O'Connell v Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 21 February 2003
• Neutral Citation: [2003] IESC 14
• Court: Supreme Court
• Docket Number: 171 & 176/02,[S.C. No. 171 and 176 of 2002]
• Date: 21 February 2003

[2003] IESC 14

THE SUPREME COURT

Keane C.J.

McGuinness J.

Hardiman J.

Geoghegan J.J.

Fennelly J.

171 & 176/02

O'CONNELL v. ENVIRONMENTAL PROTECTION AGENCY & DUNGARVAN ENERGY LTD

BETWEEN

COLLETTE O'CONNELL

Applicant

and

THE ENVIRONMENTAL PROTECTION AGENCY

Respondent

and

DUNGARVAN ENERGY LIMITED and IRELAND AND THE ATTORNEY GENERAL

Notice Parties

Citations:

ENVIRONMENTAL PROTECTION AGENCY ACT 1998 S98

ENVIRONMENTAL PROTECTION AGENCY ACT 1998 PART IV

ENVIRONMENTAL PROTECTION AGENCY ACT 1998 SCHEDULE I

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 SCHEDULE I PART I CLASS 2(A)

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 ART 18

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 ART 56(2)

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1994 SI 84/1994 ART 56(2)

ENVIRONMENTAL PROTECTION ACT 1992 S83

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORPORATION 1948 1 KB 223

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997

ENVIRONMENTAL PROTECTION ACT 1992 S98

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 SCHEDULE I PART II CLASS 10(1)

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) REGS 1994 SI 85/1994 ART12

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) REGS 1994 SI 85/1994 ART 14

ENVIRONMENTAL PROTECTION ACT 1992 S98(1)

ENVIRONMENTAL PROTECTION ACT 1992 S98(2)

ENVIRONMENTAL PROTECTION ACT 1992 S98(A)

ENVIRONMENTAL PROTECTION ACT 1992 S98(B)

EUROPEAN COMMUNITIES ACT 1972 S3

EEC DIR 85/337 ART 2.1

EEC DIR 85/337 ART 1.2

EEC DIR 85/337 ART 2.2

EEC DIR 97/11 ART 2(A)

EEC DIR 96/61 ART 2.8

EEC DIR 96/61 ART 2.2(A)

EEC DIR 96/61 ART 3

EEC DIR 85/337 ART 4

EEC DIR 85/337 ART 5

EEC DIR 85/337 ART 6

EEC DIR 85/337 ART 7

EEC DIR 85/337 ART 8

EEC DIR 85/337 ART 9

EEC DIR 85/337 ART 10

EEC DIR 97/11 ART 4

EEC DIR 97/11 ART 5

EEC DIR 97/11 ART 6

EEC DIR 97/11 ART 7

EEC DIR 97/11 ART 8

EEC DIR 97/11 ART 9

EEC DIR 97/11 ART 10

EEC DIR 85/337 ANNEX I

EEC DIR 85/337 ANNEX II

EEC DIR 97/11 ANNEX II

EEC DIR 97/11 ART 4.2

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S25

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S25(2)(C)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 8

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 24

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 SCHEDULE I PART I

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 SCHEDULE I PART II

DIR 85/337/EEC ART 4.2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 SCHEDULE II PARA 2

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1994 SI 84/1994 ART6

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)(A)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)(B)

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1994 SI 84/1994 ART6(5)(D)(D)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(5)

ENVIRONMENTAL PROTECTION ACT 1992 S87

ENVIRONMENTAL PROTECTION ACT 1992 S87(D)

ENVIRONMENTAL PROTECTION ACT 1992 S87(E)

ENVIRONMENTAL PROTECTION ACT 1992 S6

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 24

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 25

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 24(1)

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1999 SI 92/1999 ART 10

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 26

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 56

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 56(2)

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 2

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1999 SI 92/1999 ART 11

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1999 SI 92/1999 ART 26(1)(B)

ENVIRONMENTAL PROTECTION ACT 1992 S98

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1999 SI 92/1999 ART 27

ENVIRONMENTAL PROTECTION ACT 1992 ART 11

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989 ART 25

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 SCHEDULE I PARA II

DORSCH CONSULT INGENIEURGESELLSCHAFT MBH V BUNDESBAUGESELLSCHAFT BERLIN MBH 1997 ECR I-04961

EEC DIR 79/409

EEC DIR 92/43 ART 6.3

EUROPEAN COMMUNITIES (NATURAL HABITATS) REGS 1997 SI 94/1997 ART 32(1)

