Martin Harrington v Environmental Protection Agency and Another

JurisdictionIreland
JudgeMr. Justice Barrett
Judgment Date30 May 2014
Neutral Citation[2014] IEHC 307
CourtHigh Court
Docket Number[2014 Nos. 122 JR &32 COM]
Date30 May 2014

[2014] IEHC 307

THE HIGH COURT

[No. 122 J.R./2014]
[No. 32 COM/2014]
Harrington v Environmental Protection Agency & Anor
IN THE MATTER OF AN APPLICATION UNDER THE ENVIRONMENTAL PROTECTION AGENCY ACT 1992 - 2013, AND
IN THE MATTER OF AN APPLICATION

BETWEEN:

MARTIN HARRINGTON
APPLICANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY
RESPONDENT

AND

SHELL E & P (IRELAND) LIMITED
NOTICE PARTY

RSC O.84

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83

EEC DIR 2010/75 ANNEX I

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82A

EUROPEAN UNION (INDUSTRIAL EMISSIONS) REGS 2013 SI 138/2013 REG 8

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 PART IV

EEC DIR 2011/92

EEC DIR 92/43

RSC O.84 r21(1)

SLOAN & ORS v BORD PLEANALA & LOUTH CO COUNCIL 2003 2 ILRM 61 2003/47/11520

JOHN PAUL CONSTRUCTION LTD v MIN FOR THE ENVIRONMENT UNREP KELLY 15.8.2006 2006/30/6424 2006 IEHC 255

COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE & ORS UNREP SUPREME 17.10.2012 2012/7/1702 2012 IESC 50

UNIPLEX (UK) LTD v NHS BUSINESS SERVICES AUTHORITY 2010 PTSR 1377 2010 2 CMLR 47 2010 ECR I-817

BAXTER HEALTHCARE LTD v HEALTH SERVICE EXECUTIVE UNREP PEART 16.7.2013 2013 IEHC 413

MURPHY v AG 1982 IR 241

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

CRIMINAL LAW AMDT ACT 1935

SHELLY v DISTRICT JUSTICE MAHON & DPP 1990 1 IR 36

F HOFFMANN-LA ROCHE & CO AG & ORS v SECRETARY OF STATE FOR TRADE & INDUSTRY 1975 AC 295 1974 3 WLR 104 1974 2 AER 1128

PERCY & ANOR v HALL & ORS 1997 QB 924 1997 3 WLR 573 1996 4 AER 523

MOSSELL (JAMAICA) LTD (T/A DIGICEL) v OFFICE OF UTILITIES REGULATION UNREP 21.1.2010 2010 UKPC 1

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 PARA 11.85

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

DEERLAND CONSTRUCTION LTD v AQUACULTURE LICENCES APPEALS BOARD & MIN FOR COMMUNCIATIONS 2009 1 IR 673 2008/11/2331 2008 IEHC 289

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S90(2)(B)

INSPECTOR OF TAXES v KIERNAN 1981 IR 117 1982 ILRM 13 1981/10/1728

MCQUIRE v WESTERN MORNING NEWS CO LTD 1903 2 KB 100 1900-03 AER REP 673

FRESCATI ESTATES LTD v WALKER 1975 IR 177

NESTOR v MURPHY 1979 IR 326

INTERPRETATION ACT 2005 S5(1)

DPP (GARDA IVERS) v MURPHY 1999 1 IR 98 1999 1 ILRM 46 1998/16/5907

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S84(3)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S92

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(10)

GOONERY v MEATH CO COUNCIL & ORS UNREP KELLY 15.7.1999 1999/12/2990

MAHON v BORD PLEANALA UNREP DUNNE 21.12.2010 2011/34/9444 2010 IEHC 495

CMSN v IRELAND 2011 PTSR 1122 2011 ENV LR 25 2011 ECR I-873

COMHALTAS CEOLTEOIRI EIREANN, IN RE UNREP FINLAY 14.12.1977 1977/2/306

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82A(11)

R v WESTMINSTER CITY COUNCIL, EX PARTE ERMAKOV 1996 2 AER 302 1996 2 FCR 208 1996 28 HLR 819

R (NASH) v CHELSEA COLLEGE OF ART & DESIGN UNREP BURNTON 11.7.2001 2001 EWHC ADMIN 538

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82A(10)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82A(10)(C)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(5)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(2A)

EUROPEAN COMMUNITIES (BIRDS & NATURAL HABITATS) REGS 2011 SI 477/2011 REG 2

EUROPEAN COMMUNITIES (BIRDS & NATURAL HABITATS) REGS 2011 SI 477/2011 REG 42(1)

Judicial review - O. 84 of the Rules of the Superior Courts 1986 - Environmental Protection Agency - Integrated Pollution Prevention and Control licence - Delay - Whether the quashing of a decision to grant a revised IPPC licence resurrected or reinvigorated the previously subsisting licence - Purported failure by the EPA to state reasons for its decision

