Law and the Environment 2013 – 11th Annual Conference for Environmental Professionals Faculty of Law, University College Cork, April 25th 2013 .

Reform of Environmental Law in Ireland – Some Key Issues

Tom Flynn BL

Introduction

1. The overarching theme of this conference is the need for coherent reform of environmental law. In line with this theme this paper explores a number of key issues in the context of reform of environmental law. The term ‘environmental law’ is used in its widest sense and specifically to encompass planning law because as will become apparent these two areas of law entwined and interconnected. It is possible discern some appetite for reform amongst the various stakeholders as to the need for reform driven by a combination of factors including the now widespread acceptance of the failure of the land-use planning system,1 the findings of the tribunal of inquiry into planning matters (Mahon Tribunal)2, the publication of the Environmental Protection Agency Review Group, the ongoing reform of local government coupled with the general mood for administrative and legal reform driven by the crises in public finances.

2. As the title of the paper suggests what follows does not purport to be a comprehensive or systematic analysis of the issue of reform in Irish environmental law as that is well beyond the scope of the limited time available to me. The focus in this paper is on a number a number of key issues which in my view represent some of the more pressing issues in respect of the agenda for reform of environmental law in Ireland.

3. With this caveat in mind the following are key issues I have focused upon in the context of the need for reform of environmental law in Ireland.

The requirement for a consolidation of Irish Environmental Legislation The need for reform of Environmental Impact Assessment process A re-evaluation of the relationship between land-use planning and

environmental controls The inadequacy of the currently regulatory framework

1 For a compelling critique in this regard see Y. Scannell “The Catastrophic Failure of the Planning System’ (2011) D.U.L.J. 393. 2 Final Report of the Tribunal of Inquiry in Certain Planning Matters, March 2012.

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The critical need for a consolidation of Irish environmental legislation

4. The first issue I would highlight is the context of Irish environmental law is the critical need for a consolidation of Irish environmental legislation. This is a fundamental problem as it relates to the actual legislation itself – put bluntly the planning and environmental statute book is a complete mess. There are number of dimensions to the problem which relate not just to the substantive content of the legislation but also the manner in which it is prepared and ultimately enacted.

5. As most of you are aware Irish environmental law is contained in a mix of primary legislation (i.e. statutes enacted by the Oireachtas) and secondary legislation (i.e. statutory instruments generally enacted by the Minister for Environment Community, and Local Government). In general such primary legislation tend to be ‘framework’ legislation establishing general principles, controls and obligation which are then fleshed out in secondary legislation in the form of statutory instruments or regulations. There is nothing particularly unusual in this approach and a similar situation pertains in respect of other areas of law. However, a unique feature of environment law in Ireland is that the enactment of legislation is almost exclusively driven by the need to comply with the requirements of EU law and in particular to transpose EU Directives. In some cases EU environmental law has been transposed by the enactment of a new statutory provision, however in practice most EU environmental law in Ireland is primarily transposed by way of Regulations made pursuant to the European Communities Act, 1972 (as amended). This approach is understandable in practical terms because it is convenient, obviating the need for the time and resource consuming enactment of primary legislation.

6. However, this approach presents significant problems as secondary legislation is inevitability not prepared or drafted with the requisite care or precision of primary legislation. The effective transposition of EU environmental law is a complex and technical process which requires a proper understanding of not just the measure which is being transposed but also the wider corpus of EU environmental law and the principles which underpins it. It appears that appropriate legal expertise and resources have not been deployed in the drafting of secondary legislation transposing EU environmental legislation. In many cases the regulations themselves are very poorly drafted, and are as a result opaque if not downright incomprehensible e.g. the Habitats Regulations 1997.3 As a consequence much of the actual legislation which governs environment law in Ireland is fragmented and deficient.

