12-year legal battle quashes planning permission for Shannon LNG terminal

national | environment | press release Tuesday November 10, 2020 20:19 by foie - Friends of the Irish Environment

Press Release - Friends of the Irish Environment 9th Nov 2020

Twelve years after losing their original case against the planning permission for a LNG terminal on the Shannon River, Friends of the Irish Environment [FIE] today received a High Court order quashing An Bord Pleanala’s grant of permission and awarding costs in their favour. The proposed terminal was due to process Liquid Natural Gas [LNG] from the USA for consumption in Ireland and to be distributed throughout the EU.

PRESS RELEASE
FRIENDS OF THE IRISH ENVIRONMENT
MONDAY 9 NOVEMBER, 2020
FOR IMMEDIATE RELEASE

12-year legal battle quashes planning permission for Shannon LNG terminal
New planning legislation now required for extensions of permissions for major projects

Twelve years after losing their original case against the planning permission for a LNG terminal on the Shannon River, Friends of the Irish Environment [FIE] today received a High Court order quashing An Bord Pleanala’s grant of permission and awarding costs in their favour. The proposed terminal was due to process Liquid Natural Gas [LNG] from the USA for consumption in Ireland and to be distributed throughout the EU.

While FIE’s 2008 High Court challenge was unsuccessful, that ten-year planning permission lapsed and the decision by An Bord Pleanala to renew the permission in 2018 was again challenged by FIE. The environmental charity argued that the extension of the period of a planning permission where development had not commenced triggered the requirement for assessment under the Habitats Directive and must allow for public consultation.

Decision ‘far reaching’
The decision has wide implications for major projects across Europe that require similar renewals and justifies the charity’s failed High Court case against the renewal of the planning permission for Dublin Airport’s third runway in 2017.

The State argued that any decision to extend the duration of a planning permission is part of a ‘single, uniform measure’ that was previously permitted in 2008, thus having legal certainty and so cannot now be the subject of a ‘collateral attack’.

A Preliminary Reference to the European Court of Justice [ECJ] was made by Irish High Court Justice Garret Simons on 1 February 2019 after a Judicial Review was brought by FIE. A Preliminary References is a decision of the European Court of Justice on the interpretation of European Union law given in response to a request from a Court of an EU Member State. It is the final arbiter in these matters.

In a 29 page submissions to the ECJ An Bord Pleanala had argued that ‘the duration of a planning permission—and the grant of an extension of the duration of a planning permission—is a matter for national law alone, within the discretion and procedural autonomy of Member State’ and that the developer had the right to rely on his or hers original planning permission.

Irish planning law will need revision
Ireland’s failure to implement the Court of Justice’s 2007 decision condemning our planning legislation was cited in the Reference, dated 9 September 2020, as leading to a situation whereby ‘the original consent was not preceded by an assessment containing complete, precise and definitive conclusions capable of removing all reasonable scientific doubt as to the effects of the proposed works on those sites’.

FIE’s Tony Lowes said that ‘The State has spent significant funding on defending a fracked gas terminal that would have locked Ireland into a dead-end investment in fossil fuels for another generation. That money that could usefully have been spent on ‘stimulating economic activity for those areas which were expecting economic development arising from new fossil fuel infrastructure’, as promised in the Program for Government.

The group has written to the Minister for the Environment, Eamon Ryan, offering to meet with him ‘to examine the lessons of the case and ways to avoid such long and protracted legal battles in the future.’

Mr Lowes pointed out that ‘There is now an urgent need for new legislation to bring Ireland’s planning code into compliance with this judgment so that extensions of duration are properly assessed and the public can make observations on extensions and if necessary challenge them if they believe they have not been done correctly. We hope Ireland has learned its lesson and this time around will act swiftly to implement the decision’.

‘There are probably few things more frustrating in life than knowing you are right and being unable to prove it – the situation we have been in for the last 12 years. We owe a great debt to our legal representatives– and to the European Court of Justice.’

Comment: Fred Logue , FP Logue Solicitors, 353 (0)87 1316023
Tony Lowes, Friends of the Irish Environment 353 (0)87 2176316

Friends of the Irish Environment were represented by F. Logue, Solicitor, J. Kenny, Barrister-at-Law, and J. Devlin, Senior Counsel.
The 2008 Judicial Review was taken by O’Connell Clarke, represented by Oisin Collins, Barrister- at Law. No: 2008 597 JR
Irish Courts: Friends of the Irish Environment v An Bord Pleanala and Shannon LNG High Court Record No: 2018/734 JR
ECJ: Court of Justice C 254/19, 9 September 2020

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