judicial review before the entry into force of the HRA.254 The question arises as to whether or not the Irish standard of unreasonableness or irrationality as articulated in O’Keeffe provides sufficient judicial control for Alconbury purposes in purporting to ‘cure’ any incompatibly with Article 6(1) at the initial stages of the decision-making process? Are the principles established in O’Keeffe compatible with Article 6 and Article 13 of the ECHR? It remains to be seen how the emerging principles will develop under the 2003 Act.255 The implications of the 2003 Act for Irish planning and environmental law in general, and the principles of judicial review in particular, have not been teased out in the case law to date.256 Not surprisingly, the main activity under the 2003 Act has been in the field of asylum and immigration law. It is noteworthy that the HRA (and arguments based on Article 6 ECHR in particular) has not had a dramatic

253 Contrast the ruling in the Third Section of the ECtHR in Hatton where a majority found that there had been a breach of the applicants’ Art 8 rights: Hatton v United Kingdom (2002) 34 EHRR 1. 254 Hatton v United Kingdom (2003) 37 EHRR 28 paras 137–42. See also D Hart and M Wheeler, ‘Night Flights and Strasbourg’s Retreat from Environmental Human Rights’ (2004) 16 Journal of Environmental Law 100 and Smith and Grady v United Kingdom (2000) 29 EHRR 493 paras 129–39. 255 Arguments based on Arts 6, 8 and 13 ECHR are among the grounds on which the applicants were granted leave in O’Leary v An Bord Pleanála (2004/191 JR): ‘High Court allows legal challenge to incinerator’, Irish Times 25 January 2005. The substantive hearing has yet to come before the High Court. This case concerns a challenge to the decision of the Board granting planning permission to Indaver Ireland Ltd for development consisting of a waste management facility at Ringaskiddy, County Cork (Board Ref No 04.131196). The grounds of challenge include arguments based on alleged non-compliance with the requirements of the EIA directive. The EPA’s decision to grant a waste licence for the proposed facility is also the subject of a separate challenge in the High Court: Ringaskiddy and District Residents’ Association Ltd v EPA (2006/69 JR). For an overview of the impact of the 2003 Act on Irish law see D O’Connell, S Cummisky, E Menneghan and P O’Connell, ECHR Act 2003: A Preliminary Assessment of Impact (Dublin, Dublin Solicitors Bar Association/Law Society of Ireland, 2006) and Kilkelly, above n 209. 256 In Clinton v An Bord Pleanála [2007] IESC 19, Geoghegan J of the Supreme Court noted that the making and confirming of a compulsory purchase order entails an invasion of constitutionally protected property rights and observed that ‘[i]t would insufficiently protect constitutional property rights if the court, hearing the judicial review application, merely had to be satisfied that the decision was not irrational or was contrary to fundamental reason and common sense’. See generally Simons, above n 168, ch 14 and Scannell, above n 166, at paras 13.78–13.107.

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ECJ and National Procedural Rules & Remedies impact on judicial review in the planning and environmental law context in England and Wales, apart from the particular case of enforcement of planning controls.257

VI.

CLOSING OBSERVATIONS

One of the most interesting points to emerge from the analysis presented in this chapter is the cumulative impact of the different sources of legal authority—the Aarhus Convention, Community law and the ECHR—on the standard of review to be applied by national courts. Article 10a of the EIA directive expressly requires access to a review procedure where ‘the substantive or procedural legality’ of decisions may be challenged. Article 10a falls to be interpreted by reference to Article 9(2), (4) and (5) of the Aarhus Convention, which provide a measure of guidance for the ECJ and national courts when called upon to determine the scope of the obligations created therein. Article 9(4) of the Convention, in particular, refers to ‘adequate and effective’ remedies. The language deployed here is very similar to that found in the ECJ case law on the principle of effective judicial protection. In essence, Article 10a represents a welcome codification of now well-established elements of the principle of effective judicial protection as developed by the ECJ. The relevant Strasbourg case law, in turn, is built around the fundamental aim of guaranteeing ‘practical and effective’ rights via ‘effective’ access to the courts and ‘effective’ remedies. Indeed, it will be recalled that the ECJ originally drew on Articles 6 and 13 ECHR when elaborating the principle of effective judicial protection. The ECJ has consistently ruled that the national courts are under a duty to provide effective judicial protection for Community law rights. The principles of equivalence and effectiveness provide the standard against which the legality of national procedural rules and remedies is to be determined. The twin principles ‘are not to be treated as terms of art but rather as facilitating the judicial inquiry’.258 In light of the loose principles crafted by the ECJ (in particular the Van Schijndel formula), there remains considerable scope for differentiation at national level. The rulings in Verholen and Clean Car, for example, leave it to the national courts to determine the compatibility of national rules (on locus standi and costs respectively) with the principles of equivalence and effectiveness. The

257 See generally J Maurici, ‘Planning and Article 6: Where Are We Now?’ [2003] Judicial Review 21. As regards the impact of the HRA on enforcement in the planning context see South Bucks DC v Porter [2003] UKHL 26. 258 T Tridimas, ‘Enforcing Community Rights in National Courts: Some Recent Developments’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000) 49.

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Closing Observations underlying theme running through the most recent case law is the ECJ’s insistence on effective enforcement and remedies at national level. The rulings in Courage, Muñoz, Köbler, Pfeiffer and Manfredi provide strong evidence of this trend. The recent amendments to the EIA directive, which aim to give effect to the access to justice pillar of the Aarhus Convention, provide the ECJ with a clear legislative basis on which to develop a robust approach to effective judicial protection in this specific policy area. Yet Member State discretion continues to play an important role in shaping the overall character and detailed mechanics of the review procedure. The most interesting questions here concern: (1) the likely impact of the requirement that national legal systems facilitate review of ‘the substantive or procedural legality’ of contested decisions on the scope and intensity of national judicial review procedures; and (2) the impact of the requirement that review procedures are ‘not prohibitively expensive’ on national provisions governing legal aid and liability for costs. It is difficult to predict the impact of these new measures on national judicial review practice and procedure. As explained in chapter two, the Community measures, and the Aarhus provisions which they purport to implement, are drafted in rather vague terms and frequently defer to the national legal system. In the specific context of challenges to decisions of national authorities in the public procurement field, there are already indications that the weak mode of review established in O’Keeffe is not easily reconciled with the principle of effective judicial protection under Community law. The ECJ’s Upjohn ruling, with its strong emphasis on effectiveness, taken together with Article 10a of the EIA directive, brings increasing pressure to bear on the deeply entrenched O’Keeffe principles. Yet national judges will be reluctant to declare that a well-established system of judicial review is not ‘effective’ in the absence of clear guidance from the ECJ on the appropriate standard of review. The first series of rulings from the Irish High Court concerning Article 10a suggests a limited impact on national judicial review procedures. A number of interesting questions have also surfaced regarding the potential impact of Article 6(1) and Article 13 ECHR on traditional domestic approaches to judicial review, following incorporation of the ECHR in the UK and the entry into force of the European Convention on Human Rights Act 2003 in Ireland. The extent of the impact of ECHR principles on the standard of review to be applied by the Irish courts in planning matters remains uncertain at the time of writing. It has been suggested that a sectoral analysis of procedures and remedies for enforcing Community law rights may well provide ‘a new and challenging research agenda for re-assessing the past and considering the future of remedies in the Luxembourg Court’s jurisprudence’.259 The following chapter takes up this

259 C Kilpatrick, ‘The Future of Remedies in Europe’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe’ 14 and Dougan, above n 2, especially 200–26.

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ECJ and National Procedural Rules & Remedies challenge and examines the ECJ’s approach to remedies in the specific context of the EIA directive. Chapter five proceeds to examine the extent to which the Irish courts have embraced this jurisprudence in the EIA field.

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4 The ECJ and the EIA Directive I.

INTRODUCTION

T

HE ENVIRONMENTAL IMPACT Assessment (EIA) directive sets out the basic requirements for a system of environmental assessment and leaves the practical details to be completed by the Member States. The broad and general manner in which a number of provisions of the directive are drafted has led to considerable uncertainty in practice. The Commission has observed that whilst the ‘framework’ nature of the Directive has, from one perspective, made the task of implementation easier—by giving Member States more flexibility in adjusting their existing procedures—its broad nature has, perhaps inevitably, entailed some uncertainty over the precise interpretation to be placed upon the basic assessment principles and procedural requirements, which have to be satisfied.1

The European Court of Justice (ECJ) has been called upon to interpret a number of key provisions of the directive with a view to clarifying the scope and content of the obligations imposed on the Member States. Two particular strands of the Court’s EIA jurisprudence are examined in this chapter: first, the Court’s approach to the discretion left to Member States at a number of points in the directive; and secondly, the line of cases in which the Court has clarified the role and potential of the directive in judicial review proceedings before the national courts. This chapter explains the basic principles emerging from this jurisprudence and it traces how the ECJ has developed and refined these principles over time.2 II.

THE ECJ’S GENERAL APPROACH TO THE EIA DIRECTIVE

The ECJ has taken a consistently rigorous and purposive approach when called upon to interpret the EIA directive. It is clear from the case law that the Court’s primary concern is to ensure that the core objectives of the directive are not 1 European Commission, Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (93) 28 final para 2.1 2 See generally F Jacobs, ‘The Role of the European Court of Justice in the Protection of the Environment’ (2006) 18 Journal of Environmental Law 185.

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The ECJ and the EIA Directive undermined in practice. By virtue of Article 2(1), the basic substantive obligation is to ensure that projects likely to have significant effects on the environment are subjected to comprehensive assessment before development consent is granted.3 According to the sixth recital to the original EIA directive, this assessment is to be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by ‘the people who may be concerned by the project in question’. The ECJ has frequently invoked the core obligation articulated in Article 2(1), and the express reference to the role of the public in the sixth recital, when called upon to interpret the directive.

A. Transitional Arrangements The ECJ rejected, categorically, early attempts by Member States to delay the implementation of the directive after the initial deadline for transposition had passed. Member States were required to transpose the original EIA directive into national law by 3 July 1988, but the directive made no provision for transitional arrangements. It is not surprising, therefore, to find that the Court was called upon to consider whether Member States were entitled to waive the requirements of the directive in cases where the development consent procedure had been initiated after 3 July 1988 but before the entry into force of national provisions purporting to transpose the directive. Member States sought to justify the introduction of transitional arrangements on the basis of legal certainty. The Court ruled that this course of action was unlawful in Bund Naturschutz.4 This result was grounded on the firm reasoning that any other interpretation would run counter to the obligations imposed by the directive and would undermine its effectiveness.5 In Commission v Germany,6 the ECJ confirmed that the date on which the development consent procedure is initiated is determined by reference to the date on which the application for consent is lodged formally with the competent authority.7 This criterion is consistent with ‘the principle of legal certainty and is designed to safeguard the effectiveness of the directive’.8 Directive

3 Case C-287/98 Luxembourg v Linster [2000] ECR I-6971 para 52; Case C-227/01 Commission v Spain [2004] ECR I-8253 para 47; Case C-486/04 Commission v Italy [2006] ECR I-11025 para 36; Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid [2008] ECR I-0000 para 33; and Case C-215/06 Commission v Ireland [2008] ECR I-0000 para 49. 4 Case C-396/92 Bund Naturschutz in Bayern eV v Freistaat Bayern [1994] ECR I-3717. 5 Ibid, para 19. See also Case C-81/96 Burgemeester en Wethouders van Haarlemmerliede en Spaarnwoude v Gedeputeerde Staten van Noord-Holland [1998] ECR I-3923 paras 22–3 and 27 (Burgemeester), and Case C-416/02 Commission v Spain [2005] ECR I-7487 para 80. 6 Case C-431/92 Commission v Germany [1995] ECR I-2189. 7 Ibid, para 32. See also Case C-201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723 paras 42–3 (Wells). 8 Case C-431/92 Commission v Germany [1995] ECR I-2189 para 32. See also Case C-209/04 Commission v Austria [2006] ECR I-2755 paras 56–7.

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ECJ’s General Approach to EIA Directive 97/11/EC9 (which introduced important amendments to the original EIA directive) and Directive 2001/42/EC10 (the SEA directive) both contain specific provisions that explain the dates from which the obligations contained in those directives apply.11 Directive 2003/35/EC (Article 3 of which contains the most recent set of amendments to the EIA directive) is silent on this point. It appears from the case law noted above, however, that the obligations created in Directive 2003/35/EC apply to projects in respect of which a request for development consent is submitted after the deadline for transposition has passed, in this case 25 June 2005.12

B. Project Categorisation In Abraham,13 the ECJ confirmed that the term ‘project’ in Article 1(2) refers to works or physical interventions.14 An agreement between public authorities and a private undertaking was not a project within the meaning of the directive. It was for the national court to determine, however, whether the agreement constituted a ‘development consent’ for the purposes of the directive.15 The Court has taken a robust approach to the categorisation of projects for the purpose of Article 4(1) and Annex I of the directive (the projects in respect of which EIA is mandatory). In Commission v Germany,16 the ECJ rejected the argument that a proposed new block to the Grosskrotzenburg thermal power station should be categorised as a ‘modification’ to a project within the meaning of (original) Annex II, paragraph 12 and therefore not be subject to mandatory EIA. The Court observed that pursuant to (original) Annex I, paragraph 2, projects for thermal power stations with a heat output of 300 megawatts or more are subject to mandatory assessment. It followed, in the Court’s view, that ‘such projects must be assessed irrespective of whether they are separate constructions, are added to a preexisting construction, or even have close functional links with a pre-existing construction’.17 The proposed new block in this case, which was to form part of a thermal power station with a heat output of 500 megawatts, fell within the scope

9

Dir 97/11/EC [1997] OJ L 73/5. Dir 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment [2001] OJ L 197/30. 11 Dir 97/11/EC Art 3(2) and Dir 2001/42/EC Art 13(3). 12 Dir 2003/35/EC Art 6. 13 Case C-2/07 Abraham v Région wallonne [2008] ECR I-0000. 14 Ibid, para 23 15 Ibid, para 25. 16 Case C-431/92 Commission v Germany [1995] ECR I-2189. 17 Ibid, para 35. 10

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The ECJ and the EIA Directive of Article 4(1) and so assessment was mandatory. This strong decision illustrates the ECJ’s determination to give wide-ranging effect to the provisions governing mandatory EIA.18 The ECJ adopted a similarly expansive approach to the concept of ‘modifications to development projects’ in Kraaijeveld.19 On this occasion, the Court confirmed that ‘the scope of the directive is wide and its purpose very broad’.20 The purpose of the directive would be undermined if ‘modifications to development projects’ were construed so as to enable certain works to escape assessment even though such works were likely to have significant effects. Notwithstanding that the original directive did not refer expressly to modifications to Annex II projects, this did not mean that such projects did not fall within its scope.21 Following this purposive analysis, the ECJ ruled that the expression ‘canalization and flood-relief work’ (original Annex II, paragraph 10(e)) was to be interpreted as including not only the construction of a new dyke, but also modifications to an existing dyke.22 The Court was not prepared to allow the concept ‘modifications to development projects’ to be deployed in such a way that projects likely to have significant effects on the environment would escape assessment. This approach was confirmed in Bozen.23 In Commission v Spain,24 the ECJ refused to accept an argument mounted by the Spanish Government to the effect that (original) Annex I, paragraph 7 was only concerned with construction of a new railway line and did not apply to a project for improving an existing railway line. The project at issue (a section of the Valencia-Tarragona railway) had not been subjected to EIA. The Court confirmed that the directive is wide in scope and that its purpose is very broad.25 Drawing on the ‘fundamental objective’ articulated in Articles 1(1) and 2(1), the ECJ held that the original Annex I, paragraph 7 must be understood to include the doubling of an existing railway track.26 In the Court’s view, such a project could indeed have a significant effect on the environment within the meaning of the directive (in particular in terms of likely permanent effects on flora and fauna, the composition of soil and the landscape

18 See also Case C-133/94 Commission v Belgium [1996] ECR I-2323 paras 26–7, where the ECJ ruled that by adopting a narrow interpretation of the concept ‘integrated chemical installation’ (one of the classes of project listed in Annex I), Flemish legislation failed to adequately transpose Arts 2(1), 4(1) and Annex I, para 6 of the original EIA directive. 19 Case C-72/95 Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403. 20 Ibid, para 39. See also Case C-227/01 Commission v Spain [2004] ECR I-8253 para 46; Case C-486/04 Commission v Italy [2006] ECR I-11025 para 37; Case C-2/07 Abraham [2008] ECR I-0000 para 32; and Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-0000 para 28. 21 Case C-72/95 Kraaijeveld [1996] ECR I-5403 para 40. 22 Ibid, para 42. 23 Case C-435/97 World Wildlife Fund (WWF) v Autonome Provinz Bozen [1999] ECR I-5613 paras 39–40. 24 Case C-227/01 Commission v Spain [2004] ECR I-8253. 25 Ibid, para 46. 26 Ibid, paras 47–8.

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ECJ’s General Approach to EIA Directive and significant noise effects).27 The objective of the directive would be undermined if the contested project could be excluded from the assessment obligation. It followed that the project at issue could not be regarded as a mere modification to an earlier project for the purposes of the original Annex II, paragraph 12. The contested project involved a new track route and was, by its nature, likely to have significant effects on the environment. The ECJ was also alert to the danger of developers dividing projects into two or more separate parts such that each individual part does not require EIA and therefore the project as a whole avoids assessment. In the words of the Court, [i]f the argument of the Spanish Government were upheld, the effectiveness of Directive 85/337 could be seriously compromised, since the national authorities concerned would need only to split up a long-distance project into successive shorter sections in order to exclude from the requirements of the Directive both the project as a whole and the sections resulting from that division.28

The ECJ’s robust approach to mandatory EIA in this case demonstrates the importance that it attaches to EIA as a mechanism for delivering more environmentally aware decisions. At a more general level, this ruling highlights the ECJ’s perception and understanding of the difficulties inherent in ensuring the effectiveness of Community law at national level. In Commission v Italy,29 the ECJ was required to consider the scope of the concept ‘waste disposal’ for the purpose of the EIA directive. The Commission maintained that the term ‘disposal’ deployed in Annex I paragraphs 9 and 10 and Annex II paragraph 11(b)—which concern certain waste disposal installations— embraced both disposal (in the strict sense) and recovery operations. The EIA directive does not provide a definition of waste disposal. Nor is there any general definition of waste disposal or recovery in the text of the waste directive (Directive 75/442/EEC).30 Annexes II A and II B to that directive simply list various operations that fall within the scope of those concepts. Drawing on its previous case law, the ECJ noted that the essential characteristic of a waste recovery operation is to ensure that the waste can serve a useful purpose, thereby conserving natural resources.31 That characteristic is extraneous to the environmental consequences that may flow from the recovery operation. The Court observed that the environmental consequences of waste recovery could be significant, and it noted, in particular, Article 4 of Directive 75/442/EEC, which requires Member States to ensure that waste is recovered or disposed of without endangering human health and without using processes that could harm the

27

Ibid, paras 49 and 59. Ibid, para 53. Case C-486/04 Commission v Italy [2006] ECR I-11025. See also Case C-255/05 Commission v Italy [2007] ECR I-5767. 30 Dir 75/442/EEC [1975] OJ L194/39. 31 Case C-486/04 Commission v Italy [2006] ECR I-11025 para 41. 28 29

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The ECJ and the EIA Directive environment.32 The ECJ insisted that if the Community legislature had intended to equate the concept of waste disposal for the purposes of both the EIA directive and the waste directive, then it would have done so expressly.33 It concluded that the concept of waste disposal under the EIA directive is an independent one which must be given a meaning that fulfils the fundamental objectives of that particular directive. This purposive interpretation requires waste disposal to be construed ‘in the wider sense’ as including all operations leading either to waste disposal or to waste recovery.34 In Abraham,35 a purposive approach led the ECJ to conclude that Annex II, paragraph 12, of the original EIA directive, read in conjunction with Annex I, paragraph 7, included works to modify an existing airport.36 Similarly, in Ecologistas en Acción-CODA,37 the ECJ determined that it would be contrary to the very purpose of the directive (as amended by Directive 97/11/EC) to treat any urban road project as falling outside its scope on the sole basis that the directive does not expressly mention that particular category of road project among the Annex I and Annex II projects.38 The ongoing uncertainty surrounding the scope of the EIA directive led the Commission to publish guidance notes in 2008 to help explain the meaning of certain project definitions listed in Annex I and Annex II.39

C.

Prior Authorisation

In Burgemeester,40 the ECJ was required to consider whether a Member State was entitled to waive the obligation to carry out an EIA in respect of an Annex I project in the following circumstances: a zoning plan (authorising the construction of a port and an industrial zone) had been approved by the relevant national authorities, without EIA, before 3 July 1988 (the date by which the original EIA directive was to have been transposed). As this approval was not acted upon, a fresh application for approval of the same plan was necessary. The new application was initiated after 3 July 1988. Under the relevant Dutch law, there was no obligation to carry out an EIA in respect of the new application. This dispensation was based on the fact that the plan at issue had been included in an earlier approved zoning plan. The Court adopted its characteristic purposive approach 32

Ibid, para 42. Ibid, para 43. 34 Ibid, para 44. 35 Case C-2/07 Abraham [2008] ECR I-0000. 36 Ibid, paras 32–3. 37 Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-0000. 38 Ibid, paras 28–37. 39 European Commission, Interpretation of Definitions of Certain Project Categories of Annex I and II of the EIA Directive (2008), text available at: http://ec.europa.eu/environment/eia/pdf/interpretation_eia.pdf. 40 Case C-81/96 Burgemeester [1998] ECR I-3923. See also Case C-227/01 Commission v Spain [2004] ECR I-8253 para 56 and paras 54–60 of the Opinion. 33

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ECJ’s General Approach to EIA Directive and ruled that where a fresh procedure is initiated formally post 3 July 1988, then that procedure is subject to the obligations imposed by the EIA directive. Any other interpretation would run counter to the basic principle articulated in Article 2 and would compromise the directive’s effectiveness.41 The ECJ was particularly concerned to ensure that an Annex I project did not escape assessment by virtue of the fact that it had been approved, without EIA, ‘years or even decades previously’ under the national development consent procedures applicable at that point in time.42 This approach again confirms the ECJ’s determination to scrutinise closely Member States’ attempts to restrict the application of the directive. The Court noted, in passing, that national legal remedies were available in respect of the new development consent procedure.43 While the Court did not expand on this point, it appears that it was acknowledging (albeit implicitly) the role of the public in ensuring that the requirements of the directive are observed in the course of the consent procedure.

D.

Development Consent

‘Development consent’ is defined in Article 1(2) of the directive as ‘the decision of the competent authority or authorities which entitles the developer to proceed with the project’. Wells44 is a valuable decision in terms of clarifying the scope of the concept of development consent and the stage of the development consent procedure at which the EIA should be undertaken. The facts, in brief, were as follows: pursuant to the relevant national planning rules, the developer in Wells was required to apply to register an old mining permission and to have planning conditions determined by the competent mineral planning authority (MPA).45 Registration was granted in 1992 and the developer then applied to the MPA for the determination of new conditions. The MPA imposed stricter conditions than those submitted by the developer and this resulted in an appeal to the Secretary of State. In June 1997, the Secretary of State imposed 54 planning conditions and left certain matters to be determined by the MPA. Neither the Secretary of State nor the MPA considered whether it was necessary to carry out an EIA. In the course of a challenge to the Secretary of State’s failure to remedy the absence of an EIA, the High Court (England and Wales) referred a series of questions to the ECJ pursuant to Article 234 EC. The ECJ was required to determine whether approval of a new set of conditions on an old mining permission, and the 41

Case C-81/96 Burgemeester [1998] ECR I-3923 para 27. Ibid, para 25. 43 Ibid, para 26. 44 Case C-201/02 Wells [2004] ECR I-723. See also J Holder, Environmental Assessment: The Regulation of Decision Making (Oxford, Oxford University Press, 2004) 207–11 and R Harwood, ‘EIA, Development Consent and Duties on the Member State’ (2004) 16 Journal of Environmental Law 261. 45 Planning and Compensation Act 1991, s 22. See paras 8–19 of the Wells judgment for a full account of the relevant national legislative framework. 42

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The ECJ and the EIA Directive subsequent approval of further matters reserved by the new conditions, constituted development consent within the meaning of Article 1(2) of the directive. The ECJ began by clarifying that this question involved the interpretation of Community law.46 The United Kingdom (UK) maintained that the determination of new conditions involved the detailed regulation of activity for which the principal consent (in this case the old mining permission) had been granted long before the obligations created in the EIA directive came into force. As regards the subsequent approval of reserved matters, the UK argued that this aspect of the procedure merely concerned the approval of details which could not, in any event, extend beyond the parameters set by the initial determination of the scheme of planning conditions. The ECJ was unimpressed by these arguments. The Court recalled the core objective of the EIA directive set down in Article 2(1) and stressed that it was only in cases where development consent was granted before 3 July 1988, or in so-called ‘pipeline cases’,47 that this obligation would not apply. On the facts here, the developer was obliged to apply to register the old mining permission and to have new planning conditions determined by the MPA in order to exploit the quarry lawfully. In the absence of fresh decisions from the MPA, the old permission would cease to have legal effect and the developer would no longer enjoy consent to work the quarry. The decisions of the competent authorities determining the new conditions and approving reserved matters (the effect of which was to authorise the resumption of mining activity), taken as a whole, comprised a development consent within the meaning of Article 1(2). In the words of the ECJ, [i]t would undermine the effectiveness of [the EIA] directive to regard as mere modification of an existing consent the adoption of decisions which, in circumstances such as those of the main proceedings, replace not only the terms but the very substance of a prior consent, such as the old mining permission.48

The now familiar reasoning applied here demonstrates, yet again, the seriousness the Court attaches to the assessment requirement and its determination to ensure that the effectiveness of the directive is not undermined in practice by attempts to categorise substantive planning decisions as mere modifications of old consents that pre-date the introduction of the Community EIA regime.49

46

Case C-201/02 Wells [2004] ECR I-723 para 37. The expression ‘pipeline cases’ is used to describe situations where the development consent procedure was already in train before the date on which the relevant EIA obligations came into force. See Case C-431/92 Commission v Germany [1995] ECR I-2189 para 32 and Case C-81/96 Burgemeester [1998] ECR I-3923 para 23. 48 Case C-201/02 Wells [2004] ECR I-723 para 46. The ECJ’s ruling on the development consent point confirmed an earlier House of Lords decision in R v North Yorkshire County Council ex p Brown [1999] UKHL 7. See also Harwood, above n 44, at 270–71. 49 The Court of Appeal (England and Wales) has held that a planning authority’s failure to take enforcement action, or a decision not to take such action, does not constitute a development consent: R (Prokopp) v London Underground Ltd and Strategic Rail Authority [2003] EWCA Civ 961 paras 38–49 (Schiemann LJ) and paras 58–67 (Buxton LJ). 47

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ECJ’s General Approach to EIA Directive In Barker,50 the ECJ confirmed that the concept of development consent, while modelled on certain elements of national law, ‘remains a Community concept’ and falls exclusively within Community law.51 Classification of a decision as a development consent within the meaning of Article 1(2) of the directive ‘must be carried out pursuant to national law in a manner consistent with Community law’.52 The Court further observed that it is apparent from the scheme and the objectives of the directive that the concept of development consent ‘refers to the decision (involving one or more stages) which allows the developer to commence the works for carrying out his project’.53 It falls to the national court to verify whether each stage in a consent procedure, considered as a whole, constitutes a development consent for the purposes of the directive.54 In Abraham,55 the ECJ determined that it fell to the national court to examine, on the basis of national legislation, whether an agreement between public authorities and a private undertaking amounted to a development consent.56

E. Stage of Development Consent Procedure at which EIA Must be Carried Out In Wells,57 the ECJ was also required to consider the point at which an EIA must be carried out where a consent procedure comprises a number of distinct stages. Article 2(1) requires that the EIA must take place before consent is given. Added to this, the first recital to the original EIA directive indicates that environmental effects must be taken into account ‘at the earliest possible stage in the decisionmaking process’. Following these strong indicators, the Court ruled that where national law provides that the consent procedure is to be carried out in several stages—with one stage involving ‘the principal decision’ and the other stage 50

Case C-290/03 R (Barker) v London Borough of Bromley [2006] ECR I-3949 (Barker). Ibid, para 40. This case concerned the grant of planning permission to develop a leisure complex in Crystal Palace Park, London without prior EIA. The ECJ heard oral arguments in both Barker and Case C-508/03 Commission v United Kingdom [2006] ECR I-3969 on 22 June 2005. In Case C-508/03, the Commission raised concerns about the manner in which planning authorisation may be divided into two stages in the UK land-use planning system (ie outline stage and reserved matters stage). In particular, a large urban development project could escape assessment at the outline stage and no provision was made for EIA at the reserved matters stage under English planning law. The infringement proceedings in this case concerned two projects involving developments at White City and Crystal Palace Park, London. After hearing the Advocate General, the ECJ decided to proceed to judgment without an Opinion and both judgments were delivered on 4 May 2006. 52 Case C-290/03 Barker [2006] ECR I-3949 para 41. 53 Ibid, para 45. 54 Ibid, para 46. See also Case C-508/03 Commission v United Kingdom [2006] ECR I-3969 paras 100–102 where the ECJ ruled that the two decisions provided for by the national rules under scrutiny in that case (ie outline planning permission and the decision approving reserved matters) taken as a whole constituted ‘a (multi-stage) development consent’. 55 Case C-2/07 Abraham [2008] ECR I-0000. 56 Ibid, para 25. 57 Case C-201/02 Wells [2004] ECR I-723. 51

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The ECJ and the EIA Directive involving ‘an implementing decision’—then the likely environmental effects ‘must be identified and assessed at the time of the procedure relating to the principal decision’.58 The ECJ proceeded to clarify that it is only in circumstances where the likely environmental effects are not capable of being identified until the time of the procedure relating to ‘the implementing decision’ that the assessment should be carried out in the course of that later procedure.59 The ECJ concluded by stating that where a consent procedure comprises several stages, then, in principle, the assessment must be carried out ‘as soon as it is possible to identify and assess all the effects which the project may have on the environment’.60 This is a sensible conclusion that has a firm basis in the text of the directive. The ECJ elaborated on this aspect of the Wells ruling in Barker.61 Under the scheme established in the Town and Country Planning Act 1990, planning permission may be granted in several forms, one of which is outline permission with a requirement for subsequent approval of reserved matters. This is, in effect, a multi-stage development consent involving both the outline stage and the reserved matters stage.62 Under domestic law, EIA could be carried out at the initial outline stage only.63 A large urban development project could therefore escape assessment at outline stage since there was no provision for EIA at the subsequent reserved matters stage. This rule did not sit comfortably with Community EIA law. Ms Barker challenged the approval of reserved matters without prior EIA, and the legal advice on which this approval was based, before the national courts. The challenge was dismissed at first instance and later by the Court of Appeal (England and Wales). On appeal to the House of Lords, that court inquired of the ECJ whether Article 2(1) and Article 4(2) of the original EIA directive was to be interpreted as requiring EIA where, following the grant of outline permission, it appears at the time of approval of the reserved matters that the project is likely to have significant effects on the environment? Recalling Wells, the ECJ ruled that in the case of a development consent procedure comprising more than one stage, then, ‘in some circumstances’, the competent authority is obliged to carry out an EIA in respect of the project at issue even after outline planning permission has been granted.64 It follows that an EIA is required as a matter of Community law where it becomes apparent in the course of the second stage of the consent procedure that the project is likely to 58

Ibid, para 52. See also Case C-2/07 Abraham [2008] ECR I-0000 para 26 Ibid. See also Case C-2/07 Abraham [2008] ECR I-0000 para 26. 60 Ibid, para 53. 61 Case C-290/03 Barker [2006] ECR I-3949. See also D Elvin and J Maurici, ‘Extending the Reach of Environmental Impact Assessment’ [2006] Journal of Planning and Environment Law 1128. 62 For an overview of the town and country planning system see S Bell and D McGillivray, Environmental Law, 7th edn (Oxford, Oxford University Press, 2008) ch 12. It is not possible to make an application for outline permission for a project that is subject to EIA under Irish planning law: Planning and Development Regs 2001 (SI No 600 of 2001) Art 96. 63 See generally Holder, above n 44, at 211–18. 64 Case C-290/03 Barker [2006] ECR I-3949 para 48. 59

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ECJ’s General Approach to EIA Directive have significant effects on the environment.65 In the words of the ECJ, this assessment ‘must be of a comprehensive nature, so as to relate to all the aspects of the project which have not yet been assessed or which require a fresh assessment’.66 This requirement demonstrates the Court’s concern to ensure that the likely effects on the environment are examined in light of the project as a whole and not in relation to its separate parts. The ECJ’s approach is also consistent with the preventative philosophy at the heart of EIA. It recognises the practical reality that in certain (presumably quite rare) cases, significant environmental effects may only become apparent at the final (approval of detail) stage or where further consideration of likely impact may be required due to a material change in circumstances. In Commission v Ireland,67 the ECJ was required to consider whether Irish rules governing retention planning permission were compatible with the EIA directive. The complaint was grounded on alleged inadequate transposition of Articles 2, 4, and 5 to 10 of the directive (in its original version or as amended by Directive 97/11/EC). The Commission alleged that Irish law undermined the preventative objectives of the EIA directive by providing that a developer could seek retention permission for unauthorised development.68 It also maintained that the planning enforcement regime in Ireland did not ensure the effective application of the directive. The ECJ recalled the fundamental objective articulated in Article 2(1) that projects likely to have significant effects on the environment must be subject to a requirement for development consent and a prior EIA. Article 1(2) provides (unambiguously) that development consent is the decision of the competent authority which entitles the developer to proceed with the project. Thus, under the scheme established in the directive, the developer cannot commence works unless he has applied for and obtained development consent, and an EIA has been carried out before such consent is granted. The general position under Irish law is that planning permission must be obtained, and any necessary EIA must be undertaken, prior to the execution of works. A failure to comply with these basic requirements constitutes a breach of national law. It was not disputed, however, that Irish law also provides that a developer can apply for retention permission in respect of unauthorised development, including EIA development, even in cases where no exceptional circumstances are established. The net result of retention permission is that, as a matter of Irish law, the requirements of the EIA directive are considered to have been met. While Community law could not preclude national law from allowing, ‘in certain cases’ for the regularisation of operations or measures which are unlawful in light of Community law, the ECJ insisted that this possibility is subject to conditions: first, that it does not offer the persons concerned the opportunity to circumvent the relevant Community rules, or to

65 66 67 68

See also Case C-508/03 Commission v United Kingdom [2006] ECR I-3969 paras 100–106. Case C-290/03 Barker [2006] ECR I-3949 para 48. Case C-215/06 Commission v Ireland [2008] ECR I-0000. Planning and Development Act 2000, s 34(12).

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The ECJ and the EIA Directive dispense with applying them; and secondly, that it should remain the exception.69 In the ECJ’s view, a ‘system of regularisation’ such as the Irish retention permission rules, could have the effect of encouraging developers to forgo inquiring whether proposed projects were likely to have significant effects and, consequently, to avoid identification of environmental effects and prior assessment. Ireland had pleaded the earlier Wells ruling as authority that a remedial EIA could be carried at a later stage by way of an exception to the general rule that the assessment must occur at the earliest possible stage in the decision-making process. This argument was roundly rejected by the ECJ: Wells was concerned with the Member State’s obligation to remedy the unlawful consequences of a breach of Community law. Wells did not imply that a remedial assessment, undertaken to remedy the failure to carry out an EIA, was the equivalent of an EIA carried out prior to the grant of development consent as required by the directive. The ECJ concluded that in providing for retention permission in respect of projects for which EIA is required, where no exceptional circumstances are established, Ireland was in breach of Article 2(1) and Article 4(1) and (2) of the directive. This aspect of the ruling is not surprising: the possibility of retention planning permission for EIA development is plainly incompatible with the fundamental obligation articulated in Article 2(1) of the directive. Retention permission is a deeply engrained feature of the Irish planning system and this judgment creates significant challenges for the competent authorities.70 There is an intriguing suggestion in paragraph 57 of the judgment that ‘regularisation’ of otherwise unlawful operations may still be permissible in certain exceptional circumstances. The ECJ chose not to elaborate on this aspect of its ruling in any real detail, however, and this point is likely to arise for consideration in future cases. As regards the alleged inadequacy of Irish enforcement measures, the ECJ observed that under national law the absence of an EIA could be remedied by obtaining retention permission. The Court also noted, in passing, that under national planning law the competent authority’s enforcement powers are discretionary. This resulted in a situation where it was possible that a competent authority would not initiate enforcement action in respect of EIA development which had been carried out with no regard to the requirements set down in the directive. The ECJ concluded that this enforcement system was inadequate as the existence of retention permission deprived it of any effectiveness.71 The Court was satisfied that its conclusion on this point was not affected by Ireland’s assertion that the enforcement regime had to take account of competing rights held by developers, landowners, the public and individuals directly affected by the development. The ECJ insisted that the need to weigh those interests could

69 70 71

Case C-215/06 Commission v Ireland [2008] ECR I-0000 para 57. ‘New law to tackle unauthorised developments’, Irish Times 7 October 2008 Case C-215/06 Commission v Ireland [2008] ECR I-0000 paras 74–6.

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ECJ’s Approach to Member State Discretion not, in itself, justify the ineffectiveness of an enforcement system.72 The Court did not consider it necessary to examine the specific examples that the Commission had presented to demonstrate deficiencies in the practical application of Irish enforcement measures. In the ECJ’s view, ‘those deficiencies are the direct result of the inadequacies of the Irish legislation itself ’.73 The ECJ’s ruling provides strong authority that Member States are obliged to operate a system of planning enforcement and control that ensures the effective application of the directive—although it is unfortunate that this important aspect of the judgment is so brief. The Court appeared to accept, at paragraph 77, that the national enforcement system must weigh various competing rights (those of developers, landowners, the public and individuals directly affected by the development), thus indicating that the enforcement obligation is by no means absolute. It remains to be seen how this ground-breaking aspect of Commission v Ireland will be applied and developed at Community and national levels.74

III.

THE ECJ’S APPROACH TO MEMBER STATE DISCRETION UNDER THE EIA DIRECTIVE

The ECJ has been called upon to examine the scope of Member State discretion pursuant to the following provisions of the EIA directive: Article 1(4) Article 1(5) Article 2 Article 4(2) Article 6(3)

Exemption for projects serving national defence purposes; Exemption for projects adopted by specific act of national legislation; Assessment procedure; Determination of Annex II projects that require assessment; Detailed arrangements governing public participation.

The case law to date, which is concerned principally with the original EIA directive, and more recently, the text as amended in 1997, provides strong evidence of the Court’s determination to contain discretion with a view to ensuring that the directive operates as an effective tool for environmental protection.75 72

Ibid, para 77. Ibid, para 78. See also Case C-98/04 Commission v United Kingdom [2006] ECR I-4003 where Advocate General Ruiz-Jarabo Colomer took the view that national legislation which granted local planning authorities a discretion as to whether or not to take enforcement action against unauthorised development created a situation where projects falling within the scope of the EIA directive could be carried out without prior EIA in breach of the obligations created in Arts 2(1) and 4 (paras 33–4 of the Opinion). The ECJ subsequently declared the infringement proceedings to be inadmissible. 75 See generally H Somsen, ‘Discretion in European Community Environmental Law: Analysis of ECJ Case Law’ (2003) 40 CML Rev 1413. 73 74

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The ECJ and the EIA Directive A. Exemptions Under the original Article 1(4), the directive did not apply to projects ‘serving national defence purposes’.76 The ECJ interpreted this provision restrictively on the basis that it introduced an exception to the general principle set down in Article 2(1). Accordingly, in Bozen,77 the Court held that only projects that mainly served national defence purposes could be excluded from the assessment obligation.78 The ECJ has also adopted a restrictive approach to the exemption set out in Article 1(5), which provides that the directive does not apply where a project is adopted by a specific act of national legislation. The rationale behind this exemption is that the objectives of the directive, including that of supplying information to the public, are to be achieved via the legislative process. The Court has drawn on the sixth recital to the original directive as an aid to interpreting the scope of the Article 1(5) exemption.79 In Bozen, the ECJ ruled that in order to benefit from the exemption, the legislative act in question must include all the elements that may be relevant to the assessment of the effects of the project on the environment.80 Any other interpretation would enable Member States to circumvent the directive. Subsequently, in Linster,81 the ECJ emphasised that Article 1(5) must be interpreted restrictively, as it operates to limit the scope of the directive.82 Drawing on Article 2(1) (which articulates the basic assessment obligation), and the sixth recital (which acknowledges the value of participation), the Court followed Bozen and ruled that it is only where the legislature has available to it information equivalent to that which would be submitted to the competent authority in an ordinary procedure for authorising a project that the objectives of the Directive may be regarded as having been achieved through the legislative process.83

The ECJ proceeded to provide guidance on the precise requirements of Article 1(5). Drawing on (original) Article 5(2) and Annex III, the Court observed that if the objectives of the directive are to be satisfied, the legislative act must include:

76 A new Art 1(4) has been introduced pursuant to Art 3(2) of Dir 2003/35/EC [2003] OJ L156/17. This provision is more detailed and further restricts the (already limited) discretion available to Member States in this context. It reads as follows: ‘Member States may decide on a case-by-case basis if so provided under national law, not to apply this Directive to projects serving national defence purposes, if they deem that such application would have an adverse effect on these purposes’. The entitlement to invoke the exemption is now linked expressly to the fact that an EIA would have ‘an adverse effect’ on national defence. 77 Case C-435/97 Bozen [1999] ECR I-5613. 78 Ibid, para 65. 79 Ibid, para 61. 80 Ibid, para 59. 81 Case C-287/98 Linster [2000] ECR I-6917. 82 Ibid, para 49. 83 Ibid, para 54.

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ECJ’s Approach to Member State Discretion a description of the project comprising information on the site, design and size of the project, a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects, and the data required to identify and assess the main effects which the project is likely to have on the environment.84

The wording of the legislative act must also demonstrate that the objectives of the directive have been achieved.85 The strong rulings in Bozen and Linster set clear limits to the exercise of Member State discretion pursuant to Articles 1(4) and 1(5) and serve to underscore the importance that the ECJ attaches to participation rights in the course of the EIA process.

B.

Assessment Procedure

The basic substantive obligation is set down in Article 2(1) of the EIA directive. It requires that projects likely to have significant effects on the environment must be assessed before the competent authority decides to grant development consent. Article 2(2) leaves it to the Member States to determine how the actual assessment is to be carried out, however. In Bozen,86 the ECJ confirmed that Article 2(2) permits a Member State to use an assessment procedure other than that set down in the directive. Any alternative administrative procedure must satisfy the requirements of Article 3 and Articles 5 to 10 of the directive, however, including the participation obligations created in Article 6.87 This decision confirms that Member State discretion under Article 2(2) is constrained by the core procedural requirements set down in the directive. The express reference to Article 6 in the ECJ’s ruling serves to highlight, once more, the important role of participation rights in the EIA process. In Commission v Belgium,88 the ECJ confirmed that a system providing for tacit authorisation (where authorisation is deemed to have been granted in the absence of a decision by the competent authority within the relevant time period) was incompatible with the provisions of the directive, in particular Article 2.89 In Commission v Spain the ECJ reiterated that national provisions of a general or sectoral nature which require the assessment of the environmental impact of certain types of projects must satisfy the requirements set out in Article 3 of the Directive, as well as the procedural rules in Articles 5 to 9 of the Directive which concern, inter alia public information.90

84 85 86 87 88 89 90

Ibid, para 55. Ibid, para 56. Case C-435/97 Bozen [1999] ECR I-5613. Ibid, para 54. Case C-230/00 Commission v Belgium [2001] ECR I-4591. Ibid, para 16. Case C-474/99 Commission v Spain [2002] ECR I-5293 para 32.

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The ECJ and the EIA Directive On this occasion, the Court yet again singled out the provisions of the directive governing public participation for special attention. In Ecologistas en AcciónCODA,91 the referring court asked the ECJ to determine whether various studies and reports concerning the contested projects (which were part of a complex scheme to improve and refurbish the Madrid urban ring-road) satisfied the requirements for an EIA. The Court recalled the clear separation of functions between national courts and the ECJ mandated by Article 234 EC and explained that it was for the national court to carry out this factual inquiry.92 The ECJ noted, for the benefit of the referring court, that ‘a formal assessment may be replaced by equivalent measures’ where the minimum requirements set out in Article 3 and Articles 5 to 10 of the directive are satisfied.93

C.

Determining the Annex II Projects that Require Assessment

A substantial portion of the EIA jurisprudence concerns the limits of Member State discretion under (original) Article 4(2). Pursuant to this provision Member States enjoyed a measure of flexibility in determining the Annex II projects that required assessment. Article 4(2) permitted Member States to specify that certain Annex II projects were to undergo assessment, or to establish criteria or thresholds for this purpose. On first reading, Article 4(2) seemed to confer a broad discretion on the Member States. The ECJ interpreted this discretion restrictively from the very beginning, however. The Court’s approach was grounded firmly on Article 2(1) of the directive and the ‘unequivocal obligation’ that Article imposes on Member States to ensure that projects falling within the scope of the directive undergo assessment.94 Article 4(2) was first considered in Commission v Belgium,95 where Flemish legislation ‘totally and definitively’ excluded certain classes of projects listed in (original) Annex II from EIA. The issue before the ECJ was whether this automatic exclusion was permissible under the directive. Belgium argued that Article 4(2) allowed a Member State to determine generally and a priori that the characteristics of certain Annex II projects are such that an assessment is unnecessary. The ECJ responded by observing that the power to determine which Annex II projects require assessment is conferred within each of the classes of project listed in Annex II.96 The Community legislature obviously considered that all of the classes of projects listed therein could have significant effects on the environment (depending on their particular characteristics).97 The Court 91 92 93 94 95 96 97

Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-0000. Ibid, paras 48–50. Ibid, para 50. Case C-431/92 Commission v Germany [1995] ECR I-2189 para 39. Case C-133/94 Commission v Belgium [1996] ECR I-2323. Ibid, para 41. Ibid.

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ECJ’s Approach to Member State Discretion emphasised that the criteria and thresholds mentioned in Article 4(2) were designed to facilitate the examination of the actual characteristics of a project in order to determine whether or not it should be assessed.98 Article 4(2) did not entitle Member States to exempt in advance one or more of the classes listed in Annex II.99 The ECJ left open the question whether Member States were entitled to determine which Annex II projects were to be subject to assessment by using thresholds or criteria without inquiring into the specific characteristics of each discrete project.100 The ECJ embarked on a more detailed examination of the scope of the Article 4(2) discretion in Kraaijeveld.101 On this occasion, the relevant national implementing legislation set thresholds for river dyke projects at such a level that, in practice, all dyke reinforcement projects were excluded from assessment. The Commission argued that any specifications, criteria or thresholds established by Member States pursuant to Article 4(2) did not exempt Member States from undertaking an individual examination of the actual project at issue in order to determine whether it was likely to have significant effects on the environment. The ECJ rejected this interpretation.102 The Court reasoned that if it was necessary to subject every Annex II project to an individual examination as to its likely effects, then the Member States would have no interest in fixing specifications, criteria or thresholds. Such an interpretation would deprive Article 4(2) of any value. The ECJ proceeded to examine the scope of the discretion left to the Member States pursuant to Article 4(2) and clarified that the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely to have significant effects on the environment, by virtue, inter alia, of their nature, size or location, are to be subject to an impact assessment.103

Kraaijeveld is clear authority that the seemingly wide discretion conferred by Article 4(2) must be exercised within the limits set by the basic obligation articulated in Article 2(1). The ECJ accepted that Member States were entitled to fix criteria relating to the size of dykes in order to determine which dyke projects required assessment.104 Whether a Member State had exceeded the limits of its discretion in creating a system for screening Annex II projects could not be determined by reference to the characteristics of a single project, however.105 Rather, it depended on ‘an overall assessment of the characteristics of projects of

98

Ibid, para 42. See also Case C-121/03 Commission v Spain [2005] ECR I-7569 para 87. Case C-133/94 Commission v Belgium [1996] ECR I-2323 para 44. 101 Case C-72/95 Kraaijeveld [1996] ECR I-5403. See also C Boch, ‘The Enforcement of the Environmental Assessment Directive in the National Courts: A Breach in the ‘Dyke’?’ (1997) 9 Journal of Environmental Law 119. 102 Case C-72/95 Kraaijeveld [1996] ECR I-5403 para 49. 103 Ibid, para 50. 104 Ibid, para 52. 105 Ibid. 99

100

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The ECJ and the EIA Directive that nature which could be envisaged in the Member State’.106 Where a Member State established criteria or thresholds at such a level that, in practice, all projects related to dykes were exempted in advance from EIA, the Member State would exceed the limits of its discretion ‘unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment’.107 Although Member States are free to establish criteria or thresholds pursuant to Article 4(2), a national screening system cannot result in any project likely to have significant effects on the environment being excluded from the assessment requirement. The effect of this aspect of the Kraaijeveld ruling is to severely constrain Member State discretion to establish criteria or thresholds for Annex II projects. The ECJ had earlier observed in Commission v Belgium108 that it was envisaged that all of the classes of project listed in Annex II could have significant environmental effects (depending on their nature, size or location). Contested thresholds and other screening mechanisms will therefore be subjected to close scrutiny by the ECJ. In Commission v Germany,109 the Court confirmed that Article 4(2) did not empower the Member States to generally and definitively exclude one or more of the classes of projects listed in (original) Annex II from EIA. Germany maintained that Article 4(2) permitted Member States to determine which of the specific projects listed under the 12 classes in Annex II should undergo assessment. The ECJ did not hesitate in rejecting this interpretation. The concept ‘classes of project’ was to be interpreted to refer to all of the projects listed in Annex II and not just to the 12 categories of project listed in therein. Confining the concept of ‘classes of project’ to the 12 general categories listed in Annex II would ‘negate the effectiveness of the rule laid down in Article 2(1) … and would leave Member States free to apply Annex II as they saw fit’.110 Subsequently, in Bozen,111 the ECJ confirmed its earlier rulings on the scope of the discretion enjoyed by the Member States under (the original) Article 4(2). It observed that Article 4(2) did not prevent Member States from employing methods other than those expressly indicated in that Article (ie specification or establishing criteria and thresholds) when determining which Annex II projects require EIA. For example a Member State could choose to designate that a particular Annex II project was not required to undergo assessment.112 At the same time, however, the ECJ was careful to emphasise the limits to Member State discretion when attempting to identify the Annex II projects that require assessment:

106 107 108 109 110 111 112

Ibid. Ibid, para 53. Case C-133/94 Commission v Belgium [1996] ECR I-2323 para 41. Case C-301/95 Commission v Germany [1998] ECR I-6135. Ibid, para 44. See also Case C-474/99 Commission v Spain [2002] ECR I-5293 para 30. Case C-435/97 Bozen [1999] ECR I-5613. Ibid, para 43.