3 As Scannell et al observe in the foreword to ‘The Habitats Directive in Ireland’ 1999. “ Modern Irish Environmental legislation in general is not noted for its clarity and ease of comprehension, but the Habitats Regulations must mark a new departure for being particularly obtuse and difficult to understand”

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7. A further related problem is posed by the practice of using s.3(2) of the European Communities Act, 1972 (‘as amended’), to amend, repeal or substitute primary legislation for the purpose of giving effect to EU law. Unfortunately this provision is widely availed of in practice and as Scannell notes with considerable understatement:

“the practical results of amending and repealing statutory provisions by regulations under the European Communities Act 1972 can be inconvenient, confusing and misleading”4

8. Thus, by way of example, to date the provisions of the Waste Management Act, 1996 have been amended by secondary legislation no less that fifteen times as highlighted by the following table:

Schedule of principal amendments to Waste Management Act 1996

Planning and Development Act 2000Waste Management (Amendment) Act 2001Protection of the Environment Act 2003S.I. 166 of 1998 (EC Waste Mgt Amendment Regs)S.I. 290 of 2005 (EEE Regs)S.I. 62 of 2007 (Plastic Bag Order)S.I. 821 of 2007 (Waste Facility Permit Regs)S.I. 113 of 2008 (Broker & Dealer Regs)S.I. 168 of 2008 (Landfill Levy)S.I. 524 of 2008 (Historic Landfill Regulations)S.I. 13 of 2010 (Landfill Levy)Planning and Development (Amendment) Act 2010S.I. 126 of 2011 European Communities (Waste Directive) RegulationsS.I. 323 of 2011 European Communities (Waste Directive)(No.2) RegulationsS.I 283 of 2012 European Communities (Environmental Impact Assessment) Regulations 2012

9. It is important to note that these changes are not of a minor or technical nature – the definition of ‘waste’, fundamental to the application of the Waste Management Act, 1996 is contained in amending secondary legislation.5 Much of the law governing Environmental Impact Assessment is contained in regulations made under the Planning and Development Acts 2000-2011 resulting in legislation which has been described by the Supreme Court as a ‘statutory maze’.6

10. There was some hope that the problems caused by this approach had been recognised

as the Programme for Government 2011 contains the following commitment:

“The situation can no longer be tolerated where Irish Ministers enact EU legislation by statutory instrument. The checks and balances of parliamentary democracy are by-passed. The parliamentary treatment accorded home-produced draft legislation must be extended to draft legislation initiated within the EU institutions.

4 Scannell op. cit., p.19. 5 The European Communities (Waste Directive), Regulations, 2011 S.I. No. 126 of 2011. 6 See the comments of Fennelly J, in O’Connell v Environmental Protection Agency [2003] 1 I.R. 530.

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The Regulatory Impact Assessments prepared for Ministers on all EU Directives and significant Regulations will be forwarded automatically to the relevant sectoral Oireachtas Committees. These Committees should advise the Minister and the Joint Committee on European Affairs as to whether the transposition should take place by Statutory Instrument or by primary legislation. Where primary legislation is recommended the full Oireachtas plenary process should be followed”.

11. Despite this undertaking, the use of regulations made pursuant to the European Communities Act, 1972 (as amended) as the primary mechanism for the transposition of EU Environmental law in Ireland continues unabated. Whilst this approach has the merit of administrative ease it results in a situation where a detailed process of cross-referencing and cross-checking of multiple statutory provisions is frequently required to determine what the law actually is. Whilst this state of affairs is discommoding for lawyers it is unsatisfactory for the many non-lawyers and members of the public who need to access and understand planning and environmental law.

12. The problem was acknowledged and highlighted by the Environmental Protection Agency Review Group who in their report noted:

“The piecemeal nature of the current legislative framework, and in particular the proliferation of regulations, means that the law is not readily accessible. The opacity of the law generates unnecessary complexity and uncertainty for all concerned and makes effective public participation in environmental matters more difficult than it should be”7

13. The Environmental Protection Agency Review Group expressly endorsed a previous recommendation of the OECD on the need for the consolidation of environmentallegislation “into a coherent framework with the aim of simplifying and clarifyingrequirements and promoting better compliance”8 and highlighted “a particularly urgent need to consolidate the Integrated Pollution Prevention and control legislation and waste licensing regulations”.9 In February 2012 the Department of Environment, Community and Local Government, published the EPA Review – Follow up and Implementation Plan 10which indicated an intention to consolidate the IPPC regulations and to “consider consolidating other texts, as priorities and resources allow in the context of the forthcoming EU presidency”. However as of the date of writing no consolidated IPPC Regulations have been published as promised, but in fact the existing regulations have subsequent been further amended.11

