February 15th, 2019
Plans for a €500 million gas terminal in Co Kerry hit a major hurdle today as the High Court deferred judgement in a case over the potential need for new environmental assessments for the project.
The case relates to proceedings brought by Friends of the Irish Environment (FiE) over the Board’s decision to extend the original 10-year planning permission for the proposed terminal in the Shannon Estuary.
The project has been on hiatus for the past decade since planning permission was first granted in March 2008. A five-year extension was granted last year to allow a reasonable period for the completion of the project according to An Bord Pleanála.
The project was only the second in the country to be granted Strategic Infrastructure Development (SID) status by the Board and is the first SID project to be granted planning extension. FiE argues that the Board’s decision to grant an extension ignores recent developments in climate legislation as well expanded protections to nature sites adjacent to where the terminal would be built.
The Board and the developer argue that the case concerns purely a “temporal change” in the permission and that there is no material change of the development itself. As such, the planning authority argues that it does not need to re-examine the 2008 environmental assessments nor does it need to carry out new screening or assessments under the EU Habitats Directive.
The Directive requires a competent authority to examine the potential impact on protected habitats, and species within that habitat, before granting planning permission for a project which is likely to have a significant effect on the protected area.
A number of questions raised
Outlining his judgement this morning, Mr Justice Garrett Simons said that the key issue in the case is whether a decision to extend the duration of planning permission engages with the Directive. He said that he has “decided that it is necessary for this court to refer a number of questions” to the European Court of Justice (ECJ) on this issue.
The key question, he said, is whether there is a need to carry out a screening exercise to determine any likely significant effect on nearby protected sites where a competent authority’s decision “merely extends the duration of planning permission, without any physical change to the permitted project”.
If the ECJ finds that this is required, Mr Justice Simons has also asked the court what considerations the authority is required to have regard to in carrying out the screening or if the competent authority is required to assess the environmental impacts of the entire development.
The decision puts the project in doubt as it will likely be one to two years before an answer is received from Europe, followed by additional time for the case to be re-examined by the Irish courts.
In the interim, Mr Justice Simons said that he would be “very concerned” if the developer intends to carry out any works in relation to the “so-called planning permission”. In the case where the developer proposes to start work, FiE would need to receive four-week notice followed by a request from the developer to the courts for a stay of proceedings.
Protected nature areas
The proposed terminal is set to be located adjacent to the Lower River Shannon Special Area of Conservation (SAC) that contains an important calving site for bottle-nosed dolphin in Ireland. The entire Shannon Estuary was within the SAC at the time of the original application to the Board.
The project would also be located in the vicinity of the Shannon and River Fergus Estuaries Special Protection Area (SPA) that has been extended to encompass the entire Shannon Estuary since planning permission was originally granted in 2008.
The River Shannon and River Fergus Estuaries are acknowledged to be the most important coastal wetland in Ireland, containing the largest numbers of birds and wintering birds on the island.
The objective of the designation of the SPA is to maintain favourable conservation conditions for at least 21 bird species including the cormorant, ringed plover, lapwing and curlew, and to also maintain the favourable conservation condition of the wetland habitat itself.
The latest of three inspector reports on the proposed development indicated that, as the request from Shannon LNG relates only to an extension of time for planning permission, the project will not have any impact on the Conservation Objectives for the SPA.
The report states that the original environmental impact statement submitted by the developer referred to the potential expansion of the SPA when considering potential impacts of the development on bird species.
Expiry of permission
FiE also argues that the Board’s decision to extend permission was taken three months after the original 10-year permission had expired on March 31, 2018. In a written submission for the case from 14 January 2019, FiE contended that planning permission which has lapsed “cannot be resurrected Lazarus-like”.
Under section 42 of the Planning and Development Act 2000 there is a set time limit – usually a maximum of five years – to begin works on the development after which the permission ceases to have effect.
The Board argues that the permission ceases to have effect as regards to the actual carrying out of works, but that the planning permission itself is not terminated or expired. In addition, the applicant made the request for the extension under section 146B of the Act for SID projects which has no clearly stated time limits for seeking a planning extension.
Mr Justice Simmons, however, said he has “very real doubts” if an extension application “can ever lawfully be made” pursuant to section 146B, adding that section 42 applies to both conventional and SID permissions.
“I have concluded that an extension of duration may only be granted pursuant to section 42. It is not open to a developer to seek to invoke the general power under section 146B to seek an extension of duration,” the judgement reads.
The judgement continues: “There is no outer limit on the period for which the extension of duration can be granted [under section 146B]. Put shortly, the safeguards under section 42 could be set at naught by the simple expedient of making an application under section 146B.”
Mr Justice Simmons also referenced a letter from Shannon LNG to the Board on 20 June 2018 in which the developer indicated that it was “clearly concerned that the expiry of the planning permission might ‘compromise’ An Bord Pleanála’s ability to grant an extension of duration”.
Mr Justice Simons said that he was not in a position to rule on this aspect of the case until the reference to the ECJ has been determined.
Decision welcomed by Greens
Green Party Senator Grace O’Sullivan welcomed Mr Justice Simons’ decision as the project, she said, was “ill-conceived from the beginning”. The project, she said, would “seriously undermine” the State’s commitment to reduce emissions and “makes a total mockery of the Government’s aspirations on climate”.
“Moving ahead with such a large-scale facility locks us into dependence on outdated and dangerous fossil fuels for another generation,” she said.
She also questioned the State’s support of LNG projects when “only last month, the Taoiseach spoke of the ‘clear and present danger’ that climate change represents” to Ireland. “Clearly, the Government’s rhetoric on climate action is only that – spin.”
The draft National Energy & Climate Plan for 2021 to 2030 states that the development of an LNG terminal would “improve energy security by providing direct access to the global LNG market”.
Both the National Mitigation Plan and the National Development Plan are also clear that our future energy security will be partly dependent on new infrastructure investment to supply natural gas to the grid.