DRAFT DISCUSSION PAPER: 21 March 2014
Access to Justice, Prohibitive Expense, and
the forthcoming Environment (Miscellaneous Provisions) Bill
1. Introduction
We would like to acknowledge DECLG’s work to date on this issue and the significant
improvements achieved on the issue of “prohibitive expense” in certain areas of environmental
litigation. As we are all aware, prohibitive expense has proven a significant barrier in respect of the
right to access justice in Ireland.
Recognising the achievements to date, we must also highlight our serious concerns regarding
prohibitive cost barriers which remain in respect of many areas of environmental litigation falling
within the scope of the Aarhus Convention. In this context we welcome the opportunity to work
with DECLG and the Office of the Attorney General to seek to secure compliance with the Aarhus
Convention insofar as the issue of prohibitive expense is concerned.
The aim of this document is to highlight certain concerns with the law as it stands, with a view to
focusing on the possibility of effecting positive changes via the forthcoming Environment
(Miscellaneous Provisions) Bill (the EMP Bill). For the avoidance of doubt, this document is not
intended as an exhaustive list of access to justice issues – it is merely a sample of major prohibitive
expense issues of which we are aware at this time, where such issues arguably amount to breaches
of the Aarhus Convention.
2. The central issue
The standard rule in Irish litigation is the ‘loser pays’ principle (i.e. the costs follow the event). This
creates a prohibitive expense problem because one’s exposure to the other side’s (or sides’) costs
if a case is unsuccessful can easily be >€100,000 in an action for judicial review, for example. The
result is that many potential public interest litigants are likely put off litigating.1
Pursuant to the Aarhus Convention – to which the EU is a Party in its own right – access to justice
provisions have been introduced into two EU environmental directives: the EIA Directive and the
IPPC (now IED) Directive.2 Via section 50B of the Planning and Development Act 2000 (as
amended), Ireland changed its costs rules with a view to complying with the narrow EU law
position.
Thus we have a special costs rule in Ireland for judicial review in respect of the EIA, IPPC and (for
some reason) SEA Directives. This provides that, as a general rule: (a) each side bears its own
costs, and (b) the court has discretion to award a winning applicant its costs. This means that: (a) a
public interest litigant (and others covered by the rules) can be fairly confident going in that it will
not be exposed to the other side’s costs in EIA, IPPC (IED) and SEA judicial review actions; and (b) a
litigant may be able to find solicitors and barristers willing to do such cases on a ‘no foal no fee’
basis, on the expectation that the court will exercise its discretion to award costs to the applicant if
1
It has always been difficult to quantify this in any accurate way. There is a very significant data gap in terms of what
we know and don't know about the mechanics of environmental litigation.
2
It would appear that section 50B of the Planning and Development Act 2000 requires amendment to take account of
the fact that the IPPC Directive (2008/1/EC) has been replaced by the IED Directive (2010/75/EU).
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the case is successful.
(There of course remains a barrier in circumstances where
solicitors/barristers are not willing to take the case on this basis. Indeed, the entire issue of an
applicant’s ‘own costs’ remains a significant issue in practice – cf. the number of lay litigants who
are beginning to appear before the Irish courts seeking PCO-type orders. Whilst Art. 9(5) of the
Aarhus Convention provides “In order to further the effectiveness of the provisions of this article,
each Party shall ensure that information is provided to the public on access to administrative and
judicial review procedures and shall consider the establishment of appropriate assistance
mechanisms to remove or reduce financial and other barriers to access to justice,” there is no
evidence that the government has in fact considered such appropriate assistance mechanisms (e.g.
legal aid). In this regard it is interesting to note that the government’s recently launched
consultation paper on access to justice omits the words “consider the establishment of appropriate
assistance mechanisms” from its summary of the requirements of Art. 9(5) Aarhus (at page 9 of
the consultation paper: “Article 9(5) requires that the public is informed of the access to justice
provisions of the Convention and that consideration is given to removing or reducing financial or
other barriers to access to justice”).)
The welcome result is that access to justice has been freed up to a certain extent in respect of this
limited range of actions for judicial review (albeit there is still a lot of work to be done in terms of
making the public/civil society aware of the new possibilities). In 2011, via Part 2 of the
Environment (Miscellaneous Provisions) Act 2011 (the EMP Act 2011), Ireland in effect extended
these special costs rules: to a list of third party enforcement proceedings; to JRs of decisions in
respect of such third party enforcement actions (e.g. a JR of a judge’s decision in respect of such an
action); and to civil proceedings in respect of access to information on the environment decisions.