14. In the context of planning law, the Planning Review Report,12 published by the Department of Environment, Community and Local Government in June 2012 indicated that “the Department will urgently prepare and publish a consolidation of

7 A Review of the Environmental Protection Agency, Environmental Protection Agency Review Group, May 2011. 8 OECD 9 Ibid. Para. 6.1, p.67 10 See www.environ.ie.11 See in this regard the European Communities (EIA)(IPPC) Regulations 2012 (S.I 282 of 2012) and the European Communities (Environmental Impact Assessment)(Integrated Pollution Prevention Control) (No. 2) Regulations 2012 S.I. No. 457 of 2012.12 Department of Environment, Community and Local Government, Planning Review Report, (June 2012) at p.16.

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the Planning Acts and Regulations, and thereafter prepare to place these on a statutory footing in recognition of the complex and evolving nature of the planning code”.13 However, no timeframe is given in respect of this undertaking and there is little sign of any progress on this matter.

15. It is important to acknowledge some limited attempts have been made to address this problem. The Department of Environment, Community and Local Government has published an unofficial consolidated version of the Planning and Development Acts 2000-2011 on its website although it does not appear to be regularly update.14 As part of its programme of statute law restatement the Law Reform Commission has published consolidated versions of a number of key environmental statutes.15 However their work does not extend to consolidating secondary legislation although it does publish in its legislation directory, a directory of statutory instruments which includes some amendment to statutory instruments. However, there is little sign of any meaningful attempt to officially consolidate the existing secondary legislation on environmental law. As of the date of writing Draft Regulations – the Waste Management (Facility Permit) Amendment Regulations are out for consultation by the Department of Environment, Community and Local government and if enacted in their current format they will add a further layer of amendments to the existing regulations governing waste.

16. Clearly, there seems little or no official appetite or interest in addressing this problem. The result is a statute-book in the area of both planning and environmental law which is involved and fragmented to a degree that even lawyers experienced in the area finding frustrating. To persons with no legal training or members of the general public it is not an exaggeration to state that the legislation is in many cases bewildering to the extent of being impenetrable. It is in nobody’s interests that legislation is incoherent and inaccessible in the area of planning and environmental law. Furthermore, as one commentator has correctly highlighted:

“This state of affairs raises serious questions about access to the law. The problem is all the more serious given that one of the fundamental principles underpinning contemporary planning and environmental law is to enable the public to participate effectively in the decision making process and to play a significant role in the enforcement to ensure the law is applied correctly in practice”16

The need for reform of the Environmental Impact Assessment process

17. In March 2011 in Case C-50/09 Commission v Ireland17 the Court of Justice of the European Union (‘CJEU’) delivered a significant judgement in respect of the operation of Environmental Impact Assessment in Ireland. In essence the Court held that the provisions of Irish law which purported to transpose the Environmental

13 Ibid. at p.16.14 www.environ.ie15 These include the Carbon Fund Act, 2007 the Dumping at Sea Act, 1996, the Water Services Act 2007 and the Planning and Development Act 2000 and these may be accessed at www.lawreform.ie 16 A. Ryall “Environmental Law in Crises” IPELJ Vol. 19. No.2 p.70. 17 ECR 2011 p. I-00873.

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Impact Assessment Directive18 into Irish law namely the Planning and Development Acts 2000-2011 and the Environmental Protection Act, 1992 (as amended) (‘EPA Act 1992’) and the regulations made thereunder did not fully or effectively transpose the EIA Directive in a number of key respects.

18. The aspect of the judgement which I wish to focus on relates to fact that under then applicable Irish law an Environmental Impact Assessment was prepared and conducted by the developer who submits it to the competent authority i.e. the planning authority or An Board Pleanala who must then consider it in accordance with the statutory requirements set out in the Planning and Development Acts 2000-2011 and the Planning and Development Regulations 2001 (as amended). In its judgement the CJEU held that the then applicable format of statutory procedure did not comply with the wider requirements of Article 3 of the EIA Directive that requires the competent authority itself to carry out an EIA in light of the factors set out in that provision.

19. In its judgement the Court commented on the nature of the obligation imposed under Article 3 in the following terms:

35. In that regard, whilst Article 3 of Directive 85/337 provides that the environmental impact assessment is to take place ‘in accordance with Articles 4 to 11’ thereof, the obligations referred to by those articles differ from that under Article 3 itself.

