Irish Water v Woodstown Bay Shellfish Ltd
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 06 April 2017 |
| Neutral Citation | [2017] IEHC 223 |
| Docket Number | [2016 No. 194 CA] |
| Court | High Court |
| Date | 06 April 2017 |
CORK CIRCUIT COUNTY OF CORK
[2017] IEHC 223
Baker J.
[2016 No. 194 CA]
THE HIGH COURT ON CIRCUIT
Environment, Transport & Planning – Fisheries & Wildlife – Planning & Development – Environmental Impact Assessment ("EIA") – Notice of intention to lay drainage pipes – S. 97 of the Water Services Act 2007 – Development of drainage system – Jurisdiction of the Circuit Court – Habitats Directive
Facts: The appellant had filed an appeal against the Circuit Court order for refusing to make directions to permit the appellant to carry out inspection of the mussel bed at the relevant Harbour, which was the property of the respondent. The respondent argued that the proposal to lay down the drainage pipe by the appellant at the said seabed would disturb all of the mussel beds. The appellant served a notice of intention to the respondent asking for its consent, which was refused by the respondent. The appellant had thus, lodged an appeal to the Circuit Court, which was pending determination. The appellant argued that it was necessary to inspect the relevant site for weighing the rights of the respondent in its mussel fishery against the public interest.
Ms. Justice Baker dismissed the appeal. The Court held that since the alleged inspection involved a European site, the appellant's application would be gleaned under the Habitats Directive. The Court held that the Circuit Court was correct in refusing the appellant's application as such an application had to be determined by the assessment of proportionality of the alleged inspection with the environmental imperatives under the Habitats Directive. The Court observed that the appellant had not demonstrated the position of the proposed pipelines and its possible impacts on the relevant site, which would definitely cause some level of destruction and give rise to an application for compensation, the matter which was outside the jurisdiction of the Circuit Court.
This judgment is given in an appeal from the order of Judge Riordan, judge of the Cork Circuit Court, given on 27th July, 2016 by which he refused to make directions permitting the appellant to carry out an inspection of the mussel bed at Youghal harbour in the County of Cork, the property of the respondent.
Youghal harbour comprises an area of approximately 491 hectares and the Devonshire Estate is the owner of the seabed. The town of Youghal has a population of 8,000 people which increases to 14,000 in the summer months. The town has for a long number of years been drained by three storm and foul water drains directly into the harbour. In or around the year 2000 Youghal Urban District Council commenced the process of the provision of a main drainage scheme for the town with a view to modernising the storm and foul drainage in the town.
An Environmental Impact Assessment ('EIA') was carried out by An Bord Pleanála for the purpose of the works in or around the year 2001. Because the works involved significant works of development, Youghal Town Council (formerly Youghal Urban District Council) required at a minimum a foreshore licence, a waste water licence, and other licences and permissions the granting of which involved several state agencies. By the middle of 2015 all relevant licences and authorisations had been received and the works were ready to commence.
Irish Water is the successor in title of Youghal Urban District Council and is the agency now responsible for the management of water services including the drainage scheme proposed for the town of Youghal.
Woodstown Bay Shellfish Ltd ('Woodstown') is a limited liability company which has had since 2002 a licence from the Duke of Devonshire to occupy the entire bed of the harbour. The owner of the reversion is now Lismore Realty Limited and it renewed the licence of Woodstown by formal agreement made on 7th July, 2014, for a further period of ten years.
The main drainage scheme proposes inter alia the laying of a pipe of 710 millimetres diameter along a route of approximately 365 metres to a channel in the centre of the harbour. Irish Water estimates that the pipe will occupy 0.2% of the entire area of the bay.
It is accepted for the purposes of the present application that the laying of the pipe will almost certainly disturb the seabed, is likely to raise silt which will 'blanket' the mussel farm, and that the result may be the loss of some or all of the mussel beds. Mitigation measures are proposed, the nature and efficacy of which are not an issue in the present application.
