THE HIGH COURT 
JUDICIAL REVIEW
118 JR 2001

BETWEEN
 COLLETTE  O’CONNELL 
APPLICANT
AND

 THE ENVIRONMENTAL PROTECTION AGENCY 

    RESPONDENT        
AND 

THESIO LIMITED
AND 
IRELAND AND THE ATTORNEY GENERAL 

NOTICE PARTIES 

Judgment of Mr. Justice Paul Butler delivered the 25th day of April, 2002

By Order dated the 2nd of March 2001 Mr Justice McKechnie granted the Applicant leave to apply, by way of an application for judicial review, for the reliefs therein referred to arising from a decision of the Respondent to grant to the  first named notice party (hereafter referred to as “Thesio”) an Integrated Pollution Control (hereinafter referred to as “IPC”) Licence in respect of the development of a combined cycle gas turbine power generation plant at Shandon, Dungarvan, Co Waterford.  
The principle relief sought is an Order of Certiorari quashing the said decision. Ancillary to that various declarations are sought declaring:-
	
-that the provisions of section 98 of the Environmental Protection Agency Act, 1992 are inconsistent with the provisions of European Law and, in particular, Council 	Directive 85/337/EEC.  

-that the Respondent was required to carry out an Environmental Impact Assessment (“E.I.A.”) pursuant to the said Act of 1992, the said Directive and Directive number 97/11/EC (which said Directives are together hereinafter referred to as “The Directive”)

-that the Respondent was required to carry out an E.I.A. pursuant to Article 32 of The European Communities (Natural Habitats) Regulations, 1997 (Statutory Instrument 94 of 1997).
	 
-that the Respondent was required to consider whether an Environmental Impact Statement (“E.I.S.”) is required by virtue of the nature, size and location of the said proposed development before making a decision as to whether or not to grant an IPC Licence for the proposed development.

-that the Respondent in considering a proposal of the type of decision the subject matter of application licence reference number 542 is required to have regard for the totality of the proposed development, including developments which are related to or ancillary to the proposed development but have regard to all such matters in the consideration of the licence application made and in regard to the provisions of the said Council Directives 85/337/EEC and 95/11/EC.
		
	The Applicant lists some 18 grounds but I am satisfied that the Respondent has fairly categorised them broadly as follows:-

	(1)	Grounds contending for the infirmity of the legislation under which the Respondent granted the licence (in particular section 98 of the 1992 Act and the EC (Natural Habitats) Regulations 1997) (grounds 6, 10, 11 and 18);
	
	(2)	An allegation that the 1992 Act is unconstitutional for failing to provide a Right of Appeal from the Respondent’s decision (ground 17);
	
	(3)	Grounds concerning the “failure” of the Respondent to carry out an E.I.A. In respect of the licensed activity in circumstances where the Applicant contends that the activity will have significant effects on the environment and that the Respondent was “required” to consider such environmental effects by way of an E.I.A (grounds 1, 2, 5, 7 and 13);

	(4) 	Grounds concerning “project splitting” contending that the Respondent was required to consider the licensed activity in conjunction with other “ancillary” developments, specifically gas pipelines, power lines, and water abstraction (grounds 2, 3, 4 and 14);
	
	(5)	An allegation that the application submitted by Thesio failed to comply with the requirements of the licensing regulations in that it did not give sufficient detail regarding the plant to be utilised (ground 8);

	(6)	General contentions of errors of law; irrationality; and a failure to have regard to relevant considerations and having regard to irrelevant considerations (grounds 9, 15 and 16).

	The constitutional argument was not pursued and I propose to deal with the other broad categories described as above.

ALLEGED INFIRMITY OF THE LEGISLATION

	The Directive requires that, before consent is granted for certain projects likely to have a significant effect on the environment, an assessment of those effects shall be carried out by a competent authority in the relevant Member State.  The projects are defined by article 4.  It is common case that the project in question has a heat output of less than 300 megawatts and that it, therefore, comes within the category where Ireland should determine either on a case by case basis or by reference to certain thresholds or certain criteria set by Ireland whether the project warrants the environmental impact assessment procedure.  In doing so the State must take into account criteria set out in Annex III. 

	Under Irish domestic law the responsibility for determining whether or not an E.I.A. is required rests with the relevant planning authorities and An Bord Pleanála.  

	Articles 24 and 26 of the Local Government (Planning and Development) Regulations provide for the requirement and submission of E.I.A.’s.  

	Article 24 (1) (as amended) provides, inter alia:-

	“Subject to sub-article (2), a planning application in respect of –
 
	(a)		development which is of a class for the time being specified under article 24 of the Environmental Impact Assessment Regulations, or under any provision amending or replacing the said article 24, or ....”...
			
			“shall, in addition to the other requirements of the Part, be accompanied by an Environmental Impact Statement”.
	
