Harrington v The Minister for Communications, Energy and Natural Resources

• Jurisdiction: Ireland
• Judge: Mr. Justice MacGrath
• Judgment Date: 08 June 2018
• Neutral Citation: [2018] IEHC 821
• Court: High Court
• Docket Number: [2016 No. 209 JR]
• Date: 08 June 2018

IN THE MATTER OF AN APPLICATION UNDER SECTION 40, 40A AND 40B OF THE GAS ACT 1976 (AS AMENDED) AND IN THE MATTER OF AN APPLICATION

BETWEEN

MARTIN HARRINGTON, MAURA HARRINGTON, MONICA MULLER

AND

PETER SWEETMAN

APPLICANTS

AND

THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES

AND

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

SHELL E & P (IRELAND) LIMITED

NOTICE PARTY

[2018] IEHC 821

[2016 No. 209 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Consent – Irrationality – Applicant seeking judicial review – Whether there was an irrationality or illegality in the decision of the respondent

Facts: The second applicant, Ms Harrington, in judicial review proceedings, challenged the decision of the first respondent, the Minister for Communications, Energy and Natural Resources, made on 29th December, 2015, to grant a consent to operate the natural gas production pipeline from the Corrib Wellhead, some 65 kilometres offshore, to the Bellanaboy Bridge gas refinery which was approximately 8 kilometres inland from the pipeline’s landfall at Glengad, north Mayo.

Held by the High Court (MacGrath J) that no sufficient evidential or legal basis had been advanced by the applicant such that the Court could conclude that there was an irrationality or illegality in the Minister’s decision to adopt the Ramboll Environ UK Ltd screening report, or that he had insufficient information before him to so do. MacGrath J held that the applicant’s submission that the Minister unlawfully delegated his function under Directive 2011/92/EU of the European Parliament and of the Council of 13th December, 2011 on the assessment of the effects of certain public and private projects on the environment (the EIA Directive) to a private consultancy was unsustainable. MacGrath J was not satisfied that the facts, as deposed on affidavit, bear out the applicant’s contention that the Minister failed to notify the general public of the decision to grant the consent to operate simultaneously with the notification to the notice party, Shell E & P (Ireland) Ltd. With regard to the contention of the applicant that the Court should refer a question for determination of the European Court of Justice under Article 234 of the Treaty, MacGrath J was not satisfied that the applicant had established a case that such a question should be referred either in relation to the test which should be applied (as outlined in Kelly v An Bord Pleanála [2014] IEHC 400 and in Sweetman v An Bord Pleanála [2008] 1 IR 277) or the wording of that test.

MacGrath J held that the applicant’s application for judicial review would be refused.

Application refused.

JUDGMENT of Mr. Justice MacGrath delivered on the 8th day of June, 2018.

Introduction

1 The sole remaining applicant in these judicial review proceedings is Ms. Maura Harrington, the second named applicant. She is a retired teacher and describes herself as an acknowledged human rights defender. She has opposed the Corrib gas project since January, 2001 and has been involved in all statutory procedures in connection therewith. Ms. Harrington has been an applicant in previous judicial review proceedings in which certain aspects of the process were challenged. This is the latest challenge against the decision of the first respondent, made on 29th December, 2015, to grant a consent to operate the natural gas production pipeline from the Corrib Wellhead, some 65 kilometres offshore, to the Bellanaboy Bridge gas refinery which is approximately 8 kilometres inland from the pipeline's landfall at Glengad, north Mayo. What is known as the ‘ Corrib upstream pipeline’ comprises:-

(a) the offshore and onshore sections of the 20 inch gas pipeline from the subsea manifold in the field to the gas processing terminal, including the landfill valve installation;

(b) the onshore and offshore sections of the control umbilical from the gas processing terminal to the subsea manifold;

(c) the subsea manifold and flowlines and control umbilicals connecting wellheads to the manifold; and

(d) water outflow pipe for discharging at sea treated surface water from the gas processing terminal.