Synopsis:

PLANNING AND ENVIRONMENTAL LAW

Environmental Impact Statement

Statutory interpretation - Environmental law - Whether respondent obliged to carry out environmental impact assessment - Local Government (Planning and Development) Regulations, 1994 - European Communities (Environmental Impact Assessment) (Amendment) Regulations, 1999 SI 93/1999 - Environmental Protection Agency Act, 1992 (171 & 176/2002 - Supreme Court - 21/2/2003)

O'Connell v Environmental Protection Agency - [2003] 1 IR 530 - [2003] 2 ILRM 297

The applicant applied for judicial review by way of certiorari of a decision of the respondent granting an Integrated Pollution Control Licence. The applicant contended that the State was in breach of its obligations under European Community Law. Specifically, the applicant argued that section 98 of the Environmental Protection Act, 1992 prevented the planning authority or the board from taking environmental pollution into account in deciding whether there should be an Environmental Impact Statement and therefore Ireland had failed to correctly transpose relevant directives. The applicant also contended that the respondent had failed to give proper consideration to the effects of the granting of the licence would have on habitats.

Held by the Supreme Court (Fennelly J., nem. diss.) in dismissing the appeal that section 98 did not bear the meaning propounded on behalf of the applicant. There was no failure to transpose the directives. As regard protection of habitats, a report had been submitted by an ecological consultant which stated that no adverse effects were to be expected.

1 JUDGMENT delivered on the 21st day of February 2003. by FENNELLY J. [NEM DISS]

2 The applicant appeals to this court from the judgment of Butler J in the High Court, refusing her application for Judicial Review by way of certiorari of a decision of the respondent (hereinafter called "the Agency") granting an Integrated Pollution Control Licence (hereinafter called "the licence)). Under European Community law, Member States must ensure that applicants supply certain information, called an Environmental Impact Statement (an "EIS"), regarding the effects on the environment, including pollution, of development projects and that this information be assessed by means of an Environmental Impact Assessment (an "EIA"). The applicant complains that, in this case, there was no EIS, and, thus, no EIA. This, she says, was by reason of the incorrect transposition into Irish law of the relevant directives. The applicant says that the planning authority and An Bórd Pieanála ("the Board") did not obtain an EIS because they, rightly, considered that they had no power to do so insofar as environmental pollution is concerned. She says that the Agency did not do so because they, wrongly, thought they had no such power.

3 It is necessary to steer through what counsel has aptly described as a statutory maze in order to uncover the effect of the regulations implementing the State's European Union obligations. Thankfully, counsel has provided the Court with a map. At the end of the day, nonetheless, the case turns almost entirely on the contention that section 98 of the Environmental Protection Agency Act, 1992("the act of 1992") prevented the planning authority or An Bórd Pleanála from asking for an EIS covering pollution matters.

The Facts

4 Thesio Limited ("Thesio"), a joint venture company between Rolls Royce Power Ventures Limited, an English Company, and Dellware Limited, wish to build a combined cycle gas turbine power generation plant ("the power plant") at Shandon, Dungarvan, Co. Waterford. The chosen site is adjacent to the town where creamery operations had been carried on for many years, most recently by Waterford Foods.

5 In order to carry out the development, Thesio had to obtain planning permission. In addition, the heat input of the proposed power plant would exceed 50 MW. This brought it above the threshold laid down in Part IV and the First Schedule to the act of 1992 so that it required an integrated pollution control licence from the agency. This division of function between planning and pollution-control licensing is at the root of the entire case.

6 The planning authority, Dungarvan Urban District Council, made a decision granting planning permission on 30th March 2000. No EIS had accompanied the application. The application related to a power plant with an output of 105 MW and a possible maximum heat output of 240MW. Under the relevant regulations (in its most recent form, Class 2(a) of Part I of the First Schedule to the European Communities (Environmental Impact Assessment) Regulations, 1999) ("the 1999 EIA Regulations")), an EIS is not mandatory for a thermal power station, unless the heat output will be 300 MW or more. The planning authority could have sought an EIS, if they had considered that the development would have a significant effect on the environment, but they did not do so.

7 The applicant appealed to the Board, which had the same power as the planning authority to demand an EIS. The Board's inspector reported in a document headed, "E.I.S. Recommendation- E.I.S. not submitted." This document contained boxes to be ticked or not depending on...