Earth rights

Using the law to prevent environmental harm

Belfast solicitor Neil Faris draws on his experience to offer tips for groups and individual objectors on using the law effectively to challenge environmental decisions.

A bewildering mass of environmental law and regulation now faces the individual seeking a legal solution or legal help for an environmental problem. But there are several ways in which anyone can use the law to make an effective contribution in environmental decision-making. This article aims to set out some of the legal tools that can be used and offers some suggestions as to how the individual may make the most effective use of them.

Right to environmental information

It probably all starts with information: without knowledge you cannot be an effective participant in the debate on any environmental issue. Under the Environmental Information Regulations, any individual now has the right to request environmental information from any government department, district council or other public body. The right extends to obtaining the information from any other person or body who is carrying out any functions of public administration or who has public responsibilities for the environment. Accordingly, the now privatised companies which provide utility services, such as NIE plc, may be obliged to provide on request environmental information relating to their public functions. This would not extend, however, to information held by NIE or any of its subsidiary companies not relating to the public supply of electricity.
At international level, the Aarhus Convention was adopted on 25 June 1998 by a group of European states including the EU. It entered into force on 30 October 2001. It provides for three pillars: access to information, public participation and access to justice on environmental matters.

Judicial review

This is not the case for a detailed review of the procedures for applying for judicial review. The central point to remember for those who wish to challenge environmental or planning decisions is the need to act quickly. As soon as a decision is issued, an objector must proceed almost immediately with an application to the High Court if a challenge is to be made. The Rules of Court state that the application must be made ‘promptly’ and within three months of the decision being challenged. The High Court has a discretion to allow for a longer period in suitable circumstances, but it may also refuse an application even within the three months period if it holds that the objector has not moved sufficiently promptly. This is especially likely to be the case where another party, such as a property developer, has obtained planning permission. That developer is entitled to proceed with the development on the basis of the planning permission unless an immediate challenge by way of judicial review is made. Accordingly, the High Court will be distinctly unsympathetic to any objector who is not able to bring the matter to court immediately.

Furthermore, judicial review is not a means of appealing against a decision with which you disagree, even if there are good grounds for disagreeing with the decision. Judicial review will be successful only if the court is satisfied that there has been a material departure from proper procedures or if the decision is so manifestly unreasonable that no reasonable decision-maker could have come to it. Of course, there is a new emphasis on human rights because of the Human Rights Act 1998 and the human rights provisions of the Northern Ireland Act 1998.

Accordingly, the courts have somewhat extended the grounds on which they will allow judicial review so as to include instances where there is a breach of the human rights legislation. However, the judges are acting quite cautiously in this area. Objectors should not expect any automatic human rights remedy from the courts. There are many injustices which are not human rights violations.

There have been some significant judicial review successes by objectors to planning decisions, as in cases involving major supermarket sites. But it is noticeable that many of these successful applications were made by other commercial interests, who were well enough resourced to mount a full-blown challenge. This is not to deny the importance of the judicial review remedy for those on the other side of the environmental and planning fence. Certainly, leading NGOs such as World Wildlife Fund, Friends of the Earth, the Royal Society for the Protection of Birds and the National Trust have the expertise and resources to mount judicial review challenges in appropriate cases.

As already indicated, if an individual objector considers there may be grounds for challenge, he or she should immediately seek legal advice. If possible, this should be even before the decision is actually made.
With legal help, there may be opportunities to persuade the decision-maker to change course. If such efforts are not successful then at least the lawyers will be in a better position to advise the objector as to how to move promptly forward with the judicial review application as soon as a decision is made. In reality, it is sadly often too late if lawyers are first called in only after the disputed decision has been made.

Practical tips

Often the forces ranged against the objector appear almost insurmountable. In a major development, the applicant for planning permission is likely to be a well-financed property developer or a large corporation with expert help from lawyers, architects, engineers and planning and environmental consultants.

The objector or objecting group, in contrast, is likely to have few resources and perhaps little experience of dealing with matters of this type. Such ‘ordinary people’ may also, unfortunately, have little or no access to the relevant legal and other professional advice. Consequently, the objectors’ reaction may either be to entirely give up the game altogether or else to concentrate solely on activities such as street protests, publicity and perhaps other forms of direct action. Certainly, within the law, local objectors do need to raise local support and assistance from further afield. So a publicity and consciousness raising campaign is essential. The next stage, as indicated earlier, is information gathering. Much of this can be done by lay people, with expert help and guidance where necessary. But this stage does take time and patience. The objectors should try to choose from their active supporters those who have expertise or at least a likely aptitude for dealing with officialdom.

Sometimes objectors are disheartened because the developer’s side has an eminent Queen’s Counsel appearing at the relevant inquiry. The objectors then feel that they must also obtain similar representation to achieve success. Almost certainly, an experienced barrister is the best professional advocate for a client if the client can afford the professional fees, which are likely to be very large especially in the case of a long running inquiry. Nevertheless, the best use will only be made of such advocacy if the ground work has been thoroughly prepared in advance.

Professional help can be concentrated on a particular ‘big issue’. Other issues can then be handled at the inquiry by the objectors themselves. It is always worthwhile to take preliminary and inexpensive legal and other professional advice. Such initial advice can be extremely helpful in assisting the objectors to best plan their case and make best use of resources.

Those objecting to a proposal need, as much as the developer of a project, an overall strategy from the earliest opportunity. This strategy should involve consideration of what resources are available to the objectors and how such resources can be best employed. Almost certainly, substantial fundraising will be necessary but a local community may have access to some voluntary help, for instance from recently retired professional people in the neighbourhood.

Some organisational help, or at least advice, may be available from organisations such as the Environmental Law Foundation. Local NGOs, such as Friends of the Earth (NI), may themselves wish to take up the case and will at least be willing to provide helpful information.

The strategy can then be developed with assistance such as this to build up the information available to the group through intelligent use of environmental rights such as the right to information, the environmental impact assessment process and the Habitats Directive.

By these means, the group can begin to position itself so that the professional consultants acting for the developer begin to react to its (reasonable) position. Sometimes also objectors can be tempted to ‘wage war’ on the planning officials and other civil servants and to treat them as ‘the enemy’. This comes from inexperience or frustration.

The Planning Service should at least now provide full access to documents under their Open File policy. By these means, for instance, sometimes the developer can be required to provide further environmental information and the planning process can be delayed until that is produced.

This can certainly be a very time-consuming process for the objectors as well as for the developer. There is a temptation for the objector group to lose patience with the process. However, in reality it is unlikely there will be any knock-out blow; rather it will be the persistent attention to detail that is likely to gain progress for the objector group.

© Law Centre (NI) July 2006