2 The first respondent is empowered by virtue of the provisions of ss. 40, 40A and 40B of the Gas Act 1976, as amended (‘ the Act of 1976’) to grant consents to both construct and operate the said natural gas production pipeline. A relevant consent to construct the natural gas pipeline was granted to the notice party on 25th February, 2011. The notice party made an application for the consent to operate the pipeline, which is being challenged in these proceedings, on 18th August, 2015. On granting any such consent, the first respondent may attach conditions. A consent granted under the Act of 1976 is but one of the number of licences, permissions, and approvals which the notice party is and was required to obtain prior to any entitlement to operate the pipeline. In granting the consent, licences and permissions, the Minister or other empowered entity must be satisfied that requirements of legislation and in particular various directives concerning the impact of such development on the environment have been complied with and that risks to humans and to flora and fauna, including those protected under Council Directive 92/43/EEC of 21st May, 1992 on the conservation of natural habitats and of wild fauna and flora (‘ the Habitats Directive’) and Directive 2009/147/EC of the European Parliament and of the Council of 30th November, 2009 on the conservation of wild birds (‘ the Birds Directive’), are appropriately addressed such that the flora and fauna are protected and preserved. Section 40 of the Act of 1976, provides, inter alia, as follows:-

‘Restriction on construction and operation of pipelines by persons other than the Board.

(1) A person, including the Board, shall not, without the consent of the Minister for the Marine and Natural Resources, construct or operate an upstream pipeline on, over or under the surface of land or of any sea bed that is situate in the territorial seas of the State or a designated area.

(2) The Minister for the Marine and Natural Resources may revoke a consent given by him or her under subsection (1) of this section but such revocation shall not prejudice the validity of anything done previously pursuant to and in accordance with the consent.

(3) Where the Minister for the Marine and Natural Resources gives his or her consent under subsection (1) of this section, he or she shall attach to the consent such conditions, with respect to the construction or operation of the relevant pipeline as he or she considers appropriate, including conditions analogous to all or any of the requirements of subsection (4) of this section.

(4) In case the holder of a consent given under subsection (1) of this section constructs an upstream pipeline the holder shall take all reasonable measures to protect the natural environment and to avoid injuring the amenities of the area and, in particular, and without prejudice to the generality of the foregoing, the holder shall while constructing the upstream pipeline take all reasonable steps to prevent injury to any building, site, flora, fauna, feature or other thing which is of particular architectural, historic, archaeological, geological or natural interest, and when selecting the route for the upstream pipeline the holder shall have regard to any representations made to the holder as regards the route of such upstream pipeline by any local authority within whose functional area a proposed route, or any part of such a route would, if the upstream pipeline were constructed, be situate, or any of the following on, in or over whose land such route or part would in such circumstances be situate, namely:

(a) a harbour authority (within the meaning of the Harbours Act 1946),

(b) a company (within the meaning of the Harbours Act 1996),

(c) the Electricity Supply Board or any other electricity undertaker,

(d) Córas Iompair Éireann or any other railway undertaker, or

(e) a natural gas undertaking (other than the holder).

(5) Where the Minister for the Marine and Natural Resources attaches, under subsection (3) of this section, conditions to a consent given under subsection (1) of this section, the person constructing or operating the relevant pipeline shall comply with those conditions.’

Sections 40A and 40B make provision in respect of Environmental Impact Assessments (‘ EIAs’). These are extensive provisions which I do not propose to reproduce here. Also relevant are ss. 40A(8) and (8A):-

‘(8) When a decision is taken on an application by the Board or another person or arising from a notice given to the Commission or the Minister by a person other than the Board in the case of a proposed pipeline in respect of which an environmental impact statement was submitted in accordance with a requirement of or under subsection (1) of this section, the Commission or the Minister as the case may be shall:

(a) publish notice of its or his decision in the Iris Oifigiúil and in one or more newspapers circulating in the area of the proposed pipeline, and

(b) make arrangements to make the said statement and information on the decision available for inspection by members of the public during a period to be specified by the Commission or the Minister as the case may be.

(8A) (a) The notice under subsection (8)(a) shall inform the public that a person may question the validity of a decision of the Commission or the Minister by way of an application for judicial review under Order 84 of the Rules of the Superior Courts ( SI No 15 of 1986).

(b) The notice under subsection (8)(a) shall identify where practical information on the review mechanism can be found…’

The consent

3 The consent the subject matter of this challenge was communicated in the form of a letter dated 29th December, 2015, signed by Mr. Ciarán Ó hÓbáin,...