Having regard to the licence under which Woodstown is entitled to occupy the entire of the seabed of the harbour, it is accepted that it has sufficient interest in the area through which the main drainage pipe is proposed and has locus standi to oppose the scheme. For the purposes of the present application Irish Water accepts that the enterprise of Woodstown will be impacted.
The statutory provision for entry to lay and maintain pipes
Section 97 of the Water Services Act 2007 ('the Act of 2007') makes provision for the laying of water mains, sewers, service connections and related cables and wires for the purposes of the statutory function of the water services authority. This judgment concerns the import of that section and the correctness of the order given by Judge Riordan on an interlocutory application relating to preparatory work for the laying of such mains and sewers.
Section 97 in its relevant part provides as follows:
'97 (1) (a) Where in the opinion of a water services authority it is considered necessary for the purpose of any of its functions to—
(i) place, construct, lay or connect, as may be appropriate, water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires on, into, through, under or over any land not forming part of a public road ......
then it may, after giving 28 days notice of its intention to the owner and the occupier of that land or premises, as the case may be, indicating the position of the proposed installations referred to in subparagraph (i), and with the consent of the said owner and occupier, place, construct, lay or connect water mains, sewers, service connections or any ancillary fixtures or fittings or related cables or wires, or attach to the premises such bracket, or notice referred to in subsection (2), or other fixture as indicated in the notice given under this subsection, and may, from time to time, inspect, repair, alter, renew or remove any of them.
Provision is made for a response:
(3) Where a person to whom a notice under subsection (1) is addressed has not, within 28 days of the giving of such notice, indicated his or her consent, that person's consent shall be deemed to have been withheld.
Application is made to the Circuit Court in the case of a failure or refusal to consent:
(4)(a) Where a person to whom a notice under subsection (1) is addressed has withheld his or her consent, or where his or her consent is deemed to be withheld under subsection (3), then, the water services authority which issued the notice may appeal to the Circuit Court.
The powers of the Circuit Court are set out in the Act:
(4)(b) The Circuit Court in considering an appeal under this section may, by order—
(i) confirm the notice, with or without variation, or
(ii) set the notice aside,
but shall not determine any matter to which subsection (8) refers.
The effect of an order of the Circuit Court is:
(5) Where the Circuit Court confirms, with or without variation, a notice under subsection (1), consent shall be treated as having been given for the purposes of subsection (1), with effect from the date of such confirmation.
I am advised by counsel that the section is entirely free of authority, and that no judgment has been given by any court of record relating to the operation of the section, or of the powers of the Circuit Court on appeal.
The basic scheme of the legislation requires the water services authority to give 28 days notice of its intention to lay or place water mains or sewers and any ancillary services through, on or under an identified place in the lands of a third party. The notice can be given only after the water services authority has ascertained the position of the proposed installations, and the section requires that the formal 28 day notice to be furnished must indicate the position of such.
Any person to whom a notice of intention to place or lay a sewer or pipe is served may indicate his or her consent thereto, but if consent is not given within 28 days after the giving of such notice that person's consent is deemed to have been withheld: s. 97(3).
Irish Water served a notice on Woodstown on 20th January, 2016, and Woodstown formally replied refusing consent by letter of 26th January, 2016.
The statutory scheme provides for an appeal to the Circuit Court of a refusal or withholding of consent by the owner or occupier of land on, under or through which it is proposed to lay an installation.
An appeal was lodged dated 15th February, 2016 to the Cork Circuit, County of Cork by which Irish Water sought the confirmation of its notice without variation pursuant to s. 97(4)(b) of the Act of 2007.
That appeal is yet to be determined by the Circuit Court.
The procedures in statutory appeals are provided in O. 64C of the Circuit Court Rules, ( S.I. 470 of 2009). An appeal is commenced by way of originating notice of motion grounded on affidavit. No argument arises with regard to the procedure adopted by the parties for the purposes of the Circuit Court appeal.
Order 64C rule 7 provides for the giving by the Circuit Court of...
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