O'Connor v Environmental Protection Agency and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 28 August 2012
• Neutral Citation: [2012] IEHC 370
• Court: High Court
• Date: 28 August 2012

[2012] IEHC 370

THE HIGH COURT

[No. 295 MCA/2012]

O'Connor v Environmental Protection Agency

IN THE MATTER OF AN INTENDED CHALLENGE TO A DECISION OF THE ENVIRONMENTAL PROTECTION AGENCY DATED THE 25 th JULY 2012

BETWEEN/

THOMAS O'CONNOR

APPLICANT

AND

ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

AND

TEAGASC

NOTICE PARTY

GENETICALLY MODIFIED ORGANISMS (DELIBERATE RELEASE) REGS 2003 SI 500/2003

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(10)

PROTECTION OF THE ENVIRONMENT ACT 2003 S15

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(4)

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 9(2)

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 6

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ANNEX I

UNECE CONVENTION ON ACCESS TO INFORMATION PUBLIC PARTICIPATION IN DECISION-MAKING & ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS (AARHUS CONVENTION) 25.6.1998 ART 20(3)

CONSTITUTION ART 29.6

EEC DIR 2003/35

EEC DIR 2011/92 ART 11(1)

EEC DIR 2011/92 ART 11(4)

EEC DIR 2008/1 RECITAL 26

EEC DIR 2008/1 ART 16

CMSN v IRELAND 2009 ECR I-6277 2011 3 CMLR 46 2010 ENV LR 8

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

EDWARDS & PALLIKAROPOULOS v ENVIRONMENT AGENCY & FIRST SECRETARY OF STATE FOR ENVIRONMENT OJ C 226/16 30.7.2011 (CASE NO C-226/16)

R (EDWARDS) v ENVIRONMENT AGENCY 2011 1 WLR 79 2011 1 AER 785 2011 2 COSTS LR 151 2011 ENV LR 13 2010 UKSC 57

CONSTITUTION ART 34.1

K (D) v JUDGE CROWLEY & ORS 2002 2 IR 744 2003 1 ILRM 88 2002/14/3380

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41(2)

Environment - Crops - Potatoes - Genetically modified variant - Release of variant - Challenge to decision of respondent to approve release

Facts: The respondent had approved the release of a genetically modified form of potato crop, in County Carlow. The applicant, an organic farmer, sought to challenge the decision of the respondent to approve the release. The applicant in the instant matter sought to have the Court award a costs order pursuant the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998 ("Aarhus Convention"), recently ratified by the State in June 2012.

Held by Hogan J, that as per the similar case of NO2GM Ltd v Environmental Protection Agency & Another [2012] IEHC 369 heard by Hogan J also, a mere ratification of the Aarhus Convention did not mean the provisions of that convention took effect in domestic law. Until full incorporation after commencement of the provisions and approval by the Oireachtas, the Aarhus Convention could only apply in so far as permitted by EU law.

As the case was similar to the decision in of NO2GM Ltd v Environmental Protection Agency & Another [2012] IEHC 369, the Court would refuse the order sought by the applicant. Case C-427/07 Commission v Ireland [2009] ECR I-6277 and R. (Edwards) v Environmental Agency [2010] UKSC 57 considered.

1 JUDGMENT of Mr. Justice Hogan delivered on 28th day of August, 2012.

2 1. On the 25 ^th July, 2012 the Environment Protection Agency ( EPA) made a decision in the exercise of the powers conferred on it by the Genetically Modified Organisms (Deliberate Release) Regulations 2003 (S.I. No. 500 of 2003) granted a consent to Teagasc, Oak Park, County Carlow to carry out the deliberate release of certain genetically modified potato lines subject to certain conditions. Mr. O'Connor, who is an organic farmer, objects to this decision of the EPA and he has indicated to me that he is desirous of challenging the validity of this order, albeit that no proceedings have yet been commenced by him.

3 2. In this application Mr. O'Connor was represented by Mr. Percy Podger, who as he freely admitted to me, is neither a solicitor or counsel. As a concession and a courtesy to the applicant, I permitted Mr. Podger to be heard, but I express no view as to whether he was lawfully entitled to represent Mr. O'Connor in this manner, whether by virtue of being a McKenzie friend or otherwise.

4 3. One immediate complication for Mr. O'Connor is that s. 87(10) of the Environmental Protection Agency Act 1992 (as inserted by s. 15 of the Protection of the Environment Act 2003) provides that:

"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 (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made."

5 4. It would appear therefore that any such legal proceedings would have to be commenced by 18 ^th September, 2012 if the eight week period as defined is to be complied with. I might add that this Court has no jurisdiction to stay the operation of that eight week period contrary to what was urged on behalf of Mr. O'Connor. In other words, any person wishing to challenge the decision of the Agency must do so within the eight weeks and this Court has no jurisdiction or power to suspend or extend that time period.

6 5. This is the general background to the present application which, to say the least, is somewhat unusual. The gist of Mr. O'Connor's application is that this Court should declare on an ex ante and ex parte basis that Mr. O'Connor is entitled to have what is described as a not prohibitively expensive cost order. The background to this application lies in Article 9(4) of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters of 25 June 1998 ("the Aarhus Convention"). This is a United Nations Convention which Ireland ratified on the 20 ^th June, 2012.

7 6. Article 9(4) of the Aarhus Convention requires...