McBride v Galway Corporation

• Jurisdiction: Ireland
• Judge: Mr Justice Francis D Murphy,Keane J
• Judgment Date: 24 March 1998
• Date: 24 March 1998
• Docket Number: 321/97.,[1996 No. 201 JR; S.C. No. 321 of 1997]
• Court: Supreme Court

1998 WJSC-SC 9475

The Supreme Court

Hamilton CJ

Keane J

Murphy J

321/97.

McBRIDE v. MAYOR, ALDERMAN & BURGESS OF GALWAY

Judicial Review

BETWEEN

RAYMOND McBRIDE

Applicant/Respondent

AND

THE MAYOR ALDERMAN AND BURGESSES OF THE COUNTY BOROUGH OFGALWAY

Respondents

Citations:

FORESHORE ACT 1933 S13(a)

EEC DIR 85/337

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1990 SI 25/1990 ART 34

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

EUROPEAN COMMUNITIES (CONSERVATION OF WILD BIRDS) (AMDT) (NO 2) REGS 1994

349/1994

EEC DIR 79/409

EUROPEAN COMMUNITIES (CONSERVATION OF WILD BIRDS) REGS 1985 SI 291/1985

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

EEC DIR 92/43 ART 6

KRAAIJEVELD BV V GEDEPUTEERDE STATEN VAN ZUID-HOLLAND 1996 ECR 1–5403

P STICHTING GREENPEACE COUNCIL V COMMISSION UNREP ECJ OPINION 23.9.1997

COMMISSION V GERMANY 1995 ECR 1–2189

EEC DIR 92/43 ART 6(2)

EEC DIR 92/43 ART 6(3)

EEC DIR 92/43 ART 6(4)

COMMISSION V GREECE UNREP ECJ 26.6.1997

R V SECRETARY OF STATE FOR ENVIRONMENT EX PARTE ROYAL SOCIETY FOR THE PROTECTION OF BIRDS 1996 ECR 1–3805

TWYFORD PARISH COUNCIL V SECRETARY OF STATE FOR ENVIRONMENT 1992 1 CMLR 276

TREATY OF ROME ART 189(3)

FRATELLI CONSTANZA SPA V COMMUNE DI MILANO 1989 ECR 1839

MARSHALL V SOUTH HAMPTON & SOUTH WEST HAMPSHIRE AREA HEALTH AUTHORITY 1986 ECR 723

EEC DIR 76/207 ART 5(1)

FORESHORE ACT 1933 S19(A)

FORESHORE ACT 1933 S19(A)(3)

FORESHORE (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1990 SI 220/1990 ART 4

FORESHORE ACT 1933 S19B

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1990 SI 25/1990 ART 38

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1990 SI 25/1990 ART 39

FORESHORE (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1990 SI 220/1990 ART 41

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1990 SI 25/1990 ART 40

EEC DIR 92/43 ART 4

EEC DIR 92/43 ART 3

EEC DIR 92/43 ART 7

Synopsis

Planning

Judicial review; certiorari; compliance with EU law; Environmental Impact Statement; order sought to quash decision of respondents inviting tenders for the construction of sewage treatment plant on island; whether date of application to carry out development made before foreshore regulations implementing EU directive came into effect; whether application defective in not having an environmental impact statement prepared; whether respondents complied with EU Environmental Directive; S.I. 25/1990; S.I. 349/1989; Foreshore Act, 1933

Held: Relief refused; compliance with directives

McBride v. Galway Corporation - Supreme Court: Hamilton C.J., Keane J., Murphy J. - 24/03/1998 - [1998] 1 IR 517

1 JUDGMENT delivered the 24th day of March, 1998by Keane J [HAMILTON AG???

Introduction

2 This is an appeal from the judgment of the High Court (Quirke J.) delivered the 31st July 1997 and the order of the High Court dated the 9th September, 1997 in these proceedings.

3 In the proceedings, the applicant, who is a member of a body called the "Save Galway Bay Group" sought by way of judicial review inter alia an order of certiorariquashing the decision of the respondents to invite tenders for the construction of a development consisting of a waste water treatment plant onMutton Island and an access causeway. Mutton Island is about 1 kilometre off shore from South Park on the southern fringe of Galway City. The object of the works is to transport sewage effluent to the treatment plant. The respondents also proposed to construct a submarine outfall pipe for the disposal of the treated effluent to the sea.