This was again a welcome development, but the range of environmental cases covered by these
special costs rules under s.50B PDA and Pt 2 EMP Act 2011 falls well short of what is required
under the Aarhus Convention.
3. What the Aarhus Convention requires

Article 9(1): “access to a review procedure before a court of law or another independent
and impartial body established by law” in respect of access to information on the
environment decisions.

Article 9(2): “access to a review procedure before a court of law and/or another
independent and impartial body established by law, to challenge the substantive and
procedural legality of any decision, act or omission subject to the provisions of article 6.”
Article 6 is the public participation provision in respect of activities, and applies: (a) to the
activities listed in Annex I to the Aarhus Convention, and (b) to proposed activities not
listed in Annex I which may have a significant effect on the environment.

Article 9(3) is a very broad provision requiring members of the public to have access to
administrative or judicial procedures to challenge acts and omissions by private persons
and public authorities which contravene provisions of its national law relating to the
environment.
Article 9(4) requires such procedures to provide adequate and effective remedies, including
injunctive relief as appropriate, and to be fair, equitable, timely and not prohibitively expensive.
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4. Irish law
There are two separate general problems:
(a) The special costs rules which Ireland has introduced are very limited in terms of their scope of
application (i.e. the areas of environmental law which are covered by the special rules), particularly
when compared to the requirements of the Aarhus Convention;
(b) Third party enforcement possibilities are very limited in scope in Ireland. In other words, there
are plenty of acts/omissions of private persons and public authorities which contravene provisions
of Irish environmental law which are not open to third party enforcement action using an
administrative or judicial procedure. The Glenamaddy sewage case is a case in point: there is a
third party enforcement power in respect of unlicensed discharges of sewage (see sections 4 and
11 of the Local Government (Water Pollution) Act 1977; and see section 4(4)(c) of the EMP Act
2011), but local authority discharges have been carved out of the scope of this enforcement power
(see section 4(2)(b) of the 1977 Act). So we cannot challenge Galway County Council’s unlicensed
discharge of sewage into a priority habitat SAC turlough either by way of JR (there is no ‘decision’
to challenge) or third party enforcement.
Issue 1: Limited scope of section 50B of PDA 2000 and Part 2 EMP Act 2011
Section 50B
Section 50B of the Planning and Development Act - even as amended by the EMP Act 2011 – is
limited to judicial review in respect of Irish legislation giving effect to three EU directives: the EIA,
IPPC (IED) and SEA Directives. (To this effect, see Charleton J. in JC Savage Supermarket v. An Bord
Pleanála; and note the comments of Hogan J. in the Kimpton Vale case.)
Section 50B was evidently focused on meeting the narrow access to justice obligations imposed by
the EIA and IPPC Directives, with (for some reason) the addition of the SEA Directive.
In terms of compliance with the Aarhus Convention, the critical priority is for the actions for JR
covered by section 50B to be extended, such that the provision covers JR of all decisions, acts and
omissions pursuant to all “provisions of [Irish] law relating to the environment” rather than simply
pursuant to three EU directives.
The gap in coverage here – and the corresponding breach of the Convention – is very large. That
is, section 50B covers just three EU directives, while the EU environmental acquis contains, as
Minister Hogan noted in the Dáil on 12 March 2014, “over 200 major legal acts”. And this is to say
nothing of national environmental law unrelated to EU law, which is of course also covered by
Article 9(3) of the Convention (“provisions of [Irish] law relating to the environment”).
At present the vast majority of potential actions for JR in environmental cases in Ireland would fall
under the old ‘loser pays’ rule. The government has in effect conceded that this rule is
prohibitively expensive, given the changes introduced by s.50B and the EMP Act 2011. We
therefore now have a ‘twin track’ system of costs in environmental JR cases in Ireland: the majority
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of cases would fall under ‘loser pays’ (we say ‘would’ because many cases never get off the ground
for cost exposure reasons); a minority of cases would fall under the special costs rules. As well as
being highly complex and confusing, this ‘twin track’ system for costs in environmental JR also
throws up odd uncertainties which act as an additional barrier: e.g. which costs rule applies where
one brings a JR raising issues under (say) two EU directives, where only one of them is covered by
the s.50B rule? This is not an uncommon scenario.
