Local Environmental & Planning Governance Under Scrutiny (Somewhat)

On the heels of another damning report on failures relating to compliance with environmental and planning rules, Northern Ireland will be subject to international scrutiny December under the aegis of the authoritative United Nations Economic Commission for Europe’s (UNECE) Aarhus Convention. The Convention – named after the Danish city where it was adopted in 1998 – grants citizens rights and imposes on Parties (including the UK) and public authorities obligations regarding access to information and public participation and access to environmental justice. A complaint from the River Faughan Anglers is to be taken up by the Convention’s Compliance Committee.

Coincidentally, the UNECE hearing will follow the release of a report by consultants, Ray Purdy (Ecocentric & University of Oxford) and Peter Hjerp (Ecocentric). Environmental Governance in Northern Ireland was commissioned by a coalition of environmental NGOs in 2015 and quietly released online in November this year, even though it was completed in early 2016 (and was expected to have been published in print form shortly after). It was widely considered that the report would probably never be published, due – in part – to fears that the stark findings were not likely to go down well in parts of the local administration. One of the report’s authors, with vast experience of drawing up studies for other jurisdictions, was contacted, and when asked to comment on why the report was not printed or endorsed by the NGO coalition simply stated that this was a “low point in my career and a major disappointment.” The report is based on a round of  stakeholder interviews across the environmental governance community.

In an apologetic email to their 35 consultees, Purdy and Hjerp noted the late release and a decision to abandon plans to distribute a printed copy of the report. The authors note that they “tried extremely hard to produce a very detailed evidence-based report that might provide the impetus for some changes in environmental governance (or at the very least contribute to further debates)” in the wake of public comments by a number of Northern Ireland environment ministers who have commented on the need for a radical review of present governance arrangements. The authors offer an apology because “it seems this report will not have the kind of impact and influence on governance change in NI that we really hoped it might.”

As Ulster University research has identified in work commissioned by the Building Change Trust, the entanglement of larger non-governmental organisations in the community and voluntary sector with the public sector – where service delivery agreements for Government departments are often the source of critical funding streams – has significantly blunted the critical edge and challenge function that such organisations once brought to the public square. The cooling effect of Government funding arrangements is not limited to Northern Ireland but has significantly more far reaching implications in a territory where civil society’s challenge function is often the only potential source of political pressure for greater transparency and the pursuit of justice, both social and environmental.

The Purdy and Hjerp report is based on a round of stakeholder interviews across the environmental governance community.

In an introductory paragraph headed, ‘Environment at Risk’, Purdy and Hjerp note:

…in common with many other aspects of life in a post-conflict society, environmental protection has inevitably been less of a focus than more urgent priorities. The Executive has also focused much of its attention on growth and is widely perceived to view the environment as a barrier to a more productive economy, prosperity and jobs. There has been very little recognition of the environment as an asset to the Northern Ireland people generally. The period of conflict looks to have led to a certain ambivalence to land and territory, because of the contested control and ownership of it, and this ambivalence seems to have extended to caring for the environment.(P.5)

The authors go on to observe that there are significant issues relating to compliance with environmental and planning rules. They describe a culture whereby it is acceptable to “cut corners” and “bend the rules.” They note that although often minor, such rule breaking has a considerable cumulative environmental impact. On a different scale, they describe serious organised environmental crime is prevalent, with illegal fuel laundering, quarrying and waste disposal.

The Report concludes that confidence in the Executive’s ability to protect and maintain the environment in Northern Ireland is considered by the consultees to be low, due to a number of factors. Firstly, there is perceived to be political interference in regulatory decision-making. Secondly, there are a significant number of ongoing legal infraction cases being brought by the European Commission against Northern Ireland, in respect of breaches of European Union (EU) environmental laws. Thirdly, the authors report that the local consultees believe that current systems of environmental regulation in Northern Ireland have fallen behind those in neighbouring countries, and there are real concerns that the ongoing process of budget cuts could make things worse.

Significantly, the authors underline a seldom noted dimension of the costs of lax governance and compliance in terms of economic costs. Purdy and Hjerp observe that: “There has been very little recognition in Northern Ireland of many of the very serious economic impacts that current systems of environmental regulation and governance are having.”