4 As the learned trial judge noted in the judgment under appeal, proposals for providing a comprehensive system of drainage for Galway City and its environs, involving the transmission of the sewage of gravity through sewers to the South Park area, the pumping of the sewage after screening to Mutton Island and its discharge on the south side of the island, have been under consideration for over 30 years. In 1988, the consultants retained by the respondents, Messrs. PH McCarthy Son & Partners, were in correspondence with two relevant government departments, of the Marine and the Environment, concerning the proposal. Those bodies were reluctant to approve such a scheme unless it provided, not merely for the screening of the sewage before it was pumped out to Mutton Island, but also for full secondary treatment. The respondents" scheme, accordingly, as it was ultimately approved by those two bodies, included provision for full secondary treatment of the sewage at the plant on Mutton Island.

5 The respondents" proposals caused considerable controversy in the Galway area and were also the subject of a difference of opinion between the European Commission and the Minister for the Environment, the former (who were providing 85% of the cost of the treatment plant from the Cohesion Fund) being in favour of an alternative site as LoughAttalia.

6 In addition to obtaining approval from the Minister for the Environment for the scheme, the respondents were granted a lease of the relevant area of the foreshore by the Minister for the Marine to enable them to carry out the project. However, on the 24th June, 1996, the High Court gave leave to the applicant to institute the present proceedings by way of judicial review claiming the relief to which I have referred. A notice of motion on behalf of the applicant and a statement of opposition on behalf of the respondents having been filed, the matter came on for hearing before Quirke J. who, in a reserved judgment, dismissed the applicant's claim.

The Factual Background

7 The respondents had been granted a licence by the Minister for the Marine under the Foreshore Act 1933(hereafter "the 1933 Act") as far back as the 17th November 1978. That, however, merely provided for the laying of a sewage pipe on the foreshore between South Park and Mutton Island.

8 When the consultants wrote to the Department, of Marine on the 12th July 1988, they said:-

"We act for the Galway Corporation who are proposing to construct a causeway from South??? to Mutton Island to provide access for a new pumping station and treatment works on the island. Part of the causeway will be in the area between high and low water and part will be beyond the low water mark. Please advise regarding requirements in order to obtain a foreshore licence and also if permission is required under any other Act for the construction of the causeway below low water mark. Attached is a copy of DWG number 284/3/340 which shows causeway."

9 In its reply, the department indicated that further information would be required and there followed a series of meetings and further correspondence. The department officials were concerned that, before any lease or licence was granted under the 1933 Act, there was a firm commitment by the respondents for the provision of secondary treatment of the sewage.

10 The 1993 Act appeared on the statute book long before contemporary concerns with damage to the environment became so pressing. The procedure for obtaining a lease or licence of the foreshore from the relevant minister wasrelatively simple and, in particular, there were no specific requirements as to the manner in which an application was to bemade.

11 In recent times, the legislative scene has altered dramatically and, as so often and in so many areas, the impetus came from the European Union. This took the form in the first place of the Council Directive of 27th June 1985 (hereafter "the Environment Directive") which Ireland was required to implement not later than July 3rd 1988. In the event, Ireland complied with its obligations on the 1st February 1990 by enacting two sets of regulations. The first, the Local Government (Planning and Development) Regulations 1990 ( S.I. No. 25 of 1990) (hereafter "the Local Government Regulations") interalia imposed on local authorities, in the case of certain developments, the obligation to prepare what was described as "an environmental impact statement", usually referred to by its acronym, "EIS". It is not in dispute that Mutton Island was such a project. On the same day, however, another set of regulations, the European Communities (Environmental Impact Assessment) Regulations 1989 ( S.I. No. 349 of 1989) also became law. Those regulations effected amendments to a number of different legislative provisions, in order to comply with the Environment Directive, including amendments to the 1933 Act (hereafter "the Foreshore Regulations").

12 The Foreshore Regulations also required the local authority or, of course, any other person carrying out a development to which the regulations applied, to prepare an EIS. Under the Foreshore Regulations, the EIS was to be submitted to the Minister for the Marine, whereas under the Local Government Regulations (also, in the case of this project, binding on the respondents) it was to be submitted to the Minister for the Environment. The respondents took the view that, while they were bound to prepare an EIS and submit it to the Minister for the Environment in order to comply with the Local Government Regulations, they were not required to submit an EIS to the Minister for the Marine, since, as they thought, their application to that minister, however informally made, had predated the Foreshore Regulations.

13 On the 7th September 1990, what the trial judge described as "an interim and relatively informal licence" was granted to the respondents by the Minister for the Marine enabling the Respondents to begin work on the foreshore

"pending completion of the legal formalities regarding the necessary lease under the Foreshore Act 1993."

14 The accompanying letter drew the attention of the respondents to the requirement that an EIS should be submitted to the Minister for the Marine. Such an EIS was furnished in September 1990, but the Department of theEnvironment advised the respondents that it was inadequate. A new EIS was then prepared by...