Keywords: Arhus Convention, Environmental Impact Assessment, judicial review, public participation, access to justice, amendment of pleadings, sufficient interest, substantial interest, prohibitive costs
The case of Sweetman v An Bord Pleanala} decided in the High Court of Ireland in April 2007, raises a number of interesting issues regarding the scope of Directive 2003/35/EC on public participation in respect of the drawing up of certain plans and programmes relating to the environment (the Public Participation Directive), which is intended to give effect to the provisions of the Arhus Convention on Access to Information, Public Partici¬pation in Decision-making and Access to Justice in Environmental Matters, and particularly whether Irish law requires amendment as a consequence. Clarke J clarified that Irish judicial review procedure could be modified, if necessary, to accommodate the requirements of European law, in such a way as to obviate the need for implementing legislation in certain circumstances.
FACTS OF THE CASE
The plaintiff, Mr Sweetman, had made a submission with regard to an application by Clare County Council to An Bord Pleanala for approval under the Roads Act 1993, s. 51 (as amended) for a road scheme to link the N18 Gort Road to the Ennis Information Park. Because the proposed road was to run immediately south of Lough Girroga, which is part of the Ballyallia Lake candidate Special Area of Conservation (cSAC), the application included an environmental impact statement (EIS). Mr Sweetman raised concerns regarding the need for long-term monitoring and enforcement to ensure that there would be no adverse impact on the adjacent cSAC.
An Bord Pleanala appointed an inspector who considered this and other matters. He concluded that the impacts or potential impacts of the development were adequately addressed in the EIS and recommended that there would be ongoing monitoring of groundwater, with the results to be made available publicly on a monthly basis. An Bord Pleanala subsequently approved the road scheme. Mr Sweetman wished to challenge this approval on the basis that the monitoring of groundwater was 'demonstrably inadequate without some additional measure to provide for further mitigation in the event that the monitoring shows some unforeseen consequence'. He sought leave to apply for judicial review of the decision of An Bord Pleanala. The application was heard by Clarke J.
The case turned on what impact, if any, Directive 2003/35/EC (the Directive) had, or should have, on Irish law, particularly judicial review procedure and substance. The significant article is Article 10a of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the EIA Directive), inserted by Article 7 of the Public Participation Directive. Article 10a is intended to implement Article 9(2) of the Arhus Convention in relation to access to justice. It provides:
Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned;
- having a sufficient interest, or alternatively,
- maintaining the impairment of a right, where administrative procedural law of a member state requires this as a pre-condition,
- have access to a review procedure before a court of law or other 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.
- Member States shall determine at what stage the decisions, acts or omissions may be challenged. What constitutes a sufficient interest and impairment of a right shall be determined by the Member Stales, consistently with the objective of giving the public concerned wide access to justice. To this end, the interests of any non-governmental organisation meeting the require¬ments referred to in Article 1(2) shall be deemed sufficient for the purposes of subpara. (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purposes of subpara. (b) of this Article.
- 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 or exhaustion of admin¬istrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.
- Any such procedure shall be fair, equitable, timely and not prohibitively expensive.
- In order lo 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.
Ireland had not adopted any specific measures in order to implement Article 10a, and claimed, in these proceedings, that there was no need to do so. Mr Justice Clarke therefore needed to consider this issue in detail. His analysis proceeded through two stages. First, did the Directive have direct effect? Secondly, does Irish judicial review meet the require¬ments of the Directive? This required a consideration of the difference, if any, between the words 'sufficient interest' in the Directive and 'substantial interest' in the Planning and Development Act 2000 (PDA 2000), s. 50; the adequacy of judicial review; and whether the costs of judicial review in Ireland were a 'prohibitive cost' under the Directive.