Public Participation in the Foreshore Consent Process
Public Participation in the Foreshore consent process in relation to the effects on the environment where an Environmental Impact Statement is required
European Directive 2003/35/EC (known as the Public Participation Directive or PPD) transposes the second and third pillar of the provisions of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (also known as the Aarhus Convention) into European Community law.
The PPD is concerned with the rights of the public to participate in the decision-making process in a range of environmental matters. The PPD lays down general rules for ensuring public participation rights in the preparation or review of relevant plans and programmes. In particular the provisions of the PPD must be applied to consent applications where an Environmental Impact Assessment is required by law.
The provisions of the Public Participation Directive were applied to consent applications under the Foreshore Acts which require the preparation of an Environmental Impact Statement by the European Communities (Foreshore) Regulations 2009 (S.I. No. 404 of 2009) and the European Union (Environmental Impact Assessment) (Foreshore) Regulations 2012 (S.I. No. 433 of 2012). These regulations amend the Foreshore Act and apply to the consideration of foreshore consent applications subject to EIA. These regulations provide an enhanced level of public participation and information sharing on environmental matters.
The Department of Housing, Planning and Local Government (HPLG) places a high priority on public participation during the assessment of foreshore applications:
- At pre-application stage, when the developer initially discusses the project with HPLG (Marine Planning and Foreshore Section), the developer is encouraged to engage in pre-application consultations with stakeholders.
- In accordance with the Aarhus Convention Implementation Guide, Irish legislation pertaining to Environmental Impact Assessment, Access to Information on the Environment and public participation procedures requires notices of applications to be published in a newspaper that is circulated in the relevant area and/or published on-line. The Foreshore Act 1933 (as amended) provides that an applicant, who has submitted an environmental impact statement (EIS), must publish a notice in a newspaper circulating in the district in which is situated the foreshore to which the application relates stating:
- that the person has made an application and indicating the location and nature of the proposal to which the application relates;
- stating that an EIS has been prepared in respect of the proposal;
- stating whether section 19C of the Foreshore Act, which concerns applications that may have transboundary effects, applies to the proposal;
- stating that the Minister is responsible for making a decision on the application and that the Minister may either grant, approve or consent to the application with our without covenants, conditions or agreements, where applicable, or refuse the application;
- stating that submission, comments or questions in relation to the effects on the environment of the proposal may be made in writing to the appropriate Minister within 8 weeks form the publication of the notice;
- specifying the times at which and the place where, within 8 weeks from the publication of the notice, a copy of the application, the EIA and any other relevant report or information (including copies of any submissions, comments or questions received by the appropriate Minister may be inspected free of charge or purchased at a price to be determined by that Minister (which shall not be more than the reasonable cost of the making the copy or copies concerned).
- Where further information is subsequently received by HPLG following a request by HPLG, submissions or observations in relation to the further information may be made in writing within a specified period. A second newspaper notice may be required.
- Following the receipt of a foreshore licence / lease application, HPLG makes the following information available on its website free of charge:
- Name of applicant
- Date of application
- Nature of development
- All application documents including application form, EIS (if any), Appropriate Assessment Screening, maps, drawings, reports etc.
- HPLG updates the website in the event further information is requested and received.
- Where a decision is taken to grant or refuse an application, HPLG makes available to the applicant and the public the main reasons and considerations on which the decision is based, the main reasons and consideration for the attachment of any conditions and the fact that a person can question the validity of any such determination by means of judicial review. This information is published on the HPLG website.
- Once a decision has issued, a person can apply to the High Court and seek a judicial review of the validity of the decision. Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) sets down the procedures governing judicial review.
Judicial review is a form of court proceedings in which a judge reviews the lawfulness of a decision of action by a public body. It is a challenge to the way in which a decision has been made. It is not so much concerned with the decision itself and whether it was right but with whether the law has been correctly applied and whether the correct procedures were followed. It is not an appeals process. The court will not substitute its opinion for that of the public authority.
Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) sets down the procedures governing judicial review. A person may institute proceedings within a period of 3 months beginning on the date the Decision is made.
Judicial review looks at the lawfulness of decisions and actions. These can be challenged on a number of grounds which are often described as follows:
Illegality, Irrationality and Unfairness
- Illegality: Public bodies must correctly understand and apply the law that regulates their decision making powers. If the decision maker had no power to make it or exceeded the powers given to him/her/it an action or decision may be unlawful.
- Irrationality: The court can reverse a decision if it is so unreasonable as to be “perverse” or “irrational”
- Unfairness: This generally deals with the process by which a decision was reached and includes the right to a fair hearing.
If an application for a judicial review is successful, the court can grant a remedy by making one of a number of orders:
- Certiorari i.e. the Court may set aside or quash the unlawful act. This is the most commonly requested remedy and it overturns an invalid decision that has already been made
- Prohibition: i.e. the Court prohibits the public authority from taking an unlawful decision or action
- Mandamus: or mandatory order This order compels the public authority to perform a duty, either an action the body has a duty to perform or the duty to reach a discretionary decision
- Declarations: The Court may simply declare what the law is, or declare the respective rights of the parties without making any other order.
There are two stages in proceedings for a judicial review:
- Leave to apply for a judicial review
- Where leave is granted, the substantial application is heard.
Participants making submissions to the Department on foreshore applications should be aware that comments involving allegations of any kind against a named or otherwise identifiable person or organisation may be viewed as defamatory by the subject of the comments. Participants may be sued directly for any defamatory allegations in a submission and should avoid making such allegations. Submissions made to the Department may be made available for public inspection and will be published on the Department's website.
Please note that, in the event of any potentially defamatory allegation giving rise to legal action against it, the Department may seek indemnity from the person making the allegation. It should be understood that the Department is only concerned with issues relevant to the foreshore application and not comments that are not relevant to its deliberations.