O'Connell v Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 05 July 2001
• Neutral Citation: [2001] IEHC 102
• Court: High Court
• Docket Number: [2001 No. 101 J.R.]
• Date: 05 July 2001

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

BETWEEN

COLLETTE O'CONNELL

APPLICANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

DUNGARVAN AN ENERGY LIMITED

AND

IRELAND AND THE ATTORNEY GENERAL

NOTICE PARTIES

[2001] IEHC 102

No. 118 JR/2001

THE HIGH COURT

Synopsis

PRACTICE AND PROCEDURE

Locus standi

Motion to dismiss proceedings -Whether undertaking as to damages should be furnished - Delay - Whether judicial review proceedings statute barred - Whether proceedings vexatious - Whether material nondisclosure on part of applicant - Environmental Protection Agency Act, 1992 section 85 - Rules of the Superior Courts, 1986 Order 58, rules 1 and 13; Order 84, rules 20 and 22 (2001/118JR - Herbert J - 5/7/01)

O'Connell v Environmental Protection Agency - [2001] 4 IR 494 - [2002] 1 ILRM 1

The applicant (Collette O'Connell) had initiated judicial review proceedings in respect of the granting of an integrated pollution control licence. The licence was granted in respect of a gas turbine electricity generating plant which the first named notice party, Dungarvan Energy Limited, was developing. Dungarvan Energy Limited brought the present application seeking to strike out the judicial review proceedings. Mr. Justice Herbert held that an application for judicial review was instituted pursuant to the Environmental Protection Agency Act, 1992 as soon as the ex-parte motion for leave was moved before the court. The relief sought would be refused. The court rejected the argument that there had been material nondisclosure by the applicant. Any delay in seeking leave to apply for judicial review had been fully explained. The court would however seek an undertaking as to damages from the applicant.

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976 S27

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S 19(4)(g)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S85(8)

RSC O.84 r22

NIEILI V ENVIRONMENTAL PROTECTION AGENCY (EPA) 1997 2 ILRM 454

RSC O.84 r20(6)

RSC O.84 r20(7)

RSC O.58 r1

RSC O.58 r13

INTERPRETATION ACT 1937

VERNAZZA, RE 1960 1 AER 183

BECKER, RE 1975 1 WLR 842

RSC O.84 r21(1)

CURREN, STATE V BRENNAN 1981 IR 181

DPP V JOHNSON 1988 ILRM 747

TREATY OF ROME ART 234

RSC O.19 r28

RSC O.125 r1

TASSAN DIN V BANCO AMBROSIANO SPA 1991 1 IR 569

BLAIR V CRAWFORD 1906 1 IR 578

MULGREW V O'BRIEN 1953 NI 10

BARRY V BUCKLEY 1981 IR 306

SUN FAT CHAN V OSSEUS LTD 1992 1 IR 426

BROADNET IRELAND LTD V OFFICE OF THE DIRECTOR OF TELECOMMUNICATIONS REGULATION 2000 2 ILRM 241

SEERY V AN BORD PLEANALA 2001 2 ILRM 151

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

EEC DIR 85/337

CONSTITUTION ART 34.1

CONSTITUTION ART 40.3.1

1 Mr. Justice Herbert delivered the 5th day of July, 2001

2 The Applicant in these proceedings is the First Named Notice Party in the title of the matter. Originally known as Thesio Limited, it changed its name to Dungarvan Energy Limited and the title of the proceedings were amended accordingly. The Applicant in the proceedings, Collette O'Connell, is the Respondent in this Application to strike out her proceedings seeking Judicial Review of a decision of the Respondent.

3 It was submitted on behalf of Collette O'Connell that Dungarvan Energy Limited does not have a sufficient locus standi to maintain this application. I disagree.

4 The Respondent in the Judicial Review proceedings is the Environmental Protection Agency and the matter in respect of which Orders are sought concerns the granting by the Respondent on the 3rd January, 2001 of an Integrated Pollution Control Licence under the Environmental Protection Agency Act, 1992, which licence related to the development at Dungarvan on a former Agribusiness site adjoining the Town of a one hundred megawatt Combined Cycle Gas Turbine Electricity Generating Plant for which Dungarvan Energy Limited, on the 1st September, 2000 received a Grant of Planning Permission from An Bord Pleanala, consequent upon an Appeal to that Body by Collette O'Connell from a decision of Dungarvan Urban District Council on the 28th November, 2000 granting planning permission.