The economic costs include:

1. Current approaches to environmental regulation threaten the competitiveness of Northern Ireland in attracting foreign direct investment (FDI).
2. The clean-up costs for all the known illegal waste sites in Northern Ireland could be as high as £440 million (based on waste sites discovered to date). The Executive has also had to spend vast sums on clearing up waste from illegal fuel laundering.
3. Criminals make huge financial gains from non-compliance with some environmental laws, because they evade paying taxes. The cost to the UK taxpayer in lost taxes from Northern Ireland could be as much as £80 million annually for illegal fuel laundering, £2 million annually for illegal quarrying, and we estimate (to date) that it could be between £100 and £150 million for illegal waste disposal.
4. There are six [ongoing] infraction cases being brought by the European Commission against Northern Ireland in respect of breaches of EU environmental legislation. Many of these breaches have been long term problems and there have been a lot of warnings historically, increasing the likelihood of a case being heard by the European Court in the near future. One court case alone brought against Northern Ireland could potentially result in a fine in the region of £50 million to £100 million.
5. Environmental crime is a substantial threat to legitimate businesses, who expend time and resources on complying with rules and charging a fair price for their services, only to be undercut by illegal operators.
6. Issues surrounding compliance with environmental legislation are adversely affecting Northern Ireland infrastructure projects. For example, the huge illegal landfill site near Derry/Londonderry will potentially cause extra costs and delays to the A6 road upgrade.
7. The Executive has said it hopes to increase visitor numbers and employment from tourism, and generate annual revenues from tourism of £1 billion. However, there is a real risk that if environmental governance is not improved then this could affect Northern Ireland’s tourist aspirations, as no tourist wants to see unhealthy rivers, poorly looked after nature sites, or illegal waste sites.

UNECE Aarhus Convention Complaint 

In a separate and contrasting development, representatives of the heroic River Faughan Anglers Association (RFA), a cross-community non-profit organisation of volunteers responsible for the management of fishing rights on the County Londonderry river, will appear before the Convention’s Compliance Committee in Geneva on 12 December to pursue a complaint against the United Kingdom (Department for Infrastructure – formerly Department of the Environment) for several breaches of the Convention. The River Faughan is a Special Area of Conservation (SAC) designated under Directive 92/43/EEC for a number of features and species of populations such as Atlantic Salmon, otters and native oak woodlands.

The outcome of the Compliance Committee’s hearing could have significant ramifications for planning governance given the RFA’s complaint that the Northern Ireland Government is impeding citizens’ rights to environmental justice under the Aarhus Convention by – in effect – leaving complainants with little alternative to prohibitively expensive recourse to Judicial Review when they wish to challenge planning decisions. The Compliance Committee will be told that the RFA were forced to abandon the right to appeal a decision – by Judicial Review – on a number of issues despite their belief that a local decision had, allegedly, been based on incorrect information supplied by the planning authorities.

At the heart of the case before the Compliance Committee will be the question of whether the Northern Ireland Government’s “continued failure” to enact the proposed introduction of third party rights of appeal, and reliance on the prohibitive expense of the Judicial Review process “to discourage legal challenge on environmental grounds”, is impeding the public’s ability to effectively engage in environmental decision making in Northern Ireland. The RFA are, in effect, claiming that the authorities in Northern Ireland are using the absence of Third Party rights – and the default option of Judicial Review – as a means of suppressing appeals from NGOs such as the RFA, given their limited resources and appetite for financial risk.

For example, there is a requirement under Article 1 of the Convention that Member States, “shall guarantee the rights of access to information, public participation in decision making, access to justice in environmental matters in accordance with the provisions of the Convention.” The RFA will claim that by refusing to engage and address certain environmental questions on the basis that the RFA had recourse to Judicial Review, DOE Planning consciously and deliberately infringed members’ rights of access to information and impeded their ability to participate in environmental decision making. The RFA will further contend that Government has been in breach of a number of other Convention Articles.

The RFA will claim that the Northern Ireland Government’s “stalling” on a decision to introduce “third party” rights of appeal for those members of the public objecting to development proposals, and for a public authority to openly invite or rely on Judicial Review in the full knowledge of the true costs of such legal actions, is in violation of Article 9 of the Convention that relates to access to justice.

The RFA complaint against what was then DOE Planning, which was an organisation within the former Department of the Environment for Northern Ireland (part of the UK Member State) alleges breaches of Articles 1, 3, 4, 6, and 9 of the Aarhus Convention by:
– denying RFA access to environmental information,
– refusing to engage with RFA on environmental issues affecting our river,
– refusing to provide answers to our reasonable environmental questions,
– inviting RFA to take Judicial Review of its planning decision A/2008/0408/F, in the knowledge that this was likely to be prohibitively expensive.

One of the RFA representatives who will appear at the Compliance Committee, Dean Blackwood, told Slugger: “What the River Faughan case shows is that the Northern Ireland Courts, in having no remit to adjudicate on the substantive merits of a plainly flawed planning decision, nor expertise in environmental matters, provide citizens with little recourse to environmental justice.  Rather, in its curtailed role of examining the legal validity of a challenge, the judicial system is always in danger of perpetuating poor decision-making, effectively reinforcing the systemic failures of environmental governance which pervade and now characterise our planning and regulatory regimes here in the north.”