Dunboyne Combined Residents Association 

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To: Mr. Martin Cullen TD
Minister for the Environment, Heritage and Local Government

From: Dunboyne Combined Residents Association
Date: 16.12. 03

Dear Minister

Payment of Planning/Participation Fees

Position

The Commission of the European Communities Delivered Its Reasoned Opinion on 21.01.03

Under the first paragraph of Article 226 of the Treaty establishing the European Community that Ireland, by making the full and effective participation of the public in certain environmental impact assessments subject to prior payment of participation fees, has failed to comply with its obligations under Article 6 and 8 of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended by Directive 97/11/EEC.

Pursuant to the first paragraph of Article 226 of the Treaty establishing the European Community, the Commission invites Ireland to take the necessary measures to comply with this Reasoned Opinion within two months of receipt of this Opinion.

Some Critical Aspects of the European Commission's Reasoned Opinion

1. Article 2(1) of the Impact Assessment Directive defines a basic duty to ensure the prior environmental impact assessment of environmentally significant projects.

2. Articles 5 to 10 of the Environmental Impact Assessment Directive set out requirements to be respected with regard the conduct of environmental impact assessments.

3. These requirements include an obligation to consult the public concerned (Article 6) and to take information, including information derived from public consultation, into account in the decision-making process (Article 8)

4. The principal legislation in Ireland is the Planning and Development Act, 2000. This provides for payment of participation fees at local authority level. Earlier legislation provides for the payment of participation fees at other tiers of decision-making.
DCRA's complainant is that the requirement of payment of a fee is contrary to the provisions of the Impact Assessment Directive.

5. The Commission considers that it is contrary to the Impact Assessment Directive to make the right to express an opinion, or to have that opinion taken into consideration, subject to payment of a participation fee.

6. It is indicated by Directive 85/337/EEC that a fundamental purpose of an EIA is to ensure that decisions on environmentally significant projects are adequately informed in terms of information emanating from relevant information sources. Information from the public concerned represents one of these information sources, as is expressly recognised by Article 6(2) of the Impact Assessment Directive.

7. In the context of general interest, the Commission submits that the imposition of participation fees on the public concerned is inappropriate. On the contrary, it works against this interest by making it less likely that one specified information-source, i.e. the public, will contribute to decision-making on such projects as intended.

8. Fourteen local authorities, including the General Council of County Councils, passed motions to request that the fee would not be implemented, highlighting the poorer decisions that would result as members of the public had consistently supplied these authorities with information that was useful and relevant.

9. The Heritage Council noted: "The introduction of a fee which would be payable by third parties to make submissions or observations on applications for planning permissions is not in line with one of the key principles of sustainable development, that of public participation.

10. Key non-governmental organisations concerned with the protection of Ireland's environment also voiced concern that the participation fees will make it more difficult for them to inform decision-makers of environmental impacts.

11. The Commission considers that the precise wording of Article 6(2) and (3) of the Impact Assessment Directive does not allow for the latitude in interpretation that the Irish authorities seek to give it.

12. The Commission states that the imposition of participation fees by way of "detailed arrangements" cannot be considered as coming within the ambit of what is reasonably necessary to give effect to Article 6(2), a point reinforced by the fact that Ireland is the sole Member State to resort to such fees.

13. Furthermore, the Commission submits that the imposition of participation fees by way of "detailed arrangements" runs contrary to the polluter pays principle, one of the principles on which Community environmental law is founded, and a principle which should not be overlooked in any interpretation of Article 6(3).

14. In particular, the Commission considers that the principle is not adhered to if costs properly attributable to those proposing to create environmental impacts are instead allocated to those who may be affected by them.

15. Administrative costs arising from public participation are a consequence of initiatives taken by developers, yet the charges that Ireland imposes by way of participation fees fall on the public and not on developers who seek to change the status quo.

16. Leaving aside questions of principle, the Commission takes the view that the existing legislation gives the Minister a very broad latitude to set participation fees at a level which is prohibitive or dissuasive in cost terms, and cannot be considered compatible with the scope given to the Member States to determine detailed arrangements under Article 6(2).

17. The Commission considers that, in the charges it has actually provided for to date, Ireland has proceeded in a manner that impedes or potentially impedes the rights given to the public concerned under Article 6(2) of the Impact Assessment Directive.

18. The Commission considers that the level of participation fees which currently obtain in Ireland are such as to inhibit the public participation foreseen by Article 6(2) of the Impact Assessment Directive, especially with regard to a number of categories of persons.

19. Participation fees are especially prohibitive in relation to persons dependent on social welfare payments (including recipients of unemployment benefit and disability allowance).

20. Participation fees are prohibitive in relation to persons or organisations which, because of a concern for the environment and/or a particular area of environmental expertise, wish to participate in a multiplicity of different development consent procedures. It should be noted that participation fees are not limited to procedures involving EIA, but apply to all planning

21. Participation fees are especially prohibitive in relation to the public concerned by developments involving a multiplicity of separate development consent procedures. Citizens wishing to express an opinion on any separate EIAs that result will incur separate participation fees.

22. A consequence of the imposition of participation fees contrary to Article 6 is that Ireland also fails to comply with Article 8 of the Impact Assessment Directive. This is because Ireland fails to ensure that opinions expressed by members of the public who do not pay participation fees are taken into account in the development consent procedure.

Dunboyne Combined Residents Association (DCRA)

Dunboyne is a village with a population of approximately 5,000 residents. DCRA represents more than 80% of these residents. A primary objective of DCRA is the maintenance and the development of our living environment in line with the principle of sustainable development. Throughout the past year pursuing this objective has been a costly exercise for DCRA and our community. It has been a discouraging experience for our organisation and for the many residents who, with admirable public spirit, engaged in partnership with local and national government in a participative, constructive and democratic way in the planning processes affecting the quality of their living environment.

During the year 2003 the total number of observations and comments submitted by organisations and individuals - DCRA, Residents Associations in Dunboyne (of which there are 21) and individual residents - to Meath County Council were to 104. These submissions required the payment of Euro 2080 in planning fees to Meath County Council. The fees paid to An Bord Pleanala amounted to Euro 700. To help our community to present its case it advisedly engaged consultants on two occassions at a cost of Euro 6200. The total amount paid was Euro 8980. (Details enclosed)

You as Minister for EHLG and the Government are responsible for this anti-democratic and anti-European Community situation. The culture of disregard for the citizen by the Irish State is yet once again demonstrated and symbolised by this punitive and legalistic imposition.

In the light of the reasoned opinion issued on 21.01.03 by the European Commission we contend that we as residents of Dunboyne are being unfairly and unjustly treated. In comparison with other residents of the European Community we are being inequitably treated. The monetary cost to our community is not justifiable and so we are, because of bad legislation, individually and collectively injured. Most of all we are concerned at the implied abuse of our participative democratic rights.

We are asking you to redress this legislative abuse and to assure the members of our community that we can be constructive partners in our country's democratic processes without penalty.

Yours sincerely

Jim McGrath
Chairman DCRA