5 The Court was informed by Counsel for Dungarvan Energy Limited that IR£21 million has already been expended by that Company in acquiring the property, launching this project, obtaining the necessary Grant of Planning Permission and the necessary Integrated Pollution Control Licence and in carrying out such site clearance works as were authorised by the Terms of the Planning Permission. The Court was informed that time sensitive funding arrangements had been made for the construction and commissioning of the proposed Plant costing 78 million euro with ancillary works costing an additional IR£10 million. The Court was told that under agreements with the Department of Public Enterprise, a supply of natural gas for the proposed plant had been secured by Dungarvan Energy Limited but that this supply could be allocated elsewhere if it was not taken up by September, 2002. In addition a Bond in the sum of IR£5.3 million had been furnished by Dungarvan Energy Limited to the Minister for Public Enterprise to secure a penalty of approximately IR£30,000 per day in the event that the proposed plant was unable to supply power to the National Electricity Grid by the 9th September, 2002. In addition Counsel stated that the loss of revenue to Dungarvan Energy Limited if start up was delayed would be in the region of 48,000 euro per day.

6 Counsel for Dungarvan Energy Limited drew to the attention of the Court that these facts were stated under oath by Mr. Alistair Jessop, a Director of Dungarvan Energy Limited at paragraph 31 of an Affidavit sworn by him on the 29th January, 2001 in proceedings taken by Collette O'Connell against Dungarvan Energy Limited pursuant to the provisions of Section 27 of the Local Government (Planning and Development) Act, 1976, as substituted by Section 19 (4), (g) of the Local Government (Planning and Development) Act, 1992. These proceedings were determined substantially in favour of Collette O'Connell by a judgment of the High Court, (Mr Justice Finnegan), given on the 28th February, 2001.

7 In my judgment, having regard to the decisions in East Donegal Co-operative Livestock Mart Limited -v- The Attorney General (1970) I.R. 317 and O'Keeffe -v- An Bord Pleanala (1993) 1.I.R.39, on the foregoing assertions, Dungarvan Energy Limited, whose rights would be very seriously affected by the avoidance of the Integrated Pollution Control Licence must have a sufficient locus standi to maintain this application, even though it has not been joined as a Respondent in the proceedings as directed by the Supreme Court in the latter case, (see p. 78 of the Judgment per Finlay CJ), and could and should have applied itself to the Court to be added as such as a party, (p.66/67 of the same Judgment). It would in my view amount to a total denial of fairness and justice to this company if it could not intervene in this manner notwithstanding any procedural irregularity to protect its lawful interests and if all it could do was to fretfully and anxiously await the outcome of the issue between Collette O'Connell and the Environmental Protection Agency, or try to prevail upon the Employment Protection Agency to make this Application essentially on its behalf, which I am certain that Body, given its statutory function would be entirely reluctant to do.

8 The first basis upon which Dungarvan Energy Limited seeks an Order striking out the Judicial Review proceedings is that the proceedings are statute barred having regard to the provisions of Section 85 (8), of the Environmental Protection Agency Act, 1992.

9 That subsection provides as follows:-

"A person shall not by any application for Judicial Review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence unless the proceedings are instituted within the period of two months commencing on the date on which the decision is given."

10 It was contended on behalf of Dungarvan Energy Limited that an application for Judicial Review is not "instituted"within the meaning of this subsection until after Leave to apply for Judicial Review has first been granted and an application for Judicial Review made by originating Notice of Motion or, if directed by the Court, by plenary summons. The date upon which the decision was made to grant the Integrated Pollution Control Licence in this case was the 3rd January, 2001. By Order of the High Court (Mr Justice McKechnie) made on the 2nd March, 2001 Collette O'Connell was granted leave to apply for Judicial Review with respect to the granting of this licence. It is common case between the parties that an application for Judicial Review as provided for by Order 84 Rule 22 of the Rules of the Superior Courts, 1986, was not made within the period of two months commencing on the 3rd January, 2001.

11 In my judgment an application for Judicial Review is clearly a "proceeding" within the meaning of the Section 85 (8) of the Environmental Protection Agency Act 1992, and accordingly must be instituted within the stipulated period of two months. It was held by the High Court in the case of NiEili -v- The Environmental Protection Agency and Others (1997) 2I.L.R.M.454 that the Court has no power to extend the time allowed by the Section. I agree with the decision of Mr. Justice Kelly in that case.

12 In my judgment an application for Judicial Review for the purpose of this subsection is "instituted" as soon as a motion ex parte for leave to apply for Judicial Review is moved before the Court. The interpretation contended for by Dungarvan Energy Limited would in my judgment lead to the most...