Now that Ireland has ratified and the Compliance Committee route is available, the possibility of a
complaint to that Committee on this issue has opened up.
EMP Act 2011
Costs
The special costs rules in Part 2 of the EMP Act 2011 cover only:



A specified list of enforcement actions;
JR of decisions in respect of those enforcement actions (e.g. JR of judge's decision in a third
party enforcement case); and
JR and appeal on a point of law of AIE decisions.
Environmental actions which fall outside this and outside s.50B continue to fall under the ‘loser
pays’ principle. Again, the government has effectively conceded that this rule is prohibitively
expensive.
Third party enforcement
As noted above, there is no generic third party enforcement power in Ireland in respect of
breaches of Irish environmental law. This means that certain breaches fall through the net, being
neither captured by JR powers nor by third party enforcement powers (again cf. the Glenamaddy
case by way of example). Ironically, the Holly Hunter No 1 judgment (see paras 11 and 15) appears
to have established that the special costs rules in Pt. 2 EMP Act 2011 in principle apply to any civil
proceedings instituted by a person to ensure compliance with or the enforcement of any statutory
requirement where the breach has caused, is causing, or is likely to cause environmental damage.
The irony is that this broad application of the costs rules is not matched by a similarly broad third
party enforcement power, such that there may be lots of breaches of statutory requirements
causing or likely to cause environmental damage which cannot be gone after by public interest
litigants (in breach of the Aarhus Convention).
Issue 2: Requiring that environmental damage be demonstrated is not permissible under the
Aarhus Convention
In setting out the scope of the special costs rules in the EMP Act 2011, section 4(1) specifies a
trigger/pre-requisite condition which is not present in the Aarhus Convention. Namely that
“environmental damage”: has occurred, is occurring, or is likely to occur (bold and underlining
added):
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“4.—(1) Section 3 applies to civil proceedings, other than proceedings referred to in
subsection (3), instituted by a person—
(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory
requirement or condition or other requirement attached to a licence, permit,
permission, lease or consent specified in subsection (4), or
(b) in respect of the contravention of, or the failure to comply with such licence,
permit, permission, lease or consent,
and where the failure to ensure such compliance with, or enforcement of, such
statutory requirement, condition or other requirement referred to in paragraph (a),
or such contravention or failure to comply referred to in paragraph (b), has caused,
is causing, or is likely to cause, damage to the environment.”
Section 4(4) then elaborates what constitutes “environmental damage”. In brief, the requirement
for a litigant to establish “environmental damage” is not required by the Aarhus Convention, and
is, we would argue, an impermissible additional hurdle standing in the way of a litigant accessing
justice.
Issue 3: Providing certainty on the question of costs
The EMP Act 2011 introduced a welcome possibility under its section 7(1), which provides a
mechanism for parties to secure certainty regarding the application of the cost protection
provisions to their proceedings. In other words, an applicant can seek to have the costs position
determined upfront (or parties can separately agree that the special costs rules apply). This
possibility does not exist within s.50B PDA, and a similar provision would, we feel, enhance the
existing s.50B provisions (Issue 3(a)).
However, both the existing s.7 EMP Act 2011 provision and any similar s.50B provision (were this
to be introduced) should provide for cost protection in respect of the very action required to
secure the determination on costs from the court. In other words, if an applicant wants to find out
upfront whether the special costs rules apply to her/his case, there will generally need to be a
hearing. An applicant should not be exposed to the costs of such a hearing. At the moment an
applicant is so exposed (Issue 3(b)). See in this regard the Maher [2012] judgment, where the
applicant sought to have the question of cost protection dealt with ex parte (i.e. with only the
applicant there, such that no exposure to the other side’s costs could arise). Refusing to deal with
the matter ex parte, the judge held (emphasis added):
“4. The second application today is that, in the event I would refuse the order sought and
direct the application be dealt with by way of notice of motion on the intended
defendants, I would make an order that no order for costs would be awarded against the
applicant were the motion to fail. I do not believe I have any jurisdiction to make such an
order. The issue of costs will be for the Judge who hears the motion. I consider that this
may well be unsatisfactory to the applicant as it leaves her in peril of an order for costs of
that motion. I cannot accept those costs would be as high as has been represented today
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but I am conscious that such as they are they may mount an insuperable obstacle to the
applicant bringing a motion.
