Developers, Planning System And Judicial System Conspire To Lay Seige To Local Communities, Nationwide

Dave Fingleton, weary from his own community’s defence in the High Court, wonders what happened to the conventions that were supposed to protect the environment and the rights of those concerned about protecting it.

In a nutshell, the United Nations’ Rio Declaration on Environment and Development (1992)* declares that the Environment belongs to the people and not to the government.
Principle 10 specifically states:

“States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

Further to this was the Aarhus Convention (1998)** which takes a rights-based approach: the public, both present and future generations, have the right to live in a healthy environment and to participate in and challenge decisions that may affect that environment. Implementing Aarhus primarily through Strategic Environmental Assessment (SEA), Environmental Impact Assessment (EIA) and public participation directives, Europe (and indeed Ireland itself as a party to the convention) has guaranteed these rights to public participation in decision making and access to the courts and justice in environmental matters.
For context, Article 3 of the Convention states:

“1. Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention.”

So much for the theory: what we have observed happening in practice paints a totally different picture. Considering that Ireland has been found to be in breach of the Convention by the United Nations Economic Commission for Europe (UNECE) for failing to do an SEA for its National Renewable Energy Action Plan (NREAP), Irish citizens have been failed by the government itself at the very first stage.
With the government obviously not interested, is there any hope then of developers blazing a trail for high standards in human and environmental rights? Highly unlikely, that is why we have regulation: to enforce the process in a fair, equitable and transparent manner. Or at least that is how it’s supposed to work…
In Ireland especially, there seems to be a culture of non-compliance with laws and directives. This is facilitated particularly by a culture of weak regulation and an attitude from developers of “playing fast and loose” with the laws and regulations, knowing that the authorities are unlikely to enforce them. This is self evident in the disaster that was the property and banking boom/bust cycle that we have been through and is the type of behaviour being reported by community groups all over the country. Non-compliance, not just by developers but by the planning authorities charged with the responsibility of upholding the laws and regulations, has been widespread.
It has been said that community groups need professional representation in the form of planning experts if they are to succeed in holding their decision makers to account. An Bórd Pleanála, in a recent case in the High Court, stated that the community had failed to show due interest in the process because it didn’t hire expensive experts in its submissions to the Bórd. This not only shows absolute contempt for the knowledge and capabilities of the individuals involved (many of whom were engineers and professionally qualified themselves) but also contempt for the public participation directive and Aarhus Convention that it is supposed to be bound by. The community group in question had, in fact, proven beyond any doubt that there were serious flaws with the developer’s EIS but the Bórd had conveniently ignored them.
As has been observed from an expert in the field, a barrister said the following:

“laws are useless if they are not properly interpreted by the courts and properly enforced by the civil authorities. It is clear that in the headlong rush to build Grid 25 and the associated industrial wind farms, any semblance of respect for the rule of law has fallen by the wayside”.

The idea that a community must employ planning experts, often at great expense, feeds into a feudal “He said – she said” situation where two guns-for-hire go toe to toe. This presents an incredibly onerous position for the community as the developer, in many cases with an endless supply of the taxpayers’ cash, will always outspend them.
This flies in the face of the spirit of the SEA and EIA directives that are supposed to ensure that the community can effectively participate in the decision making process in projects with big environmental impacts.
In the aftermath, the planning consultants move on to their next contract or project but the community remains. No one will fight more passionately for their own areas, their own families, than the communities that live there and are under siege from developers.
Planning consultants can’t change the behaviour of ABP or the developers. No matter how well they present the facts, if the planning authority is predisposed to ignoring those facts then it’s no great advantage. I’m not suggesting communities shouldn’t seek expert help, if they can afford it then by all means they should avail of it but don’t think because you have no access to finance that you have to sit on the sidelines.
The RIO declaration says the environment “belongs to the people” not “belongs to the people who can afford to defend themselves and the environment”. The key starting point is knowing that communities themselves have a right to participate in decisions that affect the environment and that if those rights aren’t used they will continue to be eroded.

* United Nations: “The Rio Declaration On Environment And Development (1992)” Read Document 

** UNECE: “Convention On Access To Information, Public Participation In Decision-Making And Access To Justice In Environmental Matters“ (1998) Read Document