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Dáil Éireann debate -
Thursday, 28 May 1998

Vol. 491 No. 5

Roads (Amendment) Bill, 1997: Report and Final Stages.

Amendment No. 1 in the name of Deputy Howlin. Amendment No. 2 is cognate and it is suggested that both amendments be taken together.

I move amendment No. 1:

In page 4, line 33, to delete "two months" and substitute "four months".

This amendment facilitates a view expressed on Committee Stage by one of the Government backbenchers who felt that a six-month period would be more appropriate than two months. I propose an extension to four months which is reasonable. I hope the Fianna Fáil backbencher who made the proposal on Committee Stage will have the opportunity to convince the Minister that the timeframe of two months is too narrow.

Section 5 as a whole aims at striking the right balance between, on the one hand, ensuring that legal proceedings challenging decisions on motorway schemes or roads-related environmental impact statements can be brought to finality expeditiously and, on the other hand, safeguarding the right of the individual to challenge those decisions where he or she considers it necessary to do so. In section 5 and the related part of section 4 the correct balance is being achieved. Having considered the points made on Committee Stage, I remain of the view that two months is a reasonable and sufficient amount of time for lodging an application for leave to apply for judicial review.

All sides of the House expressed concern on a number of occasions at the length of time it takes to bring major infrastructural projects to reality. In that context, it would be inconsistent as well as unnecessary to amend the Bill as proposed. I ask the Deputy to reflect on this and to withdraw the amendments.

I was moved by the arguments put forward from the Minister's party on Committee Stage. We are amending legislation in this area to give communities sufficient time to access proposals and, if necessary, get external professional advice. A two month period is not sufficient for that process. During the Committee Stage debate members of the Minister's party suggested a six month period, but I considered a four month period would be more reasonable. It would not disrupt the process or cause an inordinate delay, but it would give communities an opportunity to monitor developments that might impact on their lives. Will the Minister reconsider this suggestion? By way of compromise, a three month period would be a welcome improvement.

I doubt if we will reach consensus on this point. A number of factors were taken into account when deciding the two month limit. The two month provision gives a longer period — five months — to make a challenge to a motorway scheme. Under the relevant part of the CPO law — which until the enactment of this Bill applies to challenges to motorway schemes — proceedings must be initiated within three weeks of notice of the decision being published. The High Court has discretion to extend the period from two months if it believes there is sufficient reason to do so and there is no time limit on any such extension by the court. A two month period was considered appropriate by the House when enacting the Local Government (Planning and Development) Act, 1992 in so far as it concerned challenges to planning decisions by local authorities or An Bord Pleanála and similar provisions were enacted more recently in the Waste Management Act, 1996 in respect of decisions by the EPA on waste licences. No reason has been put forward to justify road projects being treated differently.

We should bear in mind that the ministerial decisions concerned do not come out of nowhere. They are a product of long periods of project planning by local authorities and the NRA which involves the provision of information to, and consultation with, local individuals and groups. Also, submissions and objections would have been made to the Minister by individuals and groups and their views presented at the public inquiry. By the time the ministerial decision is made public, the major issues involved are likely to be well known to all interested parties.

I ask Deputies to reflect on a case where a project is not a matter of controversy and is not likely to be the subject of a court challenge. The effect of the amendments proposed would mean that, for no reason, a full four months would be lost before these projects could proceed.

It is obvious the Minister of State did not come into the House with an open mind. Because the two month period is included in previous legislation, he has decided we cannot learn from a changing environment. Since it appears I will not convince him, I withdraw the amendment.

Amendment, by leave, withdrawn.
Amendment 2 not moved.

I move amendment No. 3:

In page 5, lines 22 and 23, to delete "and the road authority concerned".

This issue was also discussed in detail on Committee Stage and I hope the Minister had time to reflect on the points I made. Section 5 which deals with judicial review at Section 55A.2(b) states that an application for judicial review “shall be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for leave) to the Minister and the road authority concerned,”. It should be made abundantly clear that responsibility lies with the Minister, not the road authority. While the road authority may be notified subsequently, it would be more in keeping with general practice to delete “the road authority” from the subsection.