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ECJ’s Approach to Member State Discretion [W]hatever the method adopted by a Member State to determine whether or not a specific project needs to be assessed, be it by legislative designation or following an individual examination of the project, the method adopted must not undermine the objective of the Directive, which is that no project likely to have significant effects on the environment, within the meaning of the Directive, should be exempt from assessment, unless the specific project excluded, could, on the basis of a comprehensive assessment, be regarded as not being likely to have such effects.113

In line with the earlier Kraaijeveld ruling, this passage confirms that Member State discretion to exclude Annex II projects from the assessment requirement is indeed very tightly drawn. The scope of Member State discretion under the original Article 4(2) surfaced again in Commission v Ireland.114 On this occasion, the Commission argued that Ireland had incorrectly transposed Article 4(2) by setting absolute thresholds for certain classes of Annex II projects (use of uncultivated land or semi-natural areas for intensive agricultural purposes; initial afforestation and land reclamation; and peat extraction). The Commission maintained that the absolute nature of the Irish thresholds meant that, in practice, it was not possible to ensure that all projects likely to have significant effects on the environment would be assessed. The fact that a project was sub-threshold was sufficient to exempt it from the assessment requirement in Irish law, regardless of its other characteristics. The Commission argued that Article 4(2) required that all of the characteristics of a project, not just its size or capacity, had to be taken into account. This argument was based on Article 2(1), which refers to a project’s nature and location, in addition to its size, as the basic criteria for assessing significance. One line of defence pursued by Ireland was that the Commission had failed to demonstrate that the thresholds had actually been misused in practice.115 The ECJ noted that the alleged infringement on this occasion concerned the manner in which the directive had been transposed into Irish law and not the actual result of the application of the transposing legislation. It reasoned as follows: In order to prove that the transposition of a directive is insufficient or inadequate, it is not necessary to establish the actual effects of the legislation transposing it into national law: it is the wording of the legislation itself which harbours the insufficiencies or defects of transposition. There is, therefore, nothing to prevent the Commission from demonstrating that transposition is defective or insufficient without waiting for the application of the transposing legislation to produce harmful effects. Since the Directive forms part of Community environmental policy, which, as pointed out in the first recital in the preamble to the Directive, consists in preventing the

113 114 115

Ibid, para 45. See also Case C-87/02 Commission v Italy [2004] ECR I-5975 paras 40–44. Case C-392/96 Commission v Ireland [1999] ECR I-5901. Ibid, para 56.

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The ECJ and the EIA Directive creation of pollution or nuisances at source rather than subsequently trying to counteract their effects, the opposite conclusion would be even more unjustified in this case. It does not therefore matter that the evidence adduced by the Commission in support of its action consists of mere complaints which have not yet been investigated.116

This pragmatic approach underscores the seriousness that the ECJ attaches to the preventive philosophy underlying the EIA directive. The central question for the Court was whether or not Ireland had exceeded its discretion under Article 4(2) in creating a screening system for Annex II projects. The ECJ ruled that where a Member State established criteria or thresholds exclusively by reference to the size of projects, without also taking their nature and location into consideration, then the State would exceed the limits of its discretion. In the words of the Court, even a small-scale project can have significant effects on the environment if it is in a location where the environmental factors set out in Article 3 of the Directive, such as fauna and flora, soil, water, climate or cultural heritage, are sensitive to the slightest alteration. Similarly, a project is likely to have significant effects where, by reason of its nature, there is a risk that it will cause a substantial or irreversible change in those environmental factors, irrespective of its size.117

These paragraphs provide useful guidance for competent authorities and the national courts on the difficult concept of ‘significant’ effects. As regards the contested thresholds set by the Irish authorities the Court observed: It was however necessary, and possible, to take account of factors such as the nature or location of projects, for example, by setting a number of thresholds corresponding to varying project sizes and applicable by reference to the nature or location of the project.118

116 Ibid, paras 60–63. The ECJ’s approach in Case C-150/97 Commission v Portugal [1999] ECR I-259 is also of interest in this context. On this occasion, the contested national legislation purported to waive the EIA requirement in respect of projects where the development consent procedure had been initiated after 3 July 1988 but before the national implementing measures came into force. In ruling that Portugal had failed to meet its obligations under the directive, the ECJ dismissed Portugal’s argument that there had been no adverse effects as a result of its breach. Portugal had maintained that the number of applications for development consent submitted to the competent authorities during the transitional period was small and that an ‘environmental impact report’ had been prepared for all of the applications at issue. See also Case C-227/01 Commission v Spain [2004] ECR I-8253 para 59 (Commission not required to establish ‘the concrete negative effects that a project in fact has on the environment’). But see Case C-117/02 Commission v Portugal [2004] ECR I-5517 para 85 (Commission required to furnish ‘a minimum of proof ’ of the effects that a contested project is likely to have on the environment); Case C-494/01 Commission v Ireland [2005] ECR I-3331 para 41; and Case C-508/03 Commission v United Kingdom [2006] ECR I-3969 paras 77–80 and 90–93. 117 Case C-392/96 Commission v Ireland [1999] ECR I-5901 paras 66–7. See also Case C-474/99 Commission v Spain [2002] ECR I-5293 paras 30–31 and Case C-121/03 Commission v Spain [2005] ECR I-7569 paras 87–8. 118 Case C-392/96 Commission v Ireland [1999] ECR I-5901 para 70.

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ECJ’s Approach to Member State Discretion Following Kraaijeveld, the ECJ confirmed that where a Member State set criteria and thresholds at such a level that in practice all projects of a certain type would be exempted in advance from the EIA requirement, the State would exceed the limits of its discretion, unless all of the projects exempted could, when viewed as a whole, be regarded as not likely to have significant effects on the environment.119 The Court then elaborated on Kraaijeveld by observing that a Member State which set a criterion of project size without ensuring that the objective of the legislation was not circumvented by the splitting of projects, would exceed the limits of its discretion.120 By not taking account of ‘the cumulative effect’ of projects, it was possible that in practice all projects of a certain type could escape the obligation to carry out an assessment notwithstanding the fact that, when taken together, they were likely to have significant effects within the meaning of Article 2(1). Any criteria and thresholds set by the Member States must therefore take account of the cumulative effect of projects. The decisions in Kraaijeveld, Bozen and Commission v Ireland provided clear evidence of a progressive tightening of the discretion left to Member States as regards the Annex II projects. While Kraaijeveld is strong authority for the view that the Member States are not required to examine (or screen) each proposed project individually, passages in that judgment where the Court stressed the strict nature of the Article 2(1) obligation, together with the further narrowing of the Article 4(2) discretion in Bozen and Commission v Ireland, suggest that it will be very difficult for Member States to demonstrate that contested criteria or thresholds meet the strict requirements set by the ECJ. In effect, therefore, the Court has come very close to requiring individual examination of each Annex II project.121 The ECJ’s strong ruling in Commission v Italy,122 considered earlier in chapter two, provides further support for this view. Here, the ECJ determined that a Member State was not entitled to exclude an Annex II project from assessment unless, following ‘a comprehensive screening’, the project at issue could be regarded as unlikely to have significant environmental effects.123 In Abraham,124 the ECJ reaffirmed that the objective of the directive cannot be circumvented by project-splitting and that the cumulative effect of several individual projects must be examined globally in order to determine whether or

119

Ibid, para 75. Ibid, para 76. See also Case C-332/04 Commission v Spain [2006] ECR I-40* para 76 and Case C-486/04 Commission v Italy [2006] ECR I-11025 para 53. 121 Consider also the analysis of the interrelationship between Art 2(1) and Art 4(2) presented in L Krämer, Casebook on EU Environmental Law (Oxford, Hart Publishing, 2002) 49–51. Krämer proposes that if Art 4(1) and (2) were set aside, a considerable amount of litigation could be avoided. In place of Art 4(1) and (2), Krämer suggests that there should be an irrebuttable presumption that the Annex I projects are likely to have a significant effect on the environment. In the case of the Annex II projects, the presumption would be rebuttable, but the onus would lie on the competent authority to justify to the public concerned why, in its view, EIA was not necessary. 122 Case C-87/02 Commission v Italy [2004] ECR I-5975. 123 Ibid, paras 40–44. 124 Case C-2/07 Abraham [2008] ECR I-0000. 120

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The ECJ and the EIA Directive not EIA is required.125 Drawing on Article 2(1), Article 3 and its earlier ruling in Commission v Spain,126 the Court clarified that in determining whether an Annex II project requires assessment account must be taken not only of the direct effects of the works envisaged, but also of the environmental impact liable to result from the use and exploitation of the end product of those works (in this case the projected increase in activity at an airport).127 The ECJ confirmed this strict approach to project screening in Ecologistas en Acción-CODA.128 Commission v Ireland129 concerned a controversial wind farm project at Derrybrien in County Galway, which involved a number of phases of construction for which the developer had obtained various consents. While EIAs were completed for different elements of the development, the Commission asserted that the assessments were deficient—in particular because environmental risks had not been adequately assessed. The Commission also emphasised the Irish authorities’ failure to require a fresh EIA before resumption of works at Derrybrien in the aftermath of a catastrophic landslide in October 2003. Although installations for the harnessing of wind power for energy production were not listed in either Annex I or II of the original EIA directive, the ECJ determined that the directive applied to the first two phases of construction. The Court based this conclusion on the fact that these two phases required a number of works which were listed in Annex II (including extraction of peat and of minerals other than metalliferous and energy-producing minerals). Recalling its rulings in Kraaijeveld and Abraham, the ECJ found that Ireland was obliged to subject these works to EIA if they were likely to have significant effects. The Irish competent authorities had determined, however, that Annex II did not apply to the ancillary works of peat extraction and road construction, on the basis that these works were merely minor aspects of the wind farm project. The ECJ explained that if projects falling under Annex II of the original directive are regarded as being of secondary importance (when considered in the context of the overall wind farm project), that fact alone did not determine the question of whether those projects were likely to have significant effects. The ECJ then proceeded to consider the likely effects of the projects at issue: The intended projects of peat and mineral extraction and road construction were not insignificant in terms of scale by comparison with the overall area of the wind farm project which covered 200 hectares of peat bog and which was the largest project of its kind in Ireland, and they were moreover essential both to the installation of the turbines and to the progress of the construction works as a whole. In addition, those works were carried out on the slopes of Cashlaundrumlahan Mountain, where there are layers of peat up to 5.5 metres in depth, largely covered by plantation forestry.

125 126 127 128 129

Ibid, para 27. Case C-227/01 Commission v Spain [2004] ECR I-8253. Case C-2/07 Abraham [2008] ECR I-0000 paras 41–4. Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-0000 paras 39 and 42. Case C-215/06 Commission v Ireland [2008] ECR I-0000.

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ECJ’s Approach to Member State Discretion It follows from those factors, which are not disputed by Ireland, that the location and size of the projects of peat and mineral extraction and road construction, and the proximity of the site to a river, all constitute specific characteristics which demonstrate that those projects, which were inseparable from the installation of 46 wind turbines, had to be regarded as likely to have significant effects on the environment and, accordingly, had to be subject to an assessment of their effects on the environment.130

The Court concluded definitively that the ancillary projects were indeed likely to have significant effects and should have been subjected to prior EIA. It also determined that the Environmental Impact Statements (EISs) supplied by the developer were deficient, in particular due to the failure to examine the critical issue of soil stability.131 As explained earlier in chapter two, Directive 97/11/EC introduced important amendments to the original EIA directive, including a substantially revised Article 4. Legislative intervention on this complex issue was prompted by the extensive and complex ECJ jurisprudence concerning the original Article 4(2) considered above. The revised Article 4(2), together with Article 4(3) and Annex III, further circumscribes the scope of Member State discretion as regards Annex II projects.132 The ECJ considered the selection criteria set down in Annex III in Commission v Ireland133 in the context of the development consent relating to the third phase of construction of the Derrybrien wind farm. The highly sensitive nature of the site, including the absorption capacity of the natural environment, were among the factors that led the Court to conclude that the projects at issue were likely to have significant effects and should therefore have been subjected to prior assessment.134 In Ecologistas en Acción-CODA,135 the ECJ reaffirmed the importance of the Annex III selection criteria when Member States are screening Annex II projects.136 The Court also clarified that the fact that a project should have beneficial effects on the environment was not relevant when determining whether EIA was required.137 It is clear from the case law considered above that the ECJ’s primary aim is to ensure that, in line with the unambiguous mandate articulated in Article 2(1), projects likely to have significant effects on the environment do not escape assessment. Where a national court is called upon to evaluate contested criteria and thresholds against the standard set in the directive, or to review a competent authority’s decision on the significance or otherwise of a particular project’s impact on the environment, the court will often be confronted with complex,

130 131 132 133 134 135 136 137

Ibid, paras 102–3. Ibid, paras 104–5. See ch 2 pp 39−40. Case C-215/06 Commission v Ireland [2008] ECR I-0000. Ibid, paras 109–10. Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-0000. Ibid, para 40. Ibid para 41.

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The ECJ and the EIA Directive mixed issues of law and fact.138 The EIA directive requires, as a matter of law, that all projects likely to have significant effects must be assessed. This is a mandatory obligation. Measuring significance involves an essentially fact-based inquiry, but it cannot be treated in isolation from the underlying legal obligation set down in the directive. In Ireland, judicial review involves the national court inquiring into the legality of the decision taken by a legislative or administrative authority, as opposed to the merits of the decision.139 The national court will be reluctant to stray into a reassessment of the facts as determined by an expert public authority. At the same time, however, the national courts are obliged to ensure that the legal requirements set down in the EIA directive are applied and enforced in practice. An important issue therefore arises as to the appropriate degree of scrutiny to be applied by the national court in such cases. In other words, how closely is a national court required to examine a competent authority’s decision on the critical issue of significance? The ECJ’s Upjohn140 ruling, considered in chapter three, provides a measure of guidance on the appropriate standard of review. Upjohn indicates that review of the merits of a competent authority’s decision is not required in order to meet the principle of effectiveness, at least in cases where the authority is required to make complex assessments. Upjohn did not concern the EIA directive, however, and so further scrutiny of the EIA jurisprudence is required in order to determine the appropriate standard of review in EIA cases.141 D. Detailed Arrangements for Public Participation The EIA directive, at Article 6, requires Member States to ensure that ‘the public concerned’ is given the opportunity to express its opinion on the proposed project before development consent is granted. The detailed arrangements for informing and consulting the public are left to be determined by the Member States. Article 8 mandates that the results of consultations and the information gathered during the EIA process must be taken into consideration in the development consent procedure. In Commission v Ireland,142 the ECJ was required to consider whether or not a Member State was entitled to levy an administrative fee as a precondition to participation in the EIA process. The basic rules governing control of development in Irish law are set down in the Planning and Development Act 2000 (PDA) Part III as amended. Any person (or body) may make a written submission or observation to a planning authority concerning an application for planning permission. Both the applicant for permission, and any person who made a valid submission or observation in relation to the application, may appeal the decision of the planning authority to An Bord 138 139 140 141 142

See also Holder, above n 44, at 102–27. See ch 3 pp 103−4. Case C-120/97 Upjohn Ltd v The Licensing Authority [1999] ECR I-223. See pp 167−71. Case C-216/05 Commission v Ireland [2006] ECR I-10787.

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ECJ’s Approach to Member State Discretion Pleanála (the Planning Appeals Board). Appeal fees, which were first introduced in 1983, are determined by the Board, subject to the approval of the Minister for the Environment, Heritage and Local Government (the Minister). The PDA introduced a new administrative fee (€20), which applies where a person wishes to make a submission or an observation to a planning authority concerning an application for planning permission.143 Previously, lodging an objection with a planning authority was free of charge. A limited number of specified bodies are exempt from the fee requirement, but no special provision is made for environmental non-governmental organisations (ENGOs).144 The Article 226 EC infringement proceedings concerned both the €20 fee and the fee payable for making submissions and observations to the Board in the course of a planning appeal (€45 at the material time).145 The Commission maintained that by making public participation in certain EIA cases subject to prior payment of an administrative fee, Irish planning law infringed Articles 6 and 8 of the EIA directive (as amended by Directive 97/11/EC). Directive 2003/35/EC, which introduced further amendments to the EIA directive designed inter alia to strengthen public participation, was not in force at the relevant time. The ECJ ruled that the Irish fees were not in breach of Article 6 or Article 8 of the directive. This was the first occasion on which the ECJ was required to consider the scope of the Article 6(3) discretion. Commission v Ireland therefore presented the Court with a rare opportunity to delve more deeply into the value of participation and to fortify the right of members of the public to participate effectively in the EIA process. The ECJ did not avail itself of this opportunity, however, and its short judgment presents little more than a disappointing, narrow interpretation of Article 6(3).146 Ireland invoked the principle of subsidiarity and maintained that prohibitions not expressly set down in the text of the directive could not be

143 The legal basis for the fee is found in PDA s 33(1), s 33(2)(c) and Planning and Development Regs 2001 (SI No 600 of 2001) Art 168 and sch 10. The fee is only payable once—no additional charge is payable for any subsequent submission or observation in respect of the same application: 2001 Regs, Art 168(3). Note that the 2001 Regs were amended substantially by Planning and Development Regs 2006 (SI No 685 of 2006). 144 Planning and Development Regs 2001, Art 168(2). These include: a local authority; a State authority (ie a Minister of the Government or the Commissioners of Public Works); a transboundary State and prescribed bodies (ie a body notified or entitled to be notified in accordance with Art 28 including eg An Taisce—National Trust for Ireland, Fáilte Ireland, Regional Fisheries Board, National Roads Authority, or Health Service Executive as appropriate). Note that the list of bodies prescribed in Art 28 has been updated pursuant to the 2006 Regs. 145 The legality of the fee under Community law was also challenged before the national courts: Friends of the Irish Environment Ltd and Lowes v Minister for the Environment, Heritage and Local Government [2005] IEHC 123, [2007] 3 IR 459. The High Court acceded to the State’s request for a stay on the proceedings pending the outcome of the Art 226 EC infringement proceedings. A request for a preliminary ruling under Art 234 EC was refused on the basis that such a reference would not achieve anything different or be more expedient than the Art 226 EC procedure initiated by the Commission. 146 A number of arguments put forward by the Commission are not reflected at all in the ECJ’s ruling. In particular, the Commission maintained that the contested fees breached the ‘polluter pays’ principle. The gist of this argument was that administrative costs were the result of a developer’s

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The ECJ and the EIA Directive implied. Ireland submitted that rather than undermining the purpose of the directive, the contested fees actually facilitated enhanced participation by generating funds to support planning administration. Ireland stressed the Member State’s discretion to set the relevant detailed arrangements. It fell to the Commission to demonstrate that the contested fees undermined the purpose of the directive. It was denied that the fees could constitute a barrier to participation for people on low incomes—the fees were levied for administrative purposes and were, according to the Irish authorities, reasonable in both principle and in amount. The ECJ deployed Article 249(3) EC as its starting point: Member States are obliged to give full effect to directives, but they retain ‘a broad discretion’ as to the choice of methods of implementation.147 This ‘freedom of choice’ trumped the Commission’s argument that if the Community legislature had intended to allow administrative fees it would have made express provision to that effect (as is the case with the directives on access to environmental information).148 The exercise of Member State discretion under Article 6(3) was not subject to any test of necessity. Although Article 6(3) listed a number of options that were available to Member States when arranging for public participation, it was clear from the wording of the text that this list was not exhaustive. It followed that the Community legislature did not wish to limit the Member States’ powers in this regard—on the contrary, it intended to give them ‘a wide discretion’.149 This discretion is not unlimited, however. In the words of the ECJ, when determining the arrangements, the Member States are, in principle, free to impose a participation fee such as the one at issue, provided that it is not such as to constitute an obstacle to the exercise of the rights of participation conferred by Article 6 of [the EIA directive].150

The Commission submitted that the contested fees undermined the purpose of the directive by restricting the exercise of the right to participate in the EIA process. Citing Article 6(2), and drawing on the sixth recital to the original EIA directive, the ECJ noted that public participation was one of the aims of the directive.151 At the same time, however, Article 6(3) allows Member States ‘to place certain conditions on participation’.152 For example, the Member State is empowered expressly to determine the scope of ‘the public concerned’ by the project at issue. Furthermore, it may specify how the public is to be informed and application for planning permission. The polluter pays principle would imply that these costs should not be transferred to the public or to those who may be affected by the environmental impacts of the proposed development. 147 Case C-216/05 Commission v Ireland [2006] ECR I-10787 para 26. 148 Dir 90/313/EEC on access to environmental information [1990] OJ L158/56 now repealed and replaced by Dir 2003/4/EC [2003] OJ L 41/26. 149 Case C-216/05 Commission v Ireland [2006] ECR I-10787 para 32. 150 Ibid, para 33. See also paras 43–4. 151 Ibid, para 37. 152 Ibid, para 38.

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ECJ’s Approach to Member State Discretion consulted and may fix appropriate time limits for the various stages of the development consent procedure. As Advocate General Stix-Hackl put it bluntly in her Opinion, Article 6(2) does not mean that there is ‘an unrestricted right for everybody to be consulted’.153 The ECJ drew on the Community rules governing the right of access to environmental information to bolster this point. It noted that Article 5 of Directive 90/313/EEC, and now Directive 2003/4/EC, provides that Member States may levy a reasonable charge for the supply of information on the environment. This provision demonstrated that the Community legislature did not believe that a reasonable fee was incompatible with the guarantee of access to information. It followed by analogy that an administrative fee was not, in principle, incompatible with the EIA directive.154 On the specific facts in this case, the Court concluded that the amount of the contested Irish fees (€20 and €45 respectively) could not be regarded as constituting an obstacle to participation.155 The ECJ also appears to have been impressed by Ireland’s submission that the fees were justified on the basis of the administrative costs involved in processing observations received from persons concerned.156 The Commission had also questioned the validity of the Irish fees on the basis that the PDA authorised the Minister and An Bord Pleanála to set the amount of the relevant fee without limiting that power or defining it precisely. The ECJ observed that any such delegation is, in principle, a matter of national law. The amounts prescribed in the exercise of the delegated power must, however, be exercised in a manner compatible with the directive. The Commission had also alleged a breach of Article 8 of the directive. In light of the Court finding that Article 6 had not been breached, it followed that there was no infringement of Article 8 either.157 While the Irish fees at issue in this case passed scrutiny, the ECJ failed to provide guidance on the criteria to be applied when measuring the impact of a contested fee on those who wish to participate. This point was addressed, in passing, by the Advocate General who suggested that an assessment based on average monthly income in Ireland was the most sensible approach.158 The Commission had attempted to apply the weekly income of social welfare recipients as the appropriate yardstick. The ECJ did not address this issue however. It simply concluded that the small fees involved in this case did not have a deterrent effect. It would have been useful if the Court had at least clarified whether or not average monthly income is indeed the most appropriate standard. This is an important practical point, especially in light of the fact that the rules governing

153 154 155 156 157 158

Ibid, para 39 of the Opinion. Ibid, paras 40–42. Ibid, para 45. Ibid. Ibid, para 50. Ibid, para 45 of the Opinion.

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The ECJ and the EIA Directive the Irish fees make no special provision for waiver of the fee or for any reduced fee to be applied in special circumstances. The underlying purpose of Article 6(3) is to give Member States flexibility when determining the practical arrangements governing public participation at local level. Yet it was open to the ECJ to take a hard line on the fee issue while remaining faithful to the wording of the text. The ECJ could have deployed its well-established purposive approach to greater effect in this case. While Article 6(3) confers a wide discretion, it does not mention the possibility of a fee. The ECJ could have distinguished upfront participation fees, such as those at issue in this case, from other categories of fees that can arise in the course of the EIA process—for example, the fee payable to lodge an appeal with An Bord Pleanála and the charge levied for purchase of a copy of the EIS. This approach would have shored up the value of participation while, at the same time, leaving the Member States a broad discretion with regard to other detailed arrangements. An upfront fee as a precondition to the right to comment on a development proposal grates against the aim of promoting participation. It is surprising, therefore, that the ECJ chose a literal interpretation of Article 6(3) rather than engaging in more detail with the potential ‘chilling effect’ of participation fees. As explained earlier in chapter two, Directive 2003/35/EC strengthened the public participation provisions with a view to aligning Community EIA law with the more demanding participation obligations set down in the Aarhus Convention. Article 6(2) and (3) were replaced by a series of new paragraphs (Article 6(2) to (6)). The new Article 6(4) provides expressly that ‘the public concerned’159 (which includes ENGOs that meet any requirements set under national law) must be given ‘early and effective’ opportunities to participate in the decision-making process. To that end, ‘the public concerned’ is entitled to express comments and opinions to the competent authority ‘when all options are open’ and before a decision is taken on the request for development consent. The express reference to ‘early and effective’ participation corresponds with the basic message coming from the ECJ’s EIA jurisprudence—any rights conferred by the directive must be effective in practice. Article 6(5) recasts old Article 6(3), but the core elements remain unchanged. Article 6(5) as amended provides: The detailed arrangements for informing the public (for example by bill posting within a certain radius or publication in local newspapers) and for consulting the public concerned (for example by written submissions or by way of a public inquiry) shall be determined by the Member States.

Article 6(6) requires that Member States set reasonable time-frames for the different phases of the decision-making procedure, allowing sufficient time for informing the public and for the public concerned ‘to prepare and participate effectively’. In similar vein to old Article 6(3), Article 6(5) and (6) confer a broad discretion on the Member States when determining the detailed arrangements 159

Defined in EIA directive, Art 1(1).

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Role of EIA Directive in Local Judicial Review governing participation. Article 6(5) is silent on the question of fees. Article 6(6) attempts to tighten discretion, to some extent, in the specific case of time-frames. It appears therefore that the outcome in Commission v Ireland would not have been any different if the ECJ had been called on to interpret the revised Article 6 provisions.

E.

Summary

The case law examined in this section illustrates the ECJ’s determination to set limits to the discretion left to the Member States at various points in the directive. Even though the Court sanctioned participation fees in Commission v Ireland, it was still careful to delimit Member State discretion by requiring that any fees must not create an obstacle to effective participation. The ECJ’s robust approach to discretion has served to sharpen the effectiveness of the directive as a means of challenging contested planning decisions before the national courts. This interventionist attitude is also evident in the case law, discussed earlier in chapter two, where the ECJ has taken a strong line on the competent authorities’ duty to provide information to support (or justify) the conclusions reached in screening determinations in the context of Annex II projects.160 The following section traces how the ECJ has progressively clarified and strengthened the role of the EIA directive in judicial review proceedings at national level. Particular attention is devoted to the appropriate standard of review and the extent to which the Court has addressed this important practical issue in the EIA case law.

IV.

A.

ROLE OF THE EIA DIRECTIVE IN JUDICIAL REVIEW PROCEEDINGS AT NATIONAL LEVEL

Overview

Where certain conditions are satisfied, a directive may be invoked against the State in the absence of national implementing measures or where national measures fall short of what is required by the terms of the directive in question. The conditions set down by the ECJ require that the provision at issue (which could be the whole directive or one or more provisions thereof) is unconditional and sufficiently precise and, furthermore, that the period for implementation has elapsed.161 A provision is unconditional where it sets down an obligation that 160

Case C-87/02 Commission v Italy [2004] ECR I-5975. Case 8/81 Becker v Finanzamt Münster-Innenstadt [1982] ECR 53 paras 22–5; Case C-118/94 Associazione Italiana per il WWF v Regione Veneto [1996] ECR I-1223 para 19; Case C-236/92 Comitato di Coordinamento per la Difesa della Cava and others v Regione Lombardia [1994] ECR I-483 paras 8–10; Joined Cases C-397/01 to C-403/01 Pfeiffer v Deutsches Rotes Kreuz, Kreisverband 161

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The ECJ and the EIA Directive does not require any discretionary implementing measures on the part of the Member State. The ‘sufficiently precise’ requirement will be satisfied where the obligation at issue is cast in unequivocal terms and is capable of being applied by a national court. Directives (or particular provisions of directives) that meet these requirements may be enforced against the State and organs of the State.162 The ECJ has interpreted this latter concept broadly with a view to promoting the effectiveness of directives within the national legal orders.163 In Costanzo, the Court ruled that ‘all organs of the administration, including decentralized authorities such as municipalities’ are obliged to apply directly effective provisions of directives.164 Subsequently, in Foster, the ECJ elaborated on the meaning of ‘organ of the State’ in the following terms: [A] body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals, is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.165

This passage confirms that the legal form that a particular body may take is immaterial in determining whether or not it is an organ of the State. Three basic conditions are prescribed. First, the body must be providing a public service; secondly, the public service must be under the control of the State; and, thirdly, the body must have ‘special powers’ for the purpose of its public service role.166 The wording deployed by the ECJ in the passage cited above (note the reference to ‘included’) indicates that this formula is not intended to be exhaustive.167 The Waldshut eV [2004] ECR I-8835 para 103 (Pfeiffer) and Joined Cases C-152/07 to C-154/07 Arcor AG & Co KG v Bundesrepublik Deutschland [2008] ECR I-0000 para 40. In the specific context of environmental directives see J Holder, ‘A Dead End for Direct Effect?: Prospects for Enforcement of European Community Environmental Law by Individuals’ (1996) 8 Journal of Environmental Law 314 and J Alder, ‘Environmental Impact Assessment—The Inadequacies of English Law’ (1993) 5 Journal of Environmental Law 203, 208–11. 162 Case 152/84 Marshall v Southampton and South-West Hampshire AHA [1986] ECR 723 para 49. 163 Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839; Case C-188/89 Foster v British Gas [1990] ECR I-3313 para 20; Joined Cases C-253/96 to C-258/96 Kampelmann v Landschaftsverband Westfalen-Lippe [1997] ECR I-6907 para 46; Case C-343/98 Collino v Telecom Italia SpA [2000] ECR I-6659 paras 22–4; Case C-157/02 Rieser Internationale Transporte GmbH v Autobahnenund Schnellstraßen-Finanzierungs-AG (Asfinag) [2004] ECR I-1477 paras 23–4 and Case C-356/05 Farrell v Whitty [2007] ECR I-3067 para 40. 164 Case 103/88 Costanzo [1989] ECR 1839 para 31. 165 Case C-188/89 Foster v British Gas plc [1990] ECR I-3313 para 20. See also Case C-157/02 Rieser [2004] ECR I-1477 para 24. 166 In the UK, for example, it has been held that a privatised water company is an organ of the State: Griffin v South West Water [1995] IRLR 15. The dispute here revolved around the application of the second Foster condition. Blackburne J observed that it was the public service that must be under State control, not the public body itself. 167 See the comprehensive analysis of the ‘organ of the State’ doctrine in Farrell v Whitty [2008] IEHC 124. Birmingham J of the High Court concluded that Foster provided ‘a useful guide or illustration but no more than that’.

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Role of EIA Directive in Local Judicial Review ECJ’s failure to articulate a clear set of guiding principles, beyond the loose Foster criteria, creates considerable scope for ambiguity and confusion at local level.168 The early academic literature speculated on whether or not certain provisions of the original EIA directive had ‘direct effect’. In other words, could individuals and environmental groups rely on unimplemented, or incorrectly implemented, provisions of the directive to challenge planning decisions before their national courts? As indicated in chapter two, the EIA directive is cast in the classic form of a framework directive. It envisages detailed national implementing measures and leaves considerable discretion to the Member States on the mechanics of implementation at local level. This state of affairs prompted extensive debate on whether or not particular provisions of the directive were unconditional and sufficiently precise within the meaning of the ECJ’s traditional direct effect jurisprudence.169 Early national jurisprudence revealed markedly conflicting opinions on whether or not the original Article 4(2) (which left the Member States considerable discretion as regards EIA for Annex II projects) was capable of direct effect.170 A related issue is whether or not the EIA directive creates rights for individuals that the national courts must protect. The objective of the directive is the protection of the environment (a general or a public interest) and

168 B Moriarty, ‘Direct Effect, Indirect Effect and State Liability’ (2007) 14 Irish Journal of European Law 97, 135–50 and J Gaffney, ‘Pleading EC Law in Irish Litigation: A Case Study’ (2005) 5 Judicial Studies Institute Journal 153. 169 A number of early commentaries suggested that (original) Art 2 and Art 4(1) were indeed unconditional and sufficiently precise to have direct effect. See, eg, L Krämer, ‘The Implementation of Community Environmental Directives Within Member States: Some Implications of the Direct Effect Doctrine’ (1991) 3 Journal of Environmental Law 39, 41–2 and 47 and ‘Direct Effect of EC Environmental Law’ in H Somsen (ed), Protecting the European Environment: Enforcing EC Environmental Law (London Blackstone Press, 1995) 133. 170 See, eg, the decision of Lord Coulsfield in Kincardine and Deeside District Council v Forestry Commissioners [1994] 2 CMLR 869. On this occasion, the (Scottish) Court of Session, Outer House ruled that Art 4(2) was not ‘precise and unconditional’ and so did not have direct effect (para 34). Note too the Court’s obiter comment that ‘a powerful argument’ could be made that Art 4(1) had direct effect. Contrast Twyford Parish Council v Secretary of State for the Environment [1992] 1 CMLR 276 where McCullough J in the High Court (England and Wales) held that the provisions of the directive (generally) were ‘unconditional and sufficiently precise’ and that the applicants in the case at hand ‘were amongst those whom the directive was intended to benefit’ (para 56). McCullough J went on to rule, however, that ‘there is no authority for the view … that if the terms of a directive, which should have been implemented but had not, were breached, an individual who had not thereby suffered could enforce it against the defaulting State ’ (para 68, emphasis added). This ruling suggested that infringement of a private law right or interest is a precondition to invoking the directive before the national courts. See also Wychavon DC v Secretary of State for the Environment (1994) 6 Journal of Environmental Law 351, 355–6 where Tucker J in the High Court (England and Wales) took the view that the (original) EIA directive did not have direct effect. For an overview of the early UK EIA case law see A Ward, ‘The Right to an Effective Remedy in European Community Law and Environmental Protection: A Case Study of United Kingdom Judicial Decisions Concerning the Environmental Assessment Directive’ (1993) 5 Journal of Environmental Law 221. The Irish jurisprudence is examined in ch 5.

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The ECJ and the EIA Directive not the protection of individual rights or private interests as such.171 In Kraaijeveld,172 Advocate General Elmer expressed the view that the original Article 6(2) conferred procedural rights (including ‘the right to be heard’) on qualified members of the public and that those rights were enforceable before the national courts.173 Advocate General Cosmas subsequently endorsed this view in Greenpeace.174 In sharp contrast, however, the ECJ has not pursued a rights-based analysis when called upon to clarify the circumstances in which individuals may invoke the EIA directive before the national courts.175 This approach is not really surprising. A careful reading of the ECJ’s early jurisprudence on the doctrine of direct effect indicates that the grant of an individual right is not a precondition for direct effect. As Ruffert has observed, ‘the Court does not consider individual rights as a condition of direct effect, but as its consequence. Direct effect only depends on the clear and unequivocal structure of a provision’.176 Writing extra-judicially, Edward has also emphasised that ‘there is no necessary connection between the obligations assumed by Member States and the rights of individuals or their manner of enforcement’.177 Rather than pursuing a rightsbased analysis, the ECJ has focused on the clear and unequivocal obligation that the EIA directive imposes on the Member States (including the competent authorities and the national courts) to achieve a particular result—in other

171 For a close analysis of the nature of ‘rights’ and ‘interests’ in Community law, and how the ECJ deploys the concept of ‘rights’ in its case law see C Hilson and T Downes, ‘Making Sense of Rights: Community Rights in EC Law’ (1999) 24 EL Rev 121 and S Prechal, Directives in EC Law, 2nd edn (Oxford, Oxford University Press, 2005) ch 6. 172 Case C-72/95 Kraaijeveld [1996] ECR I-5403. 173 Ibid, paras 64–74 of the Opinion. This argument was also advanced in L Krämer, ‘The Implementation of Community Environmental Directives Within Member States: Some Implications of the Direct Effect Doctrine’ (1991) 3 Journal of Environmental Law 39, 54 and in C Hilson, ‘Community Rights in Environmental Law: Rhetoric or Reality’ in J Holder (ed), The Impact of EC Environmental Law in the United Kingdom (Chichester, Wiley, 1997) 54 and 62. 174 Case C-321/95 P Stichting Greenpeace Council v Commission [1998] ECR I-1651 para 58 of the Opinion. 175 The ECJ referred, in passing, to ‘the environmental rights arising under Directive 85/337 that the applicants seek to invoke’ in Case C-321/95 P Greenpeace [1998] ECR I-1651 para 30. The Court did not elaborate on the nature and content of these ‘environmental rights’, however. 176 M Ruffert, ‘Rights and Remedies in European Community Law: A Comparative View’ (1997) 34 CML Rev 307, 315. See also M Lenz, DS Tynes and L Young, ‘Horizontal What? Back to Basics’ (2000) 25 EL Rev 509, 510–12 and S Prechal, ‘Does Direct Effect Still Matter?’ (2000) 37 CML Rev 1047, 1050. Prechal writes: ‘The way in which the Community law provision at issue are deployed depends on the character and subject matter of the proceedings in the national court. Therefore, equating direct effect with the creation of rights does not do justice to the diversity of the effects which directly effective provisions may produce’. 177 D Edward, ‘Direct Effect, the Separation of Powers and the Judicial Enforcement of Obligations’ in A Giuffrè (ed), Scritti in Onore di Giuseppe Federico Mancini (Vol II) (Seminario Giuridico della Università di Bologna CLXXIX, 1998) 439.

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Role of EIA Directive in Local Judicial Review words, that projects likely to have significant effects on the environment must undergo assessment, in accordance with the terms of the directive, before development consent is granted.178 Beginning with the landmark Kraaijeveld ruling, the ECJ affirmed that qualified members of the public may call on the national courts to examine whether the national legislature, or the national administrative authorities, have remained within the limits of the discretion conferred by the EIA directive.179 The fact that certain provisions of the directive reserve an element of discretion to the Member States does not preclude judicial review. The directive therefore serves as a standard against which the legality of Member State action may be scrutinised. This ‘right to call for judicial review’180 or the ‘public law effect’ of a directive181 is grounded in the well-established Community law doctrine of l’effet utile and in the ECJ’s determination to promote decentralised enforcement of Community norms.182 Edward has emphasised that: [t]he role of the courts, including the national courts, is to determine what obligations have been undertaken, whether performance is immediately exigible and if so by whom, and, where appropriate, to enforce performance … From Van Gend en Loos to Kraaijeveld, nearly all the cases on direct effect were referred to the Court of Justice by national judges whose concern was to establish the obligations of the state and the extent of the judicial power, in furtherance of the rule of law, to enforce them.183

The next section examines the ECJ jurisprudence on the justiciability of the directive at national level. The case law is presented chronologically with a view

178 See also D Edward, ‘Direct Effect: Myth, Mess or Mystery?’ in JM Prinssen and A Schrauwen (eds), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Groningen, Europa Law Publishing, 2002) especially at 11–13. Scott has suggested that the ECJ’s apparent reluctance to analyse the original EIA directive in terms of traditional direct effect doctrine may stem from an unwillingness to acknowledge that the directive confers rights on individuals. The implication of such a finding would be to open up the possibility of Francovich actions: J Scott, EC Environmental Law (London, Longman, 1998) 123–4. 179 Since the entry into force of the amendments to the EIA directive introduced in Dir 2003/35/EC, qualified members of the public are those who fall within the definition of the ‘the public concerned’ set down in Art 1(2) and who meet any standing requirements set down in national law (Art 10a). 180 Edward, above n 177, at 442. 181 Scott, above n 178, at 157. 182 In the ground-breaking judgment in Case 41/74 Van Duyn v Home Office [1974] ECR 1337, the ECJ ruled ‘the useful effect of [a directive] would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law’ (para 12). This formula has been recited practically verbatim in a series of ECJ rulings on the EIA directive considered below. The strong ruling in Case C-237/07 Janecek v Freistaat Bayern [2008] ECR I-0000 paras 37–9, supports a broad approach to locus standi to invoke a directive at national level. On this occasion, the ECJ confirmed the right of ‘persons directly concerned’ to require the competent authorities to draw up an air quality action plan pursuant to Art 7 Dir 96/62/EC on ambient air quality assessment and management [1996] OJ L296/55 as amended. 183 Edward, above n 177, at 443. See also Prechal, above n 171, at 237.

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The ECJ and the EIA Directive to illustrating how the Court has gradually, yet progressively, refined its approach to the role of the directive in judicial review proceedings before the national courts.

B. Justiciability of the EIA Directive before National Courts In Commission v Germany,184 the Commission instituted proceedings seeking a declaration that in granting development consent for the construction of a new block at the Grosskrotzenburg thermal power station (an Annex I project according to the ECJ) without undertaking a preliminary EIA, Germany had failed to comply with its obligations under Articles 2, 3 and 8 of the original directive. The competent authority had decided not to carry out an EIA, as the directive had not been transposed into German law at the relevant time. The ECJ categorically rejected Germany’s argument that Articles 2, 3 and 8 could only have direct effect if they conferred rights on individuals.185 This aspect of the ruling confirms that the grant of individual rights is not a precondition for direct effect or the right to invoke the directive in the national legal order. Germany also maintained that Articles 2, 3, and 8 were not sufficiently clear and precise to establish a specific, unequivocal obligation on the national authorities to implement those provisions of the directive in the context of an application for development consent. The ECJ disagreed and presented the following analysis of the nature of the obligation created by the directive: Article 2 of the directive lays down an unequivocal obligation, incumbent on the competent authority in each Member State for the approval of projects, to make certain projects subject to an assessment of their effects on the environment. Article 3 prescribes the content of the assessment, lists the factors which must be taken into account in it, and leaves the competent authority a certain discretion as to the appropriate way of carrying out the assessment in the light of each individual case. Article 8 furthermore requires the competent national authorities to take into consideration in the development consent procedure the information gathered in the course of the assessment. Regardless of their details, those provisions [Articles 2, 3, and 8] therefore unequivocally impose on the national authorities responsible for granting consent an obligation to carry out an assessment of the effects of certain projects on the environment.186 (emphasis added) 184

Case C-431/92 Commission v Germany [1995] ECR I-2189. Ibid, paras 24–6. 186 Ibid, paras 39–40. See also Case C-474/99 Commission v Spain [2002] ECR I-5293 where the ECJ confirmed that: ‘It is for the Member States to ensure that the implementation of their Community obligations [pursuant to the EIA directive] by the centralised and decentralised competent authorities is effective’ (para 28). 185

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Role of EIA Directive in Local Judicial Review This passage confirms that Articles 2, 3 and 8 are indeed sufficiently clear and precise to impose a mandatory obligation on the competent national authorities to ensure that certain projects undergo assessment.187 While the project at issue was an Annex I project, the ECJ’s ruling is broad enough to embrace any Annex II projects likely to have significant effects. As this ruling came about in the specific context of Article 226 EC infringement proceedings, the ECJ was not required to consider the question of whether, and if so, to what extent, the ‘unequivocal obligation’ identified in this case could be enforced by private individuals before their national courts. This issue was addressed in a series of subsequent decisions beginning with Kraaijeveld.188 On this occasion a challenge was mounted to a decision approving a zoning plan providing for the reinforcement of particular dykes. The works envisaged by the plan would have resulted in Kraaijeveld losing access to a navigable waterway. The contested plan had been approved without prior EIA because the relevant Dutch implementing measures had set thresholds for river dykes at such a level as to exclude all dyke reinforcement projects from assessment. Kraaijeveld brought judicial review proceedings seeking to have the decision to approve the plan annulled, and the national court referred a series of questions to the ECJ: (1) whether the obligation to carry out an EIA had ‘direct effect’ so that it could be invoked by an individual before the national court and, if so (2) whether the national court was under a duty to apply the directive even where the applicant for judicial review had not explicitly invoked the directive. The ECJ treated both questions together. It began by recalling the general obligation on Member States to take all appropriate measures to achieve the result prescribed by a directive and emphasised that this duty was binding on all Member State authorities, including the courts.189 Recalling its earlier ruling in Verbond,190 the ECJ approached the direct effect issue as follows: As regards the right of an individual to invoke a directive and of the national court to take it into consideration, the Court has already held that it would be incompatible with the binding effect attributed to a directive by Article 189 [Article 249 EC] to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts, and if the latter were prevented from taking it into consideration as an element of Community law in order to rule whether the national

187 In Case C-321/95 P Greenpeace [1998] ECR I-1651, Advocate General Cosmas interpreted this ruling as having ‘upheld the direct effect of Articles 2, 3 and 8’ of the directive (para 58 of the Opinion). The ECJ did not employ the term ‘direct effect’ in its judgment, however. 188 Case C-72/95 Kraaijeveld [1996] ECR I-5403. 189 Ibid, para 55. 190 Case 51/76 Verbond van Nederlandse Ondernemingen v Inspecteur der Invoerrechten en Accijnzen [1977] ECR 113.

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The ECJ and the EIA Directive legislature, in exercising the choice open to it as to the form and methods for implementation, has kept within the limits of its discretion set out in the directive.191

Thus the Court affirmed the right of ‘those concerned’ to invoke the obligation that the directive imposes on the Member States before their national courts (once the deadline for implementation has passed). More significantly, the fact that Kraaijeveld had not raised the EIA point in the course of the proceedings did not relieve the national court of its duty to consider the potential application of the directive to the case at hand. There is nothing in the Kraaijeveld judgment to suggest that the right to invoke the EIA directive is dependent on satisfying the traditional criteria for direct effect (ie that the provision in question is unconditional and sufficiently precise).192 Instead, the ECJ grounded the right to invoke the directive in the well-established doctrine of effectiveness and in the clear terms of Article 249 EC. The fact that Member States enjoyed a measure of discretion under Article 2(1) and Article 4(2) of the EIA directive did not preclude judicial review.193 Where a challenge is mounted to a national provision on the basis of alleged non-compliance with the directive, the national court is required to ‘take account’ of whether or not the Member State or the competent authority (as the case may be) acted beyond the limits of its discretion.194 In Kraaijeveld, the ECJ proceeded to consider the appropriate remedy where the applicant for judicial review establishes that this discretion has indeed been exceeded. It ruled as follows: If [the discretion under Article 2(1) and Article 4(2) of the EIA directive] has been exceeded and consequently the national provisions must be set aside in that respect, it is for the authorities of the Member State, according to their respective powers, to take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment.195

It follows from this passage that the national court is obliged to set aside any national ‘provisions’ that conflict with the requirements of the directive (for example, where national legislation sets unlawful thresholds). Yet the ECJ did not

191

Case C-72/95 Kraaijeveld [1996] ECR I-5403 para 56. For an interesting critique of this feature of Kraaijeveld see D Wyatt, ‘Litigating Community Environmental Law—Thoughts on the Direct Effect Doctrine’ (1998) 10 Journal of Environmental Law 9, 18–19. 193 Case C-72/95 Kraaijeveld [1996] ECR I-5403 para 59. 194 Ibid, para 60. 195 Ibid, para 61. Note that the language deployed by the ECJ in this passage mirrors Art 10 EC, which provides: ‘Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks’. See also J Temple Lang, ‘The Duties of National Authorities under Community Constitutional Law’ (1998) 23 EL Rev 109. 192

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Role of EIA Directive in Local Judicial Review consider what steps a national court is required to take where a specific planning decision is taken in breach of the requirements of the directive.196 Is the national court obliged to revoke an unlawful planning decision or, at the very least, obliged to suspend it pending EIA? The ECJ articulated the national court’s obligation in broad terms—it must take ‘all the general or particular measures necessary’ to ensure that projects likely to have significant effects do not escape assessment. This loose formulation, which does not specify any particular remedy, provides an element of procedural flexibility for national courts and, perhaps fittingly, reflects the wide range of remedies and procedures available throughout the Member States. It falls to the national courts to determine the most appropriate course of action in the particular context of its governing planning and administrative law. At the same time, however, the end result that must be achieved by the national court is expressed in unequivocal terms by the ECJ. The obvious tensions that arise here—between national procedural autonomy on the one hand and the effectiveness of the EIA directive on the other—are not easily resolved. As indicated earlier in chapter one, national judges must prove willing to apply and give effect to EC environmental norms if the procedural requirements mandated by the EIA directive are to be integrated successfully into national planning and administrative law. The justiciability of the directive in domestic judicial review proceedings, and the remedies that must be provided by the national court in the case of non-compliance, was considered in greater detail in Bozen197 (which concerned a challenge to a decision approving an Annex II project involving the restructuring of Bolzano-St Jacob Airport). The contested project had been subject to what the national court described as ‘simplified environmental assessment’. It was common case, however, that the procedure by which the project had been adopted did not comply with the requirements of the EIA directive. The applicants in the main proceedings before the national court argued that the project was likely to have significant effects on the environment and should have been subject to an assessment pursuant to (original) Article 2(1) and Article 4(2). The national court inquired of the ECJ:

196 This aspect of Kraaijeveld is criticised in S Dillon, ‘The Mirage of EC Environmental Federalism in a Reluctant Member State Jurisdiction’ (1999) 8 New York University Environmental Law Journal 1, 29–30. According to Dillon, ‘[t]he Court of Justice could have used clear language that would have indicated to national courts that they are required to consider individual challenges to permissions for development and to evaluate the exercise of decision-maker discretion in the light of the Article 2(1) obligation. . . . Even allowing for the disharmony between the traditional language of the common law and the leaner, more nuanced language of the Court of Justice, the court’s coyness in identifying the precise nature of the review Member State courts are required to provide under a given environmental directive is puzzling’ (footnote omitted). 197 Case C-435/97 Bozen [1999] ECR I-5613.

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The ECJ and the EIA Directive If the Directive has been incorrectly transposed, is Article 4(2) thereof, in conjunction with Article 2(1), vertically directly effective (self-executing) in the sense that the authorities of the Member State are required to subject the projects at issue to an environmental assessment?198

The ECJ (following Kraaijeveld) ruled that individuals could indeed invoke the obligation imposed by the directive before their national courts. The Court’s response was rather more specific on this occasion however: It is for the national court to review whether, on the basis of the individual examination carried out by the competent authorities which resulted in the exclusion of the specific project at issue in the main proceedings from the assessment procedure established by the Directive, those authorities correctly assessed, in accordance with the Directive, the significance of the effects of that project on the environment.199

This passage confirms that the directive may be relied upon to challenge the decision of the relevant competent authority to exclude a specific project from the assessment requirement. The Bozen ruling therefore clarifies the ambiguity on this important point that had emerged post-Kraaijeveld. On the question of remedies, the ECJ took the opportunity to elaborate on Kraaijeveld as follows: Articles 4(2) and 2(1) of the Directive are to be interpreted as meaning that, where the discretion conferred by those provisions has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on those provisions before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions. In such a case, it is for the authorities of the Member State to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment, and, if so, to ensure that they are subject to an impact assessment.200

This passage differs from the Kraaijeveld formulation in that it refers to the duty of the national court to set aside any of its ‘national rules or measures’ that have been deemed incompatible with Article 2(1) and Article 4(2). The word ‘measures’ is sufficiently open-ended to embrace specific administrative decisions taken in breach of the requirements of the directive, although it is unfortunate that the ECJ was not more explicit on this point. Linster 201 (which involved a challenge to the legality of a compulsory purchase procedure in respect of lands required to facilitate the construction of a motorway) presented the ECJ with an opportunity to deliver further guidance on a range of issues concerning the role of the directive in judicial review proceedings.