36. Article 3 of Directive 85/337 makes the competent environmental authority responsible for carrying out an environmental impact assessment which must include a description of a project’s direct and indirect effects on the factors set out in the first three indents of that article and the interaction between those factors (judgment of 16 March 2006 in Case C-332/04 Commission v Spain , paragraph 33). As stated in Article 2(1) of the directive, that assessment is to be carried out before the consent applied for to proceed with a project is given.

37. In order to satisfy the obligation imposed on it by Article 3, the competent environmental authority may not confine itself to identifying and describing a project’s direct and indirect effects on certain factors, but must also assess them in an appropriate manner, in the light of each individual case.

38. That assessment obligation is distinct from the obligations laid down in Articles 4 to 7, 10 and 11 of Directive 85/337, which are, essentially, obligations to collect and exchange information, consult, publicise and guarantee the possibility of challenge before the courts. They are procedural provisions which do not concern the implementation of the substantial obligation laid down in Article 3 of that directive.

18 Directive 85/337/EC as codified by Directive 2011/92/EU of 13th of December 2011.

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20. Based on a factual analysis of the then applicable legislation ( s.172 of the Planning and Development Act 2000) the CJEU concluded that it did not meet the requirements of Article 3 of the EIA Directive. The court commented:

43. It can be seen from the wording of section 172 of the PDA and of Article 94 of, and Schedule 6 to, the PDR that those provisions relate to the developer’s obligation to supply an environmental impact statement, which corresponds, as the Commission correctly claims, to the obligation imposed upon the developer by Article 5 of Directive 85/337. Article 108 of the PDR imposes no obligation on the planning authority other than that of establishing the completeness of that information.

44. As regards section 173 of the PDA, according to which the planning authority, where it receives an application for planning permission accompanied by an environmental impact statement, must take that statement into account as well as any additional information provided to it, it is clear from the very wording of that article that it is confined to laying down an obligation similar to that provided for in Article 8 of Directive 85/337, namely that of taking the results of the consultations and the information gathered for the purposes of the consent procedure into consideration. That obligation does not correspond to the broader one, imposed by Article 3 of Directive 85/337 on the competent environmental authority, to carry out itself an environmental impact assessment in the light of the factors set out in that provision.

45. In those circumstances, it must be held that the national provisions invoked by Ireland cannot attain the result pursued by Article 3 of Directive 85/337.

21. The decision of the CJEU in Case C-50/09 was addressed by way of amending legislation which is not the focus of this paper as it is addressed in detail in another paper. In summary secondary legislation has been introduced amending s.172 of the Planning and Development Acts 2000-2011 which now specifically and explicitly requires planning authorities and An Bord Pleanála (the Board) to carry out an environmental impact assessment in relevant cases.19 The contention of DECLG is that as a result “the factual situation whereby planning authorities and/or the Board carry out an assessment of effects on the environment in relevant cases is now formally recognised in the legislation”.20 However, it does not appear to me these changes will substantially alter the current situation whereby in practice the EIA process and accompanying EIA is substantially prepared and conducted by consultants engaged on behalf of the developer.

19 European Union (Environmental Impact Assessment) (Planning and Development Act, 2000) Regulations 2012, S.I 419 of 2012. 20 Guidelines for Planning Authorities and an Bord Pleanala on carrying out Environmental Impact Assessment , DECLG, March 2013.

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22. The finding of the CJEU in Case C-50/09 mirrors a frequent criticism of the existing EIA process in Ireland that it is developer led and lacks independence. It is the developer who selects the consultants who effectively conduct much of the EIA and submit the associated Environmental Impact Statement (‘EIS’). It is also the developer who provides much of the information which forms the basis of the EIA. As a consequence the developer has significant control over the entire EIA process, and those who undertake it become associated with the developer. Inevitably this results in the EIA process being perceived as lacking independence. In making these comments I do not wish to disparage the integrity or professionalism of many of those engaged in the preparation of EIA’s.