Facts Mr Harrington, by way of judicial review, wished to challenge a decision of the Environmental Protection Agency to amend an Integrated Pollution Prevention Control licence. The EPA granted Shell an IPPC licence on 12 th November 2007 for the operation of a gas refinery and certain combustion installations in co. Mayo. In March 2010, Shell applied to the EPA for a review of this licence. This was owing to a new agreement it had entered into with the Erris Inshore Fishermen"s Association to use an alternative location, to that which had already been approved in the 2007 licence, for the discharge of treated water. The review led to the decision of the EPA on 5 th June 2013 to grant a revised licence. The granting of this revised licence is the subject matter of the judicial review proceedings – Mr. Harrington sought an order of Certiorari quashing the decision of the 5 th of June. This was granted and it was advised that the 2007 licence would remain in force. The EPA was later required to examine all licences issued in respect of activities listed in Annex I of the Industrial Emissions Directive in order to determine if each licence complied with the requirements. Section 82A of the Environmental Protection Agency Act 1992 states if the EPA is of the opinion that the licence can be brought into conformity with the Industrial Emissions Directive by amending one or more of the conditions or schedules to the licence, and the making of the amendment will not significantly alter the character of the licence, the EPA is statutorily empowered to make those amendments. The EPA was required by law to examine the terms of the 2007 licence to bring it into conformity with the Directive. From that time, the 2007 licence was deemed an Industrial Emissions Licence.

Held Mr Harrington failed to commence judicial review proceedings within the three month time limit and offered no convincing reason for his failure to do so; his application was therefore out of time. The court concluded that the effect of the order of 15th October 2013, which quashed the decision of the EPA to grant a revised IPPC licence, was that the decision of the EPA was void ab initio. Consequently, the revised IPPC licence was no longer in force and the only reading of the legislation which did not admit of absurdity is that upon the issuance of the order, the 2007 IPPC licence immediately took force again and applied anew. Mr Harrington alleged the EPA had failed to state reasons for its decision. However, there was no statutory requirement to give reasons for a determination under s 82A of the 1992 Act. Nonetheless, the EPA clearly stated its reasons for the decision and so the judge found this plea entirely without merit. Mr Harrington also alleged the EPA had failed to accord him fair procedures and denied his legitimate expectation to have an opportunity to participate in the amendment process. However, the EPA rejected this relying on s 82 (A) (10) stating there will be no consultation with the public or with persons who participated in the application for the relevant licence.

-Relief sought refused.

1

1. These proceedings are judicial review proceedings brought under O. 84 of the Rules of the Superior Courts 1986, as amended. The applicant has sought in the proceedings to challenge the decision of the Environmental Protection Agency on 6 th January, 2014, to amend Integrated Pollution Prevention and Control or 'IPPC' Licence (P0738-01), granted on 12 th November 2007. The hearings centred on the issues of delay, whether the quashing of a decision to grant a revised IPPC licence resurrected or reinvigorated the previously subsisting licence, the possibility that this application represents an impermissible collateral attack on the 2007 IPPC licence, a purported failure by the EPA to state any reasons for its decision of 6 th January last, and various alleged errors on the face of the decision of 6 th January last.

Background facts
2

2. The EPA granted Shell E & P (Ireland) Limited an IPPC licence on 12 th November, 2007 pursuant to section 83 of the Environmental Protection Agency Act 1992, as amended. This licence was for the operation of a gas refinery and the operation of certain combustion installations in County Mayo. In March 2010, Shell applied to the EPA for a review of the 2007 IPPC licence. This review was primarily necessitated by an agreement entered into between Shell and the Erris Inshore Fishermen's Association, whereby Shell, as a good corporate citizen, agreed to use an alternative location to that which had already been approved in the 2007 licence, for the discharge of treated water from the gas refinery. Under the 2007 licence, the discharge point for the treated water was an outfall point some 12.5 kilometres offshore from the landfall location. The agreement entered into between Shell and the Fishermen's Association involved the change in the location of the discharge point to some 65 kilometres offshore. This review application culminated in a decision of the EPA on 5 th June, 2013, to grant a revised IPPC licence to Shell. This decision of the EPA to grant a revised IPPC licence to Shell was the subject-matter of judicial review proceedings instituted by the applicant in these proceedings, Mr. Harrington, in July 2013. In those proceedings, Mr. Harrington sought an order of certiorari quashing the decision of 5 th June. On 15 th October, 2013, with the consent of the EPA, the High Court granted an order of certiorari quashing the decision of the EPA on 5 th June, 2013, to grant the revised IPPC licence. A week later, by letter dated 22 nd October, 2013, the EPA wrote to Mr. Harrington, Shell and other interested parties advising that the 2007 licence continued in force. However, the EPA's views in this regard had in fact been widely known since 17 th October, 2013, by virtue of an Irish Times article in which a statement of the EPA as to its views was published. The copy of the revised IPPC licence available on the EPA's website soon after the order of 15 th October, 2013 also stated that the licence had been quashed by order of the High Court and referred readers to the 2007 licence which...

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