THE LOBBY group Friends of the Irish Environment (FIE) has written to President Mary McAleese urging her to convene the Council of State with a view to referring the planning Act to the Supreme Court to test its constitutionality.
A last-minute amendment to the Planning and Development (Amendment) Act means members of the public “will find it impossible to obtain legal representation if their costs will not be met, even when they win against the State”, it warned.
In its letter to the President, the group claims this amending legislation, which was guillotined through the Dáil and Seanad last week, will prevent citizens taking cases to the courts – contrary to the Constitution as well as to EU directives.
Under section 50(b) of the Act, each party “shall bear its own costs” and a court would only be entitled to award costs “in a matter of exceptional public importance and where [in] the special circumstances of the case it is in the interests of justice to so do”.
The group said that “this will act as an absolute bar to anybody actually having an award of costs made in their favour, leaving even successful challengers to pay the enormous cost of the Irish legal system” – €120,000 to €140,000 for even a “simple case”.
Backing its call for the President to intervene, An Taisce’s national chairman, Charles Stanley-Smith, said: “The inclusion of this amendment to the Act will have devastating consequences for justice in Ireland, and not just limited to environmental law.”
Barrister Oisín Collins said it was “difficult to see how a blanket removal of an entitlement to recover costs, except in the exceptional cases . . . could do anything other than create a clear impediment to those seeking justice having access to the courts”.
In his review of section 50(b) for the group, he suggested several solicitors and barristers who were prepared to take cases on a contingency (“no foal, no fee”) basis would now be reluctant to do so, as their clients would have to bear their own costs.
The “exceptional public importance” provision was “an extremely high and difficult bar to reach”, he said, adding: “I simply could not see any lawyers . . . engaging in litigation on a contingency basis having regard to this exceptionally high threshold.
“The public concerned will be forced, regardless of the strengths or otherwise of their case, to fund the litigation in its entirety themselves. This is likely to present a very significant deterrent to many.”
But Ciarán Cuffe, Minister of State with responsibility for planning, claimed that section 50(b) improved the current situation as, until now, litigants seeking judicial review could be liable for all costs.
“Once the Bill becomes law they will only be responsible for their own costs.
“Looking ahead, we envisage further changes in order to incorporate the [EU] public participation directive across all Government departments, and to ensure that any outstanding changes required for compliance with the Aarhus convention are completed.”
Last year, the European Court of Justice found Ireland to be in breach of its obligations under the environmental impact assessment and public participation directives by failing to ensure that applicants for judicial review were not exposed to “prohibitive costs”.
Friends of the Irish Environment spokesman Tony Lowes insisted that section 50(b) “purports to implement the European legislation encouraging access to justice, but does the opposite” and was among the “hundred pages of amendments” made to the Bill with no explanatory memorandum. “We were told that if they did not get this Bill through now, as opposed to after the [summer] recess, they would be hit with daily fines from the EU,” he said.
Senator Ivana Bacik (Labour) said the amendments deserved more scrutiny, particularly amendments that could have the effect of limiting access to the courts, and warned that section 50(b) would have a chilling effect on litigation in the environmental field.
In response, Mr Cuffe said: “We do not want to see the courts being clogged by judicial review proceedings. How can we strike the right balance? This brings us back to the definition of pro bono publico, which means one is acting for the public interest.
“We must wait and see how this works in practice. I hope it will represent a suitable transposition of the [EU environmental impact assessment] directive, which the Green Party wants to be implemented in a consistent, robust and democratic fashion.”