Harrington v The Environmental Protection Agency & ors (Unapproved) [2020] IECA 84 (06 April 2020)

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1. These proceedings mark the latest phase in the long-running Shell Bellanaboy

controversy. At issue is an appeal from a decision of the High Court (Binchy J) of 21st

November 2017. The decision in question was given in the context of the applicant

challenging the decision of the first-named respondent dated 8th October 2014 to grant the

notice party, then known as Shell E&P (Ireland) Ltd. a revised industrial emissions licence.

The revised licence, which was the subject of challenge, was issued following a review of an

existing licence, PO738-01, which had been granted by the Environmental Protection Agency

(“EPA”) in 2007 and which was amended in 2014. The 2007 licence and the revised licence

relate to activities undertaken by Shell in connection with the Corrib gas field development.

At a meeting on 29th September 2015, the EPA approved the recommendation of its

Technical Committee and made a decision to grant a revised licence to the notice party. A

formal revised licence was drawn up and dated 8th October 2015. It is this revised licence

which the applicant, with others, sought to challenge in the High Court and now in this Court

2. By order of 14th December 2015, four applicants, Martin Hartington, Maura

Harrington, Monica Muller, and Peter Sweetman were granted leave to seek judicial review.

“(i) An order of certiorari quashing the decision of the respondent to grant a

licence, 0738-03 subject to conditions, to the Notice Party in respect of an

activity consisting of a gas refinery and large combustion plant at Bellanaboy

(ii) A declaration that no Environmental Impact Assessment (EIA) sufficient to

Environmental Impact Assessment Directive) (‘the Directive’) in respect of

the development the subject matter of licence no. 0738-03 which is the

operation of a gas refinery and large combustion plant, associated pipe

network, including the pipe line conveying the raw gas from the well head

and the pipe network connecting to the Bórd Gáis Éireann network, which

assessment must be carried out in order to comply with the requirements of

(iii) A declaration that both the first named Respondent and the second named

Respondent were required and obliged to take all general or particular

measures to remedy any past failure to carry out an assessment of the

environmental impact and or effects of a project as provided for under the

EIA Directive and take the appropriate necessary measures to ensure that in

carrying out an EIA the requirements of Directive 2011/92/EU were

(iv) In the alternative, the second named respondent failed to transpose the

requirements of Council Directive 2011/92/EU in failing to provide for

appropriate procedures to ensure that the requirements of the EIA Directive

are fully complied with and through a system of law has created a procedure

where no integrated EIA is carried out in respect of those projects specified

under the EIA Directive and in particular that the full effects of such

developments including direct and indirect effects of a project in accordance

with Articles 3,4 - 11 of the Directive on human beings, fauna and flora, soil

water air climate and landscape, material assets and the cultural heritage and

the interaction between these factors are carried out and to nullify the

unlawful consequences of a breach of laws out of the principal of cooperation

and good faith laid down in Article 10 EC (Articles 4(3)) of the Treaty of the

European Union and filed to take appropriate measures necessary to remedy

failure to carry out an EIA in respect of the [whole] of the project the subject

(v) An order requiring the respondents to take such steps so as to carry out an

EIA in respect of the gas refinery at Bellanaboy Bridge gas terminal to

include all the elements of the project and specifically the upstream gas

pipeline conveying raw gas from the well head to the terminal, the gas

distribution network conveying the treated gas in the pipeline specifically

constructed for that purpose, the gas refinery and all associated plant and

equipment, the waste water treatment pipe so as to accord with Articles 3 and

4-11 of the EIA Directive and in particular identify all likely significant

effects both direct and indirect, the cumulative effects so as to fully comply

with and have the project properly assessed pursuant to the requirements of

(vi) An order requiring production of all reports and or draft reports and or all

other documents prepared by or on behalf of the first named respondent

relating to or connected