23. Although it may not be an actual requirement of the judgement, it does raise the question as to whether Ireland should follow the approach adopted in other jurisdictions and require the EIA process to be conducted by the competent authority itself or by an independent authority on its behalf with the costs of the EIA discharged by the developer. Under this approach either the competent authority or an independent authority would nominate those responsible for conducting the EIA (possibly from a pre-approved panel of consultants) who would prepare the EIS on its behalf. The developer would still be involved in the process, would discharge the costs associated with the EIA via the competent authority but crucially would not directly control the process.

24. It is acknowledged that the adoption of this approach would require significant changes in existing legislation and procedures with attendant and administrative upheaval and some associated costs. However it would end the perception of a developer led EIA and inject a much greater degree of independence into the process. If properly structured and implemented it should not result in any significantly increased costs to the developer. The result would be an independently prepared EIS and an EIA clearly conducted by the competent authority. It is submitted this would instil greater confidence in the EIA process and consequently result less challenges to planning decisions based on EIA.

A re-evaluation of the relationship between land-use planning and environmental controls

25. In the context of reform of environmental law the question of the appropriateness effectiveness of the existing relationship between land-use planning and environmental controls arises. The Planning and Development Acts 2000-2011 imposes planning controls respect of ‘development’ i.e. works and use. The most significant control is the requirement to obtain planning permission prior to the commencement of ‘development’. Separately, legislation under the environmental code imposes certain environmental controls over activities most notably through the imposition of a requirement to obtain a licence or permit. The most significant environmental controls in this regard are the requirement to obtain an IPPC licence

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under the Environmental Protection Agency Act 1992 (as amended) or a waste licence under the Waste Management Acts 1996-2011.

26. These two systems of legal controls – land-use planning and environmental operate separately and in parallel. Accordingly, the IPPC/waste licensing procedure is a distinct and separate procedure which the EPA has the sole responsibility for administering and enforcing. Planning authorities and An Bord Pleanala (“the Board”) are responsible for granting applications for planning permission. In general an activity or facility may not commence operation until both consents have been granted (if this is necessary) and must comply with the conditions imposed by both consents.

27. The essentially separate and parallel nature of the two regimes was reinforced by the relevant legislation most notably s.98 of the EPA Act which provided:

98.—(1) Notwithstanding section 26 of the Act of 1963, or any other provision of the Local Government (Planning and Development) Acts, 1963 to 1991, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the purposes of the activity—

(a) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or

(b) decide to grant such permission subject to conditions which are for the purposes of the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,

and, accordingly—

(i) a planning authority in dealing with an application for a permission or for an approval for any such development shall not consider any matters relating to the risk of environmental pollution from the activity;

(ii) An Bord Pleanála shall not consider any appeal made to it against a decision of a planning authority in respect of such an application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity.

28. A similar provision was set out at Section 54 of the Waste Management Act, 1996 in respect of the grant of waste licences. The Planning and Development Act, 2000 introduced further changes to the relationship between planning and environmental controls. The most significant change was the introduction of a provision enabling the Board to refuse planning permission in respect of an activity which was subject to a waste or IPPC licence where it considered the development to be 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.21 Furthermore, under the Planning and Development Acts 2000-2011 in respect of activities which has or may require an IPPC licence a planning authority or the Board is precluded from imposing a condition for the purpose of controlling emissions from the operation

21 Section 256.

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of such an activity.22 A planning authority or the Board may request the EPA to make observations in respect of an application which has or may require an IPPC licence, and the authority or Board in making its decision must have regard to such observations.

29. The existence of this dual consent process and its application in practice was challenged in a number of decisions. 23 Many of these challenges were based on an assertion that such a dual consent process was in breach of the requirements of the EIA Directive.24 This line of challenges culminated in the decision of the Supreme Court in Martin v. An Bord Pleanála25 where the Supreme Court upheld the compatibility of the dual consent process with EIA Directive. The following passage from the judgement in Martin summarises the basis of many of the challenges to the dual consent process and the grounds for the Courts dismissal of that challenge:

“The appellant contends that by virtue of the statutory division of responsibilities between the Board and the EPA it is not possible for an ‘integrated assessment’ of the effects of the project on the environment to take place as required by the Directive. There is a deficiency in the process, he submits, because no one body carries out a global assessment.

As previously mentioned Article 3 of the Directive requires the EIA to be carried out so as to take into account the direct and indirect effects of a project on specified environmental factors which are:

human beings, fauna and flora;

soil, water, air, climate and the landscape;

material assets and cultural heritage;

the interaction between the factors mentioned in the first, second and third indents.

