Sweetman v Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 15 February 2019
• Neutral Citation: [2019] IEHC 81
• Docket Number: 2017 No. 664 J.R.
• Court: High Court
• Date: 15 February 2019

[2019] IEHC 81

THE HIGH COURT

JUDICIAL REVIEW

Simons J.

2017 No. 664 J.R.

BETWEEN

PETER SWEETMAN

APPLICANT

AND

ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

IRISH WATER

NOTICE PARTY

Judicial review – Jurisdiction – Amendment of licence – Applicant seeking judicial review – Whether it was lawful for the respondent to amend a waste water discharge licence by way of a technical amendment

Facts: These judicial review proceedings presented a net issue of law in respect of the jurisdiction of the respondent, the Environmental Protection Agency (EPA), to amend a waste water discharge licence. The dispute between the parties centred on whether it was lawful for the EPA to amend the licence by way of a technical amendment, or, alternatively, whether the EPA was required to comply with the procedure for the revision of a licence; only the latter procedure triggers any requirement for public participation. A separate issue arose as to whether the EPA complied with its obligations under the Habitats Directive (as implemented by the Birds and Natural Habitats Regulations 2011 (S.I. No. 477 of 2011)).

Held by the High Court (Simons J) that the EPA acted ultra vires in purporting to amend the licence by way of a technical amendment. In circumstances where his findings in respect of the first ground of challenge, namely that in relation to the EPA’s jurisdiction under regulation 33 of the Waste Water Discharge (Authorisation) Regulations 2007, were sufficient to dispose of the judicial review proceedings, Simons J did not propose to make any determination in relation to the Habitats Directive issue.

Simons J proposed to make a declaration that the decision of the EPA of the 22 May 2017 was ultra vires the powers of the EPA having regard to the statutory provisions in Article 33 of the Waste Water Discharge (Authorisation) Regulations 2007.

Judgment approved.

JUDGMENT of Mr Justice Garrett Simons delivered on 15 February 2019

Abbreviations

CJEU Court of Justice of the European Union

EIA Directive Environmental Impact Assessment Directive

EPA Environmental Protection Agency

WWTP Waste Water Treatment Plant

2007 Regulations Waste Water Discharge (Authorisation) Regulations 2007

OVERVIEW

1 These judicial review proceedings present a net issue of law in respect of the Environmental Protection Agency's jurisdiction to amend a waste water discharge licence. The dispute between the parties centres on whether it was lawful for the EPA to amend the licence by way of a technical amendment, or, alternatively, whether the EPA was required to comply with the procedure for the revision of a licence. Relevantly, only the latter procedure triggers any requirement for public participation.

2 For the reasons set out below, I have concluded that the EPA acted ultra vires in purporting to amend the licence by way of a technical amendment.

3 A separate issue arises as to whether the EPA complied with its obligations under the Habitats Directive (as implemented by the Birds and Natural Habitats Regulations 2011 ( S.I. No. 477 of 2011)). In circumstances where my findings in respect of the first ground of challenge, namely that in relation to the EPA's jurisdiction under regulation 33 of the Waste Water Discharge (Authorisation) Regulations 2007, are sufficient to dispose of the judicial review proceedings, I do not propose to make any determination in relation to the Habitats Directive issue. I set out my rationale for this approach at paragraph 90 below.

FACTUAL BACKGROUND

4 These proceedings concern the regulation of the discharge of waste water from the combined sewer network of Youghal, County Cork.

5 The Waste Water Discharge (Authorisation) Regulations 2007 ( S.I. No. 684 of 2007) (‘ the 2007 Regulations’) obliged local authorities to apply for a waste water discharge licence. This obligation extended to existing discharges, i.e. the 2007 Regulations were not confined to new establishments. The prescribed deadline for the making of an application in the case of agglomerations, such as Youghal, with a population equivalent of between 2,001 and 10,000 was 22 September 2008. It appears from regulation 5 of the 2007 Regulations that once a local authority had made an application prior to the prescribed deadline, then the authority was entitled to continue to discharge waste water pending the determination of the licence application.

