6a. david browne aarhus convention seminar (14 july 2018)
1. Aarhus Convention Seminar:
Honorable Society of King’s Inns
“Should Trees (and Hen Harriers) Have Standing? A
Critique of Locus Standi in Environmental Law Post
the Supreme Court Decision in Grace & Sweetman”
David Browne BL
14 July 2018
2. Introduction
1. Should Trees Have Standing – A Moral and
Ethical Perspective
2. Mineral King Case
3. Standing in Public Law Challenges in Ireland
4. Representing the Public Interest in Environmental
Challenges
5. Impact of Aarhus Convention and EIA Directive
3. Introduction
6. What does ‘Sufficient Interest’ Mean
7. CJEU Decisions on Locus Standi of
Environmental Organisations
8. Pendulum of Standing Definitions in Irish Law
9. Is Prior Participation Required?
10.Impact of Grace & Sweetman
11.Some Thoughts on Proposed Legislation
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9. Standing in Public Law
• Traditionally restrictive
• Arose in Constitutional law challenges
• Recognition of broader approach
• Fact-dependent and case-by-case approach
• State (Lynch) v Cooney
• SPUC v Coogan
• Mulcreevy v Minister for the Environment
11. Impact of the Aarhus
Convention and EIA Directive
• ‘The public concerned’ is defined as “the public
affected or likely to be affected by, or having an
interest in, the environmental decision-making”
• NGOs deemed to have an interest, provided they
meet national requirements
• Article 11 of EIA Directive mirrors Article 9 of the
Aarhus Convention
12. Impact of the Aarhus
Convention and EIA Directive
• Member States shall ensure that, in accordance with
the relevant national legal system, members of the
public concerned:
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;
Have access to a review procedure
13. Wide Access to Justice
• Case C-137/14, Commission v Germany
• Case C-72/12, Gemeinde Altrip
• Case C-260/11, R. (Edwards) v Environment Agency
• Case C-115/09, Bund für Umwelt (Trianel Case)
14. Wide Access to Justice
• Case C-263/08, Djurgården-Lilla
• Case C-240/09, LZ (Brown Bears I)
• Case C-243/15, LZ (Brown Bears II)
• Case C-664/15, Protect Natur
15. Standing Requirements
in Irish Law
• Prior to 2000 test was sufficient interest
• Following the PDA test was substantial interest
• Harrington v An Bord Pleanála
• Harding v Cork County Council
• Cumann Thomas Daibhis v South Dublin County Council
• Sweetman v An Bord Pleanála
16. Standing Requirements
in Irish Law
• Prior participation requirement in PDA 2000
• Removed by s.13 of the Planning and Development
(Strategic Infrastructure) Act 2006
• Move back to ‘sufficient interest’ following
Environment (Miscellaneous Provisions) Act 2011
• What does ‘sufficient interest’ mean following the
2011 Act?
19. Decision in Grace and Sweetman
• High Court held that the applicant must show that
the interest concerned is personal to him and is not
vicarious or general and it must be shown that such
interest is adversely affected or in danger of being so
affected
• It was also held that the Applicants had not “shown
an impairment of rights personal to them”.
20. Decision in Grace and Sweetman
• Held that failure to participate in the decision-making
process should not, of itself, be determinative of the
issue of locus standi.
• The court was of the view that ‘wide access to
justice’ does not mean ‘open house’.
• A person who seeks to raise an issue at review stage
which could have been raised during the decision-
making process must provide a cogent explanation
for his non-participation.
21. Decision in Grace and Sweetman
• The applicant must show that the issue proposed to
be raised at judicial review could not have been
advanced prior to the making of the decision
impugned.
• The applicant must show that the interest concerned
is personal to him and is not vicarious or general and
it must be shown that such interest is adversely
affected or in danger of being so affected.
22. Decision in Grace and Sweetman
• Supreme Court held that, as a matter of national law,
a failure to participate in the permission granting
process does not of itself exclude a person from
having standing but that it may be a factor which can,
in an appropriate case, be taken into account.
• Sufficient proximity test
• Importance of the amenity (in this case European
site)
23. Apple Case
• Two decisions of the High Court: Fitzpatrick and Daly
v An Bord Pleanála [2017] IEHC 585 and McDonagh v
An Bord Pleanála [2017] IEHC 586
• In McDonagh, applicant held not to have standing
• Did not live in close proximity. Did not participate in
the process or provide an explanation
• No particular ecological value or conservation
interest
24. Proposed Legislative Change
• Potential changes to standing requirements and time
limits
• Member State autonomy but subject to principles of
equivalence and effectiveness
• Must still be consistent with wide access to justice
• May not compromise effective judicial protection
25. Proposed Legislative Change
• Probability that will be successfully challenged if too
restrictive
• Should encourage participation
• Applicant should have standing provided the
challenge is bona fide and legitimate
• Leave stage is designed to weed out frivolous
challenges