The first matter to note is that the term ‘integrated assessment’ does not appear at all in the Directive. The term has been used to refer to the fourth indent above, namely, an examination of the interaction between the other factors mentioned. It has not been claimed, and on the contrary it has been established, that the Board carried out a comprehensive EIA, including the interaction between the factors referred to as far as the construction of the plant part of the project is concerned, to the exclusion only of the risk of environmental pollution, as defined in the statutory provision cited earlier in this judgment, related to the activity of the proposed installation.

It is also clear from the statutory functions of the EPA, when considering whether to grant a waste licence, and from its statutory procedures, that the EPA is required, at the very least, to carry out an EIA which includes taking account of all the relevant factors and the interaction between them, for the purpose of assessing the risk of environmental pollution arising from the activity of the proposed plant.

22 PDA s. 256 (as amended by s.15 of the POEA 2003 which substitutes Part IV of the EPA Act, s 99F which contains the prohibition on the imposition of conditions in a grant of planning permission which require or have obtained an IPPC licence. 23 See in this regard O’Brien v. Tipperary South Riding County Council, unreported, High Court Ó Caoimh J., October 22, 2002; O’Connell v. Environmental Protection Agency [2003] 1 I.R. 530 ; Cosgrave v. An Bord Pleanála, unreported, High Court, Kelly J., April 21, 2004; and O’Leary v. An Bord Pleanála [2008] IESC 34.24 See further Whittaker A, ‘Environmental Impact Assessment: Split Decision-making Functions’ IPELJ Vol. 16 No. 2 2009 at p.2.25 [2007] IESC 23; [2008] 1 I.R. 336.

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In short, all of the factors referred to in Article 3 of the Directive, and the interaction between them, are examined as required by the Directive and the interaction between them at each stage of the consent process by the relevant competent authority namely the Board and the EPA respectively. The Board carries out an ‘integrated assessment’ insofar as the construction of the project is concerned and the EPA carries out an ‘integrated assessment’ insofar as the activity stemming from the operation of the plant is concerned.

It is also relevant to note that nowhere in the Directive is it in any sense suggested that one competent body must carry out a ‘global assessment’ nor a ‘single assessment’ of the relevant environmental factors and the interaction between them. Those terms simply do not appear in it.”

30. A further difficultly with this ‘split decision-making process’ was highlighted in case C50/09 (previously discussed in the context of EIA) wherein the CJEU considered an argument that the then existing legislative procedures (notably s.98 of the Environmental Protection Agency Act 1992) governing the approval of development where several authorities are involved in granting approval for a project i.e. the EPA and the Board. The CJEU found this could lead to a decision to approve a development which was in breach of the EIA Directive. This could arise in circumstances where the EPA could alone decide to issue a waste or IPPC licence prior to a grant of planning permission without an EIA having been conducted. Although it is clear from the judgement that the CJEU was aware that this could only occur in rare circumstances the fact that it could not be ruled out meant Ireland was in breach of the EIA Directive.

31. It is important to note the decision of the CJEU in case C 50/09 does not amount to a general finding that the dual decision making process as operated in Ireland is contrary to the EIA Directive. The decision turned a lacuna in the then applicable legislation which could result in the issue of an IPPC licence or waste licence without a EIA. This lacuna has subsequently been addressed by the introduction of amending legislation which confers the EPA with express powers to request an EIA.26

32. This aspect of the judgement in Case C 50/09 does raise the question as to whether the dual consent procedure with its effective division of functions between the EPA and planning authorities or the Board is optimum and can result in a flawed decision making process. There is artificiality in the current division of functions and it ignores the central fact that there is an overlap and interaction between land-use planning and environmental issues which arguably can only be analysed and resolved in a integrated manner. This simply cannot be achieved with a dual consent procedure administrated by two entirely separate bodies.

33. Although not strictly required by the judgement in Case C 50/09, one solution to the problems it highlights is the introduction of a system of integrated development consent with a single integrated consent process. Under this procedure both the environmental and land-use aspects of a proposed project would be considered and

26 The European Communities (EIA)(IPPC) Regulations 2012 (S.I 282 of 2012) and the European Communities (Environmental Impact Assessment)(Integrated Pollution Prevention Control) (No. 2) Regulations 2012 S.I. No. 457 of 2012.