5. Whilst I am sympathetic to the applicant's situation in this regard, I am unaware of any
legal authority that will permit me to make such an order. It is very arguable that the
absence of some legal provision permitting an applicant to bring such a motion without
exposure to an order for costs acts in such a way as to nullify the State's efforts to
comply with its obligation to ensure that costs in certain planning matters are not
prohibitive. As things stand, I have no power to change this.”3
In other words, legislative changes are needed to address this issue.
Additionally, we feel that there should be an obligation on the court to provide the requested
clarity on costs. At the moment the court “may make” (s.7(2) EMP Act 2011) a determination on
the question of costs, and hence can refuse, under s.7, to make a determination either way, leaving
the matter of costs to be decided at the end of the case (Issue 3(c)). While it has been argued that
it is hard for the court to make such a determination upfront because a party might, for example
subsequently behave vexatiously in conducting its proceedings, which could operate to remove
costs protection, this is in fact entirely consistent with the rules of Part 2. A determination under
section 7(1) simply pertains to whether section 3 applies to the proceedings in question; once that
has been determined it remains within the discretion of the party to conduct themselves in a
manner consistent with preserving the protection on costs which flows from falling within the
scope of section 3. In other words, there is a separation between the determination that the rules
apply, and the application of those rules.
Legislative clarity is also needed on what information an applicant must produce in support of an
application for cost protection (Issue 3(d)). Hedigan J. produced a list of required information in
Holly Hunter No. 1 (see para 16) but this was in effect judicial lawmaking, not a list considered by
the legislature.
Legislative clarity is also needed on the question of the procedure to be followed where one
wishes to have the costs question determined before any proceedings have been issued (Issue
3(e)). This is envisaged by section 7(1) EMP Act 2011, but it is entirely unclear how one would in
practice go about asking the court for a hearing on a question of costs where there are no extant
proceedings.
Issue 4: Costs in appeals before An Bord Pleanála
EIA consents in Strategic Infrastructure Development (SID) cases under the Planning and
Development (Strategic Infrastructure) Act 2006 are currently challengeable only by way of an
action for judicial review. In other words, the ABP decision in an SID case is the first instance
decision and the review (in Aarhus terms) is before the courts. In contrast, in non-SID cases – i.e.
the vast majority - where the decision is made for example by a local authority, there can in the
first instance be an appeal to An Bord Pleanála (ABP). So there are two opportunities for review in
Aarhus terms in non-SID cases: before ABP and after before the courts.
3
Also see the Supreme Court’s decision in Coffey et al v. EPA [2013] IESC 31, which affirmed the High Court’s approach
to ex parte applications.
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But in these non-SID cases the costs rules under s.50B do not provide any protection for an appeal
to ABP in (say) an EIA case, even though the costs rules would apply were the case an action for JR.
Indeed, the matter of costs in an appeal is entirely at ABP’s discretion. Frequently, successful
appellants are awarded only a fraction of their incurred costs.4
In summary:
(a) in respect of costs for an EIA case decided by a local authority and then appealed to ABP, there
remains potentially significant exposure on costs even to successful appellants. There may of
course be the possibility of judicially reviewing ABP for failing to determine the issue of costs in
accordance with Aarhus, but this would be a very unsatisfactory necessity; and
(b) in respect of costs for an EIA case under the SID rules, from which JR is the only review
available, s.50B cost protection would apply.
Issue 5: Complexity of the costs rules acts as a barrier to accessing justice
The complex construction of the section 50B PDA and Part 2 EMP Act 2011 costs provisions has
caused serious difficulties in interpretation, even within legal circles – not to mention lay people
seeking to understand their rights. We would encourage a focus on simplification and clarity in any
re-drafting or amendment of the rules. This should be possible given the straightforward
construction of Article 9(3) of the Aarhus Convention.
5. Conclusion
Broadening the scope of application of the section 50B PDA and EMP Act 2011 Part 2 provisions
would be a major step in the right direction in terms of complying with the obligation under the
Aarhus Convention to ensure that costs are not “prohibitively expensive”. We understand that the
government’s policy intention at the time of the EMP Act 2011 was to significantly broaden the
application of the s.50B JR rules to cover all environmental JRs. The new EMP Bill provides an
opportunity to achieve that objective.