	“Development” is defined by reference to the Environmental Impact Assessment Regulations of 1989.  The First Schedule to the Regulations specifies what activities constitute development.

	Article 26 (1) (b) of the Local Government (Planning and Development) Regulations 1994 (as amended by the 1999 regulations) provides:-
	
		“A planning authority shall, where it is deciding pursuant to this article whether a proposed development would or would  not be likely to have a significant effect on the environment, have regard to the criteria specified for the purposes of Article 27 of the European Communities (Environmental Impact Assessment) Regulations, 1989”
 
		An Bord Pleanála has similar powers under article 56 (2) of the 1994 regulations as amended by article 18 of the 1999 regulations.  

		Article 7 of the European Communities (Environmental Impact Assessment) (Amendment) Regulations, 1999 in turn amends the 1989 Regulations to insert the following article 27:-

“The criteria set out in the Third Schedule are hereby specified for the purposes of this article”.
	
	The Third Schedule sets out the criteria specified for the purpose of article 27.  An examination of it discloses that it effectively replicates the provisions of Annex III	of Directive 97/11.
	
		It is these criteria which must be considered by the planning authority when determining whether or not to request an E.I.A.  The only limitation on the criteria	that may be considered are those laid down by Annex III of the Directive itself, which prescribes the matters that must be taken into account.

		I accept the contention that the Irish legislation is in accordance with the requirements of the Directive and that the competent authority are the planning authorities and An Bord Pleanála.

		An Bord Pleanála considered the matter and took the view that an E.I.A. was not mandatory and that the project would not have a significant effect on the environment.

	This finding was not challenged by the Applicant because, it was argued on her behalf, she did not need to because of section 98 of the Environmental Protection Agency Act, 1992 subsection (1) of which provides as follows:-

	“(1)	Notwithstanding section 26 of the Act of 1963, or any other provision of the Local Government  (Planning and Development) Acts, 1963 to 1991, where	a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the purposes of the activity -
	
	(a)	decide to refuse permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or
	(b)	decide to grant such permission subject to conditions which are for the purposes of prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,

and accordingly –

				(i)	a planning authority in dealing with an application for a permission or for an approval for any such development shall	not consider any matters relating to the risk of environmental pollution from the activity;

				(ii)	An Bord Pleanála shall not consider any appeal made to it against a decision of a planning authority in respect of such an	application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity.”

	The Applicant said it was not open to the planning authority or An Bord Pleanála to require an E.I.A., that the Respondent did not do so and that she was, therefore, deprived of the benefit of the purpose of the Directive.

	This contention is based upon a misunderstanding of the effect of the section.  The prohibition in the section expressly applies when the planning authority or An Bord Pleanála are deciding to refuse or to grant permission the exclusion does not operate at the earlier stage when they had to decide whether or not an E.I.S is required (in the non-mandatory cases).

	It is accepted on behalf of the State that if the Applicant’s interpretation of the section is correct she wins against the State and the question of a referral to the European Court does not arise.  Equally, the question of a referral to the Court does not, in my determination, arise having regard to my findings as to the effect of section 98 as aforesaid.

I do not accept the contention that the Respondent failed to have regard to or that it failed to comply with any obligations under the European Communities (Natural Habitats) Regulations, 1997 (SI 194/1997).  The obligation thereunder only arises where the Respondent has formed the view that the activity is likely to have significant effects on the site.  The evidence is that the Respondent sought the necessary information and did not form such a view and a necessity of carrying out an appropriate assessment under the regulations did not, therefore, arise.

ALLEGED FAILURE OF RESPONDENT TO CARRY OUT AN E.I.A.

As I have found, An Bord Pleanála, as the competent authority, came to its conclusion concerning an E.I.A. and its decision was not challenged by the Applicant.  On the facts of this case I am satisfied that the Respondent has no separate obligation to carry out an E.I.A. as the project is below the relevant threshold.

ALLEGED “PROJECT SPLITTING”

The Applicant makes the case that Thesio sought to avoid the requirement of an E.I.A. by splitting the project into component parts none of which would exceed the threshold at which an E.I.A. would be mandatory.  She argues that the Respondent should have assessed the project not just by reference to the activity to be licensed but by reference to that activity and all ancillary development (such as gas pipelines, power lines and water abstraction) which would be necessary to give effect to it.  It appears, however, that these matters fall outside the scope of the IPC licensing procedure and the 1992 Act.

OTHER CONTENTIONS

I do not accept that the application of Thesio failed to comply with the requirements of the licensing regulations in that it did not give sufficient detail. I accept the contention that, for the fulfilment of its licensing function, there is no requirement that the Respondent be appraised  of the design details of the proposed plant either before or during the licensing process.

In my view, no stateable case at law has been made out in respect of the allegation that the respondent failed to have regard to relevant or had regard to irrelevant considerations and unreasonableness or irrationality.  

Accordingly, I refuse the relief sought.