198

Ibid, para 27. Ibid, para 48. 200 Ibid, para 71. 201 Case C-287/98 Linster [2000] ECR I-6917. See also Á Ryall, ‘Environmental Assessment Law: Luxembourg v Linster’ (2001) 8 Irish Planning and Environmental Law Journal 17. 199

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Role of EIA Directive in Local Judicial Review In brief, the Linsters sought to defend compulsory purchase proceedings with the argument that the contested motorway project had not been the subject of an EIA as required by the directive. The national court was uncertain as to whether it could assess whether the national legislature had kept within the limits of its discretion without first determining whether the directive had direct effect. It referred a question on this point to the ECJ.202 Luxembourg maintained that the national court was only entitled to find that the substantive provisions of the directive had been infringed if the provision of the directive on which the Linsters sought to rely had direct effect and conferred rights on the applicants in the judicial review proceedings.203 The Linsters argued that by virtue of the principle of supremacy, a national court is under a duty to disapply national legislation that is contrary to Community law, even in cases where the Community provision at issue lacks direct effect.204 The ECJ did not engage with these specific arguments. Recalling its earlier rulings in Verbond, Kraaijeveld and Bozen, the Court confirmed that ‘those concerned’ could invoke the obligation imposed by the directive before the national courts.205 The role of the national courts was set out in the following terms: [A] national court, called on to examine the legality of a procedure for the expropriation in the public interest, in connection with the construction of a motorway, of immovable property belonging to a private individual, may review whether the national legislature kept within the limits of the discretion set by the Directive, in particular where prior assessment of the environmental impact of the project has not been carried out, the information gathered in accordance with Article 5 has not been made available to the public and the members of the public concerned have not had an opportunity to express an opinion before the project is initiated, contrary to the requirements of Article 6(2) of the directive.206

The Linster ruling also provides welcome guidance on the role of the national court where a challenge is mounted to the adequacy of the EIS. It will be recalled that Article 5 of the directive requires Member States to adopt measures to ensure that the developer supplies specified information on the proposed project and its likely impacts. The ECJ noted that the original Article 6(2) requires Member States to ensure that the public has access to the application for development consent and to the information supplied by the developer and, furthermore, that the public is given the opportunity to express an opinion on the proposed project.207 While acknowledging that the Member States enjoy an element of discretion when implementing the requirements of Article 5(1) at national level, the ECJ ruled that this discretion ‘does not preclude judicial review of the

202 203 204 205 206 207

The detailed questions referred by the national court are set out in para 24 of the judgment. Case C-287/98 Linster [2000] ECR I-6917 paras 26–7. Ibid, para 28. Ibid, paras 31–2. Ibid, para 39. Ibid, para 35.

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The ECJ and the EIA Directive question whether it has been exceeded by the national authorities’.208 Thus, the Court confirmed that the decision of the relevant competent authority on the adequacy of the EIS is open to challenge pursuant to Article 5 of the directive. The Bozen and Linster judgments also offer useful guidance on the level of detail that must be provided in the EIS in order to comply with the requirements of the directive. Although this particular point did not arise directly in either Bozen or Linster, the ECJ’s analysis of the scope of the Article 1(5) exemption in both of these cases is instructive. Article 1(5) provides that the EIA directive does not apply where a project is adopted by a specific act of national legislation. The ECJ’s account of the degree of precision required in a legislative act before the Article 1(5) exemption will come into play was considered earlier in this chapter. The Court was careful to stress that the act in question must include all of the elements necessary to assess the environmental impact of the proposed project.209 Otherwise, the objectives of the directive would be undermined. This purposive approach can also be deployed at national level in order to gauge the adequacy of an EIS. Following this line of reasoning, the test for evaluating the EIS may be formulated in the following manner: Does the EIS set out the required information in sufficient detail to enable the competent authority to assess the impact of the proposed project in accordance with the requirements of the directive and in particular Article 3 thereof? Determining the adequacy or otherwise of the EIS in light of the standards set down in the directive involves complex mixed questions of law and fact. The intensity of the standard of review to be applied by a national court where a challenge is mounted to the adequacy of the EIS is considered below. In Wells,210 the ECJ confirmed that an individual is entitled to invoke Article 2(1), in conjunction with Article 4(2), in order to challenge the State’s failure to require an EIA. Even more significantly, the Court held that it is open to an individual to rely on the EIA directive against a competent authority even where this course of action involves so-called ‘adverse repercussions’ or negative consequences for a private developer. Serious doubt had surrounded this important point prior to Wells, given the well-established prohibition on horizontal direct effect (that directives can be invoked against the State and organs of the State but not against private parties).211 Wells also provided long overdue clarification on the appropriate remedy where a national court determines that the requirements of the EIA directive have not been met in a particular case. The ECJ began, characteristically, by recalling the Member State’s duty to nullify the unlawful consequences of a breach of Community law—a duty owed by every organ of the

208

Ibid, paras 36–7. Case C-435/97 Bozen [1999] ECR I-5613 para 59 and Case C-287/98 Linster [2000] ECR I-6917 para 57. 210 Case C-201/02 Wells [2004] ECR I-723. 211 Case 148/78 Ratti [1979] ECR 1629 para 22 and Case 152/84 Marshall [1986] ECR 723 para 48. See generally Prechal, above n 171, at 255–70. 209

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Role of EIA Directive in Local Judicial Review State, including the courts.212 The competent authorities are required to take ‘all the general or particular measures necessary’ in order to ensure that the requirements of the directive are observed.213 On this occasion, however, the ECJ acknowledged explicitly that the particular measures envisaged here include ‘the revocation or suspension’ of a consent that has already been granted, subject, as ever, to the principle of national procedural autonomy.214 A national court is not required to revoke or suspend an unlawful consent, but this remedy may be deployed if it is available under national administrative law—even where revocation or suspension entails adverse consequences for a private developer. The ECJ also rejected an argument mounted by the UK to the effect that the lengthy period of time between the decision determining the new conditions, and Mrs Wells’s request that the situation be remedied, resulted in a situation where revocation of the contested decision would offend the principle of legal certainty. In Wells, revocation had been requested before the final stage of the development consent procedure was completed. It followed, in the Court’s view, that in these circumstances revocation would not have been contrary to the principle of legal certainty.215 The ECJ’s approach in Wells reflects, yet again, the difficult tension between the principle of national procedural autonomy and the effectiveness of Community law within the national legal order. While the ECJ does not go so far as to direct that an unlawful consent must be revoked or suspended, the Member State is required ‘to make good any harm’ caused by the failure to carry out an EIA.216 The procedural rules governing challenges to development consents before the domestic courts are a matter for the national legal system, provided that the twin principles of equivalence and effectiveness are respected.217 It falls to the national court to determine whether it is possible under national administrative law for an unlawful consent to be revoked or suspended in order to facilitate EIA.218 If revocation or suspension is not possible, then the national court must consider, ‘if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered’. This is the most intriguing aspect of the Wells ruling. The ‘individual’ referred to in this part of the judgment presumably refers to the applicant for judicial review whose challenge to the contested development consent has proven successful. The ECJ appears to suggest here that if the

212

Case C-201/02 Wells [2004] ECR I-723 para 64. Ibid, para 65. 214 Ibid. 215 Ibid, para 60. See also Harwood, above n 44, at 275–6 and Case C-508/03 Commission v United Kingdom [2006] ECR I-3969 paras 66–9 where the ECJ noted that while the principle of legal certainty and the protection of legitimate expectations require revocation of an unlawful measure to occur within a reasonable time and regard must be had to how far the person concerned (ie the developer) might have been led to rely on the unlawful measure, revocation, is, in principle, permitted. 216 Case C-201/02 Wells [2004] ECR I-723 paras 66–9. 217 Ibid, para 67. 218 Ibid, para 69. 213

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The ECJ and the EIA Directive individual concerned agrees (and this is cast as a firm pre-condition), then compensation is an acceptable alternative remedy to revocation or suspension of the unlawful consent. This raises the obvious question—what is a national court to do if the individual concerned does not agree to compensation as a remedy— bearing in mind that revocation or suspension of the unlawful consent may not be an option under domestic law? The manner in which the ECJ has formulated the ‘alternative’ remedy option in Wells is unsatisfactory and raises more questions than it solves. At no point in the judgment does the ECJ elaborate on what it means by the phrase ‘harm’ in this particular context. What is the ‘harm’ suffered by an individual objector (or ENGO) where a competent authority grants development consent without prior EIA in breach of the requirements of the directive? As explained in chapter two, the EIA directive is concerned with procedural matters as opposed to substantive environmental rights and obligations. Even in cases where an EIA is carried out in accordance with the directive, the competent authority is not obliged to take a decision that prioritises the environment over development. In the end, competing values and interests may outweigh environmental considerations. The best that can be said is that EIA increases awareness of environmental concerns among competent authorities, developers and the public. Where a competent authority fails to carry out an EIA, an individual objector is denied the right to participate in the decision-making procedure and the decision-maker is deprived of the individual’s input. In the absence of EIA, the decision taken by the competent authority may be deficient from an environmental perspective—although there is an inevitable element of speculation here. It follows that whatever the ‘harm’ contemplated by the ECJ may be, it is extremely difficult to measure. How does one go about putting a monetary value on the loss of the procedural right to participate in the EIA process? This point is considered further below in the specific context of State liability for breach of Community law.219 Early doubts about the direct effect or justiciability of the EIA directive at national level have gradually been resolved by the ECJ and this point is now settled. The fact that various provisions of the directive confer a measure of discretion on the Member States does not preclude judicial review. In separating the right to invoke the directive before the national courts from the traditional requirements for direct effect (ie the unconditional and sufficiently precise criteria), the ECJ has succeeded in sharpening the effectiveness of the directive as a means of challenging planning decisions within the domestic legal order. At the same time, however, the ECJ’s reluctance to apply traditional direct effect principles when considering the role of the EIA directive before the national courts, together with the recent emergence of a looser concept of ‘invocability’, has generated unnecessary complexity that has spilled over into the national

219

See pp 179−90.

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Role of EIA Directive in Local Judicial Review arena.220 Edward has suggested that the Kraaijeveld ruling ‘is not “direct effect” in the traditional sense and it would perhaps be as well to find another formula in order to avoid confusion’.221 In similar vein, Prechal has observed that in addition to the confusion the concept of direct effect has generated, and continues to generate, there is a danger that ‘it may serve as a pretext not to apply Community law provisions and it still underlines the “foreign origin” character of Community law, which should, at a certain stage, be overcome’.222 The analysis of the Irish case law presented in chapter five confirms that the uncertainty produced by the obscure wording adopted by the ECJ in Kraaijeveld (when elaborating on the circumstances in which qualified members of the public may invoke the directive at national level) has indeed led to difficulties in practice. Notwithstanding the more explicit judgments from the ECJ post-Kraaijeveld, a number of important practical issues concerning the role of the directive in domestic judicial review proceedings remain unresolved. C. Standard of Review to be Applied by National Courts While the ECJ has confirmed that qualified individuals may invoke the EIA directive before the national courts, it has not elaborated on the standard of review to be applied by those courts in EIA cases. The Court’s reluctance to articulate a specific standard of review lies in the well-established principle of national procedural autonomy and its desire to accommodate the diverse systems of administrative law operating throughout the Member States. Following the ECJ’s Upjohn223 ruling, it appears that national courts are not required to embark on a review of the merits of decisions taken by competent authorities in cases involving ‘complex assessments’. This approach mirrors the position in Irish administrative law whereby judicial review is limited to an examination of the legality of the contested decision. Moreover, following the principles established in O’Keeffe,224 a particularly weak form of review is applied where a challenge is mounted to the decision of an expert public authority. The courts will rarely, if ever, interfere with decisions of competent authorities on purely planning matters or on questions of planning judgement. This stance reflects the practical reality that the judiciary are not expert in planning and environmental matters. The role of the courts in judicial review cases is to uphold the Rule of Law and to contain the exercise of discretion within the parameters set by the EIA 220 J Jans and J Prinssen, ‘Direct Effect: Convergence or Divergence? A Comparative Perspective’ in JM Prinssen and A Schrauwen (eds), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Groningen, Europa Law Publishing, 2002). 221 In ‘Foreword’ to J Holder (ed), The Impact of EC Environmental Law in the United Kingdom (Chichester, Wiley, 1997) xiv, cited in Scott, above n 178, at 123. See also C Hilson and T Downes ‘Making Sense of Rights: Community Rights in EC Law’ (1999) 24 EL Rev 121, 135–7. 222 Prechal, above n 176, at 1068. 223 Case C-120/97 Upjohn [1999] ECR I-223. 224 O’Keeffe v An Bord Pleanála [1993] 1 IR 39.

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The ECJ and the EIA Directive directive. Fulfilling this role will often involve the national courts in complex mixed questions of law and fact (eg judging significance in the case of the Annex II projects and evaluating the adequacy of the EIS submitted by the developer against the benchmarks set in Article 5 of the directive). Notwithstanding the deference shown to local administrative law in Upjohn, the ECJ insisted that the national courts provide effective protection for the rights that individuals derive from Community law. This critical theme also permeates the EIA case law considered earlier in this chapter. Indeed, the ECJ’s sharp focus on the national courts’ obligation to ensure that the objectives of the EIA directive are not undermined in practice is one of the most striking features of the Kraaijeveld line of authority. The fundamental difficulty lies in translating the concept of ‘effective’ protection into a realistic and workable standard of review to be applied by the national courts in EIA cases. In SIAC225 (considered earlier in chapter three), the Irish Supreme Court held that the ‘manifest error’ standard applies when a national court is called upon to review the legality of decisions involving the application of Community procurement rules by competent authorities.226 Fennelly J observed that the O’Keeffe principles entailed the risk of not delivering effective judicial protection as required by the Remedies directive227 (a view shared by the Advocate General in SIAC).228 Following SIAC, it appears that the O’Keeffe principles need to be recalibrated in cases involving Community law in order to ensure a sufficient level of judicial scrutiny. Unfortunately, the Supreme Court did not consider how the ‘manifest error’ test connects with wellestablished principles of judicial review in Irish law. The result is continuing uncertainty within the national legal order as to the appropriate standard of review in cases where Community law rights are at issue. The ruling in Commission v United Kingdom229 sheds interesting light on the appropriate standard of review at national level (although it involved Article 226 EC infringement proceedings). On this occasion, the Commission maintained that Articles 2(1) and 4(2) of the (original) EIA directive had been breached because the competent authorities had not undertaken prior EIAs in respect of urban development projects at White City and Crystal Palace in London, even though—as the Commission alleged—both Annex II projects were likely to have significant effects. As regards the White City development (which concerned circa 58,000 sq meters of retail and leisure development, including a major new road junction, 4,500 parking spaces, and a link to the Underground network), the Commission was of the view that a project of that size raised a presumption that 225

SIAC Construction Ltd (SIAC) v Mayo County Council [2002] IESC 39, [2002] 3 IR 148. Ibid, 174–6. 227 Dir 89/665/EEC on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts [1989] OJ L395/33. 228 Case C-19/00 SIAC Construction Ltd v Mayo County Council [2001] ECR I-7725 paras 53–4 of the Opinion. 229 Case C-508/03 Commission v United Kingdom [2006] ECR I-3969. 226

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Role of EIA Directive in Local Judicial Review an EIA was necessary, unless this presumption was mitigated by other factors. In the case of the Crystal Palace development (which involved leisure and commercial use covering 52,000 sq metres, a roof-top car park with 950 spaces, and a car park at ground level), the Commission maintained that the scale and size of the project was such that it was likely to have significant effects and the competent authority had therefore exceeded its discretion. The UK submitted that, having considered the reports and studies in their possession and following consultation, the competent authorities were entitled to conclude that neither project was likely to have significant effects and therefore did not require EIA. The ECJ began by recalling that the Commission is required to prove the allegation that a Member State has failed to fulfil its obligations.230 It cannot rely on any presumptions in this regard and ‘must furnish at least some evidence of the effects that the project in question is likely to have on the environment’.231 The Court reiterated the Member States’ duty to facilitate the achievement of the Commission’s tasks, which include, in particular, ensuring that the provisions of the Treaty, and the measures taken by the institutions pursuant thereto, are applied.232 Where the Commission has adduced sufficient evidence of certain matters in the territory of the defendant Member State, it falls to the State to challenge in substance and in detail the information produced by the Commission.233 Although Article 4(2) of the EIA directive ‘gives the competent authority a degree of freedom in appraising whether or not a particular project must be made subject to an assessment’, it is clear from settled case law that the limits of this discretion are found in Article 2(1).234 The Commission is required to prove that the defendant Member State failed to adopt all measures necessary to ensure that projects likely to have significant effects are subject to prior assessment.235 The ECJ ruled that the Commission had failed to satisfy this burden of proof. It was not entitled to rely on mere presumptions that large-scale projects are automatically likely to have significant effects ‘without establishing, on the basis of at least some specific evidence, that the competent authorities made a manifest error of assessment’.236 The ECJ criticised the Commission for failing to support its assertions with ‘an analytical presentation of tangible and specific evidence which might have enabled the Court to assess whether the competent authorities did in fact exceed the limits of their discretion’.237 This aspect of the ruling is very significant. It demonstrates that the ECJ is prepared to revisit a competent authority’s judgement of the significance of an Annex II project. The focus of the inquiry is on whether or not the competent authority made ‘a manifest error of

230 231 232 233 234 235 236 237

Ibid, para 77. Ibid, paras 77–8. Ibid, para 79. Ibid, para 80. Ibid, paras 88–9. Ibid, para 90. Ibid, para 92. Ibid, para 93. See also Case C-117/02 Commission v Portugal [2004] ECR I-5517 para 87.

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The ECJ and the EIA Directive assessment’ when determining significance. The Court’s approach here is consistent with its earlier ruling in Upjohn concerning the scope of judicial review proceedings at national level where Community law rights are involved. The ruling in Commission v United Kingdom provides a strong indication that the ‘manifest error’ standard should also be applied in judicial review proceedings at national level where it is alleged that the competent authority has exceeded the discretion conferred by the EIA directive. In the absence of a more explicit ruling from the ECJ, it falls to the national courts to examine how national judicial review law and practice intersect with the Community law obligation to deliver effective judicial protection. The express reference to the ‘manifest error’ test provides a useful point of reference for the national courts as they embark on the task of moulding national judicial review principles to fit the requirements of Community EIA law. The most recent series of rulings from the ECJ confirm the crucial role of the national courts in reviewing the exercise of discretion in EIA matters. In Abraham,238 the ECJ concluded that the contested project (works to modify the infrastructure of an existing airport runway) came within the scope of Annex II of the original directive.239 It was for the national courts, however, to establish that the competent authorities had correctly assessed whether the project was likely to have significant effects.240 In Commission v Ireland,241 the national competent authorities determined that Annex II did not apply to ancillary works which were considered to be minor aspects of a wind farm project. The ECJ disagreed and it embarked on a careful examination of the projects in question (which involved peat and mineral extraction and road construction). Taking particular account of the highly sensitive nature of the location, the Court determined that the proposed projects were likely to have significant effects and should have been subject to prior assessment. It also determined that the EISs submitted by the developer were deficient due to a failure to consider soil stability. The ECJ reached similar conclusions in connection with another set of development consents relating to different elements of the wind farm project. Commission v Ireland provides a strong example of the ECJ’s willingness to investigate the exercise of discretion by national competent authorities. It is regrettable, however, that the Court did not refer to the ‘manifest error’ test in this context, and that the judgment does not elaborate further on the appropriate standard of review. In Ecologistas en Acción-CODA,242 the ECJ reaffirmed that it

238 239 240 241 242

Case C-2/07 Abraham [2008] ECR I-0000. Ibid, paras 32–3. Ibid, para 39. Case C-215/06 Commission v Ireland [2008] ECR I-0000. Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-0000.

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Role of EIA Directive in Local Judicial Review was the role of the national court to assess whether the reports and studies concerning the projects at issue in that case satisfied the requirements set down in the EIA directive.243 In sum, the national courts are obliged to ensure that the effectiveness of the EIA directive is not undermined in practice. To this end, decisions taken by competent authorities on the following matters should be subject to robust review: 1.

Whether or not a particular Annex II project is likely to have significant effects on the environment; The adequacy or otherwise of the EIS submitted by the developer; The adequacy or otherwise of the assessment (EIA) undertaken by the competent authority; Whether the various procedural steps required by the directive (including public participation) were observed; Whether the requirements of Article 8 have been fulfilled. More specifically, were the results of consultations and the information gathered pursuant to Articles 5 and 6 taken into consideration by the competent authority?; Whether the decision published by the competent authority complies with the requirements of Article 9.

2. 3. 4. 5.

6.

D.

Substantial Compliance

The early decision in Commission v Germany244 suggested that it was sufficient if the procedure applied to assess the impacts of a contested project meets the basic requirements articulated in the directive—even if this procedure is not formally based on the scheme set out in the directive.245 This decision concerned Article 226 EC infringement proceedings and so it must be treated with some caution in the context of the role of the national courts in judicial review proceedings. There is no express reference to the concept of substantial compliance in the Kraaijeveld line of authority. In Bozen,246 the ECJ acknowledged that a Member State could adopt an alternative assessment procedure to that set down in the directive. Any such procedure must satisfy the requirements of Article 3 and Articles 5 to 10, however. This aspect of Bozen indicates that (depending on the particular circumstances), it is open to a competent authority to seek to defend judicial review proceedings with the ‘substantial compliance’ argument. In Ecologistas en Acción-CODA,247 the referring court inquired of the ECJ whether studies undertaken and reports compiled by the national authorities concerning the contested 243

Ibid, paras 48–50. Case C-431/92 Commission v Germany [1995] ECR I-2189. Ibid, paras 41–5. The ECJ was influenced by the fact that the procedure adopted by the German authorities in this case met the requirements of Arts 3, 5 and 8 of the (original) directive. 246 Case C-435/97 Bozen [1999] ECR I-5613. 247 Case C-142/07 Ecologistas en Acción-CODA [2008] ECR I-0000. 244 245

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The ECJ and the EIA Directive urban road projects constituted an EIA for the purposes of the directive. The ECJ confirmed that ‘a formal assessment may be replaced by equivalent measures where they satisfy the minimum requirements set out in Article 3 and Articles 5 to10’.248 The substantial compliance issue was considered by the House of Lords in Berkeley v Secretary of State for the Environment,249 where the applicant for judicial review challenged the Secretary of State’s decision to grant planning permission for the redevelopment of the Fulham Football Club ground.250 The planning application, which was not accompanied by an EIS, attracted a large number of representations from local residents. One of the most controversial aspects of the proposed development was its potential impact on the ecology of the River Thames. The local authority’s planning department compiled ‘a lengthy and impressive document’ that summarised the various views expressed during the consultation process and weighed the advantages and disadvantages of the proposed project. The Secretary of State decided to call in the planning application for his own determination, but he did not require the Club to submit an EIS.251 Following a public inquiry lasting eight days, the planning inspector recommended that permission be granted subject to comprehensive conditions. The Secretary of State accepted that recommendation and granted permission subject to conditions. By the time the case reached the House of Lords, the parties had agreed that the decision to grant permission was ultra vires because of the failure to consider whether an EIA was required.252 It was also agreed that the decision could not be defended on the basis that the outcome would have been the same even if an EIA had been undertaken. The crucial question before the Law Lords was whether there had been substantial compliance with the requirements of the directive and, if so, whether the Secretary of State’s decision could be upheld on that basis. The ECJ’s ruling in Commission v Germany253 was deployed to support the substantial compliance argument. Lord Hoffmann, who delivered the main judgment, drew on the Opinion delivered by Advocate General Elmer in that case and concluded that ‘an EIA by any other name will do as well’ as long as the

248

Ibid, para 50. Berkeley v Secretary of State for the Environment [2000] UKHL 36. See also Á Ryall, ‘Environmental Assessment Law: Berkeley v Secretary of State for the Environment’ (2001) 8 Irish Planning and Environmental Law Journal 70. 250 The proposed development involved building a new stadium (which would incorporate and improve a number of listed buildings) together with a residential development (comprising 142 flats) overlooking the Thames. 251 For an overview of the Secretary’s power to call in a planning application for determination pursuant to s 77 of the Town and County Planning Act 1990 see Bell and McGillivray, above n 62, at 403. 252 If the Secretary had considered the point, it was likely that he would have concluded that the contested project was an urban development project (within the meaning of Annex II) that was likely to have significant effects on the environment. 253 Case C-431/92 Commission v Germany [1995] ECR I-2189. 249

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Role of EIA Directive in Local Judicial Review procedure followed is an EIA ‘in substance’.254 Notwithstanding the fact that Article 6(3) of the directive conferred an element of discretion on the Member States as to the detailed arrangements for making the information specified in Article 5 available to the public, this discretion did not permit a Member State to treat a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available to the public the Annex III information which should have been provided by the developer.255

Lord Hoffmann accepted that where there was a failure to observe what he described as ‘some procedural step which was clearly superfluous’ to the requirements of the directive, then the national court could exercise its discretion not to quash the unlawful planning permission without acting in breach of its obligations under Community law.256 Berkeley was not such a case, however.257 It falls to the national court to examine whether the fundamental objectives of the directive have been complied with in the course of the actual assessment procedure adopted by the competent authority.

E.

Horizontal Effect or Consequential Adverse Impact?

It is a well-established principle of Community law that a directive may be enforced against the State, or an organ of the State, but not against a private individual or body.258 The obligation to implement Community law falls squarely 254

Berkeley v Secretary of State for the Environment [2000] UKHL 36 para 9. Ibid. 256 Ibid. See also R (Prokopp) v London Underground Ltd and Strategic Rail Authority [2003] EWCA Civ 961 paras 70–78 (Buxton LJ, obiter); Younger Homes (Northern) Limited v First Secretary of State [2004] EWCA Civ 1060 paras 46–8 (Laws LJ) and Belize Alliance of Conservation NonGovernmental Organizations v Department of the Environment and Belize Electric Company Ltd [2004] UKPC 6 paras 69–73 (Lord Hoffmann) and paras 117–20 (Lord Walker, dissenting). 257 Note that in subsequent decisions the Court of Appeal (England and Wales) has been careful to highlight the narrow basis on which Berkeley was argued before the House of Lords—in particular, the fact that the developer was not represented and that there was no reference to any evidence of actual prejudice to the developer’s interest or indeed any other interest. See, eg, Bown v Secretary of State for Transport [2003] EWCA Civ 1170 paras 46–7 (Carnwath LJ); R (Jones) v Mansfield DC [2003] EWCA Civ 1408 paras 58–60 (Carnwath LJ) and R (Richardson) v North Yorkshire County Council [2003] EWCA Civ 1860 paras 40–44 (Simon Brown LJ). In R (Edwards) v Environment Agency [2008] UKHL 22, Lord Hoffmann confirmed that the speeches delivered in Berkeley needed to be read in the particular context of that case. 258 Case 152/84 Marshall [1986] ECR 723; Case C-91/92 Faccini Dori v Recreb Srl [1994] ECR I-3325 and Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 para 109. Consider, however, the line of cases in which the ECJ accepted that, depending on the circumstances, an unimplemented directive may have an impact in disputes between two private parties. This particular line of authority, which includes the decisions in Case C-194/94 CIA Security International SA v Signalson SA and Securitel SPRL [1996] ECR I-2201 and Case C-443/98 Unilever Italia SpA v Central Food SpA [2000] ECR I-7535, is considered by Prechal, above n 171, at 266–9. 255

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The ECJ and the EIA Directive on the State and not on private individuals.259 Where the EIA directive is invoked in the course of a challenge to development consent for a private project, and a national court subsequently annuls that consent, there are serious implications (particularly in terms of additional costs and delay) for the private developer.260 In other words, invoking the directive successfully against a competent authority ‘may have indirect adverse effect for individuals’.261 This result does not sit comfortably with the prohibition on horizontal enforcement. Wyatt maintains that detrimental impact of this nature on developers is not due to horizontal effect in the strict sense but instead an inevitable consequence of permitting an individual or body to invoke the directive against the relevant competent authority.262 The projects at issue in Kraaijeveld and Linster were both public projects, so this issue did not arise. Bozen, on the other hand, concerned a development project promoted by a private developer. The horizontal effect issue was not addressed at all in the ECJ’s decision—yet the Court was adamant in directing that the relevant national authorities, including the courts, are obliged to set aside ‘the national rules or measures’ that are found to be incompatible with Article 2(1) and Article 4(2).263 The national authorities were also required to take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment, and, if so, to ensure that they are subject to an impact assessment.264

Fulfilling this obligation may necessitate the revocation or suspension of an unlawful consent in appropriate cases—with potentially serious incidental consequences for third parties, including private developers. The horizontal effect problem was considered in detail by Sedley and Brooke LJJ in the Court of Appeal (England and Wales) in R v Durham County Council, ex parte Huddleston.265 The developer in this case applied to the local mineral planning authority (MPA) to register a dormant mining permission with a view to having it revived, subject to conditions. The application was not accompanied by an EIS. The statutory period for determination of the application having expired, the developer sought to rely on a provision in the relevant national legislation that facilitated a ‘deemed approval’. In the meantime, the House of Lords had ruled (in R v North Yorkshire County Council, ex parte Brown)266 that

259

Case C-91/92 Faccini Dori [1994] ECR I-3325 para 22. Y Scannell, ‘Environmental Assessment: Browne v An Bord Pleanála’ (1990) 2 Journal of Environmental Law 209, 222. 261 D Wyatt, ‘Litigating Community Environmental Law—Thoughts on the Direct Effect Doctrine’ (1998) 10 Journal of Environmental Law 9, 15. 262 Ibid, 15–16. 263 Case C-435/97 Bozen [1999] ECR I-5613 para 71. 264 Ibid. 265 R v Durham County Council ex p Huddleston [1999] EWCA Civ 792. See also D Elvin and J Robinson, ‘Environmental Impact Assessment’ [2000] Journal of Planning and Environment Law 876, 887–93. 266 R v North Yorkshire County Council ex p Brown [1999] UKHL 7. 260

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Role of EIA Directive in Local Judicial Review the determination of conditions in the context of an application to register an old mining permission constituted an application for ‘development consent’ for the purposes of the EIA directive. The registration process therefore required an EIA. Relying on Brown, the MPA insisted that the developer provide an EIS and threatened enforcement action if quarrying commenced. After taking legal advice, however, the authority was forced to accept that it could not treat the deeming provision as ineffective, as this would amount to enforcing the directive against a private party. The planning authority was hamstrung by the prohibition on horizontal enforcement. Mr Huddleston, who lived near the mining site, stepped into the enforcement gap and brought judicial review proceedings challenging the planning authority’s decision not to require an EIS. It was common ground that the EIA directive had direct effect but the planning authority, as an organ of the State, could not enforce the directive against a private developer. The applicant claimed [a] right to the valuable benefits accorded to him by the [EIA] Directive, which were denied to him when [the MPA] was deemed to have granted ‘development consent’ to [the developer] without first according him his right to take an informed part in the consultation process267 … By reason of the State’s failure, [to set up the machinery required by Articles 5–9 of the EIA directive] Mr. Huddleston was deprived, as a member of the public concerned, of the valuable benefit which should have been conferred on him by Article 6(2) [of the directive]. That provision had the effect of requiring the State to make available to the public any information gathered pursuant to Article 5, so that the public concerned (including Mr. Huddleston) might have the opportunity to express a properly informed opinion to [the authority] before consent was given or withheld.268

The Court of Appeal ruled that Mr Huddleston was entitled to rely on the directive against the planning authority. Sedley LJ, who delivered the leading judgment, recalled the Bozen ruling wherein the ECJ confirmed that an individual could call on the State to account for non-implementation of the EIA directive in a case where a developer was ‘directly and adversely affected by the intervention’. Sedley LJ reasoned that such an outcome ‘simply could not have been reached by the Court if it had been perceived as involving horizontal direct effect’.269 Sedley LJ also drew on Costanzo,270 where the ECJ had ruled that an individual could rely on the provisions of the public procurement directive notwithstanding any incidental detriment to the other parties to the tendering process (such as the successful bidder who finds himself displaced). The fact that a directive had to be applied against somebody (the developer in Bozen and the successful bidder in Costanzo) did not mean that it was being applied as between two private individuals. Rather ‘the issue throughout remains one of lawful 267 268 269 270

Huddleston [1999] EWCA Civ 792 para 35. Ibid, para 38. Ibid, para 16. Case 103/88 Fratelli Costanzo v Comune di Milano [1989] ECR 1839.

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The ECJ and the EIA Directive government’ (emphasis added).271 Sedley LJ concluded that ‘enforcement of a directive by an individual against the State is not rendered inadmissible solely by its consequential effect on other individuals’.272 Huddleston (following Bozen) confirms that individuals may invoke the directive against an organ of the State even where the result entails adverse consequences for a private individual or body. The ECJ was called upon to address the thorny question of potential horizontal effect head-on in Wells.273 Simply put, the core issue in Wells was whether permitting an individual to invoke the EIA directive in order to challenge a planning decision amounted to horizontal effect because it results in an innocent third party (the developer) being deprived of the benefit of the planning permission? Recalling its earlier rulings in Costanzo and Bozen, the Court confirmed that ‘mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned’.274 In the ECJ’s view, there was no direct link between the competent authority’s obligation to ensure an EIA was carried out in respect of the project at issue and the performance of any other obligation falling on the developer under the directive.275 In the words of the Court, [t]he fact that mining operations must be halted to await the results of the assessment is admittedly the consequence of the belated performance of [the] State’s obligations. Such a consequence cannot, however, as the United Kingdom claims, be described as inverse direct effect of the provisions of [the EIA] directive in relation to the quarry owners.276

Thus the ECJ confirmed that an individual may invoke the EIA directive against a planning authority even where there may be so-called ‘adverse repercussions’ or consequences for the rights of innocent third party developers.277 This aspect of Wells is consistent with the Court’s ground-breaking Costanzo278 ruling and is therefore not particularly surprising. The real practical issue is what remedy, if any, is available to a third party developer who suffers loss or damage as a result of a Member State’s failure to implement the EIA directive correctly? Simons has suggested an interesting solution in the context of Irish planning law: rather than quashing an unlawful planning permission, the High Court ‘might order the

271

Huddleston [1999] EWCA Civ 792 para 17. Ibid, para 18. 273 Case C-201/02 Wells [2004] ECR I-723. 274 Ibid, para 57. See also Joined Cases C-152/07 to C-154/07 Arcor [2008] ECR I-0000 para 36. 275 Ibid, para 58. 276 Ibid. 277 See also K Lenaerts and T Corthaut, ‘Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’ (2006) 31 EL Rev 287, 300 and M Stallworthy, ‘Once More Unto the Breach: English Law Rationales and Environmental Assessment’ [2004] Journal of Planning and Environment Law 1472, 1474–6. 278 Case 103/88 Costanzo [1989] ECR 1839. 272

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Role of EIA Directive in Local Judicial Review relevant planning authority to exercise its statutory power to revoke the planning permission, which would then attract the payment of statutory compensation’.279 The question of compensation for damage suffered as a result of breach of Community law is considered further below in the context of State liability.

F.

Consistent Interpretation

The general preoccupation with the direct effect or ‘invocability’ of the EIA directive, both in the case law and in the literature, has tended to overshadow the importance of consistent interpretation (or ‘indirect effect’) as a mechanism for promoting effective local enforcement of the procedural requirements set down in the directive.280 It is a well-established principle of Community law that national courts are under an obligation to interpret national law in conformity with the provisions of directives, at least in so far as this is possible.281 The rationale behind the development of the doctrine of consistent interpretation is to ensure l’effet utile of directives within the national legal order, notwithstanding a failure to implement or inadequate implementation.282 The ECJ has confirmed, of late, that the doctrine is ‘inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Community law when it determines the dispute before it’.283 Where the provisions of a directive are not sufficiently precise and unconditional to be invoked directly before the national courts, a directive may still have an impact in the domestic legal system via consistent interpretation. The ‘sympathetic’ interpretation requirement has been held to apply even where the relevant national provisions predate the directive in question.284 The ECJ summarised the essential features of the doctrine of consistent interpretation in Centrosteel as follows: The national court is bound, when applying provisions of domestic law predating or postdating the said Directive [in this case Directive 86/653/EEC on self-employed 279 G Simons, Planning and Development Law, 2nd edn (Dublin, Thomson Round Hall, 2007) para 13.285. 280 See generally Prechal, above n 171, ch 8; S Drake, ‘Twenty Years After Von Colson: The Impact of “Indirect Effect” on the Protection of the Individual’s Community Rights’ (2005) 30 EL Rev 329: and G Betlem, ‘The Doctrine of Consistent Interpretation—Managing Legal Uncertainty’ (2002) 22 Oxford Journal of Legal Studies 397. 281 Case 14/83 Von Colson [1984] ECR 1891 para 26; Case C-62/00 Marks and Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325 para 24; Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 paras 113–16; Case C-212/04 Adeneler v Ellinikos Organismos Galaktos [2006] ECR I-6057 para 108 (Adeneler) and Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-0000 para 99. 282 Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 para 111. 283 Ibid, para 114; Case C-212/04 Adeneler [2006] ECR I-6057 para 109 and Case C-268/06 Impact [2008] ECR I-0000 para 98. 284 Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135 para 8 (Marleasing).

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The ECJ and the EIA Directive commercial agents], to interpret those provisions, so far as possible, in the light of the wording and purpose of the Directive, so that those provisions are applied in a manner consistent with the result pursued by the Directive.285

In Pfeiffer, the ECJ added: Although the principle that national law must be interpreted in conformity with Community law concerns chiefly domestic provisions enacted in order to implement the directive in question, it does not entail an interpretation merely of those provisions but requires the national court to consider national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive.286

It is clear from this passage that the obligation of consistent interpretation is not limited to the national provisions intended to implement the directive in question. Rather the national court is bound ‘to consider national law as whole’ in order to assess the extent to which it may be applied to deliver a result that is not contrary to the requirements of the directive at issue.287 In Adeneler, the ECJ confirmed that where a directive is transposed belatedly, the interpretative obligation only arises once the relevant period for transposition of the directive in question has expired.288 The Court also clarified, however, that once a directive has entered into force, the national courts must refrain as far as possible from interpreting national law in a manner which might seriously compromise the attainment of the objective pursued by the directive.289 The general principles of Community law, in particular the principles of legal certainty and non-retroactivity, create important constraints on the interpretative obligation.290 While the consistent interpretation obligation does not require a contra legem interpretation of domestic law, the ECJ has insisted that national courts are required to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law,

285

Case C-456/98 Centrosteel v Adipol [2000] ECR I-6007 para 19. Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 para 115. See also Case C-212/04 Adeneler [2006] ECR I-6057 para 111; and Case C-268/06 Impact [2008] ECR I-0000 para 101. 287 Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 paras 115–16. See also Case C-462/99 Connect Austria Gesellschaft für Telekommunikation GmbH v Telekom-Control-Kommission [2003] ECR I-5197 paras 39–42; Case C-350/03 Schulte v Deutsche Bausparkasse Badenia AG [2005] ECR-9215 paras 69–71 and Case C-212/04 Adeneler [2006] ECR I-6057 para 111. 288 Case C-212/04 Adeneler [2006] ECR I-6057 paras 113–15. See also M Klamert, ‘Judicial Implementation of Directives and Anticipatory Indirect Effect: Connecting the Dots’ (2006) 43 CML Rev 1251. 289 Case C-212/04 Adeneler [2006] ECR I-6057 para 123. 290 Case 80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969 para 13; Case C-212/04 Adeneler [2006] ECR I-6057 para 110 and Case C-268/06 Impact [2008] ECR I-0000 para 100. 286

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Role of EIA Directive in Local Judicial Review with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it.291

The State may not invoke a directive (either directly or indirectly) to determine or aggravate an individual’s criminal liability.292 The ECJ has ruled that the doctrine of consistent interpretation also applies in cases involving disputes between private parties.293 The true limits of the doctrine of consistent interpretation remain hazy, however, especially the extent to which a national law, when interpreted and applied in light of a directive, can impose obligations on private parties without running into serious conflict with the prohibition on horizontal direct effect.294 The enduring complexity of the case law in this field reflects the tension between the ECJ’s drive to ensure that directives take ‘full effect’ within the national legal orders and the plain terms of Article 249(3) EC which vests responsibility for implementation of directives in the Member States and not private parties. The most striking feature of the recent case law is the vigour and insistence with which the ECJ has pursued the interpretation obligations, notwithstanding the often very serious consequences for private parties. The duty of consistent interpretation has become a powerful mechanism to close the implementation gap that would otherwise result from the prohibition on horizontal effect.

G. State Liability In the ground-breaking Francovich295 case, the ECJ ruled that an individual could recover against the State for loss or damage suffered as a result of the State’s failure to transpose a directive.296 The conditions to be satisfied before such liability would arise were expressed as follows: 291 Joined Cases C-397/01 to C-403/01 Pfeiffer [2004] ECR I-8835 para 118; Case C-212/04 Adeneler [2006] ECR I-6057 para 111 and Case C-268/06 Impact [2008] ECR I-0000 para 101. 292 Case 80/86 Kolpinghuis Nijmegen BV [1987] ECR 3969; Case C-168/95 Arcaro [1996] ECR I-4705 and Joined Cases C-387/02, 391/02 and 403/02 Berlusconi [2005] ECR I-3565 para 74. See also, by analogy, Case C-105/03 Pupino [2005] ECR I-5285 para 45. 293 Case C-106/89 Marleasing [1990] ECR I-4135. 294 Prechal, above n 171, at 210–15 and Editorial, ‘Horizontal Direct Effect—A Law of Diminishing Coherence?’ (2006) 43 CML Rev 1. 295 Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357. 296 For analysis of the Francovich doctrine see inter alia: P Wennerås, The Enforcement of EC Environmental Law (Oxford, Oxford University Press, 2007) 149–67; Prechal, above n 171, ch 10; A Ward, Judicial Review and the Rights of Private Parties in EC Law, 2nd edn (Oxford, Oxford University Press, 2007) ch 5; M Dougan, National Remedies before the Court of Justice: Issues of Harmonisation and Differentiation (Oxford, Hart Publishing, 2004) 233–67; T Tridimas, The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006) ch 11; W Van Gerven, ‘Bridging the Unbridgeable: Community and National Tort Laws after Francovich and Brasserie’ (1996) 45 ICLQ 507 and C Harlow, ‘Francovich and the Problem of the Disobedient State’ (1996) 2 European Law Journal 199.

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The ECJ and the EIA Directive [First] the result prescribed by the directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, the third condition is the existence of a causal link between breach of the State’s obligation and the loss and damage suffered by the injured parties.297

There is no requirement that the directive in question satisfy the criteria for direct effect (ie be sufficiently precise and unconditional) in order for liability to arise. The Francovich criteria apply where a Member State has failed to take any measures to transpose a directive. The ECJ subsequently elaborated on the criteria for liability in non-Francovich situations (ie cases involving a breach other than non-transposition). In Brasserie du Pêcheur,298 the following three conditions were held to apply where a Member State acts in a legislative context in which it enjoys a wide discretion: [T]he rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.299

The main difference between the Francovich and Brasserie criteria is the requirement of a ‘sufficiently serious’ breach in the latter. In Dillenkofer,300 the ECJ folded the Francovich conditions into the (previously separate) Brasserie conditions. The Court stressed that even though the requirement of a sufficiently serious breach was not expressly mentioned in Francovich, this precondition ‘was nevertheless evident from the circumstances of that case’.301 The ECJ proceeded to clarify that where a Member State fails (as in Francovich) to take any of the measures necessary to achieve the result prescribed by a directive within the stipulated period, then that failure in itself constitutes a sufficiently serious breach.302 In British Telecommunications,303 the ECJ confirmed that the conditions for liability articulated in Brasserie du Pêcheur also apply where a Member

297

Joined Cases C-6/90 and C-9/90 Francovich [1991] ECR I-5357 para 40. Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Federal Republic of Germany and R v Secretary of State for Transport, ex p Factortame Ltd and Others [1996] ECR I-1029. 299 Ibid, para 51. In Case C-5/94 R v Minister for Agriculture, Fisheries and Food ex p Hedley Lomas (Ireland) Ltd [1996] ECR I-2553 (Hedley Lomas), the ECJ emphasised that the mere infringement of Community law may in itself amount to a sufficiently serious breach where ‘at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no discretion’ (para 28). See also Case C-150/99 Svenska Staten v Stockholm Lindöpark AB [2001] ECR I-493 para 40. 300 Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer and Others v Germany [1996] ECR I-4845. 301 Ibid, para 23. 302 Ibid, para 29. 303 Case C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631 para 40. 298

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Role of EIA Directive in Local Judicial Review State incorrectly transposes a directive into national law.304 The requirement of a sufficiently serious breach as a precondition to liability is designed to ensure that State liability for breach of Community law is based on the same criteria as apply in the context of the non-contractual liability of the Community pursuant to Article 288 EC.305 In order to determine whether a breach is sufficiently serious, the test applied is whether the Member State ‘manifestly and gravely disregarded the limits on its discretion’.306 The ECJ has supplied a list of factors that the national courts may take into account when assessing the seriousness of the breach. These factors include: [T]he clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.307

A breach will be ‘sufficiently serious’ where it persists notwithstanding an ECJ ruling establishing the infringement, or where it is clear from a preliminary ruling or settled case law that the conduct in question constitutes an infringement.308 Further guidance on the difficult concept of a ‘sufficiently serious’ breach has been provided in a series of decisions.309 Apart from the sufficiently serious breach requirement, reparation for loss or damage cannot be made conditional on proving fault (in the sense of intention or negligence).310 Nor is the right to reparation dependent on a prior finding by the ECJ that the State in 304 See also Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit International BV and Others v Bundesamt für Finanzen [1996] ECR I-5063 para 48 (Denkavit). 305 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 paras 40–47. 306 Ibid, para 55. 307 Ibid, para 56. 308 Ibid, para 57. 309 Case C-392/93 British Telecommunications [1996] ECR I-1631 paras 42–5; Case C-5/94 Hedley Lomas [1996] ECR I-2553 para 28; Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit [1996] ECR I-5063 paras 50–53; Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255 paras 30–32 (Brinkmann); Case C-150/99 Stockholm Lindöpark [2001] ECR I-493 paras 38–41; Case C-118/00 Gervais Larsy v Institut national d’assurances sociales pour travailleurs indépendants (Inasti) [2001] ECR I-5063 para 44 (Larsy); and Case C-278/05 Robins and Others v Secretary of State for Work and Pensions [2007] ECR I-1053 paras 70–82. 310 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 para 80. The ECJ acknowledged, however, that ‘certain objective and subjective factors connected with the concept of fault under a national legal system may well be relevant for the purpose of determining whether or not a given breach of Community law is serious’ (para 78). Compare the stricter position on liability for misfeasance in public office and breach of statutory duty in Irish law with the conditions set down in Brasserie du Pêcheur: see Pine Valley Developments Ltd v Minister for the Environment [1987] IR 23; Glencar Explorations plc v Mayo County Council [2001] IESC 64, [2002] 1 IR 84 and Beatty v Rent Tribunal [2005] IESC 66, [2006] 2 IR 191. On State liability in tort under Irish law see B McMahon and W Binchy, Law of Torts, 3rd edn (Dublin, Butterworths, 2000) ch 38 and J Healy, Principles of Irish Torts (Dublin, Clarus Press, 2006) paras 9.01–9.11. On the specific question of the liability of public authorities see D Ryan, ‘The Position in Tort of Public Authorities after Beatty v The Rent Tribunal’ (2005–06) 1 Quarterly Review of Tort Law 12.

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The ECJ and the EIA Directive question has infringed Community law.311 As regards the third condition for liability, it is for the national courts to determine whether or not there is a direct causal link between the State’s breach and the damage sustained by the injured party.312 The Member State may be held liable regardless of which organ of the State was responsible for the breach.313 In Köbler,314 the ECJ ruled that the principle of State liability also applied where the alleged infringement of Community law stemmed from a decision of a national court adjudicating at last instance. The three conditions noted above also govern State liability in this specific context.315 The second condition—that the breach must be sufficiently serious—plays a special role however. The ECJ emphasised that regard must be had to ‘the specific nature of the judicial function and to the legitimate requirements of legal certainty’.316 In the case of an alleged breach of Community law by a national court adjudicating at last instance, State liability can only arise ‘in the exceptional case where the court has manifestly infringed the applicable law’.317 In determining whether that condition is satisfied, the national court charged with considering an action for damages in this context must take account of the factors which characterise the situation before it, in particular: the degree of clarity and precision of the rule infringed; whether the infringement was intentional; whether the error of law was excusable or inexcusable; the position taken by a Community institution (where applicable); and non-compliance by the national court with its obligation to make a reference to the ECJ pursuant to Article 234(3) EC.318 An infringement of Community law will be sufficiently serious where the decision of the national court was made ‘in manifest breach’ of the relevant ECJ case law.319 In Traghetti del Mediterraneo,320 the ECJ ruled that

311 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 paras 94–6 and Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94 Dillenkofer [1996] ECR I-4845 para 28. 312 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 para 65 and Case C-127/95 Norbrook Laboratories Ltd v Ministry of Agriculture, Fisheries and Food [1998] ECR I-1531 para 110. 313 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 para 32; Case C-302/97 Konle v Austria [1999] ECR I-3099 para 62 and Case C-118/00 Larsy [2001] ECR I-5063 para 35. See also R Davis, ‘Liability in Damages for a Breach of Community Law: Some Reflections on the Question of Who to Sue and the Concept of “the State”’ (2006) 31 EL Rev 69. 314 Case C-224/01 Köbler v Republik Österreich [2003] ECR I-10239. See also PJ Wattel, ‘Köbler, CILFIT and Welthgrove: We Can’t Go On Meeting Like This’ (2004) 41 CML Rev 177; S Drake, ‘State Liability for Judicial Error: A False Dawn?’ (2004) 11 Irish Journal of European Law 34; J Buttimore, ‘State Liability for Judicial Error: A Bridge Too Far?’ (2004) 11 Irish Journal of European Law 446; and P Wennerås, ‘State Liability for Decisions of Courts of Last Instance in Environmental Cases’ (2004) 16 Journal of Environmental Law 329. 315 Case C-224/01 Köbler [2003] ECR I-10239 para 52. 316 Ibid, para 53. 317 Ibid, para 53. 318 Ibid, paras 54–5. 319 Ibid, para 56. 320 Case C-173/03 Traghetti del Mediterraneo Spa v Repubblica italiana [2006] ECR I-5177.