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determined simultaneously in a unified and co-ordinated manner. However, as we have seen the legislative response to Case C 50/09 has been to retain the existing dual consent procedure albeit with significant amendments. In this respect it is submitted it represents a missed opportunity for a more fundamental reform of Irish environmental law.

The inadequacy of the current regulatory framework

34. The final issue I wish to highlight in the context of the reform of Irish environmental law is the inadequacy of existing regulatory framework within which environmental law operates. The legal regulation of land-use planning and the environment evolved in an ad-hoc manner from the regulation of specific problems notably public health and housing. As a consequence what evolved is a fragmentary regulatory and administrative framework of environmental governance.

35. The administration and implementation of environmental law Ireland is shared between central Government, local authorities, and specific statutory authorities such as the Environmental Protection Agency, and An Board Pleanala and a myriad of other regulatory and statutory bodies. A number of non-statutory non-governmental organisations (“NGO’s”) also play a role in the administration of environmental law in Ireland. The courts also play a central role through their powers of enforcement and their supervision and oversight of the various bodies discharged with the administration of planning and environmental law and interpretation of the law.

36. It is submitted that the current administrative and regulatory framework governing environmental law is not fit for purpose and in need of reform. A useful starting point in assessing the adequacy of the current regime is to test it against the most recent policy statement of Government on good regulatory practice as put forward in the White Paper Regulating Better27 which highlighted the following requirements of an optimum regulatory framework:

“Regulators and enforcement agencies should be clearly accountable to the citizens through the houses of the Oireachtas and the Government ... there should be well published, accessible and equitable appeal procedures that balance rights of appeal against with the need for speedy action in a fair manner. Where regulatory decisions are referred to the courts, there are particular requirements of speed and expertise”

37. If judged against this benchmark then it is submitted the current system fails in a number of respects. In the first instance decisions made by the Environmental Protection Agency on Integrated Pollution Prevention Control and waste licences are not subject to a fully independent ‘merits’ based appellate process but rather a system of internal appeal. Similarly decisions by the Board in respect of strategic infrastructure development (SID) may only be challenged by way of judicial review. Not only is this unsatisfactory it is entirely illogical in that it results in a situation where large scale industrial/infrastructural development is not subject to an independent, merits based appeals process. In contrast decisions made by planning

27 Department of An Taoiseach 2004.

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authorities in respect of much smaller scale non-SID developments may be appealed to the Board for a full ‘merits based’ review. This makes no sense particularly given it is these larger scale infrastructural projects which have greater impact in land-use planning and environmental terms and thus require closer scrutiny of a full merits based appeal.

38. A further key problem with the existing administrative and regulatory regime is its fragmented nature with a diversity of regulatory authorities with overlapping functions. The reasons for this are entirely understandable. The existing regime has evolved in an ad hoc manner frequently in response to individual problems or issues. It is not the product of a considered systematic assessment. As a consequence some regulatory bodies are conferred with functions which patently not suited e.g. the role of the Board in determining appeals against air pollution licences which logically should reside with a body with environmental expertise. Similarly, the right of appeal against the issue of waste collection permits and waste facility permits lies to the District Court rather than to an appellate body equipped with the specialist knowledge such appeals require.

39. As a matter of good policy and to ensure public confidence the decision making and appellate process in respect of planning and environmental licensing must be clearly separated. Such a review must also allow for appeal on the ‘merits’ of the decision. This will require the establishment of some form of independent appeal process to allow a ‘merits based’ review of decisions. Ideally this should take the form of a quasi-judicial tribunal with expertise in planning and environmental matters. It would be empowered to conduct a ‘merits based’ review of decisions of local authorities in respect of their powers under the Planning and Development Acts 2000-2011, and under environmental legislation e.g. decision waste collection and facility permits. It would also consider appeals against decisions of the EPA in respect of its licensing functions and decisions made under the new integrated larger scale infrastructural projects, integrated development permits.

