Wednesday 6 April 2011

Court agrees to fast-track challenges to Corrib decision

THE COMMERCIAL Court has agreed to fast-track separate legal challenges by An Taisce and two local residents aimed at quashing a consent permission by An Bord Pleanála for an onshore pipeline linked to the Corrib gas field in Co Mayo.

An Taisce chairman Charles Stanley-Smith said the deliberations of the board, when granting the consent last January, were not transparent and the board had failed to properly record its decision. An Taisce had inspected An Bord Pleanála’s file and there were “glaring omissions”, he said in an affidavit.

An Taisce was not opposed to exploitation of the Corrib gas field but was very concerned at how this latest consent had been obtained and about the manner in which the project was being split into several parts, with each part requiring its own consent, Mr Stanley-Smith added.

This approach was giving rise to “a poor standard of decision-making” and an absence of strategic and holistic environmental assessment. European law required such a project to be properly screened and assessed as a whole.

He said the planning board did not carry out an appropriate assessment and there was no reference in its decision to any conservation objectives.

The board also appeared to have differed from its own inspectors who determined the proposed development would be likely to have a significant effect on European habitat sites and should be subject to appropriate assessment.

Mr Justice Peter Kelly transferred both actions to the Commercial Court yesterday, made directions for the exchange of legal documents and directed the cases would be heard together beginning on October 4th.

When James Devlin SC, for An Taisce, expressed concern about some preliminary works being carried out for the pipeline, Declan McGrath, for Shell EP Ireland, said these were exempt development and there was no need for any injunction application to be brought pending the October hearing.

When Mr Justice Kelly told Mr Devlin that Mr McGrath’s remarks should provide him with “some comfort”, Mr Devlin replied: “Not necessarily.”

However, both he and Michael O’Donnell, for local residents Peter Sweetman and Monica Muller, indicated they were not seeking to bring any injunction applications at this point.

An Taisce, the national trust for Ireland, and Ms Muller and Mr Sweetman, Rossport South, Ballina, Co Mayo – who own land 500 metres south of the proposed pipeline – have advanced a large number of grounds in support of their challenges but they have been directed to narrow these down.

They want orders quashing the board’s decision of January 19th last granting permission to Shell EP Ireland to construct 8.3km of pipeline between the Corrib gas field and the gas terminal at Bellanaboy.

In both cases, it is claimed the pipeline consent granted by the board breaches provisions of the European environmental impact assessment directive.

It is also claimed that the State had failed to properly implement that directive here.

It is alleged that the board, in its assessment of the Shell planning application, was required but failed to carry out an appropriate assessment in relation to the impact of the development on the conservation of natural habitats and of wild fauna and flora.

Both sets of proceedings are against An Bord Pleanála, the Minister for the Environment, Ireland and the Attorney General with Shell EP Ireland a notice party. Mayo County Council is also a notice party in An Taisce’s action but intends to play no active part in the case as no orders are sought against it.

The cases are brought via applications for leave for judicial review. Mr Justice Kelly has directed that the leave applications will be heard in tandem with the substantive judicial reviews.

He also directed that the claims for orders quashing the permission and related to the environmental impact assessment directive will be determined first.

Depending on the outcome of those claims, the court may then proceed to decide arguments that section 50b of the Planning and Development Act, which abolishes legal costs orders in decisions covered by the directive except in “exceptional circumstances”, is unconstitutional and contrary to European law.

Irish Times

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