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Role of EIA Directive in Local Judicial Review liability may arise where the manifest infringement of Community law results from an interpretation of provisions of law or an assessment of facts or evidence carried out by a court adjudicating at last instance.321 Notwithstanding that it is possible for national law to define the criteria leading to the nature or degree of the infringement which must be satisfied before State liability can arise, ‘under no circumstances may such criteria impose requirements stricter than that of a manifest infringement of the applicable law’.322 Community law therefore precludes national legislation which limits liability solely to cases of intentional fault and serious misconduct on the part of the court if such a limitation could lead to exclusion of liability of the Member State concerned in other cases where a manifest infringement of the applicable law was committed.323 In Cooper v HM Attorney General,324 Plender J of the High Court (England and Wales) determined that [a]ny contention that a court adjudicating at last instance can be said to have made a manifest error of Community law when its judgment is in some respect inconsistent with a later judgment of the ECJ is as misconceived as it is inconsistent with the judgment in Köbler.325

The High Court stressed that because Community law ‘is a system in the process of constant development’ inconsistencies between national courts’ decisions and subsequent rulings of the ECJ can be expected.326 As regards the extent of reparation, the ECJ has ruled that damages ‘must be commensurate with the loss or damage sustained’.327 Although the right to reparation is founded directly on Community law, the criteria for assessing the extent of reparation are to be determined by national law, subject to the principles of effectiveness and equivalence.328 While a Member State may require a plaintiff to mitigate his loss,329 certain heads of damage, such as loss of profit, may not be excluded definitively.330 Recovery of damages under Community law is not confined to consequential loss. This contrasts sharply with the position under certain national tort law regimes where there are limitations on the recovery of damages for pure economic loss (by which is meant, loss which cannot be regarded either as

321

Ibid, paras 32–46. Ibid, para 44. 323 Ibid. 324 Cooper v HM Attorney General [2008] EWHC 2178 (QB). 325 Ibid, para 91. 326 Ibid. 327 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 para 82. See also the strong decision in Case C-410/98 Metallgesellschaft & Hoechst v Inland Revenue [2001] ECR I-4727 para 94 (Metallgesellschaft). 328 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 para 83. 329 Ibid, para 84. 330 Ibid, para 87 and Case C-410/98 Metallgesellschaft [2001] ECR I-4727 para 91. 322

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The ECJ and the EIA Directive property damage suffered by the plaintiff, or as consequential on such damage).331 Aggravated or exemplary damages must be available for breach of Community law where such damages could be awarded pursuant to a similar claim based on national law.332 The question arises as to the potential scope of the doctrine of State liability where an individual suffers damage as a result of breach of the EIA directive by an organ of the State. The three (now well-established) conditions that must be met before a right to obtain redress against the State will arise present a number of practical difficulties in the specific context of the EIA directive. First, as indicated above, the early case law from the ECJ was somewhat ambivalent on whether or not the original EIA directive conferred rights on individuals. Two Advocates General expressed the view that (original) Article 6(2) embraced ‘a right to be heard’333 and in Greenpeace the ECJ referred, in passing, to the objectors’ ‘environmental rights’ under the directive but it chose not to elaborate further on this point.334 The ECJ preferred to focus on the obligation that the EIA directive imposes on the national legislative and administrative authorities, rather than inquiring as to whether or not the directive confers rights. The amendments to the EIA directive introduced in 1997,335 and more recently in 2003,336 have amplified the Member States’ obligation to deliver early and effective opportunities for participation and to ensure effective access to justice in EIA cases. In Commission v Ireland,337 the ECJ referred to the sixth recital to the original EIA directive and noted that it was apparent from Article 6(2) (as amended by Directive 97/11/EC) that public participation is one of the aims of the directive.338 At a later point in the judgment the ECJ made a direct reference to ‘the rights of participation’ conferred by Article 6 of the EIA directive.339

331 It is a well-established principle of the law of negligence in England and Wales that there is no general duty of care to prevent pure economic loss: Spartan Steel & Alloys Ltd v Martin & Co [1973] 2 QB 27 and Murphy v Brentwood DC [1991] 1 AC 398. An important exception arises where the situation falls within the principles established in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. The position in Ireland is somewhat different following the decision of the Supreme Court in Ward v McMaster [1988] 1 IR 337. Unfortunately, however, the principles applicable to claims for pure economic loss in Ireland are far from settled. In Glencar Explorations plc v Mayo County Council [2001] IESC 64, [2002] 1 IR 84 Keane CJ expressly reserved the question as to whether economic loss is recoverable in actions for negligence other than actions for negligent misstatement and those falling within the categories identified in Siney v Dublin Corporation [1980] IR 400 and Ward v McMaster [1988] IR 337. The Supreme Court also sidestepped the pure economic loss issue in Beatty v Rent Tribunal [2005] IESC 66, [2006] 2 IR 191. See also Ryan, above n 310, at 14–15. 332 Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029 para 89. 333 Advocate General Elmer in Case C-72/95 Kraaijeveld [1996] ECR I-5403 and Advocate General Cosmas in Case C-321/95 P Greenpeace [1998] ECR I-1651. 334 Case C-321/95 P Greenpeace [1998] ECR I-1651 para 30. 335 Dir 97/11/EC [1997] OJ L73/5. 336 Dir 2003/35/EC [2003] OJ L156/17. 337 Case C-216/05 Commission v Ireland [2006] ECR I-10787. 338 Ibid, para 37. 339 Ibid, para 44.

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Role of EIA Directive in Local Judicial Review The 2003 amendments, which were introduced pursuant to Article 3 of Directive 2003/35/EC, are inspired by the Aarhus Convention which champions three core (procedural) environmental rights: the right to information; the right to participate in decision-making; and the right of access to justice.340 The 11th recital to Directive 2003/35/EC explains that the EIA directive should be amended to ensure that it is fully compatible with the Convention, in particular the public participation and access to justice provisions thereof. Although the term ‘right’ is not deployed at any point in the amended text, it is clear that the directive is intended to confer procedural rights on the public, including the right to specified information; the right to participate in the decision-making procedure; and access to a review procedure where it is alleged that these rights have been infringed. Article 6(4), in particular, expressly recognises the entitlement of the public to participate in the EIA process. Following the ruling in Commission v Ireland,341 and the amendments introduced in 2003, it is now beyond doubt that the EIA directive confers a right to participate. The directive therefore meets the first condition for liability on the part of the State under the Francovich doctrine.342 Further support for this conclusion is found in Wells where the ECJ indicated that, subject to the principle of national procedural autonomy, an individual may claim compensation for the harm suffered as a result of breach of the EIA directive by the competent authorities.343 As regards the second condition, the ECJ has provided general guidance for national courts when called upon to determine whether or not a breach is ‘sufficiently serious’. A prior finding of an infringement on the part of the State will obviously be enough to meet this condition. Other factors that may be considered in assessing the seriousness of the breach include: whether guidance on the correct interpretation of the provision at issue was available to the State at the time the infringement was committed; the clarity and precision of the rule breached; and the measure of discretion left to the Member State under the rule at issue. Although the EIA directive leaves it to the Member States to determine the most appropriate method of implementation at national level, the jurisprudence examined earlier in this chapter demonstrates the ECJ’s willingness to contain that discretion within tight boundaries. The ECJ has yet to rule on the scope of Member State discretion under a number of important provisions of the directive, however (for example, Article 3 on the mechanics of the actual assessment, including the difficult inter-relationship between planning control

340 United Nations Economic Commission for Europe (UN ECE), Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) adopted at the Fourth Ministerial Conference ‘Environment for Europe’ at Aarhus, Denmark, June 1998. 341 Case C-216/05 Commission v Ireland [2006] ECR I-10787. 342 See also Wennerås, above n 314, at 332 who argues that ‘state liability is in principle available in all instances of infringements of Community rules that individuals could have invoked and relied on in national courts’ and Stallworthy, above n 277, at 1476–81. 343 Case C-201/02 Wells [2004] ECR I-723 para 69.

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The ECJ and the EIA Directive and pollution control at national level). The framework nature of the directive, and the broad and general scope of a number of its core provisions, means that it will be difficult to demonstrate a sufficiently serious breach in practice. In the context of other directives, the ECJ has found that a breach is not sufficiently serious in cases where the rules at issue were reasonably capable of bearing a number of different meanings and the defaulting Member State did not have the benefit of guidance from the ECJ at the time of the breach.344 The third condition requires the party seeking damages to demonstrate a causal link between the alleged breach of the State’s obligation and the harm suffered. The main point to consider here is the nature of the harm suffered where rights under the EIA directive are undermined as a result of the State’s breach. Consider the following scenario: a competent authority decides that EIA is not required for an Annex II project and proceeds to authorise the development without EIA. A challenge to this decision before the national courts is unsuccessful and the national court subsequently rules that the applicant is liable for the legal costs incurred by both the competent authority and the developer in defending the proceedings. Following a complaint by the applicant, the Commission institutes Article 226 EC infringement proceedings against the State and the ECJ subsequently rules that the project should have been subject to an assessment. This result confirms that the objector was denied the right to participate in the decision-making process under the terms set down in the directive. This is the harm occasioned to the plaintiff and there is a direct causal link between this harm and the unlawful action of the competent authority. Once a sufficiently serious breach can be established (and this will depend very much on the particular factual matrix), the costs incurred as a result of the (failed) national judicial review proceedings should be recoverable, together with interest. Are there other potential heads of damage apart from the costs involved in pursuing a challenge to the contested decision? In the first scenario, the project is likely to be nearing completion, or completed, by the time the ECJ delivers a ruling. If the applicant is a property owner living in close proximity to the contested project, he may seek to recover damages for any negative impact on the value of his property or any reduction in the quality of the local environment. This line of argument is problematic, however. The directive confers procedural rights, not substantive rights, on ‘the public concerned’ by the project at issue. The overarching objective is to protect the environment in general terms and not to protect individual property rights and interests. It is therefore difficult to identify a causal link between breach of the EIA directive and alleged loss or damage in the form of reduced property values or a reduction in amenity or local environmental quality. The position is even more obscure where the individual (or group) whose rights under the EIA directive have been breached claims to 344 Consider, eg, Case C-392/93 British Telecommunications [1996] ECR I-1631 paras 43–5; Joined Cases C-283/94, C-291/94 and C-292/94 Denkavit [1996] ECR I-5063 paras 51–3; and Case C-319/96 Brinkmann [1998] ECR I-5255 para 31.

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Role of EIA Directive in Local Judicial Review have acted in the public interest and cannot point to a particular property interest or other economic interest of its own that is affected by the unlawful decision. The critical question becomes: What measure of damages (if any) should be recoverable for breach of the right to participate (apart from the direct costs and expenses incurred in mounting a challenge to the unlawful development consent)? This question has not been addressed directly by the ECJ. The Wells ruling (considered earlier in this chapter) provides a measure of guidance, however. It will be recalled that in Wells the ECJ was required to address the scope of the obligation to remedy a failure to carry out an EIA. The Court drew on the well-established principle of ‘cooperation in good faith’ articulated in Article 10 EC, which requires Member States ‘to nullify the unlawful consequences of a breach of Community law’. It stressed the Member State’s obligation ‘to make good any harm’ caused as a result of a breach of the directive. The competent authorities are obliged ‘to take all general or particular measures’ to remedy the failure to carry out an assessment. It falls to the national court to determine whether, subject to the principle of national procedural autonomy, it is possible as a matter of domestic law to revoke or to suspend the unlawful development consent. Where revocation or suspension is not an option, the ECJ posited an alternative course of action—the national court can determine whether it is possible for the individual concerned (on the facts of Wells this is the individual who challenged the unlawful development consent) to claim ‘compensation for the harm suffered’.345 Although Francovich is not mentioned at this point in the judgment, it is implicit in the language deployed by the Court that the principle of State liability for breach of Community law is of direct relevance here. The ECJ chose not to wade any further into this difficult and uncharted territory. As ever, it is left to the national courts to tease out the practical implications of any such claims for compensation in the domestic legal order. At the very minimum, however, Wells confirms that, in principle, and depending on the particular legal and factual matrix, an individual may claim compensation for loss or damage suffered as a result of a breach of the EIA directive. At national level, the usual remedy where mandatory procedural requirements are found to have been breached is an order of the relevant national court quashing the unlawful decision, with costs usually awarded to the successful challenger. In Glencar Explorations Ltd v Mayo County Council346 Keane CJ in the Irish Supreme Court confirmed that [t]he remedy available to persons affected by the commission of an ultra vires act by a public authority is an order of certiorari or equivalent relief setting aside the impugned decision and not an action for damages, to allow which, in the case of public officials,

345 346

Case C-201/02 Wells [2004] ECR I-723 para 69. Glencar Exploration plc v Mayo County Council [2001] IESC 64, [2002] 1 IR 84.

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The ECJ and the EIA Directive would be contrary to public policy for the reasons set out by Finlay CJ in [the leading Supreme Court decision Pine Valley Developments Ltd v Minister for the Environment [1987] IR 23].347

The Chief Justice proceeded to acknowledge obiter that, following Francovich, the position would be otherwise where it was claimed that a public authority had acted in breach of Community law and (financial) damage had been sustained as a result.348 It follows from this remark that the Irish courts are alert to the possibility of a Francovich action where a planning authority is found to have breached Community law. Before leaving this point, it is instructive to consider how the Ombudsman has dealt with complaints from individuals alleging that they have been denied their statutory right to object to a planning application, or to appeal to An Bord Pleanála, as a result of alleged ‘maladministration’ on the part of a planning authority. Where such complaints have been judged to be well-founded, the Ombudsman has recommended that the planning authority pay financial compensation for the loss of the opportunity to object, or to lodge an appeal, and for the time and effort incurred in pursuing the complaint with the authority.349 The Ombudsman has categorised the loss of the opportunity to object or to appeal as ‘serious maladministration’.350 In addition to compensation for loss of opportunity, the Ombudsman generally recommends that the planning authority pay the complainant the costs incurred in pursuing the matter with the authority, or, in the alternative, ‘a contribution towards some community works or planting in the area in which the complainant lives’.351 The Ombudsman has acknowledged consistently that ‘[f]inancial compensation cannot adequately compensate where the opportunity to object to a proposed development—which is a fundamental aspect of our planning system—has been lost’.352 Apart from financial compensation, the Ombudsman also requires the defaulting planning authority to review procedures ‘for logging objections against planning applications and notifying objectors of decisions’.353 In the Annual Report for 2001, the Ombudsman stated: I have not yet encountered a case where there was prima facie evidence that a planning permission might not have succeeded at the Bord Pleanála stage or may have been

347

Ibid, 128. Ibid, 129. Annual Report of the Ombudsman 1998, 19–20 (IR£500 compensation); Annual Report of the Ombudsman 1999, 31 (IR£200 compensation); Annual Report of the Ombudsman 2004, 16–17 (€200 offered by the local authority on a without prejudice basis as a gesture of goodwill); Annual Report of the Ombudsman 2006, 26–7 (local authority agreed to pay €1,000 to the complainant and each of her neighbours in recognition of the loss of their statutory right to appeal and agreed to refund fees incurred in seeking leave to appeal to An Bord Pleanála) and Annual Report of the Ombudsman 2007, 12–13 (local authority offered €200 compensation to an objector for its failure to provide notification that an appeal had been lodged). Ombudsman Annual Reports available at: www.ombusdman.ie. 350 Annual Report of the Ombudsman 2001, 19. 351 Ibid. 352 Annual Report of the Ombudsman 1999, 31 and Annual Report of the Ombudsman 2001, 19. 353 Annual Report of the Ombudsman 2001, 19. 348 349

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Role of EIA Directive in Local Judicial Review subject to particular conditions if an objection had been lodged by a person adversely affected by the permission. Obviously, this would raise more complicated questions in relation to appropriate redress.354

It therefore remains to be seen what recommendation the Ombudsman would make in such a case. There is nothing in the Ombudsman’s case reports to suggest that any of the complaints documented to date related to EIA-type development. Such cases would raise further complex issues concerning the appropriate method of redress where it is found that a complainant’s Community law rights have been breached. The cases where the Ombudsman has recommended financial compensation for the loss of opportunity to object or to appeal illustrate the vital role played by the Ombudsman in ensuring that procedural rights are respected by planning authorities. More significantly for present purposes, the Ombudsman’s case law establishes a firm precedent for compensation for loss of the opportunity to exercise procedural rights under the planning code. The Ombudsman’s approach could be applied by the Irish courts in the event of a Francovich type claim for breach of procedural rights conferred by the EIA directive. There is further authority for financial compensation for breach of procedural rights under the European Convention on Human Rights (ECHR) system. Woolley has observed that in Guerra v Italy355 the European Court of Human Rights awarded damages for non-pecuniary loss in circumstances where the State was found to have breached the applicants’ right to respect for private and family life (pursuant to Article 8 ECHR) by reason of its failure to provide the applicants with information on the risks posed by a local fertiliser plant.356 In Giacomelli v Italy357 the Strasbourg Court found that the Italian authorities had failed to comply with domestic environmental legislation and had refused to enforce judicial decisions in which the operations of a controversial waste treatment plant were declared unlawful. The State’s inaction had thus rendered the various procedural safeguards available to the applicant ‘inoperative’ and had breached the rule of law. The relevant procedural safeguards included: the obligation to conduct an EIA prior to authorisation of any project with potentially harmful environmental consequences; the possibility for citizen participation in the licensing procedure; and recourse to the national courts. The Court held unanimously that there had been a violation of Article 8 and awarded the applicant €12,000 for ‘substantial’ non-pecuniary damage. In the context of the damages award, the Court noted the stress and anxiety suffered by the applicant as result of watching the local

354

Ibid. Guerra v Italy (1998) 26 EHRR 357. 356 D Woolley, J Pugh-Smith, R Langham and W Upton (eds), Environmental Law (Oxford, Oxford University Press, 2000) para 4.39. 357 Giacomelli v Italy (2007) 45 EHRR 38. 355

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The ECJ and the EIA Directive situation persist for years and, furthermore, the fact that she was compelled to institute several sets of judicial proceedings challenging the unlawful decisions authorising the plant’s operations.

V.

CLOSING OBSERVATIONS

The framework character of the EIA directive, and the general manner in which a number of important provisions are drafted, means that it falls to the ECJ to interpret vague and often ambivalent rules with a view to ensuring that those rules are applied correctly and uniformly by competent authorities across the Member States. The screening procedure established in Article 4(3) and Annex III (introduced via the 1997 amendments to the directive) clarifies the scope of the general assessment obligation articulated in Article 2(1) and aims to ensure that any Annex II project likely to have significant effects will be subject to assessment. Detailed guidance on screening published by the Commission in 2001 is now well-established and has, in turn, inspired national guidance documents aimed at competent authorities.358 The evolving jurisprudence provides a measure of guidance for competent authorities when determining whether or not an Annex II project is likely to have significant effects within the meaning of the directive. Notwithstanding the ECJ’s vigilance in policing the boundaries of Member State discretion as regards the Annex II projects, problems persist at local level in setting criteria and thresholds for these projects and in the practical application of such criteria and thresholds. There is a danger that where competent authorities apply thresholds mechanically, sub-threshold projects likely to have significant effects may elude assessment. This issue underscores the importance of carefully drafted guidance notes and regular training for competent authorities on project screening. A robust and purposive approach to the obligations imposed on Member States under the EIA directive is a steady feature of the ECJ case law examined in this chapter. The Court’s main concern is to ensure that the procedural requirements mandated by the directive, including public participation, are not undermined in practice. To this end, the ECJ has interpreted the discretion left to the Member States at different points in the directive in a restrictive fashion. This approach has sharpened the effectiveness of the directive as a means of challenging controversial planning decisions before the national courts. Following a protracted and unsatisfactory period of uncertainty, it is now beyond doubt that qualified members of the public may invoke the directive against the State and organs of the State. The fact that the directive reserves an element of discretion to the Member States at various points does not preclude judicial review. Thus the 358 In the Irish context see Department of the Environment, Heritage and Local Government, Environmental Impact Assessment (EIA) Guidance for Consent Authorities regarding Sub-threshold Development (2003), text available at: www.environ.ie.

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Closing Observations ECJ confirmed that the directive may be deployed as a benchmark against which the legality of Member State action may be scrutinised. Wells laid any doubts concerning horizontal effect to rest. In the words of the ECJ, ‘mere adverse repercussions on the rights of third parties, even if the repercussions are certain, do not justify preventing an individual from invoking the provisions of a directive against the Member State concerned’.359 The ECJ expects the national courts to provide effective judicial protection for the procedural rights conferred by the directive. Following Kraaijeveld, national courts are under a duty to raise the question of whether the obligations set down in the directive have been met of their own motion—even in cases where the parties themselves have not sought to rely on the directive. The ECJ has not elaborated to date on the standard of review to be applied by national courts when called upon to examine the exercise of discretion by competent authorities in EIA cases. Following Upjohn, it appears that merits-review is not required. The ruling in Commission v United Kingdom360 indicates that a ‘manifest error’ test applies in such cases, although this important point is not free from doubt. Article 10a of the directive, which Member States were required to implement by 25 June 2005, sets minimum standards for national review procedures in EIA cases. It provides a firm legal basis on which the ECJ can develop the principles governing remedies for breach of the directive.

359 360

Case C-201/02 Wells [2004] ECR I-723 para 57. Case C-508/03 Commission v United Kingdom [2006] ECR I-3969 para 92.

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5 The EIA Directive in the Irish Courts I.

INTRODUCTION

I

RELAND PURPORTED TO implement the Environmental Impact Assessment (EIA) directive1 primarily by integrating its requirements into the existing land-use planning system.2 Prior to the Planning and Development Act 2000, EIA provisions were scattered throughout a series of statutory instruments. In O’Connell v Environmental Protection Agency,3 Fennelly J of the Supreme Court described the EIA provisions relevant to that case as ‘a statutory maze’4 and proceeded to deliver the following stinging critique of the legislative scheme: Complex is merely the mildest term that can be applied. It is regrettable that rules of law intended to regulate processes in which individual members of the public are supposed to be able to take part cannot be written in a more accessible form.5

The core provisions are now found in the Planning and Development Acts 2000 to 2006, together with detailed regulations.6 Beyond planning legislation, various other measures make provision for EIA including the consent procedures

1 Dir 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 as amended by Dir 97/11/EC [1997] OJ L73/5 and Dir 2003/35/EC [2003] OJ L156/17. 2 For a comprehensive analysis of Irish planning law see G Simons, Planning and Development Law, 2nd edn (Dublin, Thomson Round Hall, 2007) and Y Scannell, Environmental and Land Use Law (Dublin, Thomson Round Hall, 2006) chs 2 and 5. On the pre-PDA position, see E Galligan, Irish Planning Law and Procedure (Dublin, Round Hall, 1997). On earlier attempts at implementation see J O’Reilly, ‘Environmental Impact Assessment: Reliance on Directive 85/337/EEC’ in Environmental Protection and the Impact of European Community Law (Dublin, Irish Centre for European Law, 1990). 3 O’Connell v EPA [2003] IESC 14, [2003] 1 IR 530. 4 Ibid, 533. 5 Ibid, 549. See also Córas Iompair Éireann v An Bord Pleanála [2008] IEHC 295 paras 4.13–4.14. 6 Planning and Development Regs 2001 to 2008 and European Communities (Environmental Impact Assessment) (Amendment) Regs 2006 (SI No 659 of 2006). In the specific context of peat extraction and afforestation see European Communities (Environmental Impact Assessment) (Amendment) Regs 2001 (SI No 538 of 2001) and Planning and Development Regs 2005 (SI No 364 of 2005). Planning Acts and statutory instruments available at: www.environ.ie.

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The EIA Directive in the Irish Courts governing road development,7 development on the foreshore,8 railway projects9 and prisons.10 Ireland provides a stimulating case study of EIA law in action. Once renowned as the most open planning system in Europe in terms of opportunities for participation, Irish planning law has been remodelled of late. The underlying objective of recent legislative intervention has been to streamline the planning process and to eliminate unnecessary delay. This sharp focus on so-called ‘fast track’ decision-making grates against the increasing emphasis on public participation and access to justice championed by the Aarhus Convention11 and by Community EIA law—in particular Article 10a of the EIA directive. There are formidable obstacles to access to justice in planning and environmental matters in Ireland. The statutory framework governing judicial review in planning cases is very restrictive and the standard of review applied by the courts is notoriously deferential to expert competent authorities. The high costs associated with judicial review proceedings, and the risk of costs being awarded against an unsuccessful litigant, create a significant deterrent to individuals and environmental non-governmental organisations (ENGOs) contemplating a judicial challenge. This regrettable state of affairs is compounded by the lack of an effective system of civil legal aid for public interest cases. Taken together, these factors raise interesting questions concerning the extent to which the national legal system provides effective judicial protection for the rights conferred by the EIA directive. This chapter does not attempt to describe the national implementing measures in detail—rather the aim is to provide an account of the EIA case law, with particular emphasis on potential restrictions on access to justice and the impact of Article 10a on the rules governing judicial review.

II.

OVERVIEW OF NATIONAL LEGAL FRAMEWORK

In the late 1990s, Irish planning law was the subject of a comprehensive process of review and revision, which culminated in the enactment of the Planning and Development Act 2000 (PDA). This review was motivated primarily by the desire to eliminate unnecessary delays in development consent procedures. It also aimed to modernise the planning code and to ensure a central role for the concept of sustainable development in environmental decision-making.12 The bulk of the PDA, together with detailed supporting regulations, came into force 7

Roads Acts 1993 to 2007. PDA Pt XV, as amended and Foreshore Acts 1933 to 2005, together with regulations made thereunder. 9 The relevant provisions include the Transport (Railway Infrastructure) Act 2001 as amended by Planning and Development (Strategic Infrastructure) Act 2006 ss 49 and 50. 10 Prisons Act 2007. 11 United Nations Economic Commission for Europe (UN ECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted in Aarhus, Denmark, June 1998. 12 Planning and Development Bill 1999: Explanatory and Financial Memorandum. 8

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Overview of National Legal Framework in March 2002.13 The PDA was intended to consolidate the planning code and thus render it more coherent and user friendly. This ambitious aim has not been realised, however, and the PDA has required amendment on a number of occasions.14 The Planning and Development (Strategic Infrastructure) Act 2006 (the 2006 Act) introduced substantial amendments to the PDA, including a new streamlined consent procedure for certain strategic projects. The latest amendments have compounded the pre-existing complexity and general incoherence of Irish planning law. Further substantial amendments are anticipated in the forthcoming Planning and Development (Amendment) Bill, particularly as regards zoning of land.15 The main set of planning regulations—the Planning and Development Regulations 200116—has also been the subject of extensive amendments over the years, including the substantial changes introduced pursuant to the Planning and Development Regulations 2006.17 The end result is an intricate patchwork of statutory provisions necessitating careful cross-referencing between an ever-increasing number of legislative measures. The law as it stands is difficult to decipher in places—even for seasoned practitioners—and is in urgent need of revision and codification.18 In the interests of clarity, references to specific provisions of the PDA in this chapter are to the amended provisions, unless otherwise stated.

A. General Provisions The general position under Irish planning law is that applications for planning permission are determined at first instance by local planning authorities. Any person or body may make written submissions or observations to the planning authority in respect of a planning application on payment of a fee (€20).19 A limited number of specified bodies are exempt from the fee requirement, but no special provision is made for ENGOs. The period for making submissions is five 13 Planning and Development Act 2000 (Commencement) (No 3) Order 2001 (SI No 599 of 2001) and Planning and Development Regs 2001 Art 2(2). 14 Local Government Act 2001; Planning and Development (Amendment) Act 2002; Protection of the Environment Act 2003; and Housing (Miscellaneous Provisions) Act 2004. 15 ‘Gormley to introduce measures to improve the effectiveness, efficiency and environmental sustainability of the Planning Code’ Department of the Environment, Heritage and Local Government, Press Release, 18 July 2008. 16 SI No 600 of 2001. 17 SI No 685 of 2006 (‘2006 Regs’). Further amendments were introduced pursuant to: Planning and Development Regs 2007 (SI No 83 of 2007); Planning and Development (No 2) Regs 2007 (SI No 135 of 2007); Planning and Development Regs 2008 (SI No 235 of 2008) and Planning and Development (Amendment) Regs 2008 (SI No 256 of 2008). 18 The Law Reform Commission has expressed the view that restatement of the Environmental Protection Agency Act 1992 and of the PDA is a matter of priority: Law Reform Commission, Statute Law Restatement: Report (LRC 91–2008) Appendix B. 19 Planning and Development Regs 2001 Art 29(1)(a) (as substituted by 2006 Regs Art 8).

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The EIA Directive in the Irish Courts weeks from the date on which the authority received the application.20 Both the applicant for permission (the developer) and any person who made submissions or observations (third party ‘objectors’) may appeal against the decision taken by the planning authority to An Bord Pleanála (the Planning Appeals Board).21 Prior to the PDA, the right to appeal was not limited to third parties who had objected to the planning application before the local authority. The restriction on the right to appeal seeks to promote a more efficient planning system by encouraging potential objectors to engage with the decision-making process from the outset. The 2006 Act relaxed this restriction on the right to appeal for certain ENGOs in the specific case of EIA development.22 This move aims to give effect to the enhanced public participation obligations introduced in Directive 2003/35/EC,23 which provide that qualified ENGOs are deemed to have an interest in the EIA procedure. Planning appeals must be lodged with the Board within four weeks of the date of the planning authority’s decision and this time-limit is absolute.24 Any person may make submissions or observations on an appeal, irrespective of whether or not that person participated at the planning authority stage.25 The Board determines appeals de novo: there is a full rehearing on the planning merits of the original decision taken at local level. It enjoys a power to refer a point to law to the High Court for decision, but this power is rarely invoked in practice.26 The Board is an emanation of the State and is obliged, as a matter of Community law, to take ‘all the general or particular measures necessary’ to ensure that the requirements of the EIA directive are observed.27 The Board is reluctant to engage with legal arguments, however, and prefers to leave such matters to the courts. The European Court of Justice (ECJ) has established criteria to determine whether or not a particular body qualifies as a ‘court or tribunal’ for the purpose of the Article 234 EC preliminary ruling procedure. The criteria include: whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law, and whether it is independent.28 Applying these criteria, it appears that the Board is indeed a ‘court or tribunal’ within the

20

Ibid. PDA s 37(1). PDA s 37(4)(c)–(f). 23 Dir 2003/35/EC [2003] OJ L156/17. 24 PDA s 37(1). 25 PDA s 130. 26 PDA s 50(1). 27 Case C-72/95 Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 para 61; Case C-201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723 paras 64–5 and Power v An Bord Pleanála [2006] IEHC 454. 28 Case C-54/96 Dorsch Consult Ingenieurgesellschaft v Bundesbaugesellschaft berlin mbH [1997] ECR I-4961 para 23. The ECJ has taken a consistently broad view of the concept ‘court or tribunal’ in Art 234 EC. 21 22

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Overview of National Legal Framework meaning of Article 234 EC—although this is ultimately a question of Community law for the ECJ to determine in the event that the Board seeks a preliminary ruling. Certain disputes concerning the correct application of national and Community EIA law may be resolved by way of an appeal to the Board without the necessity of recourse to the courts. For example, a planning authority may take the view that a particular project does not require assessment and may decide to grant development consent without EIA. It is open to a third party objector to appeal the planning authority’s decision on the ground that the decision on the EIA point at first instance was incorrect. Where the Board takes the view that the proposed development falls within the classes of project for which EIA is mandatory, it must require the developer to submit an Environmental Impact Statement (EIS) and the Board must carry out an EIA.29 A similar obligation arises where a planning authority has not carried out an EIA in respect of a sub-threshold project and the Board (on appeal) considers that the proposed development is likely to have significant effects on the environment.30 An appellant may also argue that the EIS submitted by the developer is inadequate having regard to the requirements set down in the EIA directive and the relevant national implementing measures. It falls to the Board to determine this issue afresh on appeal.31 The potential value of the Board as an alternative to judicial review for correcting basic errors in the application of EIA law by planning authorities is thus abundantly clear. The planning code makes special provision for development by a State authority (ie a Minister or the Commissioners of Public Works)32 or a local authority.33 EIA development proposed by the State or by a local authority must be approved by An Bord Pleanála.34 The Board is also the competent authority for major road development and for a range of strategic infrastructure projects including, for example, electricity transmission infrastructure, gas infrastructure and certain rail works.

B.

Planning Applications for Strategic Infrastructure

The 2006 Act introduced a new consent procedure with the aim of streamlining the planning process for certain categories of strategic infrastructure development. Applications for planning permission in respect of specified infrastructure 29

Planning and Development Regs 2001 Art 109(1). Planning and Development Regs 2001 Art 109(2). 31 Planning and Development Regs 2001 Art 111. 32 PDA s 181. See generally Simons, above n 2, at paras 8.356–8.392. 33 PDA ss 4, 175, 178 and 179. See generally Simons, ibid, paras 8.299–8.355. 34 PDA s 175 and s 181. Note that the 2006 Act s 35 amended PDA s 181 to correct a serious defect in the PDA whereby no provision was made for EIA in the case of development proposed by the State. 30

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The EIA Directive in the Irish Courts development must now be made directly to An Bord Pleanála and not to a planning authority. Prior to the 2006 Act, a local authority decision to grant permission for a controversial project would normally have resulted in an appeal to the Board. The new system eliminates the local authority stage of the consent procedure for certain infrastructure projects. The result is that in such cases the Board is the decision-maker at first instance rather than an appellate body. This change is not as extreme as it might appear at first, however. Prior to the 2006 Act, the Board was already the consent authority for a range of infrastructure developments proposed by local authorities. The new consent procedure extends this decision-making structure (single decision-making body with no statutory appeal) to specified infrastructure projects proposed by private sector developers. A Seventh Schedule has been added to the PDA, which sets down the categories of infrastructure development that may be subject to the new consent procedure.35 Three groups of infrastructure projects are listed in the Seventh Schedule: energy infrastructure; transport infrastructure; and environmental infrastructure. The detailed mechanics of the new system, which came into effect on 31 January 2007,36 are described elsewhere37 and what follows is an account of the core features of the consent procedure. A person who proposes to apply for permission for any development specified in the Seventh Schedule is required to enter into consultations with the Board before making the application.38 If the Board forms the opinion that the proposed development would, if carried out, fall into one or more of the three categories listed in section 37A(2) of the PDA, then the application must be made directly to the Board and not to the planning authority.39 The categories listed are cast in the following terms: Development of strategic economic or social importance to the state or the region in which it would be situate; Development which would contribute substantially to the fulfilment of any of the objectives in the National Spatial Strategy or in any regional planning guidelines in force in respect of the area or areas in which it would be situate; Development which would have a significant effect on the area of more than one planning authority.

35

2006 Act s 5. Planning and Development (Strategic Infrastructure) Act 2006 (Commencement) (No 3) Order 2006 (SI No 684 of 2006). 37 Simons, above n 2, at paras 10.32–10.116; B Grist, ‘The 2006 Planning and Development (Strategic Infrastructure) Act—One Year On’ (2008) 15 Irish Planning and Environmental Law Journal 3 and J Macken, ‘The Planning and Development (Strategic Infrastructure) Act 2006’ (2006) 13 Irish Planning and Environmental Law Journal 139. 38 PDA s 37B(1). 39 PDA s 37E(1). 36

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Overview of National Legal Framework Applications for permission for proposed Seventh Schedule development are automatically subject to EIA and the application to the Board must be accompanied by an EIS.40 The relevant planning authority has 10 weeks from the making of the application to submit a report to the Board setting out its views on the effects of the proposed development on the environment and on the proper planning and sustainable development of the area.41 As regards public participation, the planning application and the EIS may be inspected free of charge or may be purchased subject to payment of a fee—which must not exceed the reasonable cost of making a copy.42 Any person or body may make a submission or observation to the Board concerning the implications of the proposed development for proper planning and sustainable development and its likely effects on the environment.43 Any such submission must be received by the Board during the period specified for inspection of the application and the EIS (a minimum period of six weeks). There is a fee of 50 euro to make a submission.44 The developer, and any person making a submission, may request an oral hearing and it is the Board’s policy to hold an oral hearing ‘unless the issues are clear-cut and can be easily dealt with by written submission’.45 The Board may request additional information in relation to the application.46 Further public consultation is required where the Board receives a revised EIS or where additional information is received which, in the Board’s opinion, contains significant additional information on the environmental effects of the proposed development.47 The Board is obliged to ensure that applications for proposed Seventh Schedule development are processed ‘as expeditiously as is consistent with proper planning and sustainable development’.48 It has a statutory objective to ensure that a decision is taken within a period of 18 weeks, beginning on the last day for making submissions, or within such other period as may be prescribed by the Minister for the Environment, Heritage and Local Government.49 It is, as yet, too early to assess the success or otherwise of the new procedure in terms of delivering significant infrastructure projects in a timely manner.50

40

PDA s 37E(1). PDA s 37E(4). PDA s 37E(3)(a). 43 2006 Regs Art 217. 44 An Bord Pleanála, Fees Payable to the Board in Respect of Strategic Infrastructure Development, Appeals, Referrals and Related Matters (2007), text available at www.pleanala.ie. Certain specified bodies are exempt from the fee requirement. 45 An Bord Pleanála, A Guide to Public Participation in Strategic Infrastructure Development (2007), text available at www.pleanala.ie. 46 PDA s 37F(1)(a) and 2006 Regs Art 218. 47 PDA s 37F(2). 48 PDA s 37J(1). 49 PDA s 37J(2). 50 See generally Grist, above n 37 and An Bord Pleanála, Annual Report 2007, 21–2. 41 42

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The EIA Directive in the Irish Courts C. Special Statutory Framework Governing Judicial Review In planning cases, judicial review is governed by a special statutory framework which involves a two-stage process.51 First, the applicant must apply to the High Court for leave (permission) to bring judicial review proceedings. If leave is granted, the case may then proceed to a substantive hearing. The grounds on which an administrative decision may be challenged include: unreasonableness or irrationality; jurisdiction; breach of constitutional justice (fair procedures); inadequate reasons; breach of constitutional rights or rights arising under the European Convention on Human Rights (ECHR); breach of European Community law; proportionality; and legitimate expectations.52 The Irish courts are entitled to raise points of law of their own motion and a judge may direct counsel’s attention to a point of law that the judge considers of potential relevance.53 The Supreme Court ruling in O’Keeffe v An Bord Pleanála54 confirmed that the circumstances in which the Irish courts are willing to intervene and to quash an administrative decision on the basis of unreasonableness or irrationality are ‘limited and rare’.55 As explained in chapter three, a court is not entitled to interfere with an administrative decision on the grounds that it would have raised different inferences or conclusions from the facts, or because it is satisfied that the case against the contested decision was much stronger than the case for it.56 Furthermore, it falls to the applicant for judicial review to demonstrate that the decision-making authority had no relevant material before it that would support its decision.57 This powerful reluctance to interfere with decisions taken by planning authorities and An Bord Pleanála is grounded on the restrictive nature of the underlying legislative scheme and the availability of a right to appeal to the Board in certain cases. In Lancefort Ltd v An Bord Pleanála,58 Keane J observed in the Supreme Court that in setting restrictive rules governing challenges to planning decisions the Oireachtas [Parliament] had made plain its concern that, given the existence of an elaborate appeals procedure which can be invoked by any member of the public and the determination of the issues by an independent board of qualified persons, the judicial review procedure should not be availed of as a form of further appeal by persons who may well be dissatisfied with the ultimate decision, but whose rights to be heard have been fully protected by the legislation. The courts are bound in their decisions to have serious regard to that concern59 (emphasis added). 51

For a detailed analysis of the judicial review procedure see Simons, above n 2, ch 11. See generally Simons, ibid, ch 12. See generally N Travers, ‘Community Directives: Effects, Efficiency, Justiciability’ (1998) 7 Irish Journal of European Law 165, 192. 54 O’Keeffe v An Bord Pleanála [1993] 1 IR 39. 55 Ibid, 71–2. 56 Ibid. 57 Ibid, 72. 58 Lancefort Ltd v An Bord Pleanála [1998] IESC 14, [1999] 2 IR 270. 59 Ibid, 309–10 52 53

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Overview of National Legal Framework These sentiments were echoed in even stronger terms in the brief, but pointed, concurring opinion delivered by Lynch J: By the code of legislation embodied in the Local Government (Planning and Development) Acts, 1963–1992, the Oireachtas has established two tiers of independent and qualified bodies to administer the Acts and ensure proper standards of planning and development throughout the State … In the vast majority of cases, the decision of [the Board] should be the end of the matter. Further proceedings by way of judicial review should be the rare exception rather than the rule and should be brought only on weighty grounds.60

A narrow approach to judicial review, which is captured neatly in these extracts from the judgments delivered by Keane and Lynch JJ in Lancefort, permeates the Irish EIA jurisprudence. As will become apparent from the analysis of the case law, the restrictive scheme that the legislature has created for judicial review proceedings in planning cases has exerted a marked influence on the judiciary’s attitude to such challenges. Sustained legislative intervention in the field of judicial review was motivated by a desire to eliminate unacceptable delays in the planning process as a result of allegedly unmeritorious judicial challenges. Section 50 of the PDA made significant modifications to the judicial review procedure including: extension of the categories of planning decisions covered by the special judicial review procedure; new rules on time limits; a new locus standi test which requires an applicant for leave to establish a ‘substantial interest’ as opposed to a ‘sufficient interest’; together with an additional requirement that the applicant demonstrate a prior involvement in the statutory planning process.61 A further series of amendments to the judicial review procedure were introduced pursuant to section 13 of the 2006 Act, which replaced section 50 of the PDA with two new sections: sections 50 and 50A. The overall structure of the restrictive judicial review scheme has been retained, but there are a number of significant changes including, in particular, special locus standi provisions for ENGOs. The new rules provide that ENGOs that meet specified criteria are automatically deemed to have standing in EIA cases.62 This innovation is designed to give effect to the specific obligation in Article 10a of the EIA directive mandating a liberal approach to standing for ENGOs. The underlying objective of the most recent legislative changes is to refine even further the rules governing judicial review in order to facilitate the expeditious determination of any challenges. As the law stands at present, sections 50 and 50A of the PDA prescribe a mandatory statutory scheme that must be followed where a challenge is mounted

60

Ibid, 319. Pre-PDA, the relevant provisions were Local Government (Planning and Development) Act 1963 s 82(3A) and (3B). These provisions were inserted into the 1963 Act pursuant to Local Government (Planning and Development) Act 1992 s 19(3). 62 PDA s 50A(3)(b). 61

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The EIA Directive in the Irish Courts to specified planning decisions.63 Any such challenge must be made by way of judicial review in the High Court pursuant to Order 84 of the Rules of the Superior Courts (RSC).64 The application for leave must be made within the prescribed period (eight weeks)65 and must be made by way of motion on notice to specified parties—thereby adding significantly to the overall time-scale and to costs.66 An application may be made to the High Court for an extension of time; however the court is only empowered to allow an extension where it is satisfied that there is ‘good and sufficient reason’ for doing so and that the circumstances that resulted in the delay were outside of the applicant’s control.67 It appears that notwithstanding the tight statutory time-limit, an application for leave must be brought ‘promptly’.68 An applicant is required to satisfy two statutory conditions before the High Court may grant leave. First, the applicant must demonstrate that there are ‘substantial grounds’ for contending that the contested decision is invalid or ought to be quashed.69 This is a high threshold to cross in practice. If a ground is to be regarded as ‘substantial’ it must be ‘reasonable’, ‘arguable’ or ‘weighty’ and must not be ‘trivial or tenuous’.70 In the words of Clarke J in Arklow Holidays v An Bord Pleanála (No 1),71

63

The prescribed decisions are listed in PDA s 50(2). SI No 15 of 1986. 65 PDA s 50(6) and (7). In Derrybrien Cooperative Society Ltd v Saorgus Energy Ltd, Coillte Teo and Gort Wind Farms Ltd, unreported, High Court, 3 June 2005, Dunne J determined that the applicant (who sought an injunction restraining alleged unauthorised development) was not entitled to challenge a planning permission on the basis of alleged inadequacy of the EIS because, on the particular facts, such a move would amount to an attack on the validity of existing permissions and the time for challenging those permissions by way of judicial review was long past. 66 PDA s 50A(2). A strong case for the abolition of the leave stage is presented in G Simons, ‘Judicial Review under the Planning Legislation—The Case for the Abolition of the Leave Stage’ (2001) 8 Irish Planning and Environmental Law Journal 55. See also Arklow Holidays Ltd v An Bord Pleanála (No 1) [2006] IEHC 15 paras 3.12–3.15 and Law Reform Commission, Report on Judicial Review Procedure (LRC 71–2004) paras 1.24–2.36. The Commission recommended the creation of a judicial discretion as to whether or not the hearing at the leave stage should be ex parte or inter partes. Planning and Development (Strategic Infrastructure) Bill 2006 (as initiated) s 12 had proposed eliminating the requirement that the application for leave be made on notice (draft s 50(1)). 67 PDA s 50(8). See generally Simons, above n 2, paras 11.66–11.96. 68 RSC Ord 84, r 21; Sloan v An Bord Pleanála [2003] 2 ILRM 61 and O’Connell v EPA [2001] IEHC 102, [2001] 4 IR 494. See generally Simons, above n 2, at paras 11.55–11.58. In R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23, the House of Lords noted that there was some doubt as to whether the obligation to apply ‘promptly’ was sufficiently certain to comply with Community law and the ECHR. See G Jones and H Phillpot, ‘When He Who Hesitates is Lost: Judicial Review of Planning Decisions’ [2000] Journal of Planning and Environment Law 564. But see LAM v United Kingdom (App No 41671/98), 5 July 2001 cited in R Gordon, EC Law in Judicial Review (Oxford, Oxford University Press, 2007) para 3.90 where the ECtHR ruled that the requirement that judicial review proceedings must be brought ‘promptly’ did not breach Art 6(1) ECHR. 69 PDA s 50A(3)(a). See also s 50A(5). 70 McNamara v An Bord Pleanála [1995] 2 ILRM 125, 130 (Carroll J). This interpretation of the ‘substantial grounds’ test was cited with approval by the Supreme Court in Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill, 1999 [2000] IESC 19, [2000] 2 IR 360, 394–5. See also Kildare County Council v An Bord Pleanála [2006] IEHC 173 paras 18–21. 71 Arklow Holidays Ltd v An Bord Pleanála (No 1) [2006] IEHC 15. 64

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Overview of National Legal Framework [t]he process envisaged is that, with the assistance of argument from all sides, the court has to form a judgment as to whether notwithstanding the points raised by those opposing leave there remains substantial or weighty arguments in favour of the challenge.72

The equivalent standard in conventional judicial review proceedings is less demanding and requires the applicant to establish ‘an arguable case in law’.73 Secondly, the High Court must be satisfied that the applicant has a ‘substantial interest’ in the matter which is the subject of the application for judicial review.74 Prior to the enactment of the PDA, an applicant for leave had to demonstrate a ‘sufficient interest’75—a requirement which was interpreted liberally by the courts, particularly in the case of local residents objecting to unwelcome development proposals.76 While it is difficult to articulate the essential difference between a ‘sufficient interest’ and a ‘substantial interest’, the new standing test (now articulated in section 50A(3)(b)(i) of the PDA) is obviously intended to set a higher threshold level of interest. Although section 50A(4) of the PDA expressly provides that a ‘substantial interest’ ‘is not limited to an interest in land or other financial interest’, the legislative text does not provide further guidance on the nature of the required interest. The High Court adopted a strict approach to the ‘substantial interest’ test from the outset. In O’Shea v Kerry County Council77 Ó Caoimh J determined that the applicant for leave (a neighbouring landowner over whose land there was a right of way to the proposed golf club) had failed to demonstrate how she would be affected by the development and thus did not have locus standi. According to the High Court, a general interest in seeing that the law is observed did not qualify as a ‘substantial interest’. A similar approach was adopted in Ryanair Ltd v An Bord Pleanála,78 where Ó Caoimh J observed that a person ‘directly affected’ by a proposed development would ‘in all probability’ have the required interest.79 The High Court ruled that the applicant did not have locus standi to raise matters which could have been raised during the appeal process. Furthermore, Ó Caoimh J refused to accept that being a user of an airport qualified as a ‘substantial interest’. Subsequently, in Harrington v An Bord Pleanála (No 1),80 Macken J emphasised the restrictive nature of the statutory 72

Ibid, para 3.10. G v Director of Public Prosecutions [1994] 1 IR 374, 378. 74 PDA s 50A(3)(b)(i). Pursuant to s 50A(3)(b)(ii) certain ENGOs who seek leave to challenge a decision relating to EIA development are deemed to have standing. 75 RSC, Ord 84, r 20(4). See generally H Delany and D McGrath, Civil Procedure in the Superior Courts (2nd edn) (Dublin, Thomson Round Hall, 2005) paras 27.17–27.23. 76 See, eg, Electricity Supply Board v Gormley [1985] IR 129; Chambers v An Bord Pleanála [1992] 1 IR 134 and Village Residents Association Ltd v An Bord Pleanála (No 1) [1999] IEHC 258, [2000] 1 IR 65. But see Lancefort Ltd v An Bord Pleanála [1998] IESC 14, [1999] 2 IR 270. 77 O’Shea v Kerry County Council [2003] IEHC 51, [2003] 4 IR 143. 78 Ryanair Ltd v An Bord Pleanála [2004] IEHC 52, [2004] 2 IR 334. 79 See also Moriarty v South Dublin County Council [2006] IEHC 109 where Hanna J inquired whether the applicant had established ‘a special interest’. Moriarty provides yet another example of a strict approach to the ‘substantial interest’ test. 80 Harrington v An Bord Pleanála (No 1) [2005] IEHC 344, [2006] 1 IR 388. 73

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The EIA Directive in the Irish Courts scheme set down in the original section 50 of the PDA and determined that the required interest was one which the applicant seeking leave has already expressed in the course of the planning process as being ‘peculiar or personal to him’. This view was endorsed in O’Brien v Dún Laoghaire Rathdown County Council,81 a decision which provides a stark example of the High Court’s exacting approach to the ‘substantial interest’ test. In this case, O’Neill J determined that the applicant (who had lived in an apartment located 77 meters from the proposed development for 10 years) did not have the required interest on the basis that—in the High Court’s opinion—the proposed development would not have ‘any significant detrimental effect’ on her visual amenity. The applicant in O’Brien had further asserted a ‘substantial interest’ by virtue of her membership of both An Taisce (the National Trust for Ireland)82 and a residents’ association, together with her general interest in the proper planning and development of the local area. O’Neill J determined that even a passionate interest in planning matters fell short of the kind of personal interest peculiar to an individual that was required to establish a ‘substantial interest’ in a particular planning application. The High Court’s adoption of the expression ‘peculiar or personal’ to describe the nature of the required interest indicated an extremely narrow interpretation of the statutory standing test. Indeed, an interest ‘peculiar or personal’ to the applicant is reminiscent of the much-criticised, conservative approach to locus standi adopted by the ECJ in the context of the ‘direct and individual concern’ standing test in Article 230(4) EC (discussed earlier in chapter three). In Cumann Thomas Daibhis v South Dublin County Council 83 the High Court provided welcome clarification on the meaning of the ‘peculiar or personal’ interest requirement articulated in Harrington (No 1) and in O’Brien. O’Neill J observed that this phrase imports that the proposed development ‘affects the applicant personally or individually in a substantial way as distinct from any interest which the wider community, not so personally and individually, might have in the proposed development’. Thus the interest asserted does not necessarily have to be unique to the applicant, but it must affect him in a manner that is peculiar or personal. This series of complex High Court authorities demonstrated the practical difficulties engendered by the lack of definitive guidance on the correct interpretation of the statutory ‘substantial interest’ test. In Harding v Cork County Council (No 3)84 Clarke J took the opportunity to certify a point of law for appeal to the Supreme Court regarding the criteria by reference to which a person may be said to have a ‘substantial interest’ within the meaning of the original section 50 of the PDA. In May 2008, following a protracted period of uncertainty, the Supreme Court endorsed a narrow approach to the ‘substantial interest’ test.85

81 82 83 84 85

O’Brien v Dún Laoghaire Rathdown County Council [2006] IEHC 177. A prescribed body enjoying special status under the Planning Acts. Cumann Thomas Daibhis v South Dublin County Council [2007] IEHC 118. Harding v Cork County Council (No 3), unreported, High Court, 30 November 2006. Harding v Cork County Council (No 5) [2008] IESC 27.

