Advocate General Kokott’s decision in Commission -v- Ireland delivered on 15 December 2009 has received some publicity. Specifically, the Advocate General’s finding that Ireland had illegally failed to include private roads in its Environmental Impact Assessment (EIA) requirements, a matter rectified since the complaint was originally made in 2002. However that decision is also useful for its rejection of a number of the Commission’s complaints concerning Ireland’s alleged failure to transpose the Aarhus Convention. That Convention, together with a related directive, are concerned to ensure public participation in the EIA decision making process.
The Advocate General found that Ireland’s requirement that applicants for judicial review demonstrate a “substantial interest” (as defined in Irish planning law and clarified in a Supreme Court decision in late 2008, Harding -v- Cork County Council ) is compliant. He also found that the entitlement of Non-Governmental Organisations to participate in such judicial reviews is reasonable, and that the discretion retained by Irish judges relative to the awarding of costs against unsuccessful applicants means that the requirement to ensure such applicants are not “penalised, prosecuted or harassed” has been complied with. The decision of the European Court of Justice is awaited.
In the meantime however, expect lawyers for unsuccessful applicants, in cases involving the judicial review of EIA related decisions, to argue that costs orders should not be made against them in order to ensure that Ireland is compliant with the Aarhus Convention.