Non-notified quarry permit  broke Aarhus Convention

Ireland has had its first determination under the Aarhus convention, which establishes the right of the public to environmental information held by public authorities.

The Aarhus Convention is named after the Danish city in which it was signed in June 1998. The convention guarantees a right to environmental justice at a cost which isn’t prohibitive.

Human health

This can include information on the state of the environment, but also policies or measures taken, or on the state of human health and safety where this can be affected by the state of the environment.

The convention gives applicants the right to this information within one month of a request for it. It also obliges public authorities to actively disseminate environmental information in their possession.

Successful

Lawyer and member of the Law Society Human Rights committee Kieran Cummins said he was delighted to have received the successful determination for Ireland since the ratification of the convention in 2012.

In the decision, Ireland was found to have breached its international obligations under the convention to provide access to information on the environment for certain Irish planning regulations.

Solicitor Kieran Cummins took the case six years ago in respect of a quarry in Co Meath. His submission cited the the failure of Ireland to comply with its obligations under articles 6 and 7 of the Convention, citing “a lack of public participation on environmental matters in Ireland has been a systemic problem for citizens in various facets of planning law”.

Permission set to expire

The matter concerns Trammon Quarry which was granted planning permission by Meath County Council in 1998. This permission lasted for 15 years and was set to expire on 5 August 5, 2013.

No further planning applications appeared on the roadside by the quarry which Kieran Cummins kept under watch.

He anticipated an opportunity to address various issues regarding the quarry through the planning process and he anxiously watched the roadside for notice of a new planning application in 2013.

Applications on file

However, he later came across three applications on file with the local authority to extend for five years the planning consents for the quarry.

These permissions had not been publically notified and the solicitor was told by Meath County Council that the matter was not open to the public for comment. Therefore, the matter could not be appealed to An Bord Pleanála.

The committee, which sits in Geneva, ruled that by not giving the public a chance to participate in the decision-making on the extension of the planning permits for the quarry, the Department of Communications, Climate Action and Environment failed to comply with article 6(10) of the convention.

Its judgment reads: “Moreover, the committee finds that, by providing mechanisms through which permits for activities subject to article 6 of the convention may be extended for a period of up to five years without any opportunity for the public to participate in the decision to grant the extension, section 42(1)(a)(i) and (ii) of the Planning and Development Act 2000 do not meet the requirements of article 6(10) of the Convention.”

The committee has asked that that the Government “takes the necessary legislative measures to ensure that permits for activities subject to article 6 of the convention cannot be extended, except for a minimal duration, without ensuring opportunities for the public to participate in the decision to grant that extension”.

It also noted that: “In the light of the jurisprudence examined by the High Court in its November 2017 judgment in Merriman and others v Fingal County Council; Friends of the Irish Environment v. Fingal County Council, the Committee considers that it is indeed obvious that judicial review, the only available domestic remedy, does not provide an effective and sufficient means of redress for members of the public to challenge section 42 decisions such as the 2013 permit extensions. The Committee thus finds the communication to be admissible.”

The judgment also relied on other European cases and stated: “With respect to ‘where appropriate’, the Committee recalls that, in its findings on communication ACCC/C/2009/41 (Slovakia), it held that, although each Party had some discretion under article 6(10), that did not imply complete discretion for the Party concerned to determine whether or not it was appropriate to provide for public participation.

Permitted duration

"In its findings on communication ACCC/C/2013/99 (Spain), the Committee stated that the discretion as to the “appropriateness” of the application of the provisions of paragraphs 2 to 9 of article 6 of the Convention had to be considered to be even more limited if the update in the operating conditions might itself have a significant effect on the environment.

"In its findings on communication ACCC/C/2014/104 (Netherlands), the Committee made clear that: ‘except in cases where a change to the permitted duration is for a minimal time and obviously would have insignificant or no effects on the environment, it is appropriate for extensions of duration to be subject to the provisions of article 6.’”

Recommendations

The Committee, pursuant to paragraph 36(b) of the annex to decision I/7 of the Meeting of the Parties, [and noting the agreement of the Party concerned that the Committee take the measures requested in paragraph 37(b) of the annex to decision I/7], recommends that, with regard to section 42(1)(a)(i) and (ii) of the Planning and Development Act 2000, the Party concerned: 

a)     Takes the necessary legislative measures to ensure that permits for activities subject to article 6 of the Convention cannot be extended, except for a minimal duration, without ensuring opportunities for the public to participate in the decision to grant that extension in accordance with article 6(2)-(9) of the Convention;

b)     Takes the necessary steps to ensure the prompt enactment of the measures to fulfil the recommendation in paragraph (a) above.

Details

The case details can be found here.

The Convention entered into force in 2001, the UK ratified the Convention in 2005, as did the EU.

Ireland ratified the Aarhus Convention on 20 June 2012 and was the last member of the EU to ratify the convention.

The Convention and the Pollutant Release Transfer Register (PRTR) Protocol entered into force in Ireland on 18 September 2012.

The Convention has its origins in Principle 10 of the Rio Declaration on Environment and Development of 1992, which proclaimed that environmental issues are best handled with the participation of citizens, that individuals should have access to information concerning the environment and the opportunity to participate in decision-making processes.

Access to remedial measures and redress should also be provided, it said.

The Convention is not aspirational but mandatory.

Guaranteed rights

It guarantees persons these rights, establishes minimum standards for the rights, prohibits discrimination against persons exercising the rights, and applies the obligations to all levels and sectors of government — national, regional and local, as well as administrative agencies.

Its aim is to help strengthen citizens’ environmental rights through an international legal mechanism.

Kieran Cummins commented that Ireland’s long delay in ratifying the convention can be explained by “the wide impact the Convention has on the transparency with which governments have to conduct themselves and the empowerment provided to citizens to see that they do.

Transparency

“Most Irish governments have not been comfortable with such transparency and empowerment of the public,” he believes.

The Convention has been implemented in the EU by two Directives; Directive 2003/4/EC on Access to Information on the Environment, and Directive 2003/35/EC on Public Participation in Environmental Decision-Making and Access to Justice.

Prior to ratification of the Aarhus Convention, Ireland was required to have implemented its provisions in national law.

New costs rules

In total, over 60 pieces of legislation have been used to implement the Aarhus Convention in Ireland. 

One of the most significant legislative instruments, the Environment (Miscellaneous Provisions) Act 2011, introduced new costs rules to apply in certain environmental cases, as well as a requirement that judicial notice be taken of the Convention.