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Buachaill
Buachaill, Barrister
Category: Republic of Ireland Law
Satisfied Customers: 10189
Experience:  Barrister 17 years experience
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If say a decision is made by An Bord Pleanála such as for example,

Customer Question

If say a decision is made by An Bord Pleanála such as for example, they have granted permission to the Irish government for the construction of a wind turbine facility. And then a third party such as a local wildlife group contests this decision and asks for a full judicial review of the matter.
1.Would it be within Irish constitution for the government to bring in a legislation which would confirm the decision by An Bord Pleanála which allows them to continue with their project?
2. If the Irish President has concerns over the constitutionality of this proposed legislation, what powers does he have in a situation like this and what are his options?
Thanks for reading my question. I would be very grateful if you have something which you feel would be good
Drew
Submitted: 2 years ago.
Category: Republic of Ireland Law
Expert:  Buachaill replied 2 years ago.
Buachaill :

1. Dear Drew, at the outset, the legislature, the Irish DAil can always legislate for a specific factual situation such as a wind turbine farm. So by legislative act, they may affirm a decision already made by a local Council to allow the building of a wind farm. However, this possibility would be as rare as snow in May. The Government do not see their job as granting permits to build wind farms. So this is a very remote possibility. If you go ahead and successfully judicially review the grant of permission for a wind farm, the government will NOT intervene. So don't consider this as being a great possibility. Secondly, the Irish President has power to refer bills to the Supreme Court to test their constitutionality in cases where there is doubtful issues surrounding the lawfulness of legislation being passed. Accordingly, if a bill was passed by the legislature (Dail & Seanad) permitting a wind farm to be built, without due allowance for the environment and compensation for the people affected, then the President could make a reference of the bill to the Supreme Court under Article 26 of the Constitution to determine whether the bill was constitutional. The court would then adjudicate upon whether what was passed was constitutional before the bill could ever be signed into law. If the bill was found unconstitutional, it would be struck down.

JACUSTOMER-ijvrrwpd- :

Ok i think I understand you. What I am really trying to find out however is, Are the govenment allowed to introduce a legislation which confirms the initial decision made by the planning board? is it constitutional?

Buachaill :

3. The government are allowed to introduce legislation which confirms an initial decision by An Bord Pleanala. This may or may not be constitutional. It depends on the facts.

JACUSTOMER-ijvrrwpd- :

If the govenment confirmed the decision of the planning bord, would that not take the decision out of the hands of the supreme court?

Buachaill :

4. No.

Buachaill :

5. The Article 26 reference procedure is separate and is a different thing totally. However any legal proceedings about the initial An Bord Pleanala decision would be stymied by the introduction of legislation. So there would be no means of judically reviewing the initial An Bord Pleanala decision. However, this would be as rare as Christmas taking place in January.

JACUSTOMER-ijvrrwpd- :

If they passed a legislation confirming the planning boards decision, i thought that meant it was out of the hands of the supreme court.

JACUSTOMER-ijvrrwpd- :

This is my case

Buachaill :

6. You are getting confused here. Once the legislature confirmed the An Bord Pleanala, there could no longer be a legal case about the original An Bord Pleanala decision as it would be moot. The issue over the Constitutionality of the legislation is a separate issue. Please keep the two things separate and don't be getting confused about the two.

JACUSTOMER-ijvrrwpd- :

  1. As part of an EU wide effort to reduce green-house gas emissions, the Irish government has decided to embark on a programme of switching to renewable energy sources. As part of this plan it has invited Airtastic, a company specialising in wind energy, to construct a wind farm on the Sheep’s Head Peninsula in West Cork. Planning permission has been granted and confirmed by An Bord Pleanála. Local landowners, angry at a lack of consultation and concerned at the impact on the popular walking spot and local farming, are up in arms. At the same time an environmentalist group, Save our Birds, have raised concerns for the local puffin colony. Save our Birds has decided to contest the decision of An Bord Pleanála and have instituted judicial review proceedings to protect this place of natural beauty and the habitat of the puffins. The government, sick of what a local deputy has termed ‘puffin hugging, sandal-wearing hippies’, has decided to introduce legislation to confirm the decision of An Bord Pleanála. If enacted, the draft legislation would effectively take the issue out of the hands of the High Court. Meanwhile, locals have decided to take more direct action and have trespassed on the site, obstructing work and destroying essential equipment. The protestors have vowed to continue their actions regardless of what legal action Airtastic might take.

Buachaill :

This is a question and answer site. If you want your homework done, please go to a more appropriate forum.

JACUSTOMER-ijvrrwpd- :

ok tks anyway

Buachaill :

You are welcome

JACUSTOMER-ijvrrwpd- :

one more thing if your still there. does the presedent have to sign of on all legislation?

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