40. It is submitted there is a strong case that larger scale infrastructural projects which require both planning and environmental approval should be determined and regulated as part of a unified process. Ideally this should be performed by a single body with mixed competence and expertise in planning and environmental matters. A single unified process of this nature would confer considerable advantages in terms of efficiency and improve the quality of decision making to the benefit of all stakeholders. All decisions arising from this unified process should be subject to an independent ‘merits based’ appeals process.

41. A particular problem with the current administrative and regulatory framework of planning and environmental law in Ireland is its ineffectiveness in securing enforcement of the law. In the context of environmental law the establishment of the Office of Environmental Enforcement (OEE) within the EPA has considerably improved the situation in respect of environmental law. However problems remain in

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the area of planning law. The obvious solution to the ‘enforcement deficit’ is to extend the remit of the OEE to confer it within an overarching function of ensuring the enforcement of planning and environmental law in Ireland. This would enable it to provide much needed supervision of local authorities in the discharge of their enforcement functions under the Planning and Development Acts 2000-2011. Ideally, the OEE should be divested from the EPA and re-established as a statutorily independent body with an exclusive remit in respect of enforcement of planning and environmental law. The establishment of a planning regulator as recommended by the Final Report of the Planning Tribunal is also essential in this regard could indeed be incorporated or combined into the remit of an expanded OEE.

42. In Ireland as in most (although not all) other jurisdictions cases involving environmental law are tried before the conventional courts. These courts have no specialised expertise or facilities available to them. Nor do the judges hearing them have any specific qualifications or expertise in planning or environmental law. This is despite the fact that planning and environmental matters raise issues of a particularly technical and complex nature which would benefit from expert appraisal. This situation gives rise to the question as to whether the existing structure of the courts is in fact counterproductive or in some way a barrier to effective enforcement of environmental law.

43. A further impetus provoking debate about the need for a special environmental court is the need to address the obligations under the Aarhus Convention and EU law and the requirement to provide ‘fair, equitable, timely and not prohibitively expensive’ access to judicial/administrative procedures to challenge acts or omissions by private persons and public authorities which breach national environmental laws. Many argue it is impossible to discharge this obligation within the framework of the existing court structure and for this reason alone some other alternative type of ‘court’ is required. the UK it was recommended that a specialist tribunal be established to hear environmental appeals.28 This recommendation was substantially implemented in 2010 when a new environmental tribunal was established with a limited remit to determine appeals against civil sanctions imposed by environmental regulators. It is comprised of a mix of lawyers and non-lawyers with particular environmental expertise and experience in environmental law.

44. In the context of reform of Irish environmental law this issue has been thrown into focus by the ongoing proposals to reform the structure of the courts, including the establishment of a separate family division and new court of appeal. The possibility of establishing an environmental court in Ireland has been raised by the Chief Justice.

45. It is submitted that no compelling case can be made for the establishment of a specialist “environmental or planning court” with specialist judges exclusively committed to hearing planning environmental cases particularly given the relatively limited number of such cases in Ireland. There may be some merit in establishing a

28 Woods and MacCory “ Modernising Environmental Justice: Regulation and the Role of an Environmental Tribunal”, Centre for Law and the Environment, University College, London

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separate division or lists within the confines existing courts structure. This approach could be complimented with the provision of enhanced training and specialist resources such as technical assessors or experts within the parameters of the existing courts framework. However, the most obvious solution is to mirror the approach adopted in England and establish some form of quasi-judicial environmental tribunal as outlined above.

46. It is submitted that a re-configuration of the existing administrative and regulatory framework of planning and environmental law along these lines would produce a framework which is fit for purpose. In particular it would address the key deficiencies of the current administrative and regulatory framework its fragmented nature and address the problems of complying with the Arahus convention.

Conclusions

47. As alluded to at the outset the foregoing represent a number of suggestions in respect of a number of issues which are considered key in the context of the reform of Irish environmental law. They do not represent my concluded view and are offered with a view to provoking a much needed debate on reform of Irish environmental law.

48. In advancing these suggestions I am not excluding the need for reform and debate in respect of other aspects of Irish environmental law such as the issue of affordable access to environmental justice, effective transposition of EU law and access to environmental justice. Indeed, there is a compelling case for an overarching and review of Irish environmental law with a view to securing coherent reform.

TOM FLYNN BLLaw Library,Four Courts,

Dublin 7tflynnbl@eircom.net

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