In terms of how such a broadening could now be achieved there may be a range of options but one
such option might be:
(a) To section 50B(1) PDA by removing the reference to the EIA, IPPC and SEA Directives, and
replacing this with a ‘copy out’ approach to Article 9(3) of the Aarhus Convention: e.g. “pursuant to
a law of the State that relates to the environment”.5
4
Even where costs are awarded these can prove unrecoverable against, for example, shell companies established
purely for the purposes of moving an application; RAID v N7RRP Incinerator being a classic case in point. This is of
course always a risk in litigation too, but admittedly it is more feasible to address such issues in the context of a
court room with lawyers in front a judge as opposed to in an ABP oral hearing in front of an inspector who may not
have the necessary specialised legal experience.
5
Tricky questions arise here re non-transposition of EU directives and international law, mistransposition, direct effect,
etc. In other words, provisions of national law may not reflect underlying obligations.
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While the AGO might well baulk at such an approach, ‘copy out’ is a well established principle of
legislative drafting in respect of EU and international obligations, leaving the precise scope to be
determined by the courts. (DECLG could also produce a non-statutory indicative list of national
legislation relating to the environment, similar to the indicative list of ‘public authorities’ for AIE
purposes. This would be of great general assistance in simplifying matters.) Moreover, nothing
less than such an approach will secure compliance with the Aarhus Convention. Attempting to list
all the legislation to be captured by the special costs rules in JR situations will inevitably leave gaps,
which will inevitably lead to costly Compliance Committee cases in Geneva. Moreover, listing
legislation leaves open the problem of legislation being repealed and replaced, including legislation
at EU level (e.g. the IPPC Directive has recently been replaced by the IED Directive, such that s.50B
currently refers to superseded legislation). This situation may be covered by the Interpretation
Act, but it is still far from ideal in terms of clarity and certainty for the public.
(b) A generic third party enforcement power in respect of breaches of environmental legislation
could be introduced into Irish law. This could track the existing language of s.4 EMP Act 2011: “for
the purpose of ensuring compliance with, or the enforcement of, a statutory requirement under a
law of the State that relates to the environment”. The existing cost protection set out in the EMP
Act 2011 (as clarified in the Holly Hunter No 1 judgment) could then latch onto this.
While addressing deficiencies in the scope of the legislation is the fundamental priority, there is an
additional complementary requirement – pursuant to Article 9(5) of the Aarhus Convention - to
ensure the public are aware of how these new access to justice rules support their rights to
challenge decisions, acts or omissions etc. For example, there is an important job of work to be
done in advising the public of how certain of the financial burdens of litigation have been
addressed by the law. That is, that one can be satisfied that one will not be exposed to the other
side’s costs, and that the burden of bearing certain elements of one’s own costs can be addressed
by seeking a ‘no foal no fee’ conditional fee arrangement with solicitors and barristers.
At present the information provided to the public regarding their legal rights to challenge decisions
(e.g. judicial review) leaves a lot to be desired. Consider for example the scant information
provided with certain decisions (e.g. ABP decisions or decisions of the Commissioner for
Environmental Information). This does not provide the necessary level of practical support for an
ordinary member of the public to understand: (a) their right to challenge; and (b) how they can
even go about understanding what will be involved. While we acknowledge some improvements
have been made in this area, better information and promotion of rights is required.
We would welcome clarification of the government’s intentions in this regard, and also in relation
to the obligation in the latter (underlined) part of Article 9(5): “In order to further the effectiveness
of the provisions of this article, each Party shall ensure that information is provided to the public
on access to administrative and judicial review procedures and shall consider the establishment of
appropriate assistance mechanisms to remove or reduce financial and other barriers to access to
justice.” What has the government considered in this regard?
There are other issues which DECLG and the AGO could usefully consider – e.g. the position of
public interest notice parties, and of course the matter of injunctive relief, and the fact that there is
no definition of what constitutes a “sufficient interest” in the text of the PDA, though section
50A(4) explains that this concept “is not limited to an interest in land or other financial interest” as
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regards prohibitive expense – but for now we hope this paper is a useful summary of some major
points.
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