While I understand Deputy Howlin's concern, when a Bill deals comprehensively with the need to provide information for the various actors involved, as this one does, we should leave it as it stands. Deputy Howlin is making a very narrow legal point. The inclusion of "the road authority" in this case is desirable. An application for a judicial review should concern the road authority. I am satisfied with the Bill as it stands.

As I indicated on Committee Stage, when an application is made for a judicial review it is the Minister's decision that is being challenged. However, it is important to note that his or her decision is fundamentally dependent on the motorway scheme or the EIS to which it relates and these are made by the local authority. It is reasonable, therefore, that the local authority should be given notice of an application for judicial review. It is also likely to save time. Given that proceedings tend to revolve to a considerable extent around the actual motorway scheme or the EIS made by the local authority, it is appropriate that the local authority should be involved in the proceedings from the outset rather than delaying the case at a later stage while this is being done. Moreover, the courts would probably expect this to be the case and require it in the interests of hearing all sides.

Comparable provisions are contained in other codes. For example, the Local Government (Planning and Development) Act, 1992 requires that notice of legal proceedings be served on all the formal parties to a planning application or appeal. Similarly, the Waste Management Act, 1996 requires that notice be served on the EPA and the applicant for a waste licence.

I, therefore, consider the text as drafted as the more efficient and appropriate approach.

It appears my arguments on Committee Stage did not impress the Minister or the Fine Gael Party. This amendment was designed to bring clarity to the matter because it is the Minister's order that is being challenged and that should be made clear. However, I accept the logic of the case put forward and withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 4:

On page 5, lines 37 and 38, to delete "which leave shall only be granted where the High Court certifies that its decision" and substitute "or the Supreme Court which leave shall be granted only where the court certifies that the decision of the High Court".

This matter was also debated on Committee Stage and, if I recall correctly, the Minister said he would consider it. It relates to the question of an appeal once a determination is made by the High Court on a judicial review. My amendment seeks to have the widest possible avenues of judicial appeal open to the parties concerned. This is normal procedure when appealing matters to the Supreme Court in a variety of other legal cases. To foreclose that option in the case of a judicial review would simply narrow the normal legal rights available to citizens under the judicial process designed by those who framed the Constitution and supported by the people. I hope the Minister has had an opportunity to reflect on this matter — which, if I recall correctly, enjoyed the support of Deputy Dukes on Committee Stage — and accept that the normal avenues of legal appeal should be open to parties in the case of a judicial review.

As Deputy Howlin correctly recollects, I supported this amendment on Committee Stage for the reasons he outlined. My view has not changed, unless the Minister of State has a cogent reason for narrowing the avenues of appeal.

This amendment was proposed by the Deputy on Committee Stage and I undertook to come back on the issue. However, in considering this amendment we must reflect again on the overall purpose of this section as agreed on Second Stage. The purpose of this section is to ensure that legal proceedings challenging decisions on motorway schemes or environmental impact statements can be brought to finality as expeditiously as possible, bearing in mind the importance of having final and conclusive decisions on major road development proposals within a reason timescale. Of course, objectors must have a proper and full opportunity to have their views taken into account and the section makes appropriate provision for this.

The proposed amendment, by enabling unrestricted access to the Supreme Court, would provide an unnecessary extra layer of review and frustrate the objective, which I think we all share, of allowing public works which are in the interests of the common good to proceed without undue delay. It goes without saying that as far as major infrastructural projects are concerned, delay can often mean success for those who choose to pursue unreasonable individual objections to the detriment of the common good.

Provisions comparable to those now proposed are contained in the Local Government Planning and Development Act, 1992, and the Waste Management Act, 1996.