6 Cork County Council (Southern Division) applied for a waste water discharge licence in respect of Youghal in or about 22 September 2008. At the time of the making of the application, there was no waste water treatment plant (‘ WWPT’) serving the town's population. There was, however, a proposal to develop a new WWTP at Mudlands, immediately north of Youghal's town centre. The development of the WWTP required a number of other development consents, including certification pursuant to article 123 of the Local Government (Planning & Development) Regulations 1994. This certificate issued in March 2002. An environmental impact statement (‘EIS’) had been submitted to An Bord Pleanála as part of the planning certification process. A copy of the EIS was subsequently furnished to the EPA in 2008 in accordance with regulation 17 of the 2007 Regulations.

7 (The provisions of the 2007 Regulations in respect of environmental impact assessment have since been amended by the Waste Water Discharge (Authorisation) (Environmental Impact Assessment) Regulations 2016 ( S.I. No. 652 of 2016) in order to comply with the judgment of the CJEU in Case C 50/09 Commission v. Ireland).

8 The licence application was subject to a Stage 2 appropriate assessment for the purposes of the Habitats Directive. The developer submitted a document entitled ‘Appropriate Assessment under Article 6(3) of the “Habitats Directive”’ (‘ the 2011 AA report’). It appears that the AA report may have been revised in November 2011 following a request for further information pursuant to regulation 18 of the 2007 Regulations. See §1.2 of the report.

(i) Waste Water Treatment Plant

9 One of the principal issues in the proceedings concerns the timing of the provision of the waste water treatment plant (‘ WWTP’). When the licence application was made in 2008, the intention was that the WWTP would be completed by 31 December 2015. In the event, the WWTP was not, in fact, completed and operational until early December 2017. The current status of the WWTP is explained in detail in the affidavit of Mr Paul Fallon filed on behalf of Irish Water on 25 April 2018. See paragraph 34 below.

10 As discussed presently, one of the arguments advanced on behalf of the EPA is to the effect that the purpose of the 2012 licence was to authorise discharges subject to certain emission limit values, and that there was no express requirement to cease the discharge of untreated water as of 31 December 2015.

11 The following passages from the EPA's inspector's report of 17 May 2012 are relevant to the appraisal of this argument.

12 The proposed WWTP was addressed as follows in the inspector's report (at page 8 of 19).

‘7. Discharges where no treatment or insufficient treatment is in place

As there is currently no municipal WWTP in Youghal, the principal requirement is to eliminate, the untreated waste water discharges to the receiving transitional/coastal waters and to provide a WWTP that treats the waste waters to a standard that complies with National and EU legislation. A WWTP and network upgrade works are required by 31st December 2015. Condition 3.1 requires that, where discharges are required to comply with emission limits by a specified date, the licensee shall, prior to this date; take measures to ensure that environmental pollution is not caused as a result of the discharges.

The overall aim under the Water Framework Directive is for waters to achieve “Good” water quality status by a specified date. The River Blackwater M Estuary/Youghal Harbour is at “Moderate” status and has the objective to “restore by 2021” to “Good” status. The planned improvement works in the Youghal agglomeration, as set out in Section 2 of this report, will contribute significantly to achieving this aim.’

13 The requirement for the WWTP is also addressed as part of the discussion of the Urban Waste Water Treatment Directive, at page 9 of 19 of the inspector's report, as follows.

‘9.5 Urban Waste Water Treatment Directive [91/271/EEC]

Youghal does not comply with the requirements of the Urban Waste Water Treatment (UWWT) Directive in terms of the level of treatment provided, i.e, there is currently no waste water treatment and the p.e. of the agglomeration is >2,000. The UWWT Directive required the Water Services Authority to provide for secondary treatment or an equivalent treatment by 31st December 2005 in respect of the Youghal agglomeration. The RL, as drafted, has regard to the requirements of the UWWT Directive and requires the licensee to provide a WWTP in the Youghal agglomeration by 31st December 2015. Monitoring of the primary discharge from the new WWTP is specified in the RL in accordance with requirements of the UWWT Directive, i.e., monthly.’

(ii) Primary discharge point

14 As of the date of the making of the application in 2008, untreated waste water was being discharged directly into the estuary from a number of points. It was proposed that once the WWTP was completed, there would then be a new primary discharge point to be located at Ferry Point (referred to as ‘ SW001’).

15 It should be noted that, in addition to primary discharge points, the discharge of waste water also requires that there be storm water overflows and emergency overflows. It was intended that these would also be subject to rationalisation and reorganisation following the completion of the WWTP, i.e. discharges from certain points were to cease, and other points were to change their status.

16 As discussed...