Sweetman v Shell E&P Ireland Ltd

JurisdictionIreland
JudgeMs. Justice Dunne
Judgment Date03 February 2016
Neutral Citation[2016] IESC 2
Docket Number[Appeal No. 167/2006]
CourtSupreme Court
Date03 February 2016

[2016] IESC 2

THE SUPREME COURT

Dunne J.

[Appeal No. 167/2006]

Laffoy J.

Dunne J.

Charleton J.

IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT 2000

IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 160 OF THE PLANNING AND DEVELOPMENT ACT

BETWEEN
PETER SWEETMAN
APPLICANT/APPELLANT
AND
SHELL E&P IRELAND LIMITED, LENNON QUARRIES LIMITED AND T.J. LENNON
RESPONDENTS

Planning permission ? Environmental protection ? Conditions ? Appellant seeking to stop development and the restoration of the lands affected ? Whether the appeal was moot

Facts: The first respondent, Shell E&P Ireland Ltd, was granted planning permission in October, 2004 by An Bord Pleanala for the development of two sites in Bellanaboy Bridge and Bangor-Erris, County Mayo leading to the construction of a gas terminal for the reception and separation of gas from the Corrib gas field and for a peat deposition site, respectively. The appellant, Mr Sweetman, commenced proceedings in March 2005 seeking relief pursuant to s. 160 of the Planning and Development Act 2000. The overall object of the proceedings was to stop the development taking place and requiring the restoration of the lands affected, by Shell. When the matter came on for hearing before Smyth J in March 2006, it was agreed between Mr Sweetman and the second and third respondents, Lennon Quarries Ltd and Mr Lennon, that the proceedings against those respondents could be struck out. The trial judge dismissed the application, concluding that as a fact and as a matter of law there had been substantial compliance with Condition 37 of the planning permission, concerning having the stipulated security in place before commencing the development. The appellant appealed to the Supreme Court from the judgment of the trial judge and the order of the High Court refusing Mr Sweetman the reliefs sought in respect of the alleged non-compliance with Conditions 1 and 37. The grounds of relief were that Smyth J erred in law and/or on the facts: 1) in holding that the first respondent had complied with all the terms and conditions of planning permission, register reference no. 03/3343 and An Bord Pleanála reference 16.207212, and had not carried out any unauthorised development for the purposes of the 2000 Act; 2) in disregarding the submissions of the appellant at the outset of the hearing that the only grounds of objection then being pursued and the orders that he was seeking was simply a determination as to whether or not Conditions 1 and 37 had been complied with; and 3) in holding that the various considerations for exercising the discretion obtained without taking any account of the aforesaid submission and the position of the appellant. In addition it was stated in the notice of appeal that the following orders were sought: (a) a declaration that Condition 37 had not been complied with; and (b) an order that, in the event of full and prompt compliance with Condition 37 not being affected, any further works on the development be restrained.

Held by Dunne J that, given her satisfaction that it was not open to Mr Sweetman on this appeal to challenge the decision of Mayo County Council to accept the reinstatement agreement and guarantee as being in compliance with Condition 37, it remained to be considered whether or not the appeal was moot given that the formalities that were outstanding at the time of Smyth J?s judgment had been complied with. Referring to Civil Procedure in the Superior Courts, 3rd Ed., Delany and McGrath, Dunne J held that while Mr Sweetman raised questions on the hearing of the appeal as to the adequacy and appropriateness of some of the terms of the Corrib Gas Terminal Reinstatement Agreement, namely, the definition of ?Cessation of Operations? in Clause 1 and the inclusion of provisions for resolution of disputes between the parties by arbitration in Clause 6, and requested that the Court either adjudicate on the issues he has raised or remit the matter to the High Court for resolution of those issues, that was something that simply could not be done.

Dunne J held that the appeal was moot in the circumstances given that there was no longer any live controversy left between the parties. Dunne J dismissed the appeal.

Appeal dismissed.

Judgment of Ms. Justice Dunne delivered the 3rd day of February 2016
1

The commencement of any large infrastructure project is never easy. Before a sod is turned or a brick is laid there are many important details to be dealt with. Land may have to be acquired, whether by compulsory purchase order or otherwise. Planning permission has to be obtained. Public consultation may be necessary. Finance has to be put in place. Depending on the nature of the project, there may be any number of hurdles to be overcome. It will not come as a surprise to anyone that such projects inevitably will be a matter of concern to those directly affected by them, despite the fact that such projects may be of benefit to the community as a whole. The person on whose land a motorway is to be built will naturally be concerned to lose their land, albeit, subject to compensation. No one wants to have a sewage treatment plant constructed adjacent to their home. Many people have issues with the erection of electricity pylons close to their homes, with the construction of wind farms and the list goes on. Apart from those directly affected by a project there are others in the community who may find a particular project objectionable on a variety of grounds. For example, the development of a motorway may give rise to concerns as to its impact on the archaeological heritage of the area through which it is intended that the motorway should pass. There may be safety concerns for those living in the vicinity of a project which involves hazardous operations. For others, the issue of concern may be the impact of the project on the environment in the area concerned. It is therefore not surprising that such projects often result in litigation initiated by those with such concerns with a view to stopping the projects altogether. Such litigation is often focused on whether or not the party responsible for the particular project has or is complying with requirements of planning permission. This is such a case.