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Overview of National Legal Framework The Harding litigation concerned a challenge to a planning authority’s decision to grant permission for an integrated tourism resort, including a substantial hotel, golf and leisure centre at Ballymacus near Kinsale in County Cork, on a number of grounds, including the alleged inadequacy of the EIS. The applicant, a sailor and retired merchant seaman, was an objector who had participated in the planning process. Although Mr Harding could not establish any interest in land or other financial interest which would be affected by the proposed development, he asserted a ‘substantial interest’ by virtue of the proximity of his current home to the site of the proposed development (a distance of 2–3km); his frequent and long-standing visits to the area and the fact that members of his family owned land in the vicinity. The Supreme Court ruled unanimously that the interests asserted by Mr Harding as regards the proposed development were too general and too remote to be considered ‘substantial’. Even though the High Court had also ruled against Mr Harding on locus standi, Clarke J accepted that he was more than a mere bystander; that his concern to have the headland at Ballymacus maintained in an undeveloped state was genuine; and that he would have had standing under the previous test which merely required a ‘sufficient interest’.86 Motivated by the clear legislative policy to limit the range of persons qualified to challenge planning decisions by way of judicial review, the Supreme Court determined that in order to enjoy a ‘substantial interest’ an applicant seeking leave must satisfy three criteria. First, he must have an interest in the proposed development which is ‘peculiar and personal’ to him. Secondly, the nature and level of his interest must be significant or weighty. Thirdly, his interest must be affected by or connected with the proposed development. The calculation as to whether or not the applicant’s interest fulfils these three criteria will turn on all the circumstances of a particular case. Kearns J observed that ‘it would be undesirable and probably impossible at this point to set out a definitive test for all cases’—but he anticipated that the criteria could be defined or refined on a case-by-case basis. It is beyond doubt, from the specific criteria identified in Harding (No 5), that the statutory standing test represents a high hurdle for any applicant seeking leave who cannot demonstrate an interest in land or other financial interest. Apart from the three criteria, the judgments delivered by Kearns J and Murray CJ in Harding (No 5) confirm that in order to have standing the applicant must already have raised the issue that he seeks to litigate at an earlier stage in the planning process. Mr Harding also claimed that he had been denied due process because of the manner in which the planning authority dealt with the planning application. He asserted a ‘substantial interest’ in the decision-making procedure by virtue of his statutory right to participate (described by Murray CJ as his ‘statutory process interest’ as opposed to his ‘environmental interest’ in the proposed development). Mr Harding complained that the manner in which the planning authority

86

Harding v Cork County Council (No 2) [2006] IEHC 295.

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The EIA Directive in the Irish Courts notified him of additional significant information from the developer denied him the right to make observations on this new material, in breach of the relevant planning regulations.87 The three judges of the Supreme Court found, on the facts, that there had been no breach of the regulations, but expressed different views on the locus standi point in this particular context. Kearns J concluded that an objector who lacks ‘substantial interest’ is excluded from the remedy of judicial review; the PDA does not provide any exception from the ‘substantial interest’ test where an objector alleges lack of due process in the course of the planning process. Kearns J stressed the significance of an objector’s right to appeal to An Bord Pleanála in such cases. In contrast, Murray CJ accepted that a person in Mr Harding’s position ‘potentially’ enjoys a ‘substantial interest’ in vindicating the right of an objector to make further observations under the planning regulations, but he ruled that no wrongful act of the authority could be said to have adversely affected Mr Harding’s rights or interest in this particular case. Finnegan J chose to leave open for future determination the criteria to be applied when assessing whether or not a person relying on a breach of the Planning Acts (or regulations) has a ‘substantial interest’—but he noted obiter that mere participation in the planning process would not suffice in this situation. It is difficult to distill any clear principles from the three judgments on the specific question of standing in the context of alleged breach of due process. Further judicial clarification is required to settle this point. Although the Harding litigation concerned the original section 50 of the PDA, the amendments introduced pursuant to the 2006 Act did not result in any significant changes to the statutory locus standi test (apart from the special provision for qualified ENGOs noted earlier above). The Supreme Court’s elaboration of the basic approach to be adopted in assessing the nature of an applicant’s interest in the proposed development, and in the outcome of the planning process, will therefore endure, notwithstanding the introduction of the new sections 50 and 50A. Although Article 10a of the EIA directive was not invoked in arguments before the High Court in Harding (No 2), Mr Harding’s counsel submitted to the Supreme Court that the concept of ‘substantial interest’ should be given a more expansive interpretation by reason of the obligations set down in Directive 2003/35/EC. The Supreme Court considered this argument in brief terms and this aspect of the judgment is examined further in the context of Article 10a below. Under the original section 50 of the PDA, an applicant for leave (other than a prescribed body) had to demonstrate prior participation in the statutory planning process or, in the alternative, had to establish that there were ‘good and sufficient reasons’ for non-participation.88 This specific statutory requirement

87

Planning and Development Regs 2001 Art 35(1) (prior to substitution by 2006 Regs Art 8). PDA s 50(4)(c)(i) and (ii) (prior to amendment). No statutory guidance was provided on what would amount to ‘good and sufficient reasons’ in this context. Certain prescribed bodies including a Member State of the European Communities, or a State which is a party of the Espoo Convention on 88

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Overview of National Legal Framework was separate and distinct from the ‘substantial interest’ test. The prior participation obligation is not replicated in the new sections 50 and 50A, however. In interpreting the ‘substantial interest’ test pursuant to the original section 50, the High Court insisted that an applicant for leave would not be regarded as having locus standi unless the specific grounds on which leave was sought had been asserted in the course of the planning process (at least in the absence of any special circumstances).89 The Supreme Court confirmed this approach in Harding (No 5), although it is regrettable that the Court did not address this important practical point in clearer terms. It is uncertain whether the fact that prior participation is no longer an express statutory criterion under sections 50 and 50A will prompt the courts to adopt a more flexible approach in cases where an applicant has failed to raise a point during the planning process, yet seeks leave to pursue that point in subsequent judicial review proceedings. Section 50A(6) of the PDA provides that the High Court may require an applicant to give an undertaking as to damages as a condition to the grant of leave. There was no equivalent provision in the original section 50. Beyond the planning legislation, Order 84, rule 20(6) of the RSC empowers the High Court to require an undertaking where it grants leave, and such an undertaking was given in favour of the developers in Seery v An Bord Pleanála90 and in O’Connell v Environmental Protection Agency.91 Section 50A(7) of the PDA provides for a very limited possibility of appeal to the Supreme Court from the refusal of an application for leave and from any subsequent determination in the substantive hearing. No appeal lies to the Supreme Court except where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. This provision is grounded on the policy that there should be a high degree of certainty and expedition in the determination of planning judicial reviews.92 The requirement for a certificate raises practical difficulties in the context of the Article 234 EC preliminary ruling procedure. Article 234(2) EC provides that national courts or tribunals enjoy a discretion to refer questions to the ECJ. Article 234(3) EC is more onerous and obliges courts or tribunals ‘against whose decisions there is no judicial remedy under national law’ to make a reference where a ruling is necessary to enable the national court to give judgment. This strong obligation Environmental Impact Assessment in a Trans-boundary Context, were exempt from the requirement to demonstrate prior involvement in the planning process: PDA s 50(4)(e). 89 Ryanair Ltd v An Bord Pleanála [2004] IEHC 52, [2004] 2 IR 334; Harrington v An Bord Pleanála (No 1) [2005] IEHC 344, [2006] 1 IR 388; Harding v Cork County Council (No 2) [2006] IEHC 295 and Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153. 90 Seery v An Bord Pleanála [2001] IEHC 13, [2001] 2 ILRM 151. 91 O’Connell v EPA [2001] IEHC 102, [2001] 4 IR 494. 92 KSK v An Bord Pleanála [1994] 2 IR 128; Irish Asphalt Ltd v An Bord Pleanála [1996] 2 IR 179; Irish Hardware Association v South Dublin County Council [2001] IESC 5, [2001] 2 ILRM 291; Glancre Teo v An Bord Pleanála [2006] IEHC 205 and Arklow Holidays Ltd v An Bord Pleanála (No 2) [2006] IEHC 102.

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The EIA Directive in the Irish Courts aims to deliver the proper application and uniform interpretation of Community law at national level.93 Under the terms of section 50A(7), it is not possible to determine whether there is a judicial remedy against the High Court’s decision until there is a ruling on any application for leave to appeal to the Supreme Court. In McNamara v An Bord Pleanála,94 the application for a reference to the ECJ was made only after the High Court had delivered its judgment on the substantive application for judicial review. The High Court refused to make a reference. Barr J was satisfied that it was too late to invoke Article 234 EC: once the High Court delivered its judgment there was no longer a case pending before that court. The Supreme Court agreed with this analysis—without having to determine whether, in these circumstances, the High Court constituted a court of last instance for the purposes of Article 234(3) EC. Keane J found that there was no ‘window of opportunity’ to request a preliminary ruling while the application for leave to appeal was at hearing: whether the High Court granted a certificate or not, there was no case pending before the High Court at that stage because it had already delivered judgment. In Lyckeskog,95 a request for a preliminary ruling from the Court of Appeal (Western Sweden), the decision of the appellate court could be challenged before the Supreme Court. The merits of any such appeal were subject to a prior declaration of admissibility by the Supreme Court, however. The ECJ determined that, in these circumstances, the parties were not deprived of a judicial remedy and therefore the Court of Appeal was not a court of last instance.96 The situation under the PDA may be distinguished from that in Lyckeskog. Pursuant to section 50A(7), it is the High Court and not the Supreme Court that determines whether or not to grant a certificate to appeal. The net result, therefore, is that the High Court determines the matter conclusively. The only exception is where the High Court’s determination involves a question as to the validity of any law having regard to the provisions of the Constitution (section 50A(8)). In light of the fundamental principle of the supremacy of Community law, a similar exception should apply where Community law is at issue before the High Court.97 If this interpretation is applied to section 50A(7), then it should be possible to bring an appeal to the Supreme Court, without 93 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR I-3415 para 7; Case C-99/00 Criminal proceedings against KR Lyckeskog [2002] ECR I-4839 para 14; Case C-495/03 Intermodal Transports BV v Staatssecretaris van Financiën [2005] ECR I-8151 paras 29 and 38 and Case C-458/06 Skatteverket v Gourmet Classic Ltd [2008] ECR I-0000 para 23. 94 McNamara v An Bord Pleanála [1998] 3 IR 453. 95 Case C- 99/00 Lyckeskog [2002] ECR I-4839. 96 In Case C-210/06 Cartesio Oktató és Szolgáltató bt, Opinion delivered 22 May 2008, Advocate General Maduro determined that where an appeal against a decision of a national court or tribunal is limited to points of law, and does not operate to suspend the lower court’s decision, this does not imply that the court or tribunal is under an obligation to refer pursuant to Article 234(3) EC. 97 In Martin v An Bord Pleanála (No 2) [2004] IEHC 368, Smyth J of the High Court observed that a contention that national law did not properly transpose a directive was the equivalent ‘in general legal terms to challenging the constitutionality of a statute or statutory instrument’. The principle of equivalence—considered earlier in ch 3 pp 76−82—requires that claims based on Community law may not be treated less favourably than those based on national law.

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Overview of National Legal Framework obtaining a certificate, in order to raise an EC law point. As the law stands at present, however, where the High Court refuses a certificate that is the end of the matter and there is no further judicial remedy, thus indicating that the Article 234(3) EC obligation to refer applies.98 Section 50A(10) to (12) requires the High Court (and the Supreme Court in the event of an appeal), to determine planning challenges ‘as expeditiously as possible consistent with the administration of justice’. In practice, however, judicial review proceedings are often dogged by long delays due to intense pressure on court lists.99 D.

Rule in Henderson v Henderson

In Arklow Holidays Ltd v An Bord Pleanála (No 4)100 Clarke J determined that the rule in Henderson v Henderson101 applied to planning matters in the same manner as it applied in other public law challenges. Essentially, the rule dictates that a party is estopped from raising an issue in a second set of proceedings where the issue could and should have been raised in earlier proceedings relating to the same subject-matter. The court retains an overriding discretion to consider whether attempting to raise the issue in the second set of proceedings is an abuse of process, however. If it is not, then the party may be permitted to proceed. The somewhat unusual facts in Arklow Holidays involved two consecutive challenges in what was substantively the same planning process: an initial challenge to the planning authority’s decision to grant permission for a waste water treatment plant, followed by a challenge to An Bord Pleanála’s decision to uphold the grant of permission, subject to conditions. In the subsequent challenge to the Board’s decision, the applicant sought to rely on issues—including alleged breach of EIA obligations—that had not been raised in the course of the initial (unsuccessful) challenge. Clarke J found that those points would have been equally applicable to the original grant of planning permission and were capable of being raised in the first challenge. Applying the rule in Henderson v Henderson, the High Court determined that the applicant was now precluded from raising those issues at this stage of the proceedings. The court found no justification for exercising its discretion in favour of the applicant. Clarke J did, however, certify a point of law for appeal to the Supreme Court as to whether the rule applied to successive challenges during the same planning process, and, if so, the principles governing 98

See also Simons, above n 2, at paras 11.383–11.391. It is possible for parties to apply to have high value, complex commercial cases, including— depending on the particular facts—an application for judicial review, transferred to the Commercial List in the High Court (established in January 2004) with a view to expediting matters. See generally S Dowling, The Commercial Court (Dublin, Thomson Round Hall, 2007). A number of planning judicial reviews have proceeded via the Commercial List. 100 Arklow Holidays Ltd v An Bord Pleanála (No 4) [2007] IEHC 327. 101 Henderson v Henderson (1843) 3 Hare 100. See generally H Delany and D McGrath, Civil Procedure in the Superior Courts, 2nd edn (Dublin, Thomson Round Hall, 2005) paras 30.123–30.134. 99

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The EIA Directive in the Irish Courts any judicial discretion.102 While there are strong policy reasons to support the application of the rule in planning matters (in particular the public interest in the expeditious determination of challenges to planning decisions), there is also a potential restriction on the right of access to the courts. The Supreme Court must determine how the balance is to be drawn between these competing interests.

E. Judicial Discretion As a matter of national law, judicial review is a discretionary remedy in the sense that the court may refuse a remedy to an applicant who is otherwise entitled to relief by invoking various overriding factors such as inexcusable delay, the interests of legal certainty, or prejudice to third parties.103 It appears, however, that the national courts’ obligation to nullify the unlawful consequences of a breach of Community law, and the principle of effectiveness, dilute the scope of this traditional judicial discretion. Wells104 is strong authority to this effect: the ECJ confirmed the Member State’s obligation ‘to make good any harm’ caused as a result of a breach of the directive.105 The scope of any judicial discretion to refuse relief where a breach of the directive has been established has not been considered directly by the Irish courts to date. In McBride v Galway Corporation,106 Keane J observed obiter that even if a breach of the directive had been established, it would not be an appropriate exercise of the court’s discretion to grant the reliefs sought by the applicant. Any further delay to the proposed waste water treatment plant, with the resultant continuing pollution of the Galway Bay area, could not be regarded as upholding the primary objective of the directive to prevent pollution or nuisances at source rather than attempting to counteract their effects at a later stage.107 Lord Hoffmann’s opinion in Berkeley v Secretary of State for the Environment108 indicates that where it is established that a decision was taken in breach Community law, the national court’s discretion to refuse relief is very narrow. At the same time, however, the court retains a discretion to refuse to quash an unlawful planning permission in the case of some minor procedural irregularity that is ‘clearly superfluous’ to the requirements of the directive. In R (Edwards) v Environment Agency,109 Lord Hoffmann explained that when considering whether to exercise judicial discretion against quashing a

102 103 104 105 106 107 108 109

Arklow Holidays Ltd v An Bord Pleanála (No 5) [2008] IEHC 2. See generally Delany and McGrath, above n 101, at paras 27.140–27.166. Case C-201/02 Wells [2004] ECR I-723. Ibid, para 66. McBride v Galway Corporation [1998] 1 IR 485. Ibid, 534–5. Berkeley v Secretary of State for the Environment [2000] UKHL 36. R (Edwards) v Environment Agency [2008] UKHL 22.

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Overview of National Legal Framework permit, consideration must be given to both the nature of the flaw in the decision and the ground for exercise of the discretion.110

F.

Costs

The general rule is that costs follow the event and the losing party must pay the successful party’s (or parties’) costs—unless the court orders otherwise.111 The costs involved in judicial review proceedings are substantial and the courts have not hesitated in awarding costs against unsuccessful litigants in planning and environmental cases—including cases where Community law points were at issue.112 Fear of incurring liability for costs may stifle a potential challenge. This state of affairs is compounded by the lack of an effective system of civil legal aid for public interest cases.113 A court may depart from the normal costs rule, however, where a case involves a public interest challenge. The relevant principles were considered by the Supreme Court in Dunne v Minister for the Environment, Heritage and Local Government (No 4).114 Mr Dunne challenged section 8 of the National Monuments (Amendment) Act 2004 (which concerned the completion 110

Ibid, para. 66. RSC, Order 99; Grimes v Punchestown Developments Co Ltd [2002] IESC 79, [2002] 4 IR 515, 522 and Veolia Water UK plc v Fingal County Council [2006] IEHC 240 para 2.5. See generally Simons, above n 2, paras 11.301–11.327. 112 Consider, eg, ‘Supreme Court clears way for Kill dump’, Irish Times 26 March 1998—report of costs ruling following McNamara v An Bord Pleanála [1998] 3 IR 453; ‘Actor faces £.3 million bill following ruling’ Irish Times 25 March 1998—report of costs ruling following McBride v Galway Corporation [1998] 1 IR 485; Lancefort v An Bord Pleanála [1999] IESC 82; O’Connell v EPA [2003] IESC 14, [2003] 1 IR 530—where the taxed costs awarded against the unsuccessful applicant in respect of the first notice party alone amounted to €250,000; ‘Anti-incinerator campaigner faces €200,000 legal bill’, Irish Times 8 December 2004—report of costs ruling following Martin v An Bord Pleanála (No 2) [2004] IEHC 368; Kavanagh v Ireland (No 2) [2007] IEHC 389; Dunne v Minister for the Environment, Heritage and Local Government (No 4) [2007] IESC 60 and ‘Cork residents urge Indaver and State not to pursue costs’ Irish Times 1 November 2008. Following the unsuccessful appeal in Martin v An Bord Pleanála (No 3) [2007] IESC 23, the Supreme Court applied Dunne (No 4) and awarded costs in favour of the developer and the State. 113 Access to legal aid and advice is governed by the Civil Legal Aid Act 1995 (as amended), together with a series of regulations made thereunder, and is administered by the Legal Aid Board. In principle, legal aid may be granted in respect of judicial review proceedings. Applicants for civil legal aid and advice must satisfy the specified criteria governing financial eligibility. As regards legal aid, the legislative framework also prescribes a detailed ‘merits test’. The applicant must have ‘reasonable grounds’ for bringing the proceedings and must be ‘reasonably likely’ to succeed. Furthermore, the proceedings must be ‘the most satisfactory means’ of achieving the result sought by the applicant. The Board is empowered to employ a form of cost benefit analysis in determining whether or not it is ‘reasonable’ to grant legal aid. Legal aid is not available in respect of proceedings before an administrative tribunal such as An Bord Pleanála or the EPA. Legal advice and assistance may be available in such cases, however. Demand for the Board’s services continues to be primarily in the field of family law. The statistics presented in the Board’s Annual Reports give no indication of the number of applications for legal aid in respect of planning cases, or the number of cases, if any, where legal aid was granted in this category. The author is aware of only one case where an environmental litigant was granted a (temporary) legal aid certificate: Ní Éilí v EPA [1997] 2 ILRM 458. 114 Dunne v Minister for the Environment, Heritage and Local Government (No 4) [2007] IESC 60. 111

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The EIA Directive in the Irish Courts of works on a motorway affecting the archaeological site at Carrickmines Castle) on constitutional grounds and on alleged breach of the EIA directive. The High Court, and the Supreme Court on appeal, rejected the challenge.115 The High Court took the view that the case raised public law issues of general importance and awarded costs in favour of Mr Dunne against the State, notwithstanding the unsuccessful challenge.116 This costs ruling was contested before the Supreme Court. The Supreme Court adopted the description of a public interest challenge articulated by Dyson J in the High Court (England and Wales) in R v Lord Chancellor ex parte Child Poverty Action Group:117 The essential characteristics of a public law challenge are that it raises public law issues which are of general importance, where the applicant has no private interest in the outcome of the case. It is obvious that many, indeed most judicial review challenges, do not fall into the category of public interest challenges so defined. This is because, even if they do raise issues of general importance, they are cases in which the applicant is seeking to protect some private interests of his or her own.118

Murray CJ noted that this ‘succinct and useful’ description did not involve any statement of legal principle and was not ‘definitive or exhaustive’. In the High Court in Dunne (No 2), Laffoy J had identified two principles as governing the exercise of the court’s discretion to award costs in favour of an unsuccessful litigant in a public interest case: 1. 2.

That the plaintiff was acting in the public interest in a matter which involved no private personal advantage; and That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs being made in his favour.

Laffoy J expressed the view that the court’s discretion regarding costs in such cases was not ‘in any way dependant on one or more of the issues of fact or law raised being decided in favour of the plaintiff ’. The Supreme Court ruled that a public interest element, coupled with issues of general public importance, will not determine the exercise of the court’s discretion. While both of these factors are relevant, there are other elements which may also have to be weighed in the balance, depending on the particular circumstances. Equally, the absence of the two factors does not, in itself, exclude the possibility of an award of costs in favour of an unsuccessful plaintiff if the court is satisfied that there are ‘other special circumstances’ supporting a departure from the normal rule. Murray CJ concluded that the court has a discretionary jurisdiction to depart from the

115 Dunne v Minister for the Environment, Heritage and Local Government (No 1) [2004] IEHC 304 and Dunne v Minister for the Environment, Heritage and Local Government (No 3) [2006] IESC 49, [2007] 1 IR 194. 116 Dunne v Minister for the Environment, Heritage and Local Government (No 2) [2005] IEHC 79. 117 R v Lord Chancellor ex p Child Poverty Action Group [1991] 1 WLR 347. 118 Ibid, 353.

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Overview of National Legal Framework general costs rule if, ‘in the special circumstances of the case, the interests of justice require that it should do so’. If there were to be any specific category of cases in which costs would always be imposed on successful defendants for the benefit of certain unsuccessful plaintiffs, then this was a matter for the legislature and not for the courts. Where a court considers that it should exercise its discretion to depart from the normal rule, it must do so on a reasoned basis, indicating the factors that justify such a departure. Recalling the earlier Supreme Court ruling on costs in Curtin v Clerk of Dáil Éireann,119 Murray CJ observed that it was not possible or desirable to attempt to list or define all of the relevant factors; costs liability is to be determined on a case-by-case basis. A combination of factors is involved and the decided cases simply indicate the nature of the factors that may be relevant. The Supreme Court concluded that in determining the costs issue in Dunne (No 2), the High Court had given ‘undue weight’ to the two factors identified by Dyson J. Murray CJ found that Laffoy J’s conclusion that the court’s discretion was not dependant on the plaintiff succeeding on one or more of the issues raised appeared ‘to discount excessively’—or to exclude altogether—the normal rule that costs follow the event. Laffoy J had been influenced by the outcome of earlier litigation involving Carrickmines Castle wherein Mr Dunne had secured an injunction halting the contested motorway project.120 That litigation, had, in turn, led to a successful constitutional challenge to a Ministerial Order concerning the same road project in Mulcreevy v Minister for the Environment, Heritage and Local Government.121 Murray CJ accepted that earlier litigation could be relevant to costs, but he found that the High Court was incorrect in taking either of the previous cases into account in determining whether the instant proceedings qualified as a public interest challenge. The Supreme Court acknowledged that Mr Dunne had brought the proceedings in the interests of promoting compliance with the law and that he did not have any private interest in the matter. Yet the Court refused to accept that the issues raised were of ‘such special and general importance’ as to justify a departure from the normal rule. The Supreme Court reasoned that while ‘undoubtedly’ issues concerning the environment or national monuments could be said to have an importance in the public mind, the question for the court was ‘whether the legal issues raised, rather than the subject matter itself, were of special and general public importance’. The Supreme Court concluded that the issues of law in the Dunne challenge raised ‘nothing exceptional’ to justify a departure from the general costs rule. Dunne (No 4) provides a set of broad principles governing costs in public interest challenges. The Supreme Court confirmed the fundamental importance of the general rule that costs follow the event, whilst acknowledging that ‘special

119

Curtin v Clerk of Dáil Éireann [2006] IESC 27. Dunne and Lucas v Dún Laoghaire Rathdown County Council [2003] IESC 15, [2003] 1 IR 567. 121 Mulcreevy v Minister for the Environment, Heritage and Local Government [2004] IESC 5, [2004] 1 IR 72. 120

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The EIA Directive in the Irish Courts circumstances’ may justify a departure from the norm. A number of specified factors are relevant to the court’s inquiry, but no particular factors are determinative. This approach allows for a substantial degree of judicial discretion and thus provides welcome flexibility. It is difficult to predict whether a court will accept that a particular challenge exhibits the required ‘special’ or ‘exceptional’ characteristics to warrant departure from the general costs rule, however. A protective costs order (PCO) is a potential solution to this practical difficulty. A PCO may be defined as an order dealing with costs at an interlocutory stage in a manner which ensures that a party will not be faced with an adverse costs order at the conclusion of the proceedings. Such an order removes the uncertainty surrounding potential liability for costs. Without a PCO, a party may decide that it is simply too risky to proceed with a challenge. In Friends of the Curragh Environment Ltd v An Bord Pleanála (No 1),122 Kelly J approved the principles established by the Court of Appeal (England and Wales) in R (Corner House Research) v Secretary of State for Trade and Industry,123 but dismissed the application for a PCO. Kelly J noted that the Corner House principles did not differ in any substantive sense from the principles articulated by Laffoy J in an earlier High Court ruling in Village Residents Association Ltd v An Bord Pleanála (No 2).124 Essentially, a court will only make a PCO ‘in most exceptional circumstances and where the interests of justice require such a course to be taken’; and the issue(s) raised must be of general public importance. No such order has ever been granted by an Irish court.

III.

IRISH EIA JURISPRUDENCE

A. Grappling with Direct Effect The early case law demonstrated the courts’ initial reluctance to enforce the EIA directive against the State in the absence of implementing measures.125 In Browne v An Bord Pleanála,126 Barron J ruled that Ireland’s original attempt to implement the directive by way of administrative circular was ineffective. On the question of direct effect, the High Court concluded that the directive could not be invoked against An Bord Pleanála as the Board was not responsible for the State’s failure to implement the directive. The High Court was not prepared to accept that the 122

Friends of the Curragh Environment Ltd v An Bord Pleanála (No 1) [2006] IEHC 243. R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192. 124 Village Residents Association Ltd v An Bord Pleanála (No 2) [2000] IEHC 34, [2000] 4 IR 321. 125 See also S Dillon, ‘The Mirage of EC Environmental Federalism in a Reluctant Member State Jurisdiction’ (1999) 8 New York University Environmental Law Journal 1 for an early account of the difficult interaction between Community environmental law and deeply entrenched national planning law and practice in Ireland. 126 Browne v An Bord Pleanála [1991] 2 IR 209. See Y Scannell, ‘Environmental Assessment: Browne v An Bord Pleanála’ (1990) 2 Journal of Environmental Law 209. 123

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Irish EIA Jurisprudence Board, as an emanation of the State, had obligations under the directive. Subsequently, in McBride v Galway Corporation,127 Quirke J concluded that it was ‘impossible’ to interpret the original Article 4(2) as being so unconditional and sufficiently precise to be capable of being relied on by an individual against the State without implementing measures. It is difficult to reconcile the High Court’s conclusion with Kraaijeveld,128 where the ECJ ruled that the discretion conferred on the Member States in the original Article 4(2) was circumscribed by the core obligation set down in Article 2(1). On appeal in McBride, the Supreme Court determined that the obligations created in the EIA directive were imposed on the State and not on the local authority which had taken the contested decision.129 This assertion is plainly at odds with Kraaijeveld where the ECJ confirmed that the directive creates obligations for the relevant competent authorities in their capacity as emanations of the State. In O’Brien v South Tipperary County Council,130 Ó Caoimh J held that questions concerning whether the State had implemented the EIA directive properly should be determined in judicial review proceedings, rather than by way of an appeal to An Bord Pleanála. However, the High Court did not engage in any examination of the Board’s obligations vis-à-vis the directive in this particular context—a surprising omission in light of the strong Kraaijeveld line of authority. In Cosgrave v An Bord Pleanála,131 a High Court decision from 2004, Kelly J found that the remedy of judicial review was limited to the decision-making process and such proceedings could not be deployed to challenge alleged deficiencies in the State’s efforts to transpose the directive into national law.132 This conclusion grates against the ECJ’s Wells133 ruling, which was not mentioned at any point in the High Court’s judgment. In any event, the State has not sought to rely on this aspect of Cosgrave in subsequent judicial review proceedings alleging inadequate transposition of EIA obligations, and so this particular point remains unresolved.134 There are very few cases in which the courts have quashed a development consent granted to a private developer on the grounds of breach of the directive. As a result, the judiciary has managed, thus far, to avoid the complex issue of horizontal direct effect. It will be recalled that in Wells—a reference for a

127

McBride v Galway Corporation [1998] 1 IR 485. Case C-72/95 Kraaijeveld [1996] ECR I-5403. McBride v Galway Corporation [1998] 1 IR 485, 528. See also de Búrca v Wicklow County Council, unreported, High Court, 22 March 2002, where Ó Caoimh J ruled that no order could be made against the respondent local authority in relation to the State’s alleged failure to implement EC Waste directives. 130 O’Brien v South Tipperary County Council, unreported, High Court, 22 October 2002, Ó Caoimh J. 131 Cosgrave v An Bord Pleanála [2004] 2 IR 435. 132 Kelly J suggested obiter that a challenge to the manner in which the directive had been implemented could be brought against the State in plenary proceedings. See also the judgment of Morris J in Lancefort v An Bord Pleanála [1997] 2 ILRM 508, 517–18. 133 Case C-201/02 Wells [2004] ECR I-723. 134 Simons, above n 2, at para 13.283. 128 129

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The EIA Directive in the Irish Courts preliminary ruling from the High Court (England and Wales)—the ECJ confirmed that individuals may invoke the directive against a competent authority even where there may be ‘adverse repercussions’ or negative consequences for third party developers.

B.

Consistent Interpretation

The case law provides clear examples of the courts’ willingness to deploy the doctrine of consistent interpretation for the purpose of giving effect to the EIA directive within the national legal order. In Maher v An Bord Pleanála,135 Kelly J noted that the relevant implementing regulations had their genesis in the EIA directive and thus fell to be interpreted in light of its underlying purpose.136 The High Court proceeded to quash the contested planning permission on the basis that the Board had erred in its interpretation of the relevant threshold and had concluded, incorrectly, that EIA was not required. Kelly J ruled that the proper interpretation of the implementing regulations which trigger the requirement for EIA is a matter of law to be determined by the courts.137 In Ó Nualláin v Dublin Corporation,138 Smyth J observed that the EIA directive was not to be construed narrowly. Following Kraaijeveld, the High Court agreed that the wording of the directive indicated that it had ‘a wide scope and a broad purpose’ and that its reach was not to be curtailed or diminished by looking only at its recitals.139 Smyth J ruled that the directive was not confined to projects with an adverse effect on the environment—thereby demonstrating a particularly robust approach to the assessment obligation arising under the directive. The competent authority had not carried out an EIA in this case on the basis that the proposed urban development project (the Spire of Dublin—a 120-metre-high civic monument) fell below the area thresholds set in the implementing regulations. The High Court took the view that this controversial project was indeed likely to have significant effects and, taking into account the provisions of the directive, there was an obligation on the competent authority to undertake an EIA. Subsequently, in O’Connell v Environmental Protection Agency,140 Fennelly J of the Supreme Court reiterated the basic principle that when applying national law, whether adopted before or after the EIA directive, the national court must interpret that 135

Maher v An Bord Pleanála [1999] 2 ILRM 198. Ibid, 213–14. Ibid, 206. See also Shannon Regional Fisheries Board v An Bord Pleanála [1994] 3 IR 449, 456 and Kildare County Council v An Bord Pleanála [2006] IEHC 173 para 70. But see Max Developments v An Bord Pleanála [1994] 2 IR 121, where Flood J ruled that it was within the Board’s jurisdiction to determine the mixed question of fact and law as to whether the location for the proposed development was in an existing urban area or a new and extended urban area. 138 Ó Nualláin v Dublin Corporation [1999] IEHC 11, [1999] 4 IR 137. 139 Ibid, 147–8. 140 O’Connell v EPA [2003] IESC 14, [2003] 1 IR 530. 136 137

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Irish EIA Jurisprudence law, as far as possible, in the light of the wording and purpose of the directive.141 In Klohn v An Bord Pleanála,142 the High Court confirmed that any national response to the EIA directive, be it legislative or otherwise, is to be interpreted in a purposive way in order to give effect to the obligations set down in the directive. The High Court deployed the doctrine of consistent interpretation in Sweetman v An Bord Pleanála (No 1)143 with a view to reconciling judicial review law and practice with the enhanced access to justice obligations in Article 10a of the directive. There are other decisions, however, where the High Court and the Supreme Court failed to apply this doctrine in the context of Article 10a. The contemporary jurisprudence, wherein the courts considered the implications of Article 10a for judicial review proceedings, is examined below.144

C. Minimalist Approach to Obligations Created in the EIA Directive Notwithstanding the strong, purposive decisions in Maher and Ó Nualláin, the courts have, at times, failed to appreciate the implications of Community EIA obligations for national planning law. In the early Howard v Commissioners of Public Works145 decision, for example, Costello J expressed the view that Annex I of the directive only applied to ‘major installations of a very large size’.146 It followed, in the High Court’s opinion, that EIA was not required for an effluent treatment plant at a proposed visitors’ centre in the heart of the Burren in County Clare—an environmentally sensitive location of exceptional geological, botanical and archaeological interest. The successful integration of Community EIA law into the national legal order depends, to a large extent, on the national courts developing an understanding of what the EIA process mandated by the directive adds to normal planning procedures. Prior to the formal introduction of EIA in Ireland, national planning law was already strong on participation. It was some considerable time before the courts accepted that Community EIA obligations were not simply a formality that could be satisfied by providing some opportunity for public participation during the planning process. In Browne v An Bord Pleanála,147 the first case in which the directive was considered by an Irish court, Barron J observed obiter that existing public participation provisions under national planning law were sufficient to satisfy the requirements of the EIA directive. The High Court reached this questionable conclusion without engaging in any examination of the mechanics of the EIA process and without checking the Community law requirements against national planning law. Lancefort Ltd v 141 142 143 144 145 146 147

Ibid, 555–6. Klohn v An Bord Pleanála [2008] IEHC 111. Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153. See pp 242−54. Howard v Commissioners of Public Works [1994] 1 IR 101. Ibid, 121. Browne v An Bord Pleanála [1991] 2 IR 209.

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The EIA Directive in the Irish Courts An Bord Pleanála,148 a Supreme Court decision from 1998, revealed the sharp tensions between national planning law and Community EIA obligations. It also served to demonstrate the uncertainty engendered by the ECJ’s Kraaijeveld ruling as regards the role of the national courts when called upon to review an individual planning decision on the basis of alleged breach of the directive. Lancefort concerned a challenge to An Bord Pleanála’s decision granting permission for a substantial urban development project at College Green in Dublin City Centre (a sub-threshold Annex II project) without EIA. An Taisce (the National Trust for Ireland) had appealed to the Board, unsuccessfully, against the planning authority’s decision to grant permission. No EIA grounds were advanced by any of the parties to the appeal, however. Subsequent to the Board’s decision, a number of individuals who had been active in opposing the contested development formed Lancefort Ltd (a company limited by guarantee), with the objective of opposing bad planning decisions by a number of means, including litigation. In Lancefort Ltd’s view, the College Green project was likely to have significant environmental effects, particularly in terms of architectural heritage, and should have been subject to assessment. Lancefort Ltd brought judicial review proceedings alleging that the Board had exceeded the scope of the discretion conferred on competent authorities pursuant to the original Article 2(1) and 4(2) of the EIA directive by failing to examine whether an EIS was required for the project. It also submitted that the Board’s decision on whether or not to require an EIS should have been recorded in writing so as to facilitate judicial review. Under the relevant planning regulations, the Board was vested with a discretion to require the developer to submit an EIS where it considered that a sub-threshold development would be likely to have significant environmental effects. A majority of the Supreme Court ruled that Lancefort Ltd did not have standing to challenge the contested decision on the narrow basis that the EIA point should have been raised at an earlier stage during the appeal before the Board.149 As noted earlier, the Irish courts are entitled to raise points of law of their own motion (ex officio). This aspect of Lancefort is problematic in light of the ECJ’s insistence in Kraaijeveld that national courts, where they have the power so to do, must consider whether the obligations set down in the directive have been met—even in cases where the parties themselves have not sought to rely on the directive. The strong influence of the underlying national legislative framework, which provided for a statutory appeal to an independent and expert Board, is clear throughout the opinions delivered by Keane and Lynch JJ in Lancefort. Referring 148

Lancefort Ltd v An Bord Pleanála [1998] IESC 14, [1999] 2 IR 270. Denham J delivered a strong dissenting opinion. She accepted that Lancefort Ltd had raised ‘a quintessential judicial review point’ regarding the Board’s decision-making process and the manner in which it carried out its obligations under the EIA directive: [1999] 2 IR 270, 294. It was not necessary for Lancefort Ltd to prove its case in order to establish locus standi; the standing issue should be distinguished from the requirement to establish ‘substantial grounds’ and from the exercise by the court of its discretion to grant or refuse relief in judicial review proceedings (296–8). 149

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Irish EIA Jurisprudence to the relationship between national procedural rules and Community law, Keane J observed that, in certain circumstances, national standing rules may have ‘to yield to the paramount obligation on national courts to uphold the law of the European Union’.150 This statement provides a welcome acknowledgement of the potential impact of EC law on national procedural rules. As regards the EIA argument advanced by Lancefort Ltd, however, Keane J noted that Kraaijeveld was ‘of some relevance’ and he cited paragraphs 60 and 61 of the judgment where the ECJ had articulated the national court’s obligation to examine whether the Member State had remained within the limits of the discretion conferred by Articles 2(1) and 4(2) of the directive.151 The Supreme Court concluded that there was no question of the State having exceeded its discretion in Lancefort. Ireland had not attempted to exempt particular classes of Annex II projects in advance. On the contrary, under the relevant national legislative framework, the State had vested planning authorities and the Board with a power to require an EIS where they formed the view that a particular project, although sub-threshold, would be likely to have significant effects on the environment.152 Keane J ruled that this supplementary power to require an EIS provided clear evidence that the State had not exceeded its discretion in setting thresholds for the Annex II projects. It followed that the application of national standing rules in this case did not result in a failure by the court to ensure that the relevant principles of Community law were applied in the State. It is regrettable that the ECJ did not express itself more clearly in Kraaijeveld so as to provide unequivocal guidance to national courts concerning their role when called upon to review a competent authority’s decision to exclude a particular project from assessment. Keane J’s analysis is based on a narrow reading of Kraaijeveld and it ignores a crucial aspect of the ECJ’s ruling. The basic obligation articulated in Article 2(1) requires that projects likely to have significant effects on the environment must be assessed before development consent is granted. National competent authorities (including An Bord Pleanála) are bound by this obligation. The fact that the project was sub-threshold did not relieve the Board of its obligation to ensure that the objectives of the directive were met in this particular case. This point was put beyond doubt by the ECJ in its subsequent Bozen153 ruling. Keane J was prepared to accept that a company that came into existence after the decision it sought to challenge had been taken might be in a position to assert locus standi ‘in particular circumstances’, but he concluded that Lancefort was not such a case.154 It would be ‘a significant injustice’ to the developer to require it to defend proceedings based on ‘an alleged irregularity’ that could have been raised

150 151 152 153 154

Lancefort Ltd v An Bord Pleanála [1998] IESC 14, [1999] 2 IR 270, 312. Ibid, 312–13. Ibid, 313–14. Case C-435/97 World Wildlife Fund (WWF) v Autonome Provinz Bozen [1999] ECR I-5613. Lancefort Ltd v An Bord Pleanála [1998] IESC 14, [1999] 2 IR 270, 315.

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The EIA Directive in the Irish Courts at an earlier point in the proceedings.155 Lancefort Ltd had failed to demonstrate how the absence of an EIS in this case had ‘the slightest adverse effect’ on the achievement of the objectives of the directive.156 It was ‘perfectly clear that the requirements of [national] planning legislation ensured that the public had access to the detailed plans lodged with the application for permission’.157 This assertion provides a strong indication that the Supreme Court failed to appreciate how EIA complements the conventional development consent procedure. The process mandated by the directive involves far more than the public having access to any plans (however detailed) submitted to the competent authority. At no point did Keane J acknowledge that the directive imposes obligations on the competent authority to screen Annex II projects and, depending on the outcome of the screening exercise, to assess the likely environmental impacts in line with the template set down in the directive. This minimalist interpretation of the requirements of the directive stands in sharp contrast to the robust approach to EIA adopted by Lord Hoffmann in the House of Lords in Berkeley,158 considered earlier in chapter two. There is evidence, however, of an increasingly sophisticated judicial understanding of the objectives of the EIA directive in the contemporary jurisprudence. In Klohn v An Bord Pleanála,159 McMahon J of the High Court noted that the directive envisages that ‘the decision makers will only be in a position to make a proper assessment if an appropriate process is put in place prior to their adjudication’. The applicant in Klohn had challenged the adequacy of the EIS submitted by the developer. The High Court took the opportunity to elaborate on the nature and purpose of the EIS as follows: Although the EIS is intended to be comprehensive, it is rarely definitive. As the first document in the investigation process, it is, at most, the point of departure in an ongoing process. It is intended to launch a process which will attract comment and submissions from other parties, including observations from those with entitlements to participate in the process. The intention is that, as a seminal document, it sets the agenda for further discussion and deliberation which will, finally, provide a body of information which will enable the decision maker to make its assessment in full possession of the relevant environmental factors.

The High Court emphasised the distinction between the EIS (the document submitted by the developer) and the EIA process (‘an ongoing exercise undertaken by the decision-maker’ and ‘a dynamic process’). In evaluating the adequacy of the EIS, McMahon J inquired whether it was so deficient as to prevent the decision-maker from carrying out a proper assessment, or to deprive the public of ‘a real opportunity to participate’. The High Court’s purposive and 155 156 157 158 159

Ibid. Ibid, 316. Ibid. Berkeley v Secretary of State for the Environment [2000] UKHL 36. Klohn v An Bord Pleanála [2008] IEHC 111.

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Irish EIA Jurisprudence practical analysis of the objectives of the EIA scheme set down in the directive provides useful guidance for competent authorities, particularly as regards the level of detail required in the EIS.

D. Judicial Deference The courts defer, to a considerable extent, to the expertise of planning authorities and An Bord Pleanála. Following the principles established by the Supreme Court in O’Keeffe v An Bord Pleanála,160 it is only in rare cases that the courts will interfere with the substance of decisions taken by these bodies on the ground of unreasonableness or irrationality. A series of decisions demonstrates the courts’ reluctance to interfere with a competent authority’s ruling on the adequacy, or otherwise, of an EIS. In Browne,161 Barron J expressed the view that it was solely a matter for the planning authority to determine whether the EIS submitted by the developer was sufficient.162 This approach was followed in Murphy v Wicklow County Council,163 where Kearns J observed that the court’s function is not to revisit the competent authority’s decision on the EIS by way of an appeal. The court will only intervene on the narrow basis articulated in O’Keeffe—where it is satisfied that there was virtually no material to support the decision approving the EIS. Subsequently, in Kenny v An Bord Pleanála (No 1),164 McKechnie J observed that the courts should not engage in ‘a microscopic examination’ of the details provided in the EIS or concern themselves with ‘the qualitative nature’ of the information submitted by the developer. Once the relevant competent authorities (the planning authority and An Bord Pleanála on appeal), were satisfied with the EIS, then that concluded the matter. This bald assertion appeared to rule out any possibility of review by the courts and prompted an application to the High Court for a certificate to take an appeal on this point to the Supreme Court. This application was based on the argument that McKechnie J’s ruling implied that An Bord Pleanála, and every planning authority, would enjoy ‘an exclusive jurisdiction’ to determine the adequacy of an EIS and thus raised a point of law of exceptional public importance. In Kenny v An Bord Pleanála (No 2)165 McKechnie J clarified this aspect of his earlier ruling by explaining that it was premised on compliance with ‘the relevant statutory and regulatory provisions’. If these requirements were not satisfied in a particular case, then the competent authority’s decision would be open to challenge on ultra vires grounds. Furthermore, a challenge to the rationality of the decision that the 160

O’Keeffe v An Bord Pleanála [1993] 1 IR 39. Browne v An Bord Pleanála [1991] 2 IR 209. 162 Ibid, 222. See also Gallagher and Boyd v An Bord Pleanála, unreported, High Court, 26 July 2001, Butler J, ex tempore. 163 Murphy v Wicklow County Council, unreported, High Court, 19 March 1999, Kearns J. 164 Kenny v An Bord Pleanála (No 1) [2000] IEHC 146, [2001] 1 IR 565. 165 Kenny v An Bord Pleanála (No 2) [2001] IEHC 39, [2001] 1 IR 704. 161

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The EIA Directive in the Irish Courts EIS was adequate would always remain open to the applicant—subject to the O’Keeffe principles. This clarification modified the seemingly absolute nature of McKechnie J’s earlier remarks on the EIS point.166 In Arklow Holidays Ltd v Wicklow County Council,167 Murphy J endorsed the view that checking the EIS, and any supplementary information received from the developer, against the requirements of the directive was a matter of ‘technical appraisal’ for the competent authorities, subject to the overriding principle of reasonableness. Subsequently, in Kildare County Council v An Bord Pleanála,168 MacMenamin J observed that the approach adopted by McKechnie J in Kenny (No 2) was consistent with that of the courts in England and Wales and he cited the following extract from the judgment of Pill LJ in the Court of Appeal in R v Rochdale Metropolitan Borough Council ex parte Milne:169 In my judgment what is sufficient is a matter of fact and degree. There is no blueprint which requires a particular amount of information to be supplied. What is necessary depends on the nature of the project and whether, given the wording of art 2 of the directive, enough information is supplied to enable the decision-making body to assess the effect of the particular project on the environment. I agree with Sullivan J [at first instance] that the court cannot place itself in the position of re-considering the detailed factual matters considered by the local planning authority. Equally I accept that the court does have a role and there may be cases where the court can and should intervene and hold that no reasonable local authority could have been satisfied with the amount of information with which it was supplied in the circumstances of the particular case.170

Recalling that under the relevant legislative framework An Bord Pleanála was entrusted with considering the adequacy of the EIS, MacMenamin J confirmed that a challenge to the Board’s decision on the EIS could only be mounted on the basis that it was unreasonable or irrational and that the well-established O’Keeffe principles applied. A deferential approach was again applied by the High Court in Klohn v An Bord Pleanála,171 although McMahon J indicated obiter that the O’Keeffe standard may need to be reviewed and recalibrated in light of obligations arising under Article 10a of the directive. The High Court confirmed that judging the adequacy of the EIS was ‘primarily’ a matter for the decision-maker. It was not the court’s function to second guess the Board, a body that was much better qualified than the courts to make ‘technical decisions in this specialised area’ and in whom the legislature had vested the power to make this decision. The High Court examined the language deployed in the relevant implementing

166

See also Usk v District Residents Association Ltd v EPA [2006] IEHC 272. Arklow Holidays Ltd v Wicklow County Council [2003] IEHC 68. 168 Kildare County Council v An Bord Pleanála [2006] IEHC 173. 169 R v Rochdale Metropolitan Borough Council ex p Milne, unreported, Court of Appeal, 21 December 2000. 170 Ibid, para 33. 171 Klohn v An Bord Pleanála [2008] IEHC 111. 167

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Irish EIA Jurisprudence regulations which required that the EIS contain an ‘outline’ of the main alternatives studied by the developer and an ‘indication’ of the main reasons for the final choice. McMahon J observed that the ‘loose and unforgiving’ language deployed in the regulations (which replicates the equivalent provision in the EIA directive verbatim), did not create a very specific obligation and set a low threshold against which to measure the EIS. McMahon J noted that an ‘overly formalistic’ approach on the part of the court in relation to the content of the EIS would only serve ‘to stifle commendable progress and render the planning system unworkable’. The High Court explained its approach to evaluating the EIS in the following terms: Bearing in mind that the assessment is a dynamic process which is much more important than the original EIS, which merely sets out the agenda, and that substance is more important than form, the crucial question is: whether the EIS is so deficient as to prevent a subsequent proper assessment by the decision maker or is such as to deprive the relevant parties in the process (or the public where relevant) of a real opportunity to participate.

This particular formulation suggests a more demanding and purposive inquiry than that established under O’Keeffe. It requires that the court examine whether the EIS is capable of supporting a proper EIA and whether it prevents the public from participating effectively in the EIA process. This practical approach provides a useful benchmark for the courts and for competent authorities when they are engaged in evaluating an EIS. It serves as a reminder of the core objective of the EIS—to support the EIA—and it acknowledges the importance of effective public participation in the EIA process. Although there is little concrete case law on the point, it appears that the courts adopt a deferential approach when called upon to review a competent authority’s decision on whether an Annex II project is likely to have significant environmental effects. In Waddington v An Bord Pleanála,172 Butler J recited the O’Keeffe principles in response to a claim that there should have been an EIA for the proposed development in that case (a 60-metre extension to a riverside quay bordering a Special Protection Area). The Supreme Court avoided having to engage with the competent authority’s judgment on significance in Lancefort, as it dismissed the EIA challenge on narrow locus standi grounds. Notwithstanding the obvious judicial insistence on a deferential approach to judicial review, there are cases where the courts have taken a robust approach to EIA obligations. In Ó Nualláin,173 the High Court disagreed with the competent authority’s ruling that the proposed development would not involve significant effects and proceeded to quash a development consent that had been granted without EIA. In O’Connell v O’Connell,174 Finnegan J acknowledged obiter that it was possible to envisage circumstances where modifications to a proposed road

172 173 174

Waddington v An Bord Pleanála, unreported, High Court, 21 December 2000, Butler J. Ó Nualláin v Dublin Corporation [1999] IEHC 11, [1999] 4 IR 137. O’Connell v O’Connell, unreported, High Court, 29 March 2001, Finnegan J.

