Attracta Uí Bhroin: Planning bill could delay delivery of homes and climate infrastructure

What happened? The Government will cite logistics and time needed by the bills office, but the shaky legal foundation of the controversial bill suffered a blow this week.

It became untenable to advance the bill to the Seanad and enact it before the Oireachtas summer recess, as the Government had planned.

Why?

Because, on Monday morning, the UN committee responsible for overseeing the Aarhus Convention issued a report to Ireland criticising elements of the bill that are not compliant with the convention.

The irony is that Ireland had put them in front of the Aarhus Convention compliance committee (ACCC) in the mistaken belief that these new provisions would “fix” Ireland’s non-compliance.

The implications are huge: The Government has repeated the mantra that the bill is compliant, hiding behind the assurance that the Attorney General has said so.

The convention is international law that Ireland has ratified. Aarhus is a convention on human rights, with profound implications for environmental democracy and the procedural rights on which the public rely to participate and to review decisions on a range of environmental matters. 

The convention affects EU legislation with which Ireland has to comply. So it influences processes and assessment in our planning legislation.

Getting it wrong in Irish law will send our planning system into chaos and further delay the delivery of homes and critical climate infrastructure. 

The Aarhus committee’s report set out its review of Ireland’s progress in addressing a number of areas where we have previously been non-compliant. Among other things, it dealt with the extension of duration of planning permission, with Ireland not providing properly for public participation. 

Ireland had earlier provided a progress report, indicating that chapter five of part four of the new planning bill would “fix” this. The committee, the key authority on compliance matters, having reviewed it, clearly disagrees.

Concerns about Aarhus compliance have been raised across the bill by a range of experts, quite apart from other concerns about compliance with EU law.

In its report, the committee, many times, referenced advice it had prepared to assist correction of a similar issue in the legislation of the Netherlands.

Interestingly, I had requested that Social Democrats TD Cian O’Callaghan ask Mr O’Brien, back in April, during the select committee debate on the bill, whether chapter five reflected the Aarhus committee’s advice to the Netherlands. The minister responded, summarily dismissing the relevance of the advice, asserting: “The Dutch system is very different from ours.”

However, the principles and obligations of the convention are the same, whether you are looking at Dutch law or Irish law. So it was also clear that the significance of the committee’s advice had not been appreciated.

However, Monday’s report from the ACCC made it abundantly clear just how relevant it was to the Irish legislative issue.

During the Dáil debate of the bill on Tuesday evening, Mr O’Brien, in response to concerns that Mr O’Callaghan raised about the bill’s compliance with the convention, said: “As we said right the way through pre-legislative scrutiny, second stage, and committee stage, every element of this bill that we have worked through is Aarhus-compliant, unquestionably.

We sought the advice of the highest law officer in the land and worked directly with him to ensure that is the case. 

This statement by Mr O’Brien was made to the Dáil over 24 hours after Ireland had been formally told that the ACCC did not consider provisions of the bill to be compliant.

It remains to be seen if Mr O’Brien therefore appears to have misdirected the House, or if Climate Minister Eamon Ryan and his department left his government colleague in an invidious position, having failed to share the significance of the report. We know it had been sent to officials in the Department of Environment, Climate, and Communications on Monday. Mr Ryan has responsibility for the Aarhus Convention.

Concerned with the lack of communication about the significance of the committee’s report, I wrote to Mr Ryan on Wednesday, drawing his attention to the report and its implications, and calling on him to:

• Engage with his government colleagues as a matter of the highest priority, to highlight the need to pause the advance of the bill, pending a full and thorough review of the whole bill’s Aarhus compliance;
• Communicate clearly to them that it was untenable to advance the bill to the Seanad in this context, before the Oireachtas summer recess, and to enact it and to put it in front of the President to sign, knowing its legal basis to be in such question.

Mr O’Callaghan highlighted the ACCC report’s significance, on the Dáil record, during Wednesday night’s guillotined debate, and even waved a copy of it in the air. He got no satisfactory response.

When the guillotine fell, among the hundreds of unscrutinised government amendments that were then automatically added to the bill were two new sections, with similar issues to those which the ACCC has taken issue with. It’s a mess.

So when Mr O’Brien promised that the bill would be delivered before the recess “come hell or high water”, clearly he hadn’t anticipated the law.

Hopefully, now, sanity will prevail, and this legislation will be paused and not rushed through at Seanad committee stage, in advance of the significant review and reworking that this bill needs before it can be enacted without sending our planning system into a tailspin.

• Attracta Uí Bhroin is a Law Officer with Environmental Law Ireland and formerly an Environmental Law Officer with the IEN