Background
2

The first named respondent (‘Shell’) was granted planning permission on the 22nd October, 2004 by An Bord Pleanála for the development of two sites of 160 hectares approximately and 117 hectares approximately in Bellanaboy Bridge and Bangor-Erris, County Mayo leading to the construction of a gas terminal for the reception and separation of gas from the Corrib gas field and for a peat deposition site, respectively. Mr. Sweetman commenced these proceedings by Originating Notice of Motion on the 9th March 2005 seeking, inter alia, relief pursuant to s. 160 of the Planning and Development Act, 2000, (‘the Act’). The reliefs sought by Mr. Sweetman in these proceedings were broadly described by the learned trial judge, Smyth J. as follows:

‘(1) a declaration that all of the works carried out by the first respondent on its site at Bellynagelly South, Ballinaboy Bridge, Co. Mayo are unauthorised, unlawful and in breach of the planning permission;

(II) a range of inhibiting injunctions against the first respondent prohibiting:-

(a) the carrying out any works on lands other than lands within the red line of the planning application map;

(b) the implementation of any part of development authorised by the planning permission;

(c) the discharge of polluting matter into waters and/or storing excavated material in such quantities, in such a manner at such locations as the run-off must inevitably discharge such materials into adjoining water sources;

(d) the excavation of and/or removal of and/or dealing in any materials whatsoever from the quarry facility of the second and third respondent situate at Bunnahowen, Glencastle, Belmullet, Co. Mayo unless and until the second and third respondent and/or the third respondent is in receipt of a full and valid grant of planning permission;;

(e) the respondents to cease all works on the lands situate at Bellyagelly South, Ballinaboy Bridge, Co. Mayo;

(III) a range of mandatory injunctions requiring:-

(a) the restoration of lands upon which it is alleged unauthorised development has been carried out to its original condition as existed prior to the carrying out of the alleged unauthorised development;

(b) [Shell] to cease all works of opening entrances from the public road onto lands at Rossport South, Ballina, Co. Mayo unless and until it has obtained a valid grant of planning permission in respect of such developments;

(c) [Shell] to cease all works establishing a works compound and storage compound for materials on lands situate at Rossport South “unless and until it has obtained a valid grant of planning permission in respect of such developments”;

(d) each of the respondents “to obtain all necessary consents pursuant to the Waste Management Acts 1996 to 2003 for the storage and/or disposal of waste arising from the development”;

(e) the second and third respondent to apply for planning permission for “the restoration of the illegal quarry lands and prohibiting works and/or use being carried out thereon pending the determination of such planning applications”;

(f) [Shell] to return the fencing posts and other materials imported by it onto lands situate at Rossport South on the 1st March, 2005, to “the unauthorised timber processing facility of T&J Standish Limited at Leap Castle, Rosscrea, County Offaly, whence they came, which timber facility is unauthorised and operates without the benefit of (any) planning permission whatsoever and is currently the subject matter of High Court proceedings pursuant to the provisions of s. 160 of the Planning and Development Act 2000”….;

(g) [Shell] “to restore the lands upon which the...

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    ...“developer” and to invoke the discretion of the Court to set aside such agreement.” 16 On appeal ( Sweetman v. Shell E&P Ireland Limited [2016] IESC 2) Dunne J. in the Supreme Court stated:- “I am satisfied having regard to decisions such as Mountbrook Homes Limited v. Oldcourt Development......
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    ...the respondents are formally in the wrong.’ The appellants also cite the decision of this Court in Sweetman v. Shell E & P Ireland Ltd [2016] I.E.S.C. 2 (‘ Sweetman v. Shell’) in support of the discretionary nature of orders under section 160. It is submitted that the judgment of the High C......
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    ...65 The decision in Sweetman was later the subject of unsuccessful appeal to the Supreme Court (see Sweetman v. Shell E&P Ireland Ltd [2016] IESC 2). Notably, in her judgment for the Supreme Court, Dunne J. observes as follows, at 23: ' I am satisfied having regard to decisions such as Moun......
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