I am disappointed that the Minister of State has not reflected further and certainly has not been convinced by the case made on Committee Stage. In recent years the number of judges sitting on the High Court Bench has expanded remarkably and there is a broad range of talents now available to the High Court. Any judicial matter that comes before them can receive a variety of mixes of that talent. While I am not being disparaging of any individual member of the High Court, because of that they are not all equally rounded and talented in every aspect of law. There can be a divergence of view in relation to matters. For the assurance of a common policy it is important that a review by the Supreme Court should be available to a claimant. Otherwise, while I do not want to put it too crudely, there is currently an element of pot luck in who one gets in the High Court in relation to any particular matter. If there is no other court of appeal beyond the decision of individual High Court judges, no matter how competent they are in other areas, it means one can have in the system an inconsistency which will not be to its benefit. For that reason the fail-safe mechanism of guaranteeing a communality of policy through an ultimate Supreme Court decision-making proposal has merit and holds water in this regard.

Rather than reading out the next paragraph in his brief, the Minister of State should reflect on this matter and see if it is possible to allow the full range of judicial appeal, which is open to anybody in a criminal case, to parties in judicial reviews of this sort.

The Minister of State is wrong to assume or act on the basis that every further appeal and the use of any further avenue is necessarily vexatious. I think that is what the Minister of State is saying to us. Undoubtedly, some are, but life is like that. Of 100 cases that go to appeal there may indeed be five or ten that are vexatious — taken by people who simply will not recognise reality. However, that is why our court system exists. There are people there to judge and a hierarchy of courts.

While Deputy Howlin is getting past the point at which he had me convinced, I agree with him on some of the things he said. The fact that persons are appointed to the Bench of the High Court or the Supreme Court does not necessarily confer upon them an immediate accession to wisdom. I have seen courts do stupid things in the past and I have no doubt they will do so in future. However, it is a bit dangerous for Deputy Howlin to say that if we expanded the Bench far enough pot luck would give us a good result. Even Deputy Howlin would not suggest that in the rarefied reaches of the top bench of the Labour Party there is always, necessarily, agreement on the points of pure wisdom.

I am satisfied that section 5 as drafted is fair and reasonable. People concerned with the effects of a particular project will, when the section is enacted, have their views taken into account in a number of ways. First, as regards the planning of infrastructural projects, the provision of information to and consultation with local individuals and groups is increasingly seen as essential to successful project development and implementation.

Second, people are able to make written objections or submissions to the Minister as part of the motorway scheme and the EIA process. Third, people can present their views at the statutory public inquiry and, fourth, there will be a preliminary hearing of the High Court in cases of an application for leave to apply for judicial review. Fifth, there will be a full hearing of the matter in the High Court where warranted and, sixth, there will be consideration by the court of any application for leave to take the matter to the Supreme Court.

On this basis I do not think it can be reasonably concluded that insufficient opportunity is being given for individual views to be heard and taken into account.

I am afraid the Minister of State has not come to this debate with an open mind. There is no point in me persevering further and I withdraw the amendment.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 6, between lines 7 and 8, to insert the following:

"(7) This section shall not apply to proceedings initiated before the passing of the Roads (Amendment) Act, 1998.”.

This is the last opportunity for the Minister of State to show that he is willing to take on board some of the suggestions and arguments that I made on Committee Stage. He undertook to reflect upon this issue and to come back to it on Report Stage. I have no doubt he will say it is not necessary. However, it is necessary, for constitutional reasons to ensure that the new restrictions on judicial review will not be struck down because they might be held to interfere with proceedings already under way or in being. I made that point on Committee Stage. The Minister of State was to have reflected on it and maybe he will now give me the good news that, having done so, he agrees with the case I put forward.

I assure the Deputy that I took careful note of what he said and I am glad to inform him that, arising from discussions on Committee Stage, I have considered the matter further. I am happy to accept the amendment proposed by the Deputy.

Amendment agreed to.
Bill reported with amendment.
Question proposed: "That the Bill do now pass."

I thank Deputies for their co-operation in ensuring the speedy passage of the Bill. While the Bill is short and somewhat technical in nature, it provides in its eight sections valuable clarification and enactment of the law in important areas of transportation planning. Transport is a key feature of modern life and it is essential that the laws keep pace with what we want to achieve in terms of providing mobility for goods and people. The Bill helps to do this. I look forward to the debate in the Seanad and I again thank Deputies for their contributions.

Question put and agreed to.