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The EIA Directive in the Irish Courts scheme might extend beyond the ambit of the EIS. In the instant case, however, the High Court was satisfied that the EIS covered the amended road scheme in its entirety. In O’Mahony v An Bord Pleanála,175 which involved a challenge to the adequacy of the EIS for a road scheme, O’Neill J observed obiter that to ignore the likelihood of future potential zoned development would be a significant deficiency in an EIS and a failure to comply with the EIA directive. O’Connell and O’Mahony provide a welcome indication that the courts are alert to situations where there may be obvious defects in the EIS. At the same time, however, by invoking the O’Keeffe principles the courts have accepted that the adequacy or otherwise of the EIS is primarily a question for the competent authorities. In Arklow Holidays Ltd v An Bord Pleanála (No 1),176 (an application for leave to challenge the Board’s decision granting permission for development of a waste water treatment works), Clarke J was satisfied that there were arguable grounds, sufficient for the purposes of leave, that the process engaged in by the Board in assessing the environmental impact of the project as a whole was flawed. On the facts here, it appeared that the Inspector and, by inference, the Board, had taken the view that it was unnecessary to conduct any further assessment of the impacts of aspects of the project which were outside the waste treatment plant itself. Clarke J concluded that it was arguable that aspects of the project which might not, in themselves, have significant impacts, might have such impacts when they were considered on a cumulative basis.

E.

Substantial Compliance

There is ECJ authority that a formal assessment may be replaced by ‘equivalent measures’ where ‘the minimum requirements’ set down in Article 3 and Articles 5 to 10 of the directive are met.177 It is for the national court to determine this issue. The early Irish jurisprudence revealed a tendency to accept the substantial compliance argument, without engaging in a close analysis of the structure of the decision-making process mandated by the EIA directive or of the distinct roles played by the various actors—the developer, the competent authority and the public—in the EIA process. In Howard,178 Costello J concluded that any alleged non-compliance with the regulations purporting to implement the directive ‘was of a minor sort’ that would not justify the granting of an order of judicial review. In McBride,179 the Supreme Court concluded that the competent authority had complied with the relevant implementing regulations ‘in every material and 175

O’Mahony v An Bord Pleanála [2005] IEHC 39. Arklow Holidays Ltd v An Bord Pleanála (No 1) [2006] IEHC 15. Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid [2008] ECR I-0000 para 50. 178 Howard v Commissioners of Public Works [1994] 1 IR 101. 179 McBride v Galway Corporation [1998] 1 IR 485. 176 177

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Irish EIA Jurisprudence substantial respect’. In Lancefort,180 the Supreme Court determined that even if the competent authority was obliged to require an EIS, and to conduct an EIA, the applicant failed to demonstrate ‘the slightest adverse effect’ on the attainment of the objectives of the directive. The Court was impressed by the fact that national planning legislation ensured that the public had access to ‘the detailed plans’ which the developer had submitted to the planning authority. More recently, in Klohn v An Bord Pleanála,181 McMahon J recalled the decision in Commission v Germany182—where the ECJ confirmed that substantial compliance with the directive’s requirement would suffice—and concluded that there had been no significant breach of the national regulations or of the obligations imposed by the directive. Any ‘minor defects’ or ‘irregularities’ in the EIS were not such as to prevent substantial compliance with the directive.

F.

Impact of National Procedural Rules

National procedural rules may not render it ‘virtually impossible’ or ‘excessively difficult’ to enforce Community law (the principle of effectiveness).183 It falls to the national courts to measure contested procedural rules against the standards set by the ECJ in the Van Schijndel184 line of authority. The deferential and fluid nature of much of the guidance delivered by the ECJ to date means that it is very difficult to establish that a restrictive national rule offends against the principle of effectiveness. In McNamara An Bord Pleanála,185 the Supreme Court refused to accept that what was then a strict two-month time limit governing applications for leave to seek judicial review infringed the principle of effectiveness: ‘[W]hile the time limit applicable is undoubtedly inflexible, it cannot be seriously contended that it renders the assertion of rights under European Union law “virtually impossible” or “excessively difficult”’.186 The Court did not offer any further analysis in support of this conclusion and failed to articulate how it had weighed the goal of ensuring the effectiveness of Community law against the competing interests at stake here (ie legal certainty; protection of the rights of the defence; avoidance of unnecessary delay; and ensuring the proper conduct of proceedings). While the ECJ accepts that reasonable time limits are permissible, it must be doubtful whether a very short, absolute time limit that fails to provide for exceptional circumstances is compatible with the principle of effectiveness. The approach adopted in McNamara demonstrates a reluctance to engage with the 180

Lancefort Ltd v An Bord Pleanála [1999] IESC 14, [1999] 2 IR 270. Klohn v An Bord Pleanála [2008] IEHC 111. 182 Case C-431/92 Commission v Germany [1995] ECR I-2189. 183 See ch 3 pp 76−82. 184 Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705. 185 McNamara v An Bord Pleanála [1998] 3 IR 453. 186 Ibid, 467. 181

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The EIA Directive in the Irish Courts principle of effectiveness and to assess its implications for local procedural rules where EIA matters are at issue. Apart at all from the principle of effectiveness of Community law, doubts had been expressed about the constitutionality of the strict time limit.187 In White v Dublin City Council,188 the Supreme Court found that the absence of a judicial power to extend time undermined the constitutional right of access to the courts. On the particular facts in White, an unlawful act on the part of the planning authority resulted in adjoining property owners (the applicants for judicial review) being unaware of the nature of the proposed development until after the two-month period had expired. Prior to the White ruling, the legislature responded to concerns over the potential constitutional difficulties created by the absolute nature of the time limit by providing (in the original section 50 of the PDA) that the High Court could extend time in certain circumstances. Beyond McNamara, there are cases where the Irish courts have accepted that Community EIA law may necessitate certain modifications to national procedural rules. In Lancefort, Keane J acknowledged that, ‘in some instances’ national standing rules may have to yield to the paramount obligation on national courts to uphold European law.189 A similar view was expressed in Martin v An Bord Pleanála (No 2).190 The High Court observed that the contention that the State had failed to transpose the EIA directive correctly was the equivalent of challenging the constitutionality of a statute or statutory instrument, which justified a departure from the normal standing requirements in circumstances where there was ‘a transcendent need’ to assert the constitutional right at issue. In Martin v An Bord Pleanála (No 1),191 the High Court held that rights derived from Community law were to be vindicated in accordance with domestic procedural rules. O’Sullivan J accepted, however, that if a domestic rule or procedure was the only thing preventing the application of Community law with direct effect, then the national court was required to set aside that rule or procedure.192 Martin (No 1) concerned an application for a stay preventing An Bord Pleanála from proceeding with an appeal pending the determination of judicial review proceedings wherein it was alleged that the State had failed to transpose the EIA directive correctly. The High Court dealt with the application for a stay on the basis of the well-established principles of national law governing the grant of an interlocutory injunction. In Campus Oil Ltd v Minister for Industry and Energy (No 2),193 the Supreme Court determined the criteria governing the grant of interlocutory relief as follows: first, the applicant must demonstrate that there is a serious issue to be tried; secondly, damages must be 187 188 189 190 191 192 193

See, e.g., Brady v Donegal County Council [1989] ILRM 282. White v Dublin City Council [2004] IESC 35, [2004] 1 IR 545. Lancefort Ltd v An Bord Pleanála [1999] IESC 14, [1999] 2 IR 270, 312. Martin v An Bord Pleanála (No 2) [2004] IEHC 368. Martin v An Bord Pleanála (No 1) [2002] IEHC 82, [2002] 2 IR 655. Ibid, 662. Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88.

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Irish EIA Jurisprudence an inadequate remedy, and thirdly, the ‘balance of convenience’ must lie in favour of the grant of an injunction. The Supreme Court subsequently applied these principles in Pesca Valentia Ltd v Minister for Fisheries194 when dealing with the application of a Community law point. Following Pesca Valentia, O’Sullivan J concluded that requiring the applicant in Martin (No 1) to tailor his application to the traditional Campus Oil principles did not frustrate the application of EC law. A stay was refused on the basis that the applicant had failed to provide sufficient detail concerning the undertaking as to damages to enable the High Court to assess whether or not it was a realistic undertaking in light of the potential losses to the developer if the court granted a stay and the challenge proved unsuccessful. The High Court granted a stay preventing the Board from proceeding with a planning appeal in O’Brien v South Tipperary County Council.195 Ó Caoimh J distinguished Martin (No 1) on a number of grounds, including the fact that the applicants in O’Brien were ‘persons of some financial substance’ who would be in a position to honour any undertaking. Prior to the enactment of the new sections 50 and 50A PDA (which now include an express provision empowering the High Court to impose an undertaking as a condition to the grant of leave), Order 84, rule 20(6) of the RSC vested a similar power in the High Court. The approach to be adopted by the court in considering whether to exercise its discretion under Order 84, rule 20(6) was set down by Laffoy J in Broadnet Ireland Ltd v Office of the Director of Telecommunications Regulation196 as follows: [T]he essential test is whether such requirement is necessary in the interests of justice or, put another way, whether it is necessary to mitigate injustice to parties directly affected by the existence of the pending [judicial review] application. If, in substance, the existence of the application has an effect similar to the effect of an interlocutory injunction in private litigation—that activity which would otherwise be engaged in is put ‘on hold’ pending final determination of the controversy, with resulting loss and damage—in my view, it is appropriate for the court to adopt the approach traditionally adopted in private law litigation in determining whether an interlocutory injunction should be granted and to require that the applicant should give an undertaking to make good that loss and damage if it is ultimately found that the applicant’s case is unsustainable, provided there is no countervailing factor arising from the public law nature of the jurisdiction it exercises under O. 84 which precludes it from adopting that approach.197

In Seery v An Bord Pleanála,198 the applicants obtained leave to challenge a decision of the Board, and the developer proceeded to seek an undertaking. 194

Pesca Valentia Ltd v Minister for Fisheries [1985] IR 193. O’Brien v South Tipperary County Council, unreported, High Court, 22 October 2002, Ó Caoimh J. 196 Broadnet Ireland Ltd v Office of the Director for Telecommunications Regulation [2000] IEHC 46, [2000] 3 IR 281. 197 Ibid, 300. 198 Seery v An Bord Pleanála [2001] IEHC 13, [2001] 2 ILRM 151. 195

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The EIA Directive in the Irish Courts Finnegan J observed that the grant of leave had a similar effect on the developer as an interlocutory injunction—proceeding with the project pending determination of the proceedings would be ‘commercial folly’. Applying the Broadnet principles, the High Court considered whether the application had ‘the necessary public nature’ to justify the refusal of an undertaking. On the facts (the challenge to the Board’s decision concerned a small aspect of the proposed development that would overlook the applicant’s dwelling), Finnegan J concluded that the application did not exhibit the necessary public law characteristics envisaged by Broadnet and the High Court proceeded to grant an undertaking in favour of the developer. In O’Connell v Environmental Protection Agency,199 the developer (a notice party to the proceedings), relying on Broadnet and Seery, sought what it described as a ‘fortified’ undertaking as to damages.200 The applicant in O’Connell stressed what were described as the ‘serious public interest aspects’ to the challenge, including environmental protection concerns and the alleged failure of the Environmental Protection Agency (EPA) to comply with the requirements of the EIA directive and the European Communities (Natural Habitats) Regulations 1997.201 Notwithstanding these considerations, Herbert J granted an undertaking in favour of the developer on the basis that ‘the real substance’ of the application concerned the protection of private property rights—which are normally protected by private law remedies—and that the public law aspects of the challenge amounted to ‘subsidiary’ although important issues. As regards a ‘fortified’ undertaking, Herbert J considered that given the constitutional right of access to the courts, there would be very few circumstances in which a court would require such an undertaking. The High Court’s reasoning on the public interest dimension to this challenge is open to question. Whether or not a competent authority, in this case the EPA, has complied with the legal requirements set down in the EIA directive, and the relevant implementing regulations, is a classic public law question. While the applicant was concerned with the impact of the proposed development on personal property rights, this does not detract from the fact that the points raised by the applicant centred on whether or not the EPA had exercised its statutory powers in accordance with the law. In Arklow Holidays v An Bord Pleanála (No 4),202 the High Court concluded that the rule in Henderson v Henderson applied in planning cases.203 Clarke J determined that where it was open to an applicant to raise an issue in judicial

199 O’Connell v EPA [2001] IEHC 102, [2001] 4 IR 494. The applicant had previously been granted leave to challenge the decision of the EPA granting an IPC licence to Dungarvan Energy Ltd. A stay had also been granted on the implementation of any provision of the licence: O’Connell v Dungarvan Energy Ltd, unreported, High Court, 27 February 2001, Finnegan J. 200 As a preliminary point, Herbert J expressed ‘very considerable reservations’ as regards the power of the Court to make any form of order in favour or against a notice party to the proceedings (as opposed to a respondent). 201 European Communities (Natural Habitats) Regs 1997 (SI No 94 of 1997). 202 Arklow Holidays Ltd v An Bord Pleanála (No 4) [2007] IEHC 327. 203 Henderson v Henderson (1843) 3 Hare 100.

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Irish EIA Jurisprudence review proceedings, but he failed to do so, he might be precluded from raising the issue in a second challenge relating to the same planning process. The question arose as to whether excluding a Community law issue on procedural grounds conflicted with the national court’s duty to give effect to obligations flowing from Community law and to provide an effective remedy. Clarke J recalled the principle of national procedural autonomy and concluded that the rule in Henderson v Henderson complied with the twin principles of effectiveness and equivalence. The High Court found, on the facts, that there was no practical reason why the points the applicant now sought to litigate could not have been raised in the initial challenge to the original planning permission. It followed that the applicant had not been denied an effective remedy. The rule was ‘manifestly’ equivalent as it applied to all public law challenges. As the High Court certified a point of law for appeal to the Supreme Court regarding the applicability of the rule in Henderson v Henderson in planning cases,204 this issue remains to be determined authoritatively by that court. G. Concept of ‘Development Consent’ Article 1(2) of the EIA directive provides that ‘development consent’ means the decision which allows the developer to proceed with the project. This apparently straightforward definition belies the practical problems engendered by EIA obligations where national law provides for so-called ‘multi-stage’ consent procedures. As explained in chapter four, the ECJ was called upon to address these complex issues in response to references for preliminary rulings in Wells205 and in Barker.206 Under Irish planning law, it is not possible to apply for outline planning permission for EIA development.207 Consequently, the courts have not been required to tease out the implications of the EIA directive in this particular situation (ie where the consent procedure involves a decision to grant outline permission followed by subsequent approval of reserved matters). Multi-stage consent procedures have surfaced in a number of other contexts, however. In O’Connor v Dublin Corporation,208 planning permission granted by An Bord Pleanála left certain matters to be agreed between the developer and the planning authority. O’Neill J ruled that the authority’s decision confirming that revised plans submitted by the developer complied with the conditions set by the Board did not constitute a development consent: it merely involved implementation of conditions attached to the permission. In light of subsequent guidance provided by the ECJ in Wells and in Barker, the consent procedure at issue in O’Connor is best classified as a ‘multi-stage’ development consent. In other words, the two 204 205 206 207 208

Arklow Holidays Ltd v An Bord Pleanála (No 5) [2008] IEHC 2. Case C-201/02 Wells [2004] ECR I-723. Case C-290/03 R (Barker) v London Borough of Bromley [2006] ECR I-3949. Planning and Development Regs 2001, Art 96(1). O’Connor v Dublin Corporation, unreported, High Court, 3 October 2000, O’Neill J.

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The EIA Directive in the Irish Courts decisions involved here, taken as a whole, comprise a development consent within the meaning of Article 1(2) of the EIA directive. In Arklow Holidays Ltd v An Bord Pleanála (No 1),209 Clarke J observed that if conditions leaving matters to be agreed between the developer and the planning authority are ‘impermissibly wide’, then it might be arguable that the public was excluded from appropriate consultation as required by the directive in relation to the final determination of the matters subject to the condition. The High Court was satisfied in this case that the Board had imposed sufficiently detailed criteria following a process involving public engagement and there was, therefore, no breach of the requirement to carry out the necessary assessment under the directive. In the course of a subsequent judgment in the Arklow Holidays litigation, concerning an application for a certificate for leave to appeal to the Supreme Court, Clarke J observed that it would only be in ‘wholly exceptional’ circumstances that leaving matters of technical detail for further agreement could amount to a breach of the directive.210 In Dunne v Minister for the Environment, Heritage and Local Government (No 3),211 the Supreme Court had to consider whether directions issued by the Minister to facilitate the completion of works at Carrickmines Castle constituted a development consent for the purposes of the directive. The essential factual scenario ran as follows: in 1998, the Minister’s predecessor approved a scheme for construction of the South Eastern Route of the M50 C-Ring motorway around Dublin, part of which traversed the Carrickmines site. This approval followed consideration of an EIS; the submissions and observations made in the course of the consent procedure; and the report of the person who conducted the public inquiry as to the likely effects of the development on the environment. The potential adverse impact of the road project on an archaeological site generated intense controversy and resulted in a series of protracted legal actions grounded mainly on points of constitutional law.212 The Oireachtas (Parliament) ultimately introduced new legislation to facilitate and expedite the completion of the project. The National Monuments (Amendment) Act 2004, section 8, provided that any works affecting Carrickmines Castle that were necessary for the completion of the motorway were to be carried out on the directions of the Minister. The legislation did not require the Minister to consider whether an EIA was necessary before issuing directions, however. In August 2004, the Minister issued directions and works recommenced at Carrickmines. The plaintiff in Dunne (No 3) maintained, inter alia, that the directions amounted to a development consent

209

Arklow Holidays Ltd v An Bord Pleanála (No 1) [2006] IEHC 15. Arklow Holidays Ltd v An Bord Pleanála (No 2) [2006] IEHC 102 para 3.8. 211 Dunne v Minister for the Environment, Heritage and Local Government (No 3) [2006] IESC 49. For a more complete account of the facts and the various legal arguments deployed by the plaintiff, see (2006) 13 Irish Planning and Environmental Law Journal 130. 212 Dunne v Dún Laoghaire-Rathdown County Council [2003] IESC 15, [2003] 1 IR 567 and Mulcreevy v Minister for the Environment, Heritage and Local Government and Dún LaoghaireRathdown County Council [2004] IESC 5, [2004] 1 IR 72. 210

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Irish EIA Jurisprudence in their own right and were invalid by reason of non-compliance with the EIA directive.213 The Supreme Court disagreed. Murray CJ, speaking on behalf of a unanimous court, emphasised that the motorway project was authorised under Ministerial orders made in 1998 (which had approved the road scheme and the EIS) and not under the 2004 directions. Drawing on Wells,214 Murray CJ explained that whether or not a particular decision constitutes a development consent cannot be determined by the application of a ‘but for’ test: the fact that the development in question may not proceed without the particular decision in issue is not, in itself, conclusive. The Chief Justice distinguished Dunne (No 3) from the particular situation in Wells where the ECJ found that the contested decisions replaced ‘the very substance of a prior consent’. Murray CJ approved dicta from Lord Hoffmann in Brown215 and in Berkeley.216 In Brown, Lord Hoffmann expressed the view that the directive did not apply to decisions involving the detailed regulation of activities for which the principal consent had already been granted. Subsequently, in Berkeley, Lord Hoffmann noted that the EIS constitutes ‘a single and accessible compilation’ produced by the developer at the very start of the application process. The Supreme Court was satisfied that these dicta provided a correct interpretation of the requirements of the EIA directive and proceeded to classify the decisions taken by the Minister in 1998 as ‘stand alone’ decisions which permitted the road development to proceed. The directions issued in 2004 involved the regulation of activities for which the principal consent ‘raising the substantial environmental issues’ had already been granted. The Supreme Court insisted that the plaintiff had ‘completely failed’ to make out a case for challenging the adequacy of the original EIA (in particular no evidence had been presented to demonstrate that the methodology employed at that time was inappropriate). It was not the case that a fresh EIA had to be undertaken on every occasion where works uncover a site of archaeological interest—provided the original EIS had addressed archaeological issues. The Supreme Court also upheld the High Court’s finding that the contested directions did not affect the road project in a manner which could have ‘significant adverse effects’ on the environment. An application for a preliminary ruling was refused. The Supreme Court expressed itself to be satisfied that there was no scope for reasonable doubt as to the manner in which the EIA directive fell to be applied in this case. Dunne (No 3) provides a sharp illustration of the difficulty involved in identifying the relevant development consent in cases where a project is the subject of a series of distinct authorisations. It is regrettable that the ECJ

213 In addition to the alleged breach of the EIA directive, the plaintiff mounted a challenge to s 8 by reference to a number of provisions of the Constitution. The Supreme Court unanimously dismissed the constitutional challenge. 214 Case C-201/02 Wells [2004] ECR I-723. 215 R v North Yorkshire County Council ex p Brown [1999] UKHL 7. 216 Berkeley v Secretary of State for the Environment [2000] UKHL 36.

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The EIA Directive in the Irish Courts delivered its judgment in Barker217 and in Commission v United Kingdom218 only after the Supreme Court had heard arguments in Dunne (No 3). The guidance provided by the ECJ in its more recent rulings would have assisted the Supreme Court in its analysis of the complex factual and legal matrix at the centre of the Carrickmines controversy. One notable feature of the Supreme Court’s decision is the failure to engage with Wells in a manner that would have provided guidance for competent authorities and the High Court in future cases. The Chief Justice deployed the House of Lords’ decision in Brown as authority for the proposition that the directive does not apply to decisions that involve the detailed regulation of activities for which the principal consent has already been granted. In Wells, however, the ECJ took the view that EIA may be required at the implementing stage of a ‘multi-stage’ consent procedure in circumstances where the likely environmental effects were not capable of being identified at the time of the principal decision. This important aspect of Wells is not alluded to at all by the Supreme Court. On the contrary, Murray CJ insisted that the directive does not require ‘a succession of environmental impact assessments each time some significant new material is uncovered’. This general statement does not reflect the hard line adopted in Wells. While Wells is a complex ruling, essentially the ECJ found that EIA may be required after the principal decision has been taken if significant effects come to light prior to the implementing decision. It is regrettable that the Supreme Court did not acknowledge this possibility for future cases, particularly given the frequency with which significant archaeological finds are unearthed in the course of excavation works generated by road schemes in Ireland. In Martin (No 3), the Supreme Court ruled that where, in addition to planning permission, a proposed development is subject to licensing by the EPA, the relevant development consent comprises both the planning decision and the Agency’s decision.219 Murray CJ found that there was no rational basis for dividing the development scheme (in this case a waste management facility), into two distinct projects involving (1) construction and (2) operation of the plant. Consent to ‘proceed’ with the project was contingent on obtaining both the planning permission and the waste licence. In contrast to Dunne (No 3), the Supreme Court appeared to apply a ‘but for’ test in order to determine the development consent point in this case.

H. Intersection between Planning and Pollution Control Under Irish law, the primary responsibility for carrying out EIA rests with planning authorities and An Bord Pleanála. Difficulties can arise in practice, 217 218 219

Case C-290/03 Barker [2006] ECR I-3949. Case C-508/03 Commission v United Kingdom [2006] ECR I-3969. Martin v An Bord Pleanála (No 3) [2007] IESC 23.

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Irish EIA Jurisprudence however, where proposed development is for an activity that is subject to licensing by the EPA.220 In other words, cases where planning permission and an Integrated Pollution Prevention and Control (IPPC) licence or a waste licence is required in order to commence operations. There are specific statutory limitations on the jurisdiction of planning authorities and the Board in such cases. Pursuant to section 98 of the Environmental Protection Agency Act 1992, planning authorities (and the Board on appeal) were not entitled to consider any matters relating to the risk of environmental pollution from the licensable activity when determining an application for planning permission. Furthermore, neither the planning authority nor the Board could decide to refuse permission on the basis that the development would cause environmental pollution or impose conditions relating to the prevention of environmental pollution from the activity in question. Environmental pollution issues therefore fell within the exclusive jurisdiction of the EPA. Section 98 was subsequently amended by section 256 of the PDA to provide that planning authorities (and the Board on appeal) could refuse permission on the ground that a proposed development, notwithstanding the licensing of the activity by the EPA, is unacceptable on environmental grounds (having regard to the proper planning and sustainable development of the area in which the development is or will be situate). Notwithstanding this amendment, planning authorities and the Board are still subject to important limitations. Where a decision is taken to grant permission, no conditions may be imposed that are for the purposes of (1) controlling emissions from the operation of the activity, including the prevention, limitation, abatement or reduction of those emissions, or (2) controlling emissions related to or following the cessation of the operation of the activity. Similar provisions apply in relation to development which requires both planning permission and a waste licence under the Waste Management Act 1996, as amended.221 The intersection between planning and pollution control where a project is subject to EIA has not been the subject of a ruling from the ECJ to date. At national level, however, the division of responsibility mandated by section 98 of the EPA Act 1992 and section 54 of the Waste Management Act 1996 (prior to amendment by the PDA) led to a series of challenges to development consents on the basis of alleged non-compliance with obligations created in the EIA directive. In O’Connell v Environmental Protection Agency,222 the Supreme Court was required to consider whether section 98 operated to prevent An Bord Pleanála from considering environmental pollution issues when determining whether or not a proposed sub-threshold development should be subject to assessment (ie at the screening stage). Fennelly J interpreted section 98 to mean that the statutory prohibition applied only where a planning authority (or the Board on appeal) is deciding whether to grant or to refuse permission (ie at the point of the 220 221 222

See generally Simons, above n 2, at paras 13.230–13.237. Waste Management Act 1996 s 54, as amended by PDA s 257. O’Connell v EPA [2003] IESC 14, [2003] 1 IR 530.

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The EIA Directive in the Irish Courts substantive planning decision). The prohibition did not apply at the earlier stage when the competent authority has to decide whether or not EIA is required. The Board was therefore entitled to examine all aspects of the project at this stage, including the potential impact on the environment from the proposed activity. This purposive interpretation of the contested legislative provision enabled the Supreme Court to conclude that the State had not failed to transpose the EIA directive in this regard. The practical consequences of the statutory division of responsibility were questioned in a different context in Martin v An Bord Pleanála (No 3),223 which concerned a challenge to a decision of An Bord Pleanála granting permission for construction of a waste management facility. It was alleged that the restriction on the Board’s functions resulted in non-compliance with the requirements of the EIA directive. The High Court dismissed the challenge, but it certified a question of law for appeal to the Supreme Court concerning the compatibility of the implementing legislation with the EIA directive.224 Section 54 of the Waste Management Act 1996 (prior to amendment by the PDA) prohibited the Board from considering any matters relating to the risk of environmental pollution from the proposed activity when determining a planning appeal. Such matters came within the exclusive jurisdiction of the EPA. The scope of the EIA conducted by the Board was therefore limited in this particular respect. The core argument before the Supreme Court was whether the division of function between the Board and the EPA resulted in a failure to perform an ‘integrated EIA’ which, it was alleged, was mandated by the directive. It was put to the Court that under the contested legislative scheme no single competent authority could conduct a comprehensive assessment of the development as a whole, in particular the interactions between the various factors listed in Article 3 of the directive. It was also asserted that because the directive required EIA to be carried out ‘at the earliest possible stage’,225 the Board should have conducted a comprehensive EIA before it made its decision. The Supreme Court eventually delivered its judgment almost two years after it had heard the Martin appeal. Murray CJ began by observing that Article 2(1) was ‘the one and only’ substantive provision containing an express reference to the point in time at which an EIA should be undertaken: the EIA must be carried out before development consent is granted. It was ‘manifestly clear’ from Article 1(2) that ‘development consent’ may consist of the decisions of two or more authorities. The Supreme Court took the view that in this case the development consent comprised both the decision of An Bord Pleanála and the decision of the EPA. Drawing extensively on Article 5, Murray CJ interpreted the EIA directive as allowing for different competent authorities to exercise their responsibilities ‘at different stages or points in time in the process and procedures leading ultimately 223 224 225

Martin v An Bord Pleanála (No 3) [2007] IESC 23. Martin v An Bord Pleanála (No 2) [2004] IEHC 368. Dir 85/337/EEC, first recital.

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Irish EIA Jurisprudence to a development consent’. The Chief Justice noted that the term ‘integrated assessment’ (which was deployed by the appellant as referring to an examination of the interaction between the different factors listed in Article 3) was not included in the text of the directive. Murray CJ was satisfied that the contested legislative scheme made provision for examination of all of the factors referred to in Article 3, and of the interaction between them, by the relevant competent authority at each stage of the consent procedure. Assessments carried out by the Board and by the EPA, taken together, met the requirements of the directive. There was nothing in the text of the directive to suggest that one competent authority must undertake a ‘global assessment’ (or a ‘single assessment’) of the relevant environmental factors and the interaction between them. Article 2(2) provided expressly that EIA obligations could be integrated into existing consent procedures, or into other procedures to be established for the purpose of complying with the directive. Amendments to the text in 1997 to enable Member States to provide for a single procedure for the purpose of implementing EIA requirements and obligations arising under the IPPC directive did not alter this position. It was, therefore, ‘manifestly clear’ that the directive did not envisage that the examination of the interaction between the various factors listed in Article 3 could only be undertaken by one competent authority with global responsibility for that task. The EIA directive was ‘essentially procedural in nature’ and if it was intended that there could only be one ‘global’ assessment, by one competent authority, then the directive would have made express provision to that effect. The Chief Justice concluded there was no reasonable scope for doubt on any of the issues raised in the appeal—the appellant was ‘clutching at straws’ in his opposition to the Board’s decision. There was, therefore, no necessity for a reference for a preliminary ruling. The ruling in Martin (No 3) places too much weight on the (obvious) fact that the directive envisages that more than one competent authority may be involved in the process leading to development consent. The key point, which is obscured by the Supreme Court’s line of reasoning, is that Article 3 mandates a comprehensive assessment of specified environmental factors and of the interaction between them. The Supreme Court did not explain how the various Article 3 interactions can be addressed adequately in a system where the EIA function is divided between the Board and the EPA. In the absence of a detailed inquiry into the actual mechanics of the ‘split’ EIA process in such cases, the Supreme Court’s stark conclusion that the separate assessments carried out by the Board and by the EPA, taken together, meet the requirements of the directive is both disappointing and unhelpful. As noted earlier, important amendments introduced under the PDA have diluted the rigidity of the division of responsibility to some degree. The interrelationship between planning and pollution control in Irish law

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The EIA Directive in the Irish Courts remains problematic in EIA cases, however, and the Commission has decided to refer Ireland to the ECJ for alleged inadequate transposition of Article 3.226

I. Interrelationship between Domestic Proceedings and Commission Enforcement Activity The courts have been called upon to consider the interaction between domestic proceedings alleging inadequate transposition of the EIA directive and an infringement action under Article 226 EC that raises the same transposition issue. The net question here is whether the national court should avoid potentially conflicting decisions by staying domestic proceedings pending a definitive resolution of the matter by the ECJ? In Friends of the Irish Environment Ltd v Minister for the Environment, Heritage and Local Government,227 it was alleged before the High Court that national planning law breached the public participation obligations set down in the directive by charging fees for submissions and appeals in relation to certain planning applications. The State sought to stay the proceedings on the basis that the Commission had issued a Reasoned Opinion questioning the legality of the fees. The State maintained that it would be incompatible with Article 10 EC for a national court to determine the Community law point due to the risk of conflicting decisions between the High Court and the ECJ. As the Commission had not actually taken a decision to bring the matter before the ECJ, the issue for the High Court was whether the prospect of parallel proceedings was sufficient to justify a stay. In an earlier judgment in Merck v Searle,228 the High Court had stayed domestic proceedings seeking to revoke a patent, pending the determination of an appeal in the European Patents Office. Among the factors that had influenced the court in Merck were the duplication of costs if parallel proceedings produced the same outcome and the undesirability of conflicting decisions. In a judgment delivered in April 2005, Murphy J, relying on Merck, granted a stay pending the resolution of the matters raised by the Commission. In November 2006, the ECJ upheld the legality of the contested planning fees, thereby resolving the matter conclusively.229 The difficulties generated by parallel proceedings surfaced again in the aftermath of the Supreme Court’s decision in Martin v An Bord Pleanála (No 3).230 Mr Martin had alleged before the national courts that Ireland had failed to transpose the EIA directive correctly in the context of development consent for a proposed waste incinerator at Carranstown in County Meath. This challenge turned on Article 3 of the EIA directive and whether the sharp division of jurisdiction 226

European Commission, Press Release IP/07/1524, 17 October 2007. Friends of the Irish Environment Ltd v Minister for the Environment, Heritage and Local Government [2005] IEHC 123, [2007] 3 IR 459. 228 Merck & Co Inc v Searle & Co [2001] IEHC 41, [2002] 3 IR 614. 229 Case C-216/05 Commission v Ireland [2006] ECR I-10787. 230 Martin v An Bord Pleanála (No 3) [2007] IESC 23. 227

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Irish EIA Jurisprudence between planning authorities and the EPA meant that there was no integrated environmental assessment. In a judgment delivered in May 2007, the Supreme Court ruled against Mr Martin—without the benefit of an Article 234 EC ruling. Subsequently, in October 2007, the Commission decided to refer Ireland to the ECJ pursuant to Article 226 EC on the ground that the split decision-making process created a situation where interactions between the various factors listed in Article 3 might not be assessed properly.231 Apart from the Martin litigation, two separate sets of judicial review proceedings were initiated in the High Court challenging the development consent for a proposed waste incinerator at Ringaskiddy in County Cork. One of the grounds advanced in O’Leary v An Bord Pleanála232 and in Ringaskiddy and District Residents’ Association Ltd v EPA233 is alleged inadequate transposition in failing to provide for an integrated assessment as required by Article 3 of the directive. Following Martin (No 3), the Ringaskiddy challenges may have had little prospect of success before the High Court on the EIA point. Nevertheless, the Commission’s decision to refer Ireland to the ECJ on the integrated assessment point prompted the applicants for judicial review in the Ringaskiddy cases to seek an order from the High Court staying the proceedings until the ECJ ruled on the transposition issue. The principle of supremacy and the duty of co-operation in Article 10 EC were invoked to support the application for a stay. In the absence of a stay, it was alleged that there was a real risk of conflict between national law and Community law. McCarthy J of the High Court refused to grant a stay on the basis that the Supreme Court in Martin (No 3) had determined conclusively that the national legislative scheme was compatible with obligations arising under the EIA directive.234 The High Court distinguished Masterfoods235—a competition law case which involved a Commission decision under Articles 81(1) and 82 EC—where the ECJ had ruled on the national court’s obligation to stay domestic proceedings with a view to avoiding a conflict with the Commission’s decision. In Masterfoods, the Commission’s decision had binding legal effects, however, whereas in the Ringaskiddy challenges the Commission had merely formed an opinion—which was strongly contested by the State—that Irish transposition of the EIA directive was inadequate. While the High Court acknowledged that the Article 226 EC proceedings had introduced ‘an element of uncertainty’, and that this uncertainty would best be resolved by awaiting the ECJ ruling, it determined that Martin (No 3) was binding authority. McCarthy J noted that in the event of the ECJ ruling

231

European Commission, Press Release IP/07/1524, 17 October 2007. O’Leary v An Bord Pleanála (2004/191 JR). Ringaskiddy and District Residents’ Association Ltd v EPA (2006/69 JR) 234 O’Leary v An Bord Pleanála and Ringaskiddy and District Residents’ Association Ltd v EPA [2008] IEHC 34. 235 Case C-344/98 Masterfoods Ltd v HB Ice Cream Ltd [2000] ECR I-11369. 232 233

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The EIA Directive in the Irish Courts against Ireland in the Article 226 EC proceedings, it would be open to the applicants to seek a remedy in damages under Köbler.236 In a brief judgment delivered in July 2008, a unanimous Supreme Court upheld McCarthy J’s ruling.237 The Court did not consider it necessary to determine whether there was a principle of Community law which might require national proceedings to be stayed pending the outcome of litigation on the same issue before the ECJ. Murray CJ focused instead on whether the applicants had established that there was a ‘substantial or material risk’ of a conflict of decisions between the national court and the ECJ. The Supreme Court emphasised that the Commission had not, as yet, actually commenced proceedings before the ECJ. Thus the national court was not in a position to identify the legal basis underlying the proposed infringement proceedings and the precise issues involved. Murray CJ noted that the first Ringaskiddy challenge had commenced in 2005 and it was in the general interest of the administration of justice, both at national and Community level, that proceedings be determined with reasonable expedition. In the particular circumstances, the Supreme Court found that the extent to which the infringement action might lead to conflicting decisions was ‘a matter of speculation’. Furthermore, the Court had no way of identifying when, if ever, the proposed proceedings would be lodged with the ECJ and when they might conclude. If the national proceedings were to be adjourned in these circumstances, there was ‘a risk of a denial of justice’ to the respondents and the developer. The Supreme Court’s decision to refuse to stay the national proceedings is logical: there is obviously no certainty as to the eventual outcome in any Article 226 EC proceedings (assuming that the case is indeed lodged with the ECJ). It is disappointing, however, that the Court did not consider the principles governing the scope of the national court’s obligation to stay proceedings in certain circumstances, including the ECJ’s Masterfoods ruling. The previous High Court decision in Friends of the Irish Environment Ltd 238 was not considered at any point in the Supreme Court’s ruling (although it could be distinguished on the basis that there was no clear Supreme Court authority on the Community law issue in that case). Nor is there any mention of the role of Article 234 EC in ensuring consistent and uniform application of Community law in the Supreme Court judgment. The Irish courts have never sought a preliminary ruling from the ECJ in the environmental law area. The alleged inadequate transposition of the EIA directive as a result of the division of jurisdiction between planning

236 Case C-224/01 Köbler v Republik Österreich [2003] ECR I-10239. There appears to be some confusion in this part of the High Court’s judgment. McCarthy J observed that damages in this context would only arise ‘in the case of a directive having direct effects’. It is well-established in the Francovich line of authority, however, that direct effect is not a requirement for State liability. 237 O’Leary v An Bord Pleanála and Ringaskiddy and District Residents’ Association Ltd v EPA [2008] IESC 55. 238 Friends of the Irish Environment Ltd v Minister for the Environment, Heritage and Local Government [2005] IEHC 123, [2007] 3 IR 459.

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Irish EIA Jurisprudence authorities and the EPA has surfaced in a series of judicial challenges since the late 1990s including: Goonery v Meath County Council;239 O’Brien v South Tipperary County Council;240 and O’Connell v Environmental Protection Agency.241 The Commission also questioned the adequacy of transposition in this specific context in a Reasoned Opinion delivered in 2001.242 It is unfortunate, therefore, that a national court did not refer the integrated assessment point to the ECJ at an earlier stage, with a view to settling the matter conclusively. At the time of writing, the Article 226 EC proceedings have yet to be lodged with the ECJ. It remains to be seen whether the application for a stay will be renewed if and when the Commission issues proceedings and, if so, how the national courts will respond to any fresh request for a stay. One of the most intriguing aspects of the proposed Article 226 EC proceedings is the potential implications in the event that the ECJ reaches a different conclusion to that of the Supreme Court in Martin (No 3). In the event of such an outcome, the focus will shift to the Member State’s obligation to nullify the unlawful consequences of a breach of Community law—a duty owed by every organ of the State, including the courts.243 The question of appropriate remedies will arise, including the prospect of damages actions under the doctrine of State liability for breach of Community law.

J.

Appraisal

The case law reveals the range and complexity of issues that the EIA directive has generated before the national courts. The jurisprudence demonstrates that the courts were slow to accept that competent authorities had obligations under the EIA directive and that the directive could be invoked to challenge decisions taken by those authorities. Lancefort, in particular, highlighted the difficulties involved in attempting to enforce the directive before the Supreme Court in the absence of unequivocal guidance from the ECJ. The convoluted Kraaijeveld ruling generated confusion at national level where a challenge was mounted to an individual planning decision on the grounds of alleged breach of the directive. These difficulties have now been resolved, to a considerable extent, following more explicit rulings from the ECJ, including the ground-breaking decision in Wells. It is remarkable, however, that notwithstanding the thorny issues that have surfaced on a regular basis, the Irish courts have never referred any question concerning interpretation of the EIA directive to the ECJ. Beyond the specific field of 239

Goonery v Meath County Council, unreported, High Court, 15 July 1999, Kelly J. O’Brien v South Tipperary County Council, unreported, High Court, 22 October 2002, Ó Caoimh J. 241 O’Connell v EPA [2003] IESC 14, [2003] 1 IR 530. 242 European Commission, Reasoned Opinion C(2001) 2253, 25 July 2001 para 3.2. 243 Case C-201/02 Wells [2004] ECR I-723 para 64 and Joined Cases C-231/06 to C-233/06 National Pensions Office v Jonkman [2007] ECR I-5149 para 37. 240

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The EIA Directive in the Irish Courts environmental law, the courts have engaged in dialogue with the ECJ via the preliminary ruling procedure—particularly in agriculture, procurement and aviation cases—but the number of Irish references is low when compared with those of other Member States.244 The Supreme Court has invoked the CILFIT245 principles to support its decision to refuse to make an Article 234 EC reference on a number of occasions. In CILFIT, the ECJ considered the circumstances in which a national court ‘against whose decisions there is no judicial remedy under national law’ is obliged to make a reference. Article 234(3) EC obliges a national court of last instance to bring a matter before the ECJ where it considers that a decision on a question of interpretation is necessary in order for it to give judgment. The objective behind this provision is to ensure the proper application and uniform interpretation of Community law throughout the Member States and to prevent divergences in judicial decisions on questions of Community law. CILFIT confirmed that a national court of last instance is not required to make a reference where the question raised is irrelevant (in the sense that the answer cannot affect the outcome of the case), or where the Community law provision at issue has already been interpreted by the ECJ. More controversially, the ECJ acknowledged in CILFIT that the correct application of Community law may be ‘so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved’.246 The ECJ insisted, however, that before a national court of last instance concludes that the answer to a question of interpretation is acte clair, it must be convinced that the matter ‘is equally obvious’ to other national courts and to the ECJ itself. It is only where these strict conditions are satisfied that the national court is entitled to refrain from making a reference and may resolve the question itself. In considering whether the answer is obvious, the national court must bear in mind ‘the characteristic features of Community law and the particular difficulties to which its interpretation gives rise’.247 The ECJ noted that interpreting a provision of Community law involves a comparison of different language versions. Furthermore, Community law deploys terminology which is peculiar to it and legal concepts do not necessarily have the same meaning in Community law and in the laws of the various Member States. The ECJ also emphasised that every provision of Community law must be considered in its context and must be interpreted in light of the provisions of Community law as a whole, with regard being had to its objectives and to its state of evolution

244 According to statistics presented in the Annual Report of the Court of Justice of the European Communities 2007, there have been 50 references from Irish courts or tribunals in the period 1973–2007. Of these, 17 were referred by the Supreme Court. See generally E Fahey, Practice and Procedure in Preliminary References to Europe: 30 Years of Article 234 EC Case Law from the Irish Courts (Dublin, First Law, 2007). 245 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415. 246 Ibid, para 16 and Case C-495/03 Intermodal Transports BV v Staatssecretaris van Financiën [2005] ECR I-8151 para 33. 247 Ibid, para 17.

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Irish EIA Jurisprudence at the date on which the provision in question is to be applied. Thus, while the ECJ accepts that there are circumstances in which national courts of last instance may determine points of Community law, strict conditions apply if national courts are to comply with Article 234(3) EC. One notable aspect of the EIA rulings delivered by the Supreme Court is the brevity of the reasoning deployed to justify the conclusion that a reference is not necessary. In Dunne (No 3), the Supreme Court was satisfied that there was ‘no scope for reasonable doubt’ as to the manner in which the EIA directive fell to be applied in that case. In Martin (No 3), the Court determined that the meaning and intent of the EIA directive was clear. The CILFIT principles are demanding and set a high threshold that must be met before a national court of last instance can decline to make a reference. The brief references to CILFIT presented by the Supreme Court belie the onerous nature of the obligation articulated in Article 234(3) EC. It is disappointing that the Supreme Court’s application of the CILFIT criteria in the EIA case law is not more explicit, particularly in light of the importance which the ECJ attaches to the fundamental principle of legal certainty.248 The courts prefer, where possible, to deal with EIA controversies on the basis of national law. McBride and Lancefort provide clear examples of this approach at Supreme Court level. Ó Nualláin stands out as an exceptionally vigorous application of Community EIA law by the High Court. Other decisions (including Dunne (No 3)) are more conservative, however, and suggest a reluctance to engage with the more interventionist EIA jurisprudence emanating from the ECJ in recent years. The long-running Martin saga, and the current judicial review proceedings challenging the consents for the proposed incinerator at Ringaskiddy in County Cork, reveal the dramatic consequences for legal certainty where national courts proceed to determine complex points of Community law without authoritative guidance from the ECJ. The jurisprudence also demonstrates that the duty to enforce Community EIA obligations has not had any significant impact on domestic procedural rules—including standing requirements and time limits—although the courts have acknowledged, on occasion, that in certain instances such rules may have to be set aside to facilitate Community law. A deferential approach to administrative decision-making is one of the most striking features of the EIA case law in Ireland. While it must be acknowledged that the courts are not experts on planning and environmental matters, the correct application of the EIA directive will often involve complex, mixed issues of law and fact. The ECJ jurisprudence confirms the central role of the national courts in the enforcement of EIA law at local level. Following Bozen,249 Linster250 and Wells,251 it is now beyond doubt that it falls to the national courts to review

248 Compare the detailed analysis of the CILFIT criteria by Fennelly J in T v L [2008] IESC 48 paras 98–111. 249 Case C-435/97 World Wildlife Fund (WWF) v Autonome Provinz Bozen [1999] ECR I-5613. 250 Case C-287/98 Luxembourg v Linster [2000] ECR I-6917. 251 Case C-201/02 Wells [2004] ECR I-723.

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The EIA Directive in the Irish Courts whether or not the competent authorities remained within the limits of the discretion conferred by the directive. Fulfilling this role involves close judicial scrutiny of the exercise of discretion. Wells, in particular, envisages the national courts revoking or suspending an unlawful development consent in the event of breach of the directive. The narrow approach to the doctrine of administrative unreasonableness adopted by the Irish courts is difficult to reconcile with this strong mandate from the ECJ. The contemporary EIA case law concerns the potential impact of the Aarhus Convention and Article 10a of the EIA directive on national judicial review law and practice. Article 10a has forced the courts to engage more deeply than heretofore with arguments concerning access to environmental justice.

IV.

IMPACT OF ARTICLE 10A

A. Hope and Anticipation Article 3(7) of Directive 2003/35/EC (the public participation directive) added a new Article 10a to the EIA directive which provides for a right to a review procedure. Member States must put in place a review procedure wherein ‘the substantive or procedural legality’ of decisions subject to the participation requirements mandated by the EIA directive are open to challenge. This obligation is qualified, however, by an express reference to ‘the relevant national legal system’, thus confirming that the Member States enjoy a measure of discretion in determining the characteristics of the review procedure. This element of flexibility is of enormous practical significance given the sharp differences between the legal and administrative systems operating in the 27 Member States. Article 10a, which was due to be implemented by 25 June 2005, sets certain minimum standards for the review procedure, including that it must not be ‘prohibitively expensive’. Article 10a generated strong interest among individuals and ENGOs in Ireland who had long voiced concern about practical barriers to access to justice including, for example: restrictive standing rules; the narrow scope of judicial review proceedings; the deterrent effect of rules governing liability for costs; and the inadequate system of legal aid.252 It was hoped that the obligations created in Article 10a would force the competent authorities to revisit the restrictive rules governing judicial review in cases involving EIA development. 252 See, eg, Friends of the Irish Environment, The Transposition into Irish Law of Directive 2003/35/EC (2005); Á Ryall, ‘Access to Justice and the EIA Directive: The Implications of the Aarhus Convention’ in J Holder and D McGillivray (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (London, Routledge-Cavendish, 2007); Á Ryall, ‘EIA Law—the State of the Art’, paper presented at UCC Law and the Environment conference, 14 April 2005 and Á Ryall, ‘Planning and Development (Strategic Infrastructure) Bill 2006: Implications for Environmental NGOs and Access to Justice’, paper presented at UCC Law and the Environment conference, 27 April 2006.

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Impact of Article 10a More specifically, it was anticipated that the right to a review procedure that was ‘not prohibitively expensive’ would prompt action to address the deterrent effect of high legal costs.

B. Legislative Measures Article 10a mandates a liberal approach to standing for certain ENGOs. Pursuant to the 2006 Act, Ireland introduced special standing rules for qualified ENGOs in EIA cases. There is no reference to Directive 2003/35/EC in the 2006 Act, however, and so it can only be implied that the new standing provisions were intended to implement Article 10a. Pursuant to section 50A(3)(b)(ii) of the PDA, qualified ENGOs do not have to satisfy the ‘substantial interest’ test.253 This significant concession is dependant on the ENGO complying with a number of statutory conditions, however. First, the ENGO’s aims or objectives must ‘relate to the promotion of environmental protection’; secondly, the ENGO must have pursued those objectives during the period of 12 months preceding the date of the application for leave; and thirdly, the ENGO must satisfy the requirements (if any) governing entitlement to appeal to An Bord Pleanála under section 37(4)(c) of the PDA. The third condition refers to further requirements that may be prescribed by the Minister for the Environment, Heritage and Local Government pursuant to section 37(4)(e) of the PDA. These requirements may relate to inter alia: the ENGO’s membership; that its objectives be otherwise than for profit; the possession of a specified legal personality and the possession of a constitution or rules; and that the area of environmental protection to which its aims or objectives relate is relevant to the class of matter into which the contested decision falls. No additional requirements have been prescribed by the Minister to date. The modification to the normal standing rule holds the potential to improve access to the courts for qualified ENGOs, but costs remain a significant obstacle. Apart from the special standing rules for ENGOs, Ireland has not taken any further steps to implement Article 10a. The Irish authorities maintain that the availability of judicial review meets the demands of Article 10a and that further legislative intervention is not necessary.

C.

Judicial Implementation

The main activity involving Article 10a to date has been in the national courts. In Friends of the Curragh Environment Ltd v An Bord Pleanála (No 1),254 the 253 This provision was introduced pursuant to the 2006 Act s 13 and came into force on 17 October 2006: Planning and Development (Strategic Infrastructure) Act 2006 (Commencement) Order 2006 (SI No 525 of 2006). 254 Friends of the Curragh Environment Ltd v An Bord Pleanála (No 1) [2006] IEHC 243.

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The EIA Directive in the Irish Courts applicant company argued that it was entitled to a Protective Costs Order (PCO) not only on the basis of established common law principles but also by reference to Article 10a. The High Court ruled that the proceedings did not involve issues of general public importance and that it was not in the public interest that the issues raised be resolved with the benefit of a PCO. Turning to the Community law argument, it was common case between the parties that Ireland had failed to implement Article 10a. In the absence of national measures, the applicant maintained that Article 10a had direct effect and that the only means of giving effect to the ‘not prohibitively expensive’ obligation in this case was to grant a PCO. Kelly J refused to accept that Article 10a had the ‘clarity, precision and unconditionality so as to make it directly applicable’ in the absence of implementing measures. The High Court noted that Article 10a offers Member States a choice as to the form of review procedure. Kelly J observed that it was not clear that the directive applied to judicial review proceedings in circumstances where there was a right of appeal to An Bord Pleanála. The High Court suggested (without determining the point) that an appeal to the Board—an independent and impartial body established by statute—met the requirements of Article 10a. Following this line of analysis, judicial review is categorised as an additional layer of challenge that is not caught by the requirements set down in Article 10a. Kelly J also questioned whether Article 10a applied to court proceedings at all in the Irish context, given that judicial review does not extend to a substantive (or merits-based) review of the contested decision. As regards the ‘not prohibitively expensive’ requirement, Kelly J determined that the meaning of this concept was not clear—it could be taken to refer to court fees or to legal costs.255 Kelly J also found that given the prohibition on horizontal effect of directives, even if Article 10a had direct effect it could not be deployed to grant a PCO against a private developer (the Turf Club) who was a notice party to the proceedings. This ruling demonstrates the difficulties involved in attempting to enforce a directive which offers flexibility to Member States. Article 10a does not mandate a right to review before a court: this is simply one of the options presented to the Member States. It is clear that, in the alternative, the review can take place before ‘an independent and impartial body established by law’. In both cases, however, ‘the substantive or procedural legality’ of the contested decision must be open to challenge. The question then arises as to whether an appeal to An Bord Pleanála satisfies this aspect of Article 10a? The answer depends on the meaning to be assigned to a review of the ‘substantive or procedural legality’ of the decision at issue and how this concept interacts with the national legal system. In the Irish context, review of legality suggests judicial review before the High Court as opposed to an administrative appeal: An Bord Pleanála considers appeals de novo

255

See also Kavanagh v Ireland (No 2) [2007] IEHC 389.

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Impact of Article 10a and so there is no ‘review’ of the planning authority’s decision as such. Furthermore, the Board has limited jurisdiction to address questions of law.256 In O’Brien v South Tipperary County Council,257 Ó Caoimh J ruled that questions concerning whether Ireland had implemented the EIA directive correctly fell to be determined by the High Court rather than by way of appeal to An Bord Pleanála. It must be doubtful, therefore, that an appeal to the Board satisfies this aspect of Article 10a.258 This point is not settled, however, and will no doubt arise for determination in future litigation. In Friends of the Curragh Environment Ltd v An Bord Pleanála (No 2),259 the applicant company, again relying on Article 10a, submitted that because it was an ENGO the High Court should apply a lesser threshold for standing than the ‘substantial interest’ test. This argument depended on Directive 2003/35/EC having direct effect as Ireland had failed to implement the directive on time. As Kelly J had already determined the direct effect point against the applicant company in the earlier proceedings concerning the PCO, Finlay Geoghegan J concluded that the point was res judicata between the parties. The High Court determined that the applicant had not met the ‘substantial interest’ test because it had failed to raise the EIA argument in the course of an earlier appeal before An Bord Pleanála. The High Court’s ruling on the direct effect point is open to criticism on the basis that Kelly J had not considered the particular provisions in Article 10a concerning locus standi at any point in the earlier judgment on the PCO application. Article 10a is strong as regards standing in the case of ENGOs: they are deemed to have standing to invoke the review procedure once they satisfy any criteria set down in national law. Furthermore, Article 10a expressly requires Member States to determine national standing rules so as to ensure ‘wide access to justice’. The specific obligation imposed on the Member States in this particular context appears to be unequivocal. Alternatively, it is open to a national court to interpret national standing rules in light of Community law obligations. It is therefore disappointing that the High Court did not engage with Article 10a in Friends of the Curragh Environment Ltd (No 2). (i) Sweetman v An Bord Pleanála The implications of Article 10a were considered in detail by Clarke J in Sweetman v An Bord Pleanála (No 1)260—an application for leave to challenge the validity of a decision of the Board approving a road scheme. The direct ground of challenge alleged that a requirement for groundwater monitoring along the route of the proposed road—to ensure no adverse impact on an adjacent candidate Special 256

State (Abenglen Properties Ltd) v Dublin Corporation [1984] IR 381, 391–3. O’Brien v South Tipperary County Council, unreported, High Court, 22 October 2002, Ó Caoimh J. 258 See generally Simons, above n 2, at paras 13.320–13.325. 259 Friends of the Curragh Environment Ltd v An Bord Pleanála (No 2) [2006] IEHC 390. 260 Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153. 257

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The EIA Directive in the Irish Courts Area of Conservation (SAC)—was inadequate in the absence of an additional provision for further mitigation in the event that the monitoring revealed some unforeseen consequence. Mr Sweetman further alleged that Ireland had failed to transpose aspects of Directive 2003/35/EC. It is important to explain the distinction between the legal and factual context in the Friends of the Curragh Environment Ltd litigation and in Sweetman (No 1). The challenge in Friends of the Curragh Environment Ltd concerned a grant of planning permission where the original decision was taken by a planning authority followed by an appeal before An Bord Pleanála. Under the specific legislative scheme that applied in Sweetman (No 1) (the Roads Act 1993 as amended), the original decision to approve a road scheme was taken by An Bord Pleanála and there was no provision for any administrative appeal. The only form of review available was judicial review. Mr Sweetman maintained that the scheme of judicial review available under Irish law failed to meet the requirements of Article 10a in a number of respects. The challenge focused, in particular, on the restrictive locus standi test; the deferential standard of review; and prohibitive expense. Sweetman (No 1) raised an obvious issue that had been left over after the earlier ruling in Friends of the Curragh Environment Ltd (No 1): Would the High Court’s approach to Article 10a be any different in a situation where there was no right of appeal to An Bord Pleanála and judicial review was the only available remedy? (a) ‘Substantial Interest’ Prior to section 50 of the PDA the standing test was a ‘sufficient interest’. Mr Sweetman argued that the current, more stringent requirement to demonstrate a ‘substantial interest’ was inconsistent with the EIA directive. Clarke J accepted that it was ‘certainly open to argument that it will be necessary to construe the term “substantial interest” in a manner that does not infringe the directive’—at least in cases where the directive applies.261 The High Court examined the aspects of Article 10a dealing with standing, in particular the choice presented to the Member States between requiring a ‘sufficient interest’ or the impairment of a right, and the constraint on Member State discretion due to the ‘overall requirement that wide access to justice must be allowed’. Clarke J concluded that the ‘substantial interest’ test did not give rise to a breach of the directive. The High Court interpreted the concept of a ‘sufficient interest’ deployed in Article 10a as referring to the interest which the Member State itself determines to be ‘sufficient’, subject only to the requirement that it give ‘wide access to justice’.262 Clarke J noted that Article 10a permits a Member State to confine the right of challenge to those who are able to demonstrate an impairment of a right. According to the High Court, if it proved necessary to give a more generous interpretation to the ‘substantial interest’ requirement in order to meet the obligation to provide ‘wide 261 262

Ibid, para 6.3. Ibid, para 6.6.

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Impact of Article 10a access to justice’, then the term ‘substantial interest’ could be construed in an appropriate manner.263 Thus this aspect of Irish law was not in breach of the directive. On the facts in Sweetman (No 1), Clarke J found that the applicant had raised the issue that he now sought to litigate at an earlier stage in the planning process. Clarke J observed that where proposed development is to be located in a specially sensitive area, such as a candidate SAC, this is a particularly relevant factor in assessing the nature of the applicant’s interest: Such areas are frequently remote and many persons who have real and genuine interest in them may not live proximate to them. In particular having regard to the obligation under the directive to allow wide access to justice and the application of that principle to the necessity to afford a reasonably wide range of people with an opportunity to have their concerns dealt with in relation to sensitive areas, I am satisfied that Mr Sweetman meets the substantial interest test in the unusual circumstances of this case.264

This conclusion demonstrates the potential impact of Article 10a on national standing requirements. Clarke J adopted a flexible approach to the ‘substantial interest’ test to accommodate the unequivocal obligation to provide wide access to justice. (At the time of the Sweetman (No 1) ruling, the Supreme Court had not delivered judgment in Harding (No 5)265 concerning the criteria to be applied in determining whether an applicant seeking leave to bring judicial review proceedings has a ‘substantial interest’ within the meaning of the original section 50 of the PDA.) (b) Standard or Intensity of Review The High Court acknowledged the ‘undoubtedly limited basis’ upon which a court can review a contested decision in the context of judicial review.266 Clarke J emphasised, however, that O’Keeffe267 irrationality (or unreasonableness) is but one ground that can be pursued where a challenge is mounted to a planning decision. Thus the overall judicial review jurisdiction is not as narrow as O’Keeffe irrationality alone might suggest: [I]t is important to remember that a court, in judicial review proceedings, is not confined to the irrationality test identified in O’Keeffe v An Bord Pleanála. That is but one ground which can be advanced. A court is also entitled (and indeed is duty bound) to consider matters such as whether the decision maker had regard to factors which ought not properly have been included in the consideration or failed to have regard to factors which should properly have been considered. O’Keeffe irrationality only arises in circumstances where the decision maker properly considered all of the matters required 263 264 265 266 267

Ibid, para 6.7. Ibid, para 9.3. Harding (No 5) [2008] IESC 27. Sweetman (No 1) [2007] IEHC 153 para 6.11. O’Keeffe v An Bord Pleanála [1993] 1 IR 39.

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The EIA Directive in the Irish Courts to be taken into account and did not take into account any matters which should not. The limitations inherent in the O’Keeffe irrationality test, therefore, only arise in circumstances where all, but only, those matters properly considered were taken into account and where the decision maker comes to a judgment based on all of those matters. It is in those circumstances that the court, by reason of the doctrine of deference, does not attempt to second guess the judgment of the person or body concerned provided that there was material for coming to that decision. In particular the court does not attempt to re-assess the weight to be attached to relevant factors.268

Reasoning by analogy with recent developments in human rights law (in particular the judicial elaboration of the ‘anxious scrutiny’ test)269 and in immigration cases decided before the High Court,270 Clarke J noted the potential for flexibility in the approach taken to judicial review in appropriate cases. Thus if Directive 2003/35/EC demands a greater level of scrutiny in relation to environmental judicial review applications, then this could be ‘accommodated within the existing judicial review regime’.271 Following this line of analysis, it falls to the High Court to determine what level of scrutiny is required in order to meet the obligations set down in the directive. Article 10a refers to review of the ‘substantive or procedural legality’ of the decision at issue. Clarke J did not articulate the actual standard of review required, but determined that Article 10a did not mandate a complete appeal on the merits. Rather, what the directive requires, in addition to a review of the procedures followed, is a review of the substantive legality of the decision. Drawing on the decision of Fennelly J of the Supreme Court in SIAC Construction Ltd (SIAC) v Mayo County Council272 (considered earlier in chapter three), the High Court was satisfied that Irish judicial review law ‘goes a long way towards (and indeed may well meet) that requirement’.273 In SIAC, in the specific context of the public procurement directives, Fennelly J ruled that the applicable standard of review was the ‘manifest error’ test applied by the ECJ and the Court of First Instance when reviewing decisions made by the European Union institutions.274 Fennelly J observed, however, that it was likely in practice that the application of the ‘manifest error’ test would not be very different from the application of traditional Irish judicial review law. Following SIAC, Clarke J reasoned that it was difficult to see how the requirement in Article 10a to provide for review of the substantive legality of a decision could oblige Member States to provide a level of scrutiny beyond the ‘manifest error’ test applied by the ECJ. The High Court was satisfied that

268

Sweetman (No 1) [2007] IEHC 153 para 6.12–6.13. Ibid, para 6.14. 270 Ibid and para 6.15 where the High Court referred to Gashi v Minister for Justice, Equality and Law Reform, unreported, High Court, 3 December 2004, Clarke J. 271 Ibid, para 6.16. 272 SIAC Construction Ltd (SIAC) v Mayo County Council [2002] IESC 39, [2002] 3 IR 148. 273 Sweetman (No 1) [2007] IEHC 153 para 6.19. 274 See also Greencore v Ireland [2007] IEHC 211 para 6. 269

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Impact of Article 10a to the extent that it may emerge that it may be necessary to allow, in certain circumstances, for a review so as to meet that test which goes beyond the existing parameters of Irish judicial review law, that law is more than capable of being adapted by the courts to accommodate such a requirement.275

In light of this conclusion, Clarke J determined that there was no failure to transpose this aspect of Article 10a. On the specific facts in Sweetman (No 1), Clarke J found that the contested decision did not exhibit a ‘manifest error’: whether any additional monitoring measures were required was expressed by the Court to be ‘more than within the technical judgment of the Inspector and An Bord Pleanála’. (c) Costs and the ‘Not Prohibitively Expensive’ Requirement In Friends of the Curragh Environment Ltd (No 1), Kelly J determined that the ‘not prohibitively expensive’ requirement did not have direct effect on the basis of lack of clarity. Clarke J could see no reason to depart from that view. More extensive argument on this point was presented to the High Court in Sweetman (No 1), however. Clarke J considered Article 9 of the Aarhus Convention and noted the ‘very great similarity’ between its provisions and those of Article 10a.276 The High Court interpreted Article 3(8) of the Convention as confirming that the provisions of the Convention ‘are not intended to cover court costs’.277 Article 3(8), which requires Parties to ensure that people exercising their rights under the Convention are not penalised, persecuted or harassed for their involvement, states expressly that this obligation does not affect the powers of national courts to award ‘reasonable costs’ in judicial proceedings. Given that Directive 2003/ 35/EC was adopted to bring EC law into line with the Aarhus Convention, Clarke J ruled that ‘proper regard should be had to the Convention in construing the directive’.278 This was the case even where a Member State had not ratified the Convention. Guided by the Aarhus Convention, Clarke J was satisfied that the ‘absence of excessive cost’ requirement in Article 10a is not intended to cover the exposure of a party to ‘reasonable costs’ in judicial proceedings.279 Citing earlier High Court authority280, Clarke J emphasised the court’s discretion to depart from the normal costs rule in the case of a genuine public interest challenge. (d) Conclusions on Alleged Failure to Transpose Aspects of Article 10a On the facts in Sweetman (No 1), Clarke J concluded that the case alleging failure to transpose Article 10a had not been made out. If it proved necessary to have 275 276 277 278 279 280

Sweetman (No 1) [2007] IEHC 153 para 6.21. Ibid, para 7.5. Ibid, para 7.6. Ibid, para 7.7. Ibid, para 7.8. Harrington v An Bord Pleanála (No 3) [2006] IEHC 223.

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The EIA Directive in the Irish Courts regard to Directive 2003/35/EC in construing both the threshold for standing and the standard of review to be applied by the courts, both of these issues could be addressed adequately in the context of the existing law of judicial review. Recalling the well-established principle of Community law that national law falls to be interpreted, where possible, in such a manner as to bring it into line with ‘mandatory requirements of EU law’, Clarke J determined that any necessary judicial ‘adjustment’ to Irish law could be accommodated ‘without breaching the boundaries of the evolution of the principles of judicial review or the statutory interpretation of the term “substantial interest”’.281

(e) Liability for Costs As the challenge was unsuccessful, the general rule that costs follow the event would result in an order for costs against Mr Sweetman. In Sweetman v An Bord Pleanála (No 2),282 which concerned liability for the costs of the challenge, Mr Sweetman maintained that the case involved a public interest challenge and thus a departure from the usual costs rule was justified. Clarke J cited the relevant High Court jurisprudence283 and concluded that the exercise of the court’s discretion to depart from the normal costs rule is governed by two principles: 1.That the plaintiff or applicant concerned was acting in the public interest in a matter which involved no private personal advantage; and 2.That the issues raised by the proceedings are of sufficient general public importance to warrant an order for costs being made in his favour.

In Harrington v An Bord Pleanála (No 3),284 Macken J determined that the fact that an applicant had established a ‘substantial interest’ (as required by the planning legislation) in order to challenge a planning decision, did not, of itself, mean that he was debarred under the first principle on the basis of having demonstrated an element of private personal interest. Clarke J agreed with this conclusion. Sweetman (No 2) therefore turned on whether or not the second principle was satisfied. On the facts, Clarke J concluded that the direct challenge to the Board’s decision (the alleged inadequate monitoring ground) did not qualify as a public interest challenge. The High Court was not satisfied that the fact that the proposed road development had the potential to have some possible impact on a candidate SAC would, of itself, necessarily elevate the challenge into the category of a public interest challenge. Clarke J observed, however, that the sensitivity of the development, and its location may be factors, which, coupled

281 282 283 284

Sweetman (No 1) [2007] IEHC 153 para 8.2. Sweetman v An Bord Pleanála (No 2) [2007] IEHC 361. Ibid, para 2.2. Harrington (No 3) [2006] IEHC 223.

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Impact of Article 10a with ‘the important, general and difficult legal issues arising’, might properly lead a court to conclude that proceedings involve issues of general public importance.285 Clarke J took a different view as regards the issues concerning transposition of Article 10a. The High Court described these issues, and questions concerning the precise manner in which Art 10a should be interpreted, as being ‘issues of wide public importance, in that they have the potential to affect very many court proceedings involving challenges in the environmental field’.286 These issues flowed from ‘new and potentially far reaching European legislation which has only been the subject of limited judicial consideration to date’.287 Therefore even though Mr Sweetman had lost the challenge, the judicial review proceedings had ‘led to a potential evolution in the jurisprudence’ on at least two issues, namely the threshold for standing and the appropriate standard of review.288 Clarke J departed from the normal rule as to costs. The High Court made no order in respect of the costs of An Bord Pleanála or Clare County Council and awarded Mr Sweetman half of his costs against the State—excluding the costs of written submissions.289 (At the time of the Sweetman (No 2) ruling, the Supreme Court had not yet delivered its judgment on costs in Dunne (No 4).)290 (ii) Developments post-Sweetman In Kavanagh v Ireland (No 2),291 Smyth J of the High Court ruled that the requirement in Article 10a that review proceedings should not be ‘prohibitively expensive’ did not extend to an unsuccessful litigant’s exposure to legal costs. The High Court expressed the view that ‘if the Directive’s terms were to be applied literally in the abstract and devoid of context then every litigant no matter how vexatious should have carte blanche to engage without risk of basic responsibility—in short a crank’s charter’. Smyth J cited Article 3(8) of the Aarhus Convention and concluded that the Convention sought to ensure that the ‘cost of entry’ to litigation—specifically court fees—are not ‘prohibitively expensive’. In the alternative, if the Convention is concerned with legal costs beyond court fees, then, in the High Court’s view, the mechanism for taxation of costs provided an assurance that costs would not be prohibitive. In Klohn v An Bord Pleanála,292 the applicant challenged the EIS submitted by the developer and queried whether the Board had ever considered the adequacy or otherwise of the EIS. The High Court found that neither the planning 285 286 287 288 289 290 291 292

Sweetman (No 2) [2007] IEHC 361 para 3.3. Ibid, para 3.4. Ibid. Ibid, para 3.5. Ibid, paras 5–6. Dunne (No 4) [2007] IESC 60. Kavanagh v Ireland (No 2) [2007] IEHC 389. Klohn v An Bord Pleanála [2008] IEHC 111.

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The EIA Directive in the Irish Courts regulations nor the general law imposed an obligation on the Board to record its deliberations in this regard. The Board had, however, made an express reference to the EIS in the reasons and considerations set out in its decision. As the applicant for judicial review had not produced any evidence that the Board had failed to discharge its functions in accordance with law, the High Court concluded that the Board considered the EIS to be adequate. McMahon J drew on Directive 2003/35/EC (even though it was not in force at the time when the developer applied for planning permission) and observed that in light of the ‘greater emphasis’ on public participation (and in particular Article 10a), it might be ‘prudent’ for the Board ‘to confirm positively’ that it has determined that an EIS was adequate. This aspect of Klohn demonstrates judicial awareness of the enhanced public participation obligations emanating from Europe. McMahon J’s initiative in seeking to integrate these obligations into national planning law and practice is a very welcome development. In an earlier High Court decision, O’Mahony v An Bord Pleanála,293 O’Neill J refused to accept that Article 3 of the EIA directive obliged the competent authority to record the environmental assessment in its decision.294 The applicant for judicial review had argued that such a record was essential in order to determine whether the authority had carried out a proper assessment. Following Klohn, it appears that O’Neill J’s conclusion in O’Mahony will have to be revisited in light of the stronger emphasis on participation and effective review mandated by Directive 2003/35/EC.295 In Klohn, McMahon J suggested that if a Community measure is at issue it may be more appropriate to adopt the standard of review applied by the Community courts when called upon to review decisions of Community institutions (ie the ‘manifest error’ test). Citing SIAC296 and Sweetman (No 1), the High Court offered two justifications for this view: first, the ‘non-demanding’ O’Keeffe standard could be considered too low; and secondly, the adoption of the standard applied by the ECJ would go someway towards ensuring uniformity throughout the Community in these matters. The applicant in Klohn had not raised in argument that the O’Keeffe standard is inadequate where the EIA directive is at issue (Directive 2003/35/EC was not in force at the relevant time) and so the High Court was not required to determine this point and McMahon J’s observations are therefore obiter. It remains to be seen whether the O’Keeffe threshold will have to be recalibrated in order to meet Community law requirements.

293

O’Mahony v An Bord Pleanála [2005] IEHC 39. See also Boyne Valley and Newgrange Environmental Protection League Ltd v EPA, unreported, High Court, 17 April 2002, Ó Caoimh J. Here the EPA file did not record how the assessment had been carried out. Ó Caoimh J emphasised the onus on the applicant to establish that the EPA had acted in excess of jurisdiction or in disregard of its obligations. The absence of any record of the assessment did not automatically lead to the conclusion that no such assessment was in fact carried out. 295 See also ch 2 pp 47−8 and 59−60 concerning EIA dir, Art 9 which obliges the decision maker to record certain matters in its decision. 296 SIAC [2002] IESC 39, [2002] 3 IR 148. 294

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Impact of Article 10a Sweetman (No 1) provides a strong indication that an element of judicial adjustment will indeed be required and Klohn provides tentative support for that view. In Harding (No 5),297 Kearns J of the Supreme Court addressed the potential impact of Article 10a on the ‘substantial interest’ test in brief terms (Directive 2003/35/EC was not invoked in arguments before the High Court). Counsel for the State maintained that Article 10a left it to the Member States to determine what constitutes a ‘sufficient interest’ or impairment of a right. Kearns J observed that this argument ‘was probably correct’, but that it was not necessary for the Supreme Court to rule on this point in the case at bar. The Supreme Court accepted that the PDA was to be interpreted in light of the terms and the objectives of Directive 2003/35/EC, but Kearns J noted that this interpretative approach did not mean that the PDA must be interpreted contra legem. Relying on the clear legislative policy behind the restrictive judicial review scheme in planning cases, the Supreme Court confirmed a narrow approach to the ‘substantial interest’ test. Kearns J explained that this interpretation flowed directly from the terms of the PDA and was the ‘plainly correct’ interpretation of the original section 50—thus, according to the Supreme Court, no issue as to Community law arose here. This aspect of Harding (No 5) is perplexing. The ‘substantial interest’ requirement is not defined with any degree of rigour in the PDA. The legislation simply explains that the required interest ‘is not limited to an interest in land or other financial interest’. This loose formulation leaves the concept of ‘substantial interest’ to be interpreted and applied by the courts in light of the facts of a particular case. Murray CJ acknowledged the fluid nature of the statutory standing test, which he described as being ‘vague and lacking in precision’. It is difficult to see how a provision which is inherently vague and imprecise cannot be interpreted flexibly. The ECJ has articulated the duty to apply the doctrine of consistent interpretation in strong terms. While the Court has acknowledged that there are limits to the doctrine, nevertheless the national court is obliged to do whatever lies within its jurisdiction to ensure that the directive in question ‘is fully effective’ and achieves ‘an outcome consistent with the objective pursued by it’.298 In the earlier Sweetman (No 1) ruling, Clarke J had no difficulty in taking a flexible approach to the ‘substantial interest’ test with a view to delivering ‘wide access to justice’ as required by Article 10a. Beyond the doctrine of consistent interpretation, it is remarkable that the Supreme Court did not examine whether the ‘substantial interest’ test complied with the principle of effectiveness. It is well-established that national courts are required to set aside any procedural rule that might impair the effectiveness of Community law—an obligation expressly acknowledged by the Supreme Court 297

Harding (No 5) [2008] IESC 27. Case C-212/04 Adeneler v Ellinikos Organismos Galaktos [2006] ECR I-6057 para 111 and Case C-268/06 Impact v Minister for Agriculture and Food [2008] ECR I-0000 para 111. 298

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The EIA Directive in the Irish Courts in Lancefort. The sharp divergence in the jurisprudence concerning locus standi in the context of Article 10a undermines any prospect of legal certainty. Since so few cases reach the Supreme Court due to the severe statutory restriction on the right to appeal, there is a greater expectation that its rulings on these issues will provide clear consistent guidance for future cases.

V.

CLOSING OBSERVATIONS

Though the EIA directive has provoked a series of disputes before the Irish courts, the judiciary has yet to call upon the ECJ for guidance in interpreting that directive. The omission to do so is particularly striking at Supreme Court level. Of most concern in this regard is the fact that the judges’ approach to EIA controversies is influenced consistently by the rules governing judicial review of planning decisions. The unequivocal legislative policy underlying the special judicial review procedure is to curb the number of challenges to planning decisions, a policy the judiciary is evidently unwilling to disturb for now. Developments involving Article 10a have been disappointing to date due largely to the legislature’s narrow interpretation of the new access to justice obligations. Such an outcome was indeed facilitated by Article 10a, which recognises the role of national legal systems in determining the appropriate review procedures. Standing rules have been changed to accommodate ENGOs that meet specified criteria. This is a welcome development, but the concession is limited. To establish locus standi individual applicants for judicial review must still meet the onerous ‘substantial interest’ test and the relaxed standing rules for ENGOs only apply in EIA cases. As the Irish authorities believe that the system of judicial review meets the obligations articulated in Article 10a, no further implementing measures are anticipated. The judiciary’s reaction to Article 10a has been mixed. There is High Court authority in Friends of the Curragh Environment Ltd (No 1) for the proposition that the obligation to provide a review procedure that is ‘not prohibitively expensive’ does not meet the criteria for direct effect. Kelly J’s negative ruling on the direct effect point was accepted without question in subsequent High Court decisions in Friends of the Curragh Environment Ltd (No 2) and in Sweetman (No 1), although, strictly speaking, Kelly J had only considered whether one narrow aspect of Article 10a had direct effect. Friends of the Curragh Environment Ltd (No 1) demonstrates a reluctance to adapt well-established principles of national law in order to accommodate an unimplemented directive. Having concluded that Article 10a did not have direct effect, Kelly J did not consider the possibilities offered by the doctrine of consistent interpretation. In sharp contrast, in Sweetman (No 1), Clarke J deployed the doctrine of consistent interpretation in an attempt to bridge the gap between national law and Article 10a. The High Court adopted a flexible approach to locus standi to deliver the obligation to provide ‘wide access to justice’—albeit in the specific context of proposed development 254

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Closing Observations impacting on a candidate SAC. As regards the appropriate standard of review, Clarke J suggested that the courts could modify the O’Keeffe principles in order to accommodate a closer degree of judicial scrutiny—if this was necessary in order to comply with Article 10a. In Harding (No 5), however, Kearns J of the Supreme Court prioritised the strong legislative mandate to limit access to judicial review which underpins section 50 of the PDA (now sections 50 and 50A). This unequivocal legislative policy justified a strict interpretation of the ‘substantial interest’ test. According to the Supreme Court, Community law obligations did not operate to modify this strict approach because the doctrine of consistent interpretation did not require the court to interpret national law contra legem. The divergent judicial approaches to the doctrine of consistent interpretation, and to the potential impact of Article 10a on national standing rules, are intriguing. The statutory standing test—a ‘substantial interest’—is fluid enough to accommodate a variety of interpretations, including the ‘wide access to justice’ requirement articulated in Article 10a. Indeed, prior to the clarification provided by the Supreme Court in Harding (No 5), there was general uncertainty on the criteria to be deployed when determining whether the standing test was satisfied in a particular case. It is disappointing, therefore, that the Supreme Court concluded that the legislative scheme governing judicial review in planning cases precluded anything other than a strict approach to locus standi. Sweetman (No 1) and Klohn indicate that the judiciary may well recalibrate the deferential O’Keeffe principles to accommodate better judicial scrutiny of EIA decisions. There are strong indications in the jurisprudence, however, that there is little practical difference between the O’Keeffe principles and the ‘manifest error’ test applied by the ECJ when called upon to review decisions taken by the EU institutions. As regards liability for costs, the Supreme Court in Dunne (No 4) directed that a high threshold must be met before a case will qualify as a public interest challenge and thereby justify a departure from the normal costs rule. This does not for instance include the case of a motorway that potentially impacts on a national monument—despite the significant constitutional and EC environmental law issues that would appear to arise—so that it becomes difficult to identify what sort of challenge would meet the ‘special circumstances’ test favoured by the Supreme Court. The Dunne (No 4) costs ruling makes no reference to national procedural autonomy or to the principle of effectiveness of Community law. The Supreme Court’s judgment did not examine whether, and if so the extent to which, national costs rules may have to be modified to ensure compliance with European obligations—in particular the principle of effective judicial protection. One of the most striking features of the Dunne litigation is the divergent views expressed by the Supreme Court and the High Court on whether the case involved a public interest challenge. Murray CJ insisted that it did not—the legal issues raised in the proceedings were not ‘exceptional’. In sharp contrast, Laffoy J reasoned that the plaintiff had ‘undoubtedly’ raised public law issues of general importance—the issue at the core of the case was, after all, ‘the power of the Oireachtas (Parliament) to make laws facilitating road development which will or 255

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The EIA Directive in the Irish Courts may impact on a national monument’. In the High Court’s view, the issues raised were ‘difficult issues of law’ and it was in the public interest that they be clarified. The Dunne (No 4) ruling creates a strong disincentive for potential litigants in the environmental field. Article 10a was not at issue in Dunne (No 4), however, and so it is not clear how these principles will fall to be applied in future cases involving the EIA directive. Sweetman (No 1) is strong High Court authority for the view that exposure to ‘reasonable’ costs is not in breach of Article 10a. The difficult question remains unanswered however on how reasonable costs should be measured against an unsuccessful applicant in EIA challenges. To date, the Irish precedents on Article 10a leave numerous important questions unanswered. While there are indications that the doctrine of consistent interpretation may result in modifications to aspects of judicial review law, the basic principles are far from settled. The Supreme Court appears determined to prioritise the strong legislative policy underpinning the restrictive statutory scheme governing judicial review. A strict approach to locus standi (Harding (No 5)) and to liability for costs in public interest challenges (Dunne (No 4)) is difficult to reconcile with the mandate to facilitate ‘wide access to justice’ by way of a review procedure that is ‘not prohibitively expensive’. Much work remains to be done to foster a deeper understanding of the fundamental importance of environmental protection in the Community legal order among the competent authorities, the judiciary and the public. It is curious that the Aarhus Convention and Article 10a have not provoked a greater level of debate on access to environmental justice in Ireland. Notwithstanding the substantial number of EIA rulings, the concept of public interest environmental law remains underdeveloped. By contrast, in the United Kingdom, a Working Group chaired by a judge of the High Court was established in October 2006 to examine whether judicial review law and practice created barriers against access to justice in the context of the Aarhus Convention. This group issued a report in May 2008 that presented a number of practical recommendations, such as that: the rules governing protective costs orders (PCOs) should be tailored to Aarhus requirements; Aarhus obligations should be taken into account when exercising judicial discretion on whether to depart from the normal costs rule; case management should be improved; and Aarhus judicial reviews should be handled by judges with expertise and experience in environmental cases.299 The report suggested that the various recommendations could eventually be incorporated within a Practice Direction or the Civil Procedure Rules, but that in the interim it is best that the judiciary exercise discretionary powers in this regard. A similar exercise, based on the UK model and involving members of the judiciary with experience in environmental judicial review, could prove valuable in the Irish context to identify practical solutions to improve access to justice. 299 Working Group on Access to Environmental Justice, Ensuring Access to Environmental Justice in England and Wales (2008), text available at: http://www.wwf.org.uk/filelibrary/pdf/justice_report_08. pdf.

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6 Conclusion

T

HE PRINCIPLE OF effective judicial protection lies at the heart of the European Community (EC) legal order. Grounded firmly in the Rule of Law, the principle insists on access to judicial control to ensure that Community law rights are respected in practice. The European Court of Justice (ECJ) relies on the national courts to oversee the correct application of Community law at local level. This is an onerous assignment. Community law obligations do not always fit comfortably with often deeply embedded national laws and practices. Where national legislatures fail to transpose Community law correctly and in a timely fashion, the courts may be called upon to bridge significant implementation gaps. While the ECJ has equipped the courts for this task by means of the doctrines of direct effect, consistent interpretation and State liability, full implementation may still prove elusive for a complex range of reasons that include the special characteristics of Community law and the idiosyncrasies of local legal and administrative culture. Framework directives, such as the Environmental Impact Assessment (EIA) directive,1 pose significant implementation challenges. The directive provides for an element of flexibility in order to accommodate the diverse planning systems operating in the 27 Member States. While this flexibility is essential for obvious practical reasons, it also engenders inevitable disputes over the scope of Member State discretion. Members of the public and environmental non-governmental organisations (ENGOs) demand a strict interpretation of the obligations created in the directive with a view to sharpening EIA as a mechanism for environmental protection. Member States, on the other hand, are more concerned to minimise disruption to national planning rules and to avoid unnecessary delay in development consent procedures. It falls to the judiciary at both Community and national level to enforce the obligations created in the directive—with the ECJ as the final arbiter on questions of interpretation. The ECJ has articulated the mandate to enforce the EIA directive locally in unequivocal terms: competent authorities are required ‘to take all the general or particular measures necessary’ to ensure the directive’s requirements are

1 Dir 85/337/EEC on the assessment of the effects of certain public and private projects on the environment [1985] OJ L175/40 as amended by Dir 97/11/EC [1997] OJ L73/5 and Dir 2003/35/EC [2003] OJ L156/17.

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Conclusion observed.2 The duty to nullify the unlawful consequences of a breach of Community law falls on every organ of the State—including the courts. From Kraaijeveld3 to Wells,4 the ECJ has vigorously promoted the right to invoke the directive against competent authorities in the absence of implementing measures, or where implementing measures fall short of what is required by the terms of the directive. Judicial review is the primary mechanism by which individuals and ENGOs will seek to enforce the EIA directive at local level. While the ECJ has confirmed the right to invoke the directive before the national courts, judicial review proceedings are governed by local procedural rules. In the absence of Community measures, it falls to the Member States to determine procedural matters by virtue of the principle of national procedural autonomy. The ECJ has attempted to draw a sensitive balance between national procedural autonomy and the effectiveness of Community law. It accepts that Member States may set reasonable limitations on access to judicial review. Procedural rules serve to protect important interests, including legal certainty and the rights of the defence. The Member States’ discretion in this area is not unlimited, however. The ECJ has crafted the twin principles of equivalence and effectiveness to provide benchmarks against which the legality of national procedural rules is to be determined. According to the principle of equivalence, claims based on Community law may not be treated less favourably than those based on national law. The principle of effectiveness dictates that national rules must not render the enforcement of Community law ‘virtually impossible’ or ‘excessively difficult’. The language deployed to define the principle of effectiveness is somewhat extreme and indicates that a very high threshold must be reached before a rule will infringe this principle. Following the Van Schijndel5 line of authority, national courts are bound to engage in a balancing exercise when assessing the legality of a contested procedural rule. The court must weigh the objective served by the rule against its impact on the enforcement of the Community law right at issue. This approach recognises the significance of the particular context in which the rule operates and it provides considerable discretion for the national judiciary. Where development consent is found to have been granted in breach of the directive, the question of appropriate remedy at national level is fraught with difficulty. The ECJ attempted to provide long overdue guidance on remedies in Wells. The ruling is strong on effectiveness—the Court, as expected, proved uncompromising when expressing the need to ensure that the EIA directive is not undermined by recalcitrant Member States. Yet the ECJ allows the national 2 Case C-72/95 Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403 para 61. 3 Ibid. 4 Case C-201/02 R (Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723. 5 Joined Cases C-430/93 and C-431/93 Van Schijndel and Van Veen v Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705.

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Conclusion judiciary a measure of flexibility when crafting the most appropriate remedy within the constraints of domestic administrative law (subject to the principles of equivalence and effectiveness, which still leave the national courts with plenty of room to manoeuvre). The competent authorities, including the national courts, are obliged to nullify the unlawful consequences of a breach of Community law and to ‘make good any harm’ caused by the failure to carry out an EIA. Fulfilling this obligation may involve the revocation or suspension of unlawful development consent or, in the alternative, a claim for compensation for the harm suffered—presumably based on the principle of State liability first established in Francovich.6 The ECJ did not tease out the implications of a claim for compensation in the specific context of a breach of the EIA directive however, and preferred instead to leave this unenviable task to the national courts. Indeed, while the Court usually articulates the Member States’ general duty to nullify the consequences of a breach of Community law in strong terms, its rulings are far more cautious on the nature and scope of the remedies that must be provided at national level. This deferential approach is not surprising given the Court’s traditional respect for the complexities of national administrative law. The critical point is that the success or otherwise of the ECJ’s strategy depends on the willingness of national judges to engage with the limited guidance offered in its decisions and to cultivate workable remedies. The EC is a party to the Aarhus Convention,7 which aims to strengthen public participation in environmental decision-making and to provide effective remedies to support information and participation rights. A number of aspects of Community environmental law have been revised to take account of Convention requirements.8 Amendments to the EIA directive introduced via Directive 2003/ 35/EC9 (the public participation directive) include a new Article 10a concerning access to justice. Article 10a creates a right of access to a review procedure for qualified members of the public wherein the substantive or procedural legality of EIA decisions must be open to challenge. The express reference to the national legal system in the text of Article 10a confirms that Member States still retain an element of discretion in determining the characteristics of the review procedure. As regards standing, Member States have a choice: they may require ‘the public concerned’ to demonstrate a ‘sufficient interest’ or the impairment of a right, but local standing rules must be determined consistently with the objective of providing ‘wide access to justice’. ENGOs meeting any criteria specified in national law are automatically deemed to have standing. The review procedure must be ‘fair, equitable, timely and not prohibitively expensive’. Article 10a sets

6

Joined Cases C-6/90 and C-9/90 Francovich and Bonifaci v Italy [1991] ECR I-5357. United Nations Economic Commission for Europe (UN ECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted in Aarhus, Denmark, June 1998. 8 See ch 2 pp 52−69. 9 Dir 2003/35/EC [2003] OJ L156/17. 7

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Conclusion minimum standards for national review mechanisms and this innovation should lead the ECJ to adopt a more interventionist approach to local procedures and remedies in EIA cases. The Court’s relatively deferential attitude to these matters to date may be explained by the fact that prior to Article 10a the EIA directive was silent on remedies. Article 10a now provides a specific legislative basis to justify closer scrutiny of national rules where the directive is at issue. As ever, the difficulty lies in identifying the limits of Member State discretion under the various elements of Article 10a. This discretion is subject to the twin principles of equivalence and effectiveness, but Article 10a sets down specific, additional benchmarks for national rules, thereby further reducing Member State control over procedural matters and remedies in EIA cases. The enhanced access to justice obligations created in Article 10a represent a significant challenge for Member States and, in particular, for national courts. In order to fulfil their mandate as Community courts, the national courts must enforce the core obligation to provide access to a review procedure that meets certain minimum standards. Where a Member State fails to implement Article 10a correctly, this task requires the national courts to engage with the principles articulated in the directive and to tease out the practical implications for judicial review law and practice. In a significant number of cases now, the EIA directive has been invoked in Ireland to challenge decisions that authorise controversial projects (such as motorways and waste incinerators). Few challenges have been successful, however. The early case law demonstrated a powerful reluctance to enforce the directive against organs of the State. Subsequent decisions confirmed that a number of aspects of the directive are open to different interpretations, leading to genuine and often long-running disputes. Thus far, the Irish courts have resolved EIA disputes in such a way as to minimise any potential to disrupt the national planning system. Furthermore, there has never been an Article 234 EC reference from the Irish courts concerning interpretation of the EIA directive. Notwithstanding the range and the complexity of the EIA issues that have surfaced in litigation, judges have always insisted that the meaning and intent of the directive is clear and they have done little to explain decisions refusing requests for references. This tendency is particularly striking at Supreme Court level, notwithstanding the strict criteria that apply to courts of last instance under Article 234(3) EC.10 The current composition of the Supreme Court is exceptional in that three of its eight members have served at the ECJ.11 The Court therefore brings a wealth of expertise and experience in the field of Community law to the disputes that come before it. Nevertheless, the absence of a formal dialogue between the national courts and the ECJ on EIA matters is problematic. Without specific guidance from the ECJ, it is difficult to assess the extent to which national 10

Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415. Murray CJ (Judge, 1991–99); Macken J (Judge, 1999–2004) and Fennelly J (Advocate General, 1995–2000). 11

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Conclusion planning law is compatible with obligations created in the directive. While the delay involved in obtaining a preliminary ruling certainly does not encourage references, and while the ECJ’s response to a reference may entail unwelcome implications for the national planning system, these factors must be weighed against the consequences for legal certainty in the absence of definitive rulings on disputed points of interpretation. Legal uncertainty provokes further litigation bringing added delay and expense. Until such time as the ECJ determines disputed points of EIA law in the specific Irish context—whether pursuant to Article 226 EC or Article 234 EC—individuals and ENGOs will continue to advocate a strict interpretation of EIA obligations. Irish rules governing judicial review have been tightened progressively by means of legislative intervention in recent years.12 The restrictive statutory framework has prompted the national courts to adopt a narrow approach to judicial review and to apply various procedural requirements rigidly. It is remarkable to find a Member State rowing back on access to the courts at a time when the Aarhus Convention and Community EIA law demands greater access to justice. Ireland is the only Member State of the European Union (EU) that has failed to ratify the Convention. Individuals and ENGOs seeking to raise Community law arguments maintain that there are significant barriers to access to justice at national level, in particular the deterrent effect of high legal costs. The flexibility offered to Member States at a number of points in Article 10a renders it difficult to measure whether national law meets the various obligations created therein. Article 10a has already generated a number of thorny questions in the context of Irish planning law which remain unresolved. First, there are doubts as to whether the ‘substantial interest’ standing test (which has been interpreted strictly by the Supreme Court), complies with the obligation to provide ‘wide access to justice’. Secondly, there is a High Court judgment which suggests that an administrative appeal to An Bord Pleanála (the Planning Appeals Board), as opposed to judicial review, meets the obligation to provide access to a review procedure.13 Thirdly, while there are indications that the traditionally narrow approach to judicial review may have to be modified to deliver closer scrutiny of decision-making in EIA cases, the precise standard of review to be applied by the courts remains elusive.14 The case law suggests that the ‘manifest error’ test— applied by the ECJ when reviewing decisions of the EU institutions—is the appropriate standard; but this point is not settled.15 Fourthly, the significant delays resulting from judicial challenges are difficult to reconcile with the requirement that the review procedure must be ‘timely’. At this early stage, it is not clear to what extent the ‘timely’ criterion mandates improvements in the

12

See ch 5 pp 194−209. Friends of the Curragh Environment Ltd v An Bord Pleanála (No 1) [2006] IEHC 243. 14 Sweetman v An Bord Pleanála (No 1) [2007] IEHC 153 and Klohn v An Bord Pleanála [2008] IEHC 111. 15 Ibid. 13

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Conclusion efficiency of the court system. Finally, the high costs involved in judicial review proceedings continue to provoke considerable controversy. It is questionable whether the judicial discretion to depart from the normal rule that costs follow the event is sufficient to meet the obligation to provide access to a review procedure that is ‘not prohibitively expensive’. Definitive answers to these important practical questions will only emerge as a result of further litigation at both Community and national levels—a slow and expensive method of distilling basic principles governing access to justice. It follows from all of the above that the impact of the new access to justice provisions within the national legal order is shrouded in uncertainty, notwithstanding the obligation to implement Directive 2003/35/EC by 25 June 2005. This unsatisfactory situation is likely to endure until the ECJ elaborates on the scope of the obligations created in Article 10a. This study of the EIA directive in Ireland demonstrates that there are limits to the ‘Europeanisation’ of planning law and that the concept of effective judicial protection is influenced, to a considerable extent, by local legal and administrative context. The role of the national courts is central to the successful integration of Community law. While the Irish courts have not invoked Article 234 EC in any EIA dispute to date, Article 226 EC proceedings involving Ireland have resulted in significant rulings on the interaction between Community EIA law and the national planning system. Commission v Ireland 16 is a ground-breaking judgment in this respect. On this occasion, the ECJ determined that the rules governing retention planning permission—a fundamental feature of the Irish planning system—breached the EIA directive. The Court also found that the planning enforcement system was inadequate and ineffective, since there remains the possibility of retention permission. In the context of a complaint concerning development consents issued for a wind farm development at Derrybrien in County Galway, the ECJ concluded that ancillary works should have been subject to EIA. This aspect of the judgment is very significant. It demonstrates the ECJ’s willingness to review decisions taken by competent authorities on EIA matters. The Court did not hesitate to examine whether the ancillary works were likely to have significant environmental effects. It also scrutinised the Environmental Impact Statements submitted by the developer and ruled that they were deficient. The ECJ’s interventionist approach contrasts sharply with the deferential standard of review (as articulated in O’Keeffe v An Bord Pleanála17) applied by the Irish courts in EIA cases. The ruling in Commission v Ireland therefore provides a powerful signal that the well-established O’Keeffe standard of ‘unreasonableness’ does not satisfy the principle of effectiveness. It remains to be seen what impact this ruling will have on domestic judicial review proceedings. Yet again, it falls to the judiciary to engage with the principles emerging from the ECJ jurisprudence and to adapt national law accordingly.

16 17

Case C-215/06 Commission v Ireland [2008] ECR I-0000. O’Keeffe v An Bord Pleanála [1993] 1 IR 39.

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Conclusion Expectations of enhanced access to justice were high following the Aarhus Convention and recent amendments to the EIA directive. These expectations have been disappointed in Ireland, however, where the outlook remains bleak after the most recent rulings from the Supreme Court on locus standi18 and liability for costs in public interest challenges.19 One of the most intriguing aspects of the decentralised enforcement of Community law is the extent to which Member States may impose restrictions on access to the courts without breaching the principle of effective judicial protection. As the Irish precedents to date demonstrate, the fluid nature of the guidance offered by the ECJ makes it difficult to convince a national court that a local procedural rule undermines the effectiveness of Community environmental law. This relatively deferential attitude on the part of the ECJ may be set to change, however, at least in cases where the EIA directive is at issue. Article 10a of the directive marks a turning point for Community EIA law insofar as it sets minimum standards for national review procedures and presents the ECJ with the opportunity to fortify local enforcement of EIA rules. If Article 10a is to have any real impact at national level, the ECJ must take a firm stand in the first series of cases that come before it to test the new access to justice provisions. Notwithstanding the flexibility inherent in Article 10a, it is open to the Court to pursue its favoured purposive approach in order to tighten Member State discretion over EIA procedures and remedies and to reinforce the principle of effective judicial protection. The contemporary jurisprudence demonstrates the complex and often awkward interaction between national planning law and Community environmental obligations. The tensions grow yet more pronounced between national rules that seek to curb access to judicial review and European hopes for greater judicial control evident in the Convention and the EIA directive. If the enhanced access to justice provisions are to be more than symbolic, the ECJ must deliver clear and pragmatic instructions to national courts to enable them to apply Article 10a with confidence, even in the absence of implementing measures. Without accessible and effective remedies, the rights to information and participation will not translate well from paper to practice, to the certain detriment of the environment and future generations.

18 19

Harding v Cork County Council (No 5) [2008] IESC 27. Dunne v Minister for the Environment, Heritage and Local Government (No 4) [2007] IESC 60.

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Select Bibliography CONSTITUTION REVIEW GROUP, Report of the Constitution Review Group (Dublin, Stationary Office, 1996). COOKE, J, ‘Locus standi of Private Parties under Article 173(4)’ (1997) 6 Irish Journal of European Law 4. COOPER, J, ‘Procedural Due Process, Human Rights and the Added Value of the Right to a Fair Trial’ [2006] Judicial Review 78. COSTELLO, C, ‘European Community Judicial Review in the Irish Courts—Scope, Standards and Separation of Powers’ in MC Lucey and C Keville (eds), Irish Perspectives on EC Law (Dublin, Round Hall Sweet & Maxwell, 2003). COUNCIL OF EUROPE, Manual on Human Rights and the Environment: Principles Emerging from the Case Law of the European Court of Human Rights (Strasbourg, Council of Europe, 2006). COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, Annual Report 2007. CRAIG, P, ‘Judicial Review, Appeal and Factual Error’ [2004] PL 788. —— ‘The Human Rights Act, Article 6 and Procedural Rights’ [2003] PL 753. CRAIG, P and DE BÚRCA, G, EU Law: Text, Cases and Materials, 4th edn (Oxford, Oxford University Press, 2007). —— (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1999). CRAUFURD SMITH, R, ‘Remedies for Breaches of EC Law in National Courts: Legal Variation and Selection’ in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press, 1999). CURTIN, D, ‘The Decentralised Enforcement of Community Law Rights: Judicial Snakes and Ladders’ in Curtin, D and O’Keeffe, D (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon Mr Justice TF O’Higgins (Dublin, Butterworths, 1992). CURTIN, D and O’KEEFFE, D (eds), Constitutional Adjudication in European Community and National Law: Essays for the Hon Mr Justice TF O’Higgins (Dublin, Butterworths, 1992). DAVIS, R, ‘Liability in Damages for a Breach of Community Law: Some Reflections on the Question of Who to Sue and the Concept of “the State”’ (2006) 31 EL Rev 69. DE BLACAM, M, Judicial Review (Dublin, Butterworths, 2001). DE BÚRCA, G and RYALL, Á, ‘The ECJ and Judicial Review of National Administrative Procedure in the Field of EIA’ in K-H Ladeur (ed), The Europeanisation of Administrative Law: Transforming National Decision-making Procedures (Aldershot, Ashgate, 2002). DE LANGE, F, ‘Beyond Greenpeace, Courtesy of the Aarhus Convention’ (2003) 3 Yearbook of European Environmental Law 227. DE SADELEER, N, Environmental Principles: From Political Slogans to Legal Rules (Oxford, Oxford University Press, 2002). DE SADELEER, N, Roller, G and Dross, M (eds), Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal (Groningen, Europa Law Publishing, 2005). DE SCHUTTER, O, Lebessis, N and Paterson, J (eds), Governance in the European Union European Commission, Cahiers of the Forward Studies Unit, 2001. DE SMITH, SA, WOOLF, H and JOWELL, J, Judicial Review of Administrative Action, 5th edn (London, Sweet & Maxwell, 1995). DELANY, H, and MCGRATH, D, Civil Procedure in the Superior Courts, 2nd edn (Dublin, Thomson Round Hall, 2005).

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Select Bibliography EBBESSON, J (ed), Access to Justice in Environmental Matters in the EU (The Hague, Kluwer, 2002). EDITORIAL, ‘Horizontal Direct Effect—A Law of Diminishing Coherence?’ (2006) 43 CML Rev 1. EDWARD, D, ‘Direct Effect, the Separation of Powers and the Judicial Enforcement of Obligations’ in A Giuffrè (ed), Scritti in Onore di Giuseppe Federico Mancini (Vol II) (Seminario Giuridico della Università di Bologna CLXXIX, 1998). —— ‘Direct Effect: Myth, Mess or Mystery?’ in JM Prinssen and A Schrauwen (eds), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Groningen, Europa Law Publishing, 2002). EGAN, S, ‘The European Convention on Human Rights Act 2003: A Missed Opportunity for Domestic Human Rights Litigation’ (2003) 25 Dublin University Law Journal 230. ELVIN, D and MAURICI, J, ‘Extending the Reach of Environmental Impact Assessment’ [2006] Journal of Planning and Environment Law 1128. —— ‘The Alconbury Litigation: Principle and Pragmatism’ [2001] Journal of Planning and Environment Law 883. ELVIN, D and ROBINSON, J, ‘Environmental Impact Assessment’ [2000] Journal of Planning and Environment Law 876. ENGSTRÖM, J, ‘National Courts’ Obligation to Apply Community Law Ex Officio—The Court Showing New Respect for Party Autonomy and National Procedural Autonomy? (2008) 1 Review of European Administrative Law 67. ENVIRONMENTAL PROTECTION AGENCY, Advice Notes on Current Practice in the Preparation of Environmental Impact Statements (2003). —— Focus on Waste Enforcement 2007 (2007). —— Guidelines on the Information to be Contained in Environmental Impact Statements (2002). —— Ireland’s Environment 2008 (2008). —— The Nature and Extent of Unauthorised Waste Activity in Ireland (2005). —— Water Quality in Ireland 2004–2006 (2008). EUROPEAN COMMISSION, 2007 Environment Policy Review Annex SEC (2008) 2150. —— 2007 Environment Policy Review COM (2008) 409 final. —— A Europe of Results—Applying Community Law COM (2007) 502 final. —— A Sustainable Europe for a Better World: A European Union Strategy for Sustainable Development COM (2001) 264 final. —— Aarhus Convention Implementation Report: European Community SEC (2008) 556. —— Amended Proposal for a Council Directive Amending Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (95) 720 final. —— Application and Effectiveness of the EIA Directive (Directive 85/337/EEC as amended by Directive 97/11/EC): How Successful Are the Member States in Implementing the EIA Directive? COM (2003) 334 final. —— Better Monitoring of the Application of Community Law COM (2002) 725 final. —— Better Regulation for Growth and Jobs in the European Union COM (2005) 97 final. —— Clarification of the Application of Article 2(3) of the EIA Directive (2006). —— Communication on the Precautionary Principle COM (2000) 1 final. —— Debate Europe—Building on the Experience of Plan D for Democracy, Dialogue and Debate COM (2008) 158 final.

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Select Bibliography EUROPEAN COMMISSION, Draft Declaration on Guiding Principles for Sustainable Development COM (2005) 218 final. —— Fifth Annual Survey on the Implementation and Enforcement of Community Environmental Law 2003 SEC (2004) 1025. —— Fourth Annual Survey on the Implementation and Enforcement of Community Environmental Law 2002 SEC (2003) 804. —— Guidance on EIA: Scoping (2001). —— Guidance on EIA: Screening (2001). —— Impact Assessment COM (2002) 276 final. —— Impact Assessment Guidelines SEC (2005) 791 —— Impact Assessment: Next Steps in Support of Competitiveness and Sustainable Development SEC (2004) 1377. —— Implementation of Directive 2001/42/EC on the Assessment of the Effects of Certain Plans and Programmes on the Environment (2003). —— Implementation of Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (93) 28 final. —— Integrating Environmental Considerations into Other Policy Areas – A Stocktaking of the Cardiff Process COM (2004) 394 final. —— Interpretation of Definitions of Certain Project Categories of Annex I and II of the EIA Directive (2008). —— Progress Report on the Sustainable Development Strategy 2007 COM (2007) 642 final. —— Proposal for a Council Directive Amending Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment COM (93) 575 final. —— Proposal for a Council Directive on the Assessment of the Effects of Certain Plans and Programmes on the Environment COM (96) 511 final. —— Proposal for a Directive on Access to Justice in Environmental Matters COM (2003) 624 final. EUROPEAN UNION NETWORK FOR THE IMPLEMENTATION and ENFORCEMENT OF ENVIRONMENTAL LAW (IMPEL), Implementing Article 10 of the SEA Directive 2001/42/EC (Darmstadt, Öko-Institut, 2002). FAHEY, E, Practice and Procedure in Preliminary References to Europe: 30 Years of Article 234 EC Case Law from the Irish Courts (Dublin, First Law, 2007). FISCHER, F, Citizens, Experts and the Environment: The Politics of Local Knowledge (Durham and London, Duke University Press, 2000). FISHER, L, ‘Is the Precautionary Principle Justiciable? (2001) 13 Journal of Environmental Law 315. FLYNN, B, The Blame Game: Rethinking Ireland’s Sustainable Development and Environmental Performance (Dublin, Irish Academic Press, 2006). FLYNN, T, ‘Injunctions and Environmental Law’ (1998) 5 Irish Planning and Environmental Law Journal 91. —— ‘Transposition and Enforcement of European Community Environmental Law in Ireland: Some Key Issues’ (2008) 15 Irish Planning and Environmental Law Journal 58. FOSTER, S, ‘Environmental Justice in an Era of Devolved Collaboration’ (2002) 26 Harvard Environmental Law Review 459. FRIENDS OF THE IRISH ENVIRONMENT, The Transposition into Irish Law of Directive 2003/35/EC: Discussion Basis to Inform a Submission by Comhar to the Department of the Environment on the Implementation in Ireland of Directive 2003/35/EC on Public Participation and Access to Justice (2005).

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Select Bibliography FRY, J, ‘Can EIA Deliver Sustainable Development?’ (1999) 6 Irish Planning and Environmental Law Journal 17. GAFFNEY, J, ‘Pleading EC Law in Irish Litigation: A Case Study’ (2005) 5 Judicial Studies Institute Journal 153. GALLIGAN, DJ, Due Process and Fair Procedures: A Study of Administrative Procedures (Oxford, Clarendon Press, 1996). GALLIGAN, E, Irish Planning Law and Procedure (Dublin, Round Hall, 1997). GARCÍA URETA, A, ‘The EC Environmental Impact Assessment Directive before the European Court of Justice’ [1997] Environmental Liability 1. GEORGE, C, ‘Fragments from a Changing Legal Landscape – Planning Law Update’ [2005] Journal of Planning and Environment Law 91 (Occasional Papers No 33). —— ‘Testing for Sustainable Development through Environmental Assessment’ (1999) 19 Environmental Impact Assessment Review 175. GÉRARD, N, ‘Access to Justice on Environmental Matters—A Case of Double Standards?’ (1996) 8 Journal of Environmental Law 139. GILDER, I, ‘The Impact of the SEA Directive’ [2005] Journal of Planning and Environment Law 121 (Occasional Papers No 33). GLASSON, J, Therivel, R and Chadwick, A, Introduction to Environmental Impact Assessment, 3rd edn (London, Routledge, 2005). GOODIE, J and WICKHAM, G, ‘Calculating “Public Interest”: Common Law and the Legal Governance of the Environment’ (2002) 11 Social and Legal Studies 37. GORDON, R, EC Law in Judicial Review (Oxford, Oxford University Press, 2007). GOVERNMENT OF IRELAND, National Development Plan 2007–2013: Transforming Ireland (2007). —— Programme for Government 2007–2012. GRIST, B, ‘The 2006 Planning and Development (Strategic Infrastructure) Act—One Year On’ (2008) 15 Irish Planning and Environmental Law Journal 3. GROHS, S, ‘Commission Infringement Procedure in Environmental Cases’ in M Onida (ed), Europe and the Environment: Legal Essays in Honour of Ludwig Krämer (Groningen, Europa Law Publishing, 2004). HARLOW, C, ‘A Common European Law of Remedies?’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000). —— ‘Francovich and the Problem of the Disobedient State’ (1996) 2 European Law Journal 199. —— ‘Voices of Difference in a Plural Community’ in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002). HARLOW, C and RAWLINGS, R, ‘Accountability and Law Enforcement: The Centralised EU Infringement Procedure’ (2006) 31 EL Rev 447. HART, D and WHEELER, M, ‘Night Flights and Strasbourg’s Retreat from Environmental Human Rights’ (2004) 16 Journal of Environmental Law 100. HARTLEY, N and WOOD, C, ‘Public Participation in Environmental Impact Assessment— Implementing the Aarhus Convention’ (2005) 25 Environmental Impact Assessment Review 319. HARWOOD, R, ‘EIA, Development Consent and Duties on the Member State’ (2004) 16 Journal of Environmental Law 261. HATTAN, E, ‘The Implementation of EU Environmental Law’ (2003) 15 Journal of Environmental Law 273.

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Select Bibliography HEALY, J, Principles of Irish Torts (Dublin, Clarus Press, 2006). HEDEMANN-ROBINSON, M, Enforcement of European Union Environmental Law (Abingdon, Routledge-Cavendish, 2007). HELDEWEG, M, ‘Towards Good Environmental Governance in Europe’ [2005] European Environmental Law Review 2. HEYVAERT, V, ‘Facing the Consequences of the Precautionary Principle in European Community Law’ (2006) 31 EL Rev 185. HILSON, C, ‘Community Rights in Environmental Law: Rhetoric or Reality’ in Holder, J, (ed), The Impact of EC Environmental Law in the United Kingdom (Chichester, Wiley, 1997). HILSON, C and DOWNES, T, ‘Making Sense of Rights: Community Rights in EC Law’ (1999) 24 EL Rev 121. HOGAN, G and MORGAN, D, Administrative Law in Ireland, 3rd edn (Dublin, Round Hall Sweet & Maxwell, 1998). HOGAN, G and WHYTE, G (eds), JM Kelly: The Irish Constitution, 4th edn (Dublin, LexisNexis Butterworths, 2003). HOLDER, J, ‘A Dead End for Direct Effect?: Prospects for Enforcement of European Community Environmental Law by Individuals’ (1996) 8 Journal of Environmental Law 314. —— Environmental Assessment: The Regulation of Decision Making (Oxford, Oxford University Press, 2004). —— (ed), The Impact of EC Environmental Law in the United Kingdom (Chichester, Wiley, 1997). HOLDER, J, and McGillivray, D, (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (London: Routledge-Cavendish, 2007). HOSKINS, M, ‘Tilting the Balance: Supremacy and National Procedural Rules’ (1996) 21 E Law Rev 365. HOWELL, J, ‘Alconbury Crumbles’ [2007] Judicial Review 9. HYAM, J, ‘Hatton v United Kingdom in the Grand Chamber: One Step Forward, Two Steps Back?’ (2003) 6 European Human Rights Law Review 631. JACOBS, F, ‘Enforcing Community Rights and Obligations in National Courts: Striking the Balance’ in J Lonbay and A Biondi (eds), Remedies for Breach of EC Law (Chichester, Wiley, 1997). —— ‘The Role of the European Court of Justice in the Protection of the Environment’ (2006) 18 Journal of Environmental Law 185. JACOBS, M, The Green Economy: Environment, Sustainable Development and the Politics of the Future (London, Pluto Press, 1991). JANS, J, ‘Did Baron von Munchhausen ever Visit Aarhus?’ in R Macrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2006). —— (ed), The European Convention and the Future of European Environmental Law (Groningen, Europa Law Publishing, 2003). JANS, J and DE JONG, M, ‘Between Direct Effect and Rewe/Comet: Remarks on Dutch Administrative Law, Procedural Defects and the EIA Directive’ in K-H Ladeur (ed), The Europeanisation of Administrative Law: Transforming National Decision-making Procedures (Aldershot, Ashgate, 2002).

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Select Bibliography JANS, J and PRINSSEN, J, ‘Direct Effect: Convergence or Divergence? A Comparative Perspective’ in JM Prinssen and A Schrauwen (eds), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Groningen, Europa Law Publishing, 2002). JANS, J and VEDDER, H, European Environmental Law, 3rd edn (Groningen, Europa Law Publishing, 2008). JENDROS´KA, J, ‘Aarhus Convention and Community Law: the Interplay’ [2005] Journal for European Environmental and Planning Law 12 —— ‘Public Information and Participation in EC Environmental Law; Origins, Milestones and Trends’ in R Macrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2006). JENDROSKA, J and STEC, S, ‘The Aarhus Convention: Towards a New Era in Environmental Democracy’ [2001] Environmental Liability 140. JONES, G and PHILLPOT, H, ‘When He Who Hesitates is Lost: Judicial Review of Planning Decisions’ [2000] Journal of Planning and Environment Law 564. KAKOURIS, CN, ‘Do the Member States Possess Judicial Procedural “Autonomy”?’ (1997) 34 CML Rev 1389. KILKELLY, U (ed), ECHR and Irish Law, 2nd edn (Bristol, Jordan Publishing, 2009). KILPATRICK, C, ‘The Future of Remedies in Europe’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000). KILPATRICK, C, Novitz T and Skidmore, P (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000). KLAMERT, M, ‘Judicial Implementation of Directives and Anticipatory Indirect Effect: Connecting the Dots’ (2006) 43 CML Rev 1251. KOESTER, V, ‘Review of Compliance under the Aarhus Convention: A Rather Unique Compliance Mechanism’ [2005] Journal for European Environmental and Planning Law 31. KRÄMER, L, ‘Access to Environmental Information in an Open European Society— Directive 2003/4/EC’ (2005) 4 Yearbook of European Environmental Law 1. —— ‘Direct Effect of EC Environmental Law’ in H Somsen (ed), Protecting the European Environment: Enforcing EC Environmental Law (London Blackstone Press, 1995). —— ‘The Development of Environmental Assessments at the Level of the European Union’ in J Holder and D McGillivray (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (London, Routledge-Cavendish, 2007). —— ‘The Elaboration of EC Environmental Legislation’ in G Winter (ed), European Environmental Law: A Comparative Perspective (Aldershot, Dartmouth, 1996). —— ‘The Implementation of Community Environmental Directives Within Member States: Some Implications of the Direct Effect Doctrine’ (1991) 3 Journal of Environmental Law 39. —— Casebook on EU Environmental Law (Oxford, Hart Publishing, 2002). —— EC Environmental Law, 6th edn (London, Thomson Sweet & Maxwell, 2007). KRAVCHENKO, S, ‘The Aarhus Convention and Innovation in Compliance with Multilateral Environmental Agreements’ (2007) 7 Yearbook of European Environmental Law 1. LADEUR, K-H, ‘Introduction: Conflict and Co-operation between European Law and the General Administrative Law of the Member States’ K-H in Ladeur (ed), The Europeanisation of Administrative Law: Transforming National Decision-making Procedures (Aldershot, Ashgate, 2002).

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Select Bibliography —— ‘Proceduralisation and its Use in a Post-modern Legal Policy’ in O de Schutter, N Lebessis and J Paterson (eds), Governance in the European Union European Commission, Cahiers of the Forward Studies Unit, 2001. —— (ed), The Europeanisation of Administrative Law: Transforming National Decisionmaking Procedures (Aldershot, Ashgate, 2002). LADEUR, K-H and PRELLE, R, ‘Environmental Assessment and Judicial Approaches to Procedural Errors—A European and Comparative Law Analysis’ (2001) 13 Journal of Environmental Law 185. LANE, R and NIC SHUIBHNE, N, ‘European Law—Oil and Troubled Waters’ (2002) 24 Dublin University Law Journal 251. LAW REFORM COMMISSION, Report on Judicial Review Procedure (LRC 71–2004). —— Statute Law Restatement: Report (LRC 91–2008). LAW SOCIETY OF IRELAND, Enforcement of Environmental Law: The Case for Reform (2008). LAWRENCE, D, ‘Impact Significance Determination—Back to Basics’ (2007) 27 Environmental Impact Assessment Review 755. —— Environmental Impact Assessment: Practical Solutions to Recurrent Problems (New Jersey, Wiley, 2003). LEBESSIS, N and PATERSON, J, ‘Developing New Modes of Governance’ in O de Schutter, N Lebessis and J Paterson (eds), Governance in the European Union European Commission, Cahiers of the Forward Studies Unit, 2001. LEE, M, ‘Sustainable Development in the EU: The Renewed Sustainable Development Strategy 2006’ (2007) 9 Environmental Law Review 41. LEE, M, EU Environmental Law: Challenges, Change and Decision-Making (Oxford, Hart Publishing, 2005). LEE, M and ABBOT, C, ‘The Usual Suspects? Public Participation under the Aarhus Convention’ (2003) 66 MLR 80. LEE, N and WOOD, C, ‘EIA—A European Perspective’ (1978) 4 Built Environment 101. —— ‘Environmental Impact Assessment of Projects in EEC Countries’ (1978) 6 Journal of Environmental Management 57. LEGRAND, P, ‘European Legal Systems Are Not Converging’ (1996) 45 ICLQ 52. —— ‘Public Law, Europeanisation and Convergence: Can Comparatists Contribute?’ in P Beaumont, C Lyons and N Walker (eds), Convergence and Divergence in European Public Law (Oxford, Hart Publishing, 2002). LENAERTS, K and CORTHAUT, T, ‘Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law’ (2006) 31 EL Rev 287. LENSCHOW, A (ed), Environmental Policy Integration: Greening Sectoral Policies in Europe (London, Earthscan, 2002). LENZ, M, Tynes, DS and Young, L, ‘Horizontal What? Back to Basics’ (2000) 25 EL Rev 509. LEONARD, L, Green Nation: The Irish Environmental Movement from Carnsore Point to the Rossport 5 (Drogheda, Choice Publishing, 2006). LEWIS, C, Judicial Remedies in Public Law (London, Sweet & Maxwell, 1992). LIEFFERINK, D and JORDAN, A, ‘An ‘Ever Closer Union’ of National Policy? The Convergence of National Environmental Policy in the European Union’ (2005) 15 European Environment 102. LONBAY, J and BIONDI, A (eds), Remedies for Breach of EC Law (Chichester, Wiley, 1997). LUCEY, MC and KEVILLE, C (eds), Irish Perspectives on EC Law (Dublin, Round Hall Sweet & Maxwell, 2003).

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Select Bibliography LYNOTT, JD, ‘The Detection and Prosecution of Environmental Crime’ (2008) 1 Judicial Studies Institute Journal 185. MACKEN, J, ‘The Planning and Development (Strategic Infrastructure) Act 2006’ (2006) 13 Irish Planning and Environmental Law Journal 139. MACRORY, R, ‘The Enforcement of Community Environmental Laws: Some Critical Issues’ (1992) 29 CML Rev 347. —— ‘The Enforcement of EU Environmental Law: Some Proposals for Reform’ in R Macrory (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2006). —— (ed), Principles of European Environmental Law (Groningen, Europa Law Publishing, 2004). —— (ed), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Groningen, Europa Law Publishing, 2006). MACRORY, R and TURNER, S, ‘Participation Rights, Transboundary Environmental Governance and EC Law’ (2002) 39 CML Rev 489. MAHER, I, ‘Community Law in the National Legal Order: A Systems Analysis’ (1998) 36 Journal of Common Market Studies 237. —— ‘National Courts as European Community Courts’ (1994) 14 Legal Studies 226. MAJONE, G, Dilemmas of European Integration: The Ambiguities & Pitfalls of Integration by Stealth (Oxford, Oxford University Press, 2005). MARSDEN, S, Strategic Environmental Assessment in International and European Law: A Practitioner’s Guide (London, Earthscan, 2008). MATHIESEN, A, ‘Public Participation in Decision-making and Access to Justice in EC Environmental Law: The Case of Certain Plans and Programmes’ [2003] European Environmental Law Review 36. MAURICI, J, ‘Planning and Article 6: Where Are We Now?’ [2003] Judicial Review 21. MAURICI, J and BLACKMORE, S, ‘Focus on Article 6’ [2007] Judicial Review 56. MCAUSLAN, P, The Ideologies of Planning Law (Oxford, Pergamon Press, 1980). MCCRACKEN, R, ‘EIA and Judicial Review: Some Recent Trends’ [2003] Judicial Review 31. MCINTYRE, O, ‘The All-Consuming Definition of ‘Waste’ and the End of the ‘Contaminated Land’ Debate?’ (2005) 17 Journal of Environmental Law 109. MCMAHON, B and BINCHY, W, Law of Torts, 3rd edn (Dublin, Butterworths, 2000). MILIEU, Summary Report on the Inventory of EU Member States’ Measures on Access to Justice in Environmental Matters (2007). MORIARTY, B, ‘Direct Effect, Indirect Effect and State Liability’ (2007) 14 Irish Journal of European Law 97. MORROW, K, ‘Public Participation in the Assessment of the Effects of Certain Plans and Programmes on the Environment—Directive 2001/42/EC, the UN/ECE Espoo Convention, and the Kiev Protocol’ (2005) 4 Yearbook of European Environmental Law 49. NATIONAL SUSTAINABLE DEVELOPMENT PARTNERSHIP (COMHAR), Principles for Sustainable Development (2002). O’CONNELL, D, Commisky, S, Meeneghan, E and O’Connell, P, ECHR Act 2003: A Preliminary Assessment of Impact (Dublin, Dublin Solicitors Bar Association/Law Society of Ireland, 2006). OFFICE OF THE OMBUDSMAN, Annual Report of the Ombudsman (various years). ONIDA, M (ed), Europe and the Environment: Legal Essays in Honour of Ludwig Krämer (Groningen, Europa Law Publishing, 2004).

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Select Bibliography O’REILLY, J, ‘Environmental Impact Assessment: Reliance on Directive 85/337/EEC’ in Environmental Protection and the Impact of European Community Law (Dublin, Irish Centre for European Law, 1990). PEARCE, D and BARBIER, EB, Blueprint for a Sustainable Economy (London, Earthscan, 2000). PEARCE, D, Barbier, EB, Johanson, O, Maddison, D and Markandya, A, Blueprint for a Green Economy (London, Earthscan, 1989). PRECHAL, S, ‘Community Law in National Courts: The Lessons from Van Schijndel’ (1998) 35 CML Rev 681. —— ‘Does Direct Effect Still Matter?’ (2000) 37 CML Rev 1047. —— Directives in EC Law, 2nd edn (Oxford, Oxford University Press, 2005). RAGOLLE, F, ‘Access to Justice for Private Applicants in the Community Legal Order: Recent Revolutions (2003) 28 EL Rev 90. RAWLINGS, R, ‘Engaged Elites: Citizen Action and Institutional Attitudes in Commission Enforcement’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000). RISSE, N, Crowley, M, Vincke, P and Waaub, J-P, ‘Implementing the European SEA Directive: The Member States’ Margin of Discretion’ (2003) 23 Environmental Impact Assessment Review 453. RUDDY, TF and HILTY, LM, ‘Impact Assessment and Policy Learning in the European Commission’ (2008) 28 Environmental Impact Assessment Review 90. RUFFERT, M, ‘Rights and Remedies in European Community Law: A Comparative View’ (1997) 34 CML Rev 307. RYALL, Á, ‘Access to Information on the Environment Regulations 2007’ (2007) 14 Irish Planning and Environmental Law Journal 57. —— ‘Access to Information on the Environment: The Challenge of Implementing Directive 2003/4/EC’ (2005) 12 Irish Planning and Environmental Law Journal 162. —— ‘Access to Justice and the EIA Directive: The Implications of the Aarhus Convention’ in J Holder and D McGillivray (eds), Taking Stock of Environmental Assessment: Law, Policy and Practice (London, Routledge-Cavendish, 2007). —— ‘EIA and Public Participation: Determining the Limits of Member State Discretion’ (2007) 19 Journal of Environmental Law 247. —— ‘Environmental Assessment Law: Berkeley v Secretary of State for the Environment’ (2001) 8 Irish Planning and Environmental Law Journal 70. —— ‘Environmental Assessment Law: Luxembourg v Linster’ (2001) 8 Irish Planning and Environmental Law Journal 17. —— ‘Implementation of the Aarhus Convention through Community Environmental Law’ (2004) 6 Environmental Law Review 274. —— ‘Strengthening Rights of Participation in Environmental Decision-making’ (2001) 8 Irish Planning and Environmental Law Journal 103. —— ‘Sustainable Development in Ireland’ (2005) 12 Irish Planning and Environmental Law Journal 61. —— ‘The EIA Directive and the Irish Planning Participation Fee’ (2002) 14 Journal of Environmental Law 317. RYAN, D, ‘The Position in Tort of Public Authorities after Beatty v The Rent Tribunal’ (2005/6) 1 Quarterly Review of Tort Law 12. SAGOFF, M, The Economy of the Earth: Philosophy, Law and the Environment (Cambridge, Cambridge University Press, 1988).

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Select Bibliography SALES, P, ‘The Civil Limb of ECHR, Article 6’ [2005] Judicial Review 52. SCANNELL, Y, ‘Environmental Assessment: Browne v. An Bord Pleanála’ (1990) 2 Journal of Environmental Law 209. —— Environmental and Land Use Law (Dublin, Thomson Round Hall, 2006). SCHWARZE, J, ‘The Convergence of the Administrative Laws of the EU Member States’ (1998) 4 European Public Law 191. SCOTT, J, ‘The Precautionary Principle before the European Courts’ in Macrory, R (ed), Principles of European Environmental Law (Groningen, Europa Law Publishing, 2004) —— EC Environmental Law (London, Longman, 1998). SCOTT, J and HOLDER, J, ‘Law and New Environmental Governance in the European Union’ in G de Búrca and J Scott (eds), Law and New Governance in the EU and the US (Oxford, Hart Publishing, 2006). SHEATE, W, ‘Amending the EC Directive (85/337/EEC) on Environmental Impact Assessment’ [1995] European Environmental Law Review 77. —— ‘The EC Directive on Strategic Environmental Assessment: A Much-Needed Boost for Environmental Integration’ [2003] European Environmental Law Review 331. —— Making an Impact: A Guide to EIA Law and Policy (London, Cameron May, 1994). SIMONS, G, ‘Judicial Review under the Planning Legislation—The Case for the Abolition of the Leave Stage’ (2001) 8 Irish Planning and Environmental Law Journal 55. —— ‘The Unreasonable Planning Authority: A Review of the Application of O’Keeffe v An Bord Pleanála’ (Part I) (2000) 7 Irish Planning and Environmental Law Journal 164. —— Planning and Development Law, 2nd edn (Dublin, Thomson Round Hall, 2007). SLAUGHTER, AM, STONE SWEET, A and WEILER, JHH (eds), The European Court and the National Courts—Doctrine and Jurisprudence: Legal Change in Its Social Context (Oxford, Hart Publishing, 1998). SNELL, T and COWELL, R, ‘Scoping in Environmental Impact Assessment: Balancing Precaution and Efficiency’ (2006) 26 Environmental Impact Assessment Review 359. SNYDER, F, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56 MLR 19. SOMSEN, H, ‘Discretion in European Community Environmental Law: Analysis of ECJ Case Law’ (2003) 40 CML Rev 1413. —— ‘The Private Enforcement of Member State Compliance with EC Environmental Law: An Unfulfilled Promise?’ (2000) 1 Yearbook of European Environmental Law 311. STALLWORTHY, M, ‘Once More Unto the Breach: English Law Rationales and Environmental Assessment’ [2004] Journal of Planning and Environment Law 1472. STANLEY, N, ‘Public Concern: The Decision-makers’ Dilemma’ [1998] Journal of Planning and Environment Law 919. STEC, S (ed), Handbook on Access to Justice under the Aarhus Convention (New York and Geneva, UNECE, 2003). STEC, S and CASEY-LEFKOWITZ, S, The Aarhus Convention: An Implementation Guide (New York and Geneva, UNECE, 2000). STEELE, J, ‘Participation and Deliberation in Environmental Law: Exploring a Problemsolving Approach’ (2001) 21 OJLS 415. STONE SWEET, A, The Judicial Construction of Europe (Oxford, Oxford University Press, 2004). TEMPLE LANG, J, ‘The Duties of National Authorities under Community Constitutional Law’ (1998) 23 EL Rev 109. THERIVEL, R, Strategic Environmental Assessment in Action (London, Earthscan, 2004)

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Select Bibliography TRAVERS, N, ‘Community Directives: Effects, Efficiency, Justiciability’ (1998) 7 Irish Journal of European Law 165. TRIDIMAS, T, ‘Enforcing Community Rights in National Courts: Some Recent Developments’ in C Kilpatrick, T Novitz and P Skidmore (eds), The Future of Remedies in Europe (Oxford, Hart Publishing, 2000). —— The General Principles of EU Law, 2nd edn (Oxford, Oxford University Press, 2006). TROMANS, S, ‘Environmental Impact Assessment: Recent Cases and Practical Issues’ [2001] Environmental Liability 18. UPTON, W, ‘Case Law Analysis: The EIA Process and the Directly Enforceable Rights of Citizens—Berkeley v Secretary of State for the Environment’ (2001) 13 Journal of Environmental Law 89. USHER, J, ‘Direct and Individual Concern—An Effective Remedy or a Conventional Solution?’ (2003) 28 EL Rev 575. VAN GERVEN, W, ‘Bridging the Unbridgeable: Community and National Tort Laws after Francovich and Brasserie’ (1996) 45 ICLQ 507. —— ‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev 501. VERSCHUUREN, J, ‘Public Participation Regarding the Elaboration and Approval of Projects in the EU after the Aarhus Convention’ (2005) 4 Yearbook of European Environmental Law 29. —— ‘Shellfish for Fishermen or for Birds? Article 6 Habitats Directive and the Precautionary Principle’ (2005) 17 Journal of Environmental Law 265. WARD, A, ‘Judicial Review of Environmental Misconduct in the European Community: Problems, Prospects and Strategies’ (2000) 1 Yearbook of European Environmental Law 137. —— ‘The Right to an Effective Remedy in European Community Law and Environmental Protection: A Case Study of United Kingdom Judicial Decisions Concerning the Environmental Assessment Directive’ (1993) 5 Journal of Environmental Law 221. —— Judicial Review and the Rights of Private Parties in EC Law, 2nd edn (Oxford, Oxford University Press, 2007). WATES, J, ‘The Aarhus Convention: A Driving Force for Environmental Democracy’ [2005] Journal for European Environmental and Planning Law 2. WATTEL, PJ, ‘Köbler, CILFIT and Welthgrove: We Can’t Go On Meeting Like This’, (2004) 41 CML Rev 177. WEATHERN, P, ‘The EIA Directive of the European Community’ in P Weathern (ed), Environmental Impact Assessment: Theory and Practice (London, Unwin Hyman, 1988). —— (ed), Environmental Impact Assessment: Theory and Practice (London, Unwin Hyman, 1988). WENNERÅS, P, ‘A New Dawn for Commission Enforcement under Articles 226 and 228 EC: General and Persistent (GAP) Infringements, Lump Sums and Penalty Payments’ (2006) 43 CML Rev 31. —— ‘State Liability for Decisions of Courts of Last Instance in Environmental Cases’ (2004) 16 Journal of Environmental Law 329. —— The Enforcement of EC Environmental Law (Oxford, Oxford University Press, 2007). WHELAN, A, ‘Fundamental Principles of EU Environmental Law’ (1999) 8 Irish Journal of European Law 37. WILLIAMS, R, ‘Enforcing European Environmental Law: Can the European Commission be Held to Account?’ (2002) 2 Yearbook of European Environmental Law 271.

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Select Bibliography —— ‘The European Commission and the Enforcement of Environmental Law: An Invidious Position’ (1994) 14 Yearbook of European Law 352. WOEHRLING, J-M, ‘Judicial Control of Public Authorities in Europe: Progressive Construction of a Common Model’ [2005] Judicial Review 311. WOOLF, H, Jowell, J, Le Sueur, A and Donnelly, CM, De Smith’s Judicial Review, 6th edn (London, Thomson Sweet & Maxwell, 2007). WOOLLEY, D, Pugh-Smith, J, Langham, R and Upton, W (eds), Environmental Law (Oxford, Oxford University Press, 2000) WORKING GROUP ON ACCESS TO ENVIRONMENTAL JUSTICE, Ensuring Access to Environmental Justice in England and Wales (2008). WORLD COMMISSION ON ENVIRONMENT and DEVELOPMENT, Our Common Future (Oxford, Oxford University Press, 1987). WYATT, D, ‘Litigating Community Environmental Law—Thoughts on the Direct Effect Doctrine’ (1998) 10 Journal of Environmental Law 9.

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Index Aarhus Convention, access to information, 16–17, 49, 53–54 access to justice, 16–17, 49, 60–69, 259, 263 amendment, 50 assessment, 49 community problem solving, 52 compliance, 52 decision-making, 51 direct effect, 54–55 education, 49 enforcement, 52 environmental non-governmental organisations (ENGOs), 49, 55–56, 60–62 European Court of Justice (ECJ), 112–13 genetically modified organisms (GMOs), 50 implications for European Community EIA law, 17, 52–69 judicial review, 112–13 local knowledge, 51–52 objectives, 49, 259 public participation, 16–17, 49–52, 55–60 right to information, 49 three pillars, 49 Access to information, Aarhus Convention, 16–17, 49, 53–54 Commissioner for Environmental Information, 13 local authorities, 12 regulations, 12–13 Access to justice, Aarhus Convention, 49, 60–69, 259, 263 criticisms, 4 Environmental Impact Assessment (EIA) Directive, 48, 65–69 An Bord Pleanála, appeals, 12, 103, 196–97 development consents, 15 emanation of the State, 196, 215 planning system in Ireland, 196–97

preliminary ruling procedure, 196–97 remedies, 12 strategic infrastructure planning applications, 197–99 Annex I projects, Environmental Impact Assessment (EIA) Directive, 38 Annex II projects, categories of project, 39 Environmental Impact Assessment (EIA) Directive, 38–39 project screening, 39–40, 41–43 requirement for assessment, 39–40, 140–48 Appeals, An Bord Pleanála, 12, 103, 196–97 judicial review, 103 planning system in Ireland, 5, 196–97 Charter of Fundamental Rights of the European Union, influence, 24 sustainable development, 23–24 Commissioner for Environmental Information, access to information, 13 remedies, 13 Committee on Petitions of the European Parliament, complaint to, remedies, 12 Complaint to Commission, remedies, 11–12 Compliance, Aarhus Convention, 52 Consequential adverse impact, Environmental Impact Assessment (EIA) Directive, 173–77 judicial review, 173–77 Consistent interpretation, Environmental Impact Assessment (EIA) Directive, 177–79 judicial review, 177–79 national courts in Ireland, 216–217, 246–47, 248–50, 253, 254–55

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Index Consultation, Environmental Impact Assessment (EIA) Directive, 45 Strategic Environmental Assessment (SEA), 70 Costs, European Court of Justice (ECJ), 80–81 national courts in Ireland, 211–14, 249–51 Criminal prosecutions, remedies, 14 Decision-making, Aarhus Convention, 51 public participation, 30–35 Developer, definition, 43 Environmental Impact Assessment (EIA) Directive, 43 Environmental Statement (ES), 44 Development consent, concept, 131−2, 229–32 definition, 38, 131 Environmental Impact Assessment (EIA) Directive, 37–38, 46–47, 131–33 granted in breach of Environmental Impact Assessment (EIA) Directive, 258–59 national courts in Ireland, 229–32 publication of decisions, 47–48 stage at which EIA must be carried out, 133–37 Direct effect, Environmental Impact Assessment (EIA) Directive, 155–58 national courts in Ireland, 214–16, 244–45, 249 Discretion of Member States, European Court of Justice (ECJ), Annex II project assessment, 140–48 assessment procedure, 139–40 exemptions, 138–39 generally, 137–38 public participation 148–53 Dumping, illegal, 8 EC Treaty, sustainable development, 21–22

Education, Aarhus Convention, 49 Effective judicial protection principle, See also Judicial review context, 262 evolution, 84–90 future directions, 90–91 generally, 82–84 importance, 257 locus standi, European Community level, 94–102 national level, 91–93 standard of review to be applied by national courts, 102–11 themes, 91–11 Effectiveness principle, European Court of Justice (ECJ), 77–82 EIA. See Environmental Impact Assessment EISs. See Environmental Impact Statements (EISs) Emanation of the State See also Organ of the State An Bord Pleanála 196, 215 Enforcement, Aarhus Convention, 52 domestic proceedings and Commission enforcement activity, interrelationship between, 236–39 Environment Directorate-General, open cases, 3 Environmental Action Programmes, First, 29 Third, 29 Fourth, 29 Fifth, 24–25, 29 Sixth, 25, 29–30 sustainable development, 24–25 Environmental Impact Assessment (EIA), definition, 40–41 Environmental Impact Assessment (EIA) Directive, 40–41 mechanism for environmental protection, 28–30 project screening, 39–40, 41–43 quality control measures, 3–4, 36 staged process, 40–41 Environmental Impact Assessment (EIA) Directive, access to justice, 48, 60–69

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JOBNAME: Ryall PAGE: 3 SESS: 3 OUTPUT: Tue May 26 13:00:07 2009

Index achievement of aims, 1 alleged breaches by Ireland, 7–8 amendments, 36 Annex I projects, 38 Annex II projects, 38–39 application, 37 assessment of directive, 73–74, 257–63 basic obligation, 37 central provision, 37 consequential adverse impact, 173–77 consistent interpretation, 177–79 consultation, 45 developer, 43 development consent, 37–38, 46–47, 131–33 direct effect, 155–158 drafts, 35 Environmental Impact Assessment (EIA), 40–41 European Court of Justice (ECJ), approach to directive, 125–37 development consent, 131–33 generally, 125–26 prior authorisations, 130–31 project categorisation, 127–30 public participation, 148–53 stage of development consent procedure at which EIA must be carried out, 133–37 transitional arrangements, 126–27 fees, 45–46, 148–53 framework directive, 36 horizontal effect, 173–77 implementation, challenges, 3, 10, 257 consistency lacking, 3 difficulties, 3–4, 36 full, 30 national law, 75 importance, 35 indirect effect, 177–79 information, 43–45 interaction with other control systems, 4 judicial review, consequential adverse impact, 173–77 consistent interpretation, 177–79 horizontal effect, 173–77 indirect effect, 177–79 justiciability before national courts, 158–67

overview, 153–58 standard of review, 167–71 State liability, 179–90 substantial compliance, 171–73 summary, 190–91 justiciability before national courts, 158–67 legislative history, 35–36 national courts in Ireland, general position, 193–94 national framework, 194–14 neighbouring Member States, 46 objective, 1, 36–37 post-project monitoring, 4 principles, 36–37 prior authorisations, 130–31 project, 37–38 public participation, 45–47, 148–53 quality control, 3–4, 36 reasons for decisions, 42–43, 47–48, 59 review procedure, 60–69, 75–76 scoping, 44–45 significant effects on the environment, 38–39, 144, 146–47 stage of development consent procedure at which EIA must be carried out, 133–37 State liability, 179–90 study of operation, 3, 35–36 subsidiarity, 45–46 summary, 48–49 transitional arrangements, 126–27 Environmental Impact Statements (EISs), approach, 3 definition, 19 meaning, 19, 44 Environmental law, Europeanisation, 3, 262 Environmental non-governmental organisations (ENGOs), Aarhus Convention, 49, 55–56, 60–62 role, 10, 30 Environmental Protection Agency (EPA), control, 13 jurisdiction, 7 Strategic Environmental Assessment (SEA), 73 Environmental report, Strategic Environmental Assessment (SEA), 70

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Index Environmental Statement (ES), developer, 44 meaning, 19, 44 Equivalence principle, European Court of Justice (ECJ), 77–78 ES. See Environmental Statement (ES) European Convention on Human Rights, European Court of Justice (ECJ), 83, 85, 113 Irish law, 113–116, 121 judicial review, 116–23 European Court of Justice (ECJ), Aarhus Convention, 112–13 See also Effective judicial protection principle co-operation duty, 79 costs, 80–81 cumulative impact of legal authority, 122–24 discretion of Member States, Annex II project assessment, 140–48 assessment procedure, 139–40 exemptions, 138–39 generally, 137–38 public participation, 148–53 effectiveness principle, 77–82 Environmental Impact Assessment (EIA) Directive, approach to directive, 125–37 development consent, 131–33 generally, 125–26 prior authorisations, 130–31 project categorisation, 127–30 public participation, 148–53 stage of development consent procedure at which EIA must be carried out, 133–37 transitional arrangements, 126–27 equivalence principle, 77–78 European Convention on Human Rights, 83, 85, 113 ex officio points of law, 80 national procedural autonomy, 77 practical possibility principle, 77 res judicata, 79 role of national courts, 76–77, 81–82 European Ombudsman investigations, remedies, 12 Europeanisation, environmental law, 3, 262

Ex officio points of law, European Court of Justice (ECJ), 80 Fees, Environmental Impact Assessment (EIA) Directive, 45–46, 148–53 planning system in Ireland, 195, 199 Genetically modified organisms (GMOs), Aarhus Convention, 50 Green Party, 17 Groundwater pollution, landfills, 9 Henderson v Henderson, rule in, 209–10 Indirect effect, Environmental Impact Assessment (EIA) Directive, 177–79 Information, access. See Access to information Environmental Impact Assessment (EIA) Directive, 43–45 Infringement procedure, scope, 1–2 Ireland, see also National courts in Ireland; Planning system in Ireland application for planning permission, 195–96 Commissioner concerns over, 4–5 Irish Constitution, sustainable development, 26 Judicial deference, national courts in Ireland, 102–104, 221–24 Judicial review, Aarhus Convention, 60–69, 112–13 alternative remedies, 11–14 appeals, 103 Art 10a, impact of, anticipated effect, 242–43 judicial implementation, 243–54 legislative measures, 243 assessment of remedy, 261–62 Community law claims, 105–108 consequential adverse impact, 173–77 consistent interpretation, 177–79, 216–17, 246–47, 248–50, 253, 254–55.

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Index courts’ role, 167–168 Environmental Impact Assessment (EIA) Directive, consequential adverse impact, 173–77 consistent interpretation, 177–79 horizontal effect, 173–77 indirect effect, 177–79 justiciability before national courts, 158–67 overview, 153–58 standard of review, 167–71 State liability, 179–90 substantial compliance, 171–73 summary, 190–91 European Convention on Human Rights, 116–22 function, 11 generally, 1 horizontal effect, 173–77 judicial deference, 102–104, 221–24 judicial discretion, 210–11 justiciability before national courts, 158–67 locus standi, 75–76, 91–102, 203–206, 246–47, 253 manifest error test, 110–111, 168–70, 248, 252, 261 minimalist approach to EIA obligations, 217–21 onus of proof of unreasonableness/ irrationality, 103–104 overview, 153–58 questions of law, 104 remedy, 75 rule of law, 11, 167–68, 257 scope of review, 108–109 special statutory framework, 200–209 standard of review to be applied by national courts, 102–11, 167–71, 247–49, 252–53 State liability, 179–90 statutory discretion, exercise of, 104 substantial compliance, 171–73, 224–25 tightening of rules, 261 unreasonableness, 102–11 Wednesbury unreasonableness, 102 Landfills, enforcement activity, 8–9 groundwater pollution, 9

unauthorised, 8 Local authorities, access to information, 12 discharges, authorisation system, 10 Local knowledge, Aarhus Convention, 51–52 Locus standi, effective judicial protection principle, European Community level, 94–102 national level, 91–93 Manifest error test, judicial review, 110–111, 168–70, 248, 252, 261 Minimalist approach to EIA obligations, judicial review, 217–21 national courts in Ireland, 217–21 Monitoring, criticisms, 4 post-project, silence of Environmental Impact Assessment (EIA) Directive, 4 National administrative law, role, 2–3 National courts in Ireland, appraisal, 239–42 Art 10a, anticipated effect, 242–43 judicial implementation, 243–56 legislative measures, 243 post-Sweetman developments, 251–54 reaction of judiciary to, 254–56 Sweetman v An Bord Pleanála, 245–51 consistent interpretation, 216–217, 246–47, 248–50, 253, 254–55 costs, 211–214, 249–51 development consent, 229–32 direct effect, 214–216, 244–45, 249 domestic proceedings and Commission enforcement activity, interrelationship between, 236–39 Henderson v Henderson, rule in, 209–10 importance of effective enforcement, 3–11 judicial deference, 221–24 judicial discretion, 210–11 minimalist approach to EIA obligations, 217–21

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JOBNAME: Ryall PAGE: 6 SESS: 3 OUTPUT: Tue May 26 13:00:07 2009

Index national framework, 194–214 national procedural rules, impact of, 225–29 Planning and Development Act 2000, 15, 194–95 Planning and Development (Strategic Infrastructure) Act 2006, 15–16, 195 pollution control and, 232–36 preliminary ruling procedure, 239–41, 260–61 procedural rules, 225–29 resistance, 11 role, 1–2 substantial compliance, 171–73, 224–25 National procedural autonomy, European Court of Justice (ECJ), 77 Nature of project, project screening, 6, 39–40, 41–43 Neighbouring Member States, Environmental Impact Assessment (EIA) Directive, 46 Nuisance, remedies, 14 Office of Environmental Enforcement (OEE), establishment, 13 impact, 13 Ombudsman, jurisdiction, 12 planning system in Ireland, 5 recommendations, 12 remedies, 12 role, 12 Operation, environmental impact assessment procedure, terminology, 19 Organ of the State, See also Emanation of the State European Court of Justice (ECJ), 154–55 European Convention on Human Rights, Irish law, 115 national courts in Ireland, 260 Parliamentary questions, remedies, 12

Planning authorities, jurisdiction, 195 Planning and Development Act 2000, 194–95 objective, 14–15 provisions, 14–16 Planning and Development (Strategic Infrastructure) Act 2006, 15, 195–96 Planning system in Ireland, administration of system, 5 An Bord Pleanála, 196 appeals, 5, 196 application for planning permission, 195–96 complaints, 5 fees, 195, 199 Henderson v Henderson, rule in, 209–10 Ombudsman, 5 planning applications, numbers, 5 planning authorities, 5, 195 Planning and Development (Strategic Infrastructure) Act 2006, 15, 195–96 pollution control and, 232–236 retention planning permission, 6–7, 135–37 special statutory framework, 200–209 strategic infrastructure planning applications, 197–99 Planning and Development (Strategic Infrastructure) Bill 2006, 16 Policy documents, sustainable development, 27–28 Pollution control, IPPC, 4, 233 planning system in Ireland and, 232–36 remedies, 13 Post-project monitoring, Environmental Impact Assessment (EIA) Directive, 4 Practical possibility principle, European Court of Justice (ECJ), 77 Precautionary principle, sustainable development, 23 Preliminary ruling procedure, An Bord Pleanála, 196–97 national courts in Ireland, 239–41, 260–61

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JOBNAME: Ryall PAGE: 7 SESS: 3 OUTPUT: Tue May 26 13:00:07 2009

Index Prior authorisations, Environmental Impact Assessment (EIA) Directive, 130–31 Project, categorisation, 127–30 definition, 37, 127 Environmental Impact Assessment (EIA) Directive, 37–38 modifications to development projects, 127–29 waste disposal, 129–30 Project screening, Annex II projects, 39–40, 41–43 availability of decisions, 43 guidance, 39 inconsistencies, 3 meaning, 41–42 nature of project, 6 publication of reasoned screening determination, 42–43 screening, 41–42 size of project, 6 Public participation, Aarhus Convention, 16, 49–52, 55–60 active citizenship, 33 collective learning, 34 decision-making, 30–35 ECJ view, 31–32 Environmental Impact Assessment (EIA) Directive, 45–47, 55–60, 148–53 fragmentation of knowledge, 34 opportunities, 4 pluralistic approach, 34 role, 30–35

Committee on Petitions of the European Parliament, complaint to, 12 complaint to Commission, 11–12 criminal prosecutions, 14 deterrence, 14 difficulties, 14 European Ombudsman investigations, 12 judicial review. See Judicial review nuisance, 14 Ombudsman, 12 parliamentary questions, 12 pollution control legislation, 13 Rylands v Fletcher, rule in, 14 torts, 14 trespass to land, 14 Res judicata, European Court of Justice (ECJ), 79 Retention planning permission, breach of Environmental Impact Assessment (EIA) Directive, 7, 135–37 planning system in Ireland, 6–7, 135–37 Rule of law, judicial review, 11, 167–68, 257 Rylands v Fletcher, rule in, remedies, 14 Scoping, definition, 44 Environmental Impact Assessment (EIA) Directive, 44–45 Screening, environmental impact assessment (EIA), 41 SEA. See Strategic Environmental Assessment (SEA) Shellfish waters, quality, 9 Significant effects on the environment, Environmental Impact Assessment (EIA) Directive, 38–40 Size of project, project screening, 6, 39–40, 41–43 State liability, judicial review, 179–90 Strategic Environmental Assessment (SEA), basic scheme, 69–71 benefits, 71

Quality control, Environmental Impact Assessment (EIA) Directive, 3–4, 36 Reasons for decisions, Environmental Impact Assessment (EIA) Directive, 42–43 Remedies, alternative, 11–14 An Bord Pleanála, 12 Commissioner for Environmental Information, 13

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JOBNAME: Ryall PAGE: 8 SESS: 3 OUTPUT: Tue May 26 13:00:07 2009

Index consultation, 70 directive, 69–71 Environmental Protection Agency (EPA), 73 environmental report, 70 European Community perspective, 69–71 guidelines, 73 Irish perspective, 72–73 meaning, 19 mechanism for environmental protection, 29 preparation of plan, 70–71 regulations, 72–73 requirement of statement, 71 role, 70 stages, 70–71 Strategic infrastructure planning applications, planning system in Ireland, 197–99 Subsidiarity, Environmental Impact Assessment (EIA) Directive, 45–46 Substantial compliance, judicial review, 171–73, 224–25 national courts in Ireland, 224–25 Sustainable development, Charter of Fundamental Rights of the European Union, 23–24 declaration, 25 definition, 22 EC Treaty, 21–23 Environmental Action Programmes, 24–25 European Council strategy, 25 Irish Constitution, 26

legislation, 26–27 meaning, 21–22 objectives, 21–23 policy documents, 27–28 precautionary principle, 23 Renewed SDS, 25–26 Treaty on European Union, 21 Sweetman v An Bord Pleanála, 245–51 Terminology, 19 Thresholds, setting, inconsistencies, 3 Torts, remedies, 14 Treaty on European Union, sustainable development, 21 Trespass to land, remedies, 14 Unreasonableness, judicial review, 102–11 Waste disposal, meaning, 129–30 Waste Framework Directive, breach by Ireland, 8 Water supplies, microbiological contamination, 9–10 water quality objectives, 10 Wednesbury unreasonableness, judicial review, 102 Wild Birds Directive, breaches by Ireland, 9 Wind farms, Derrybrien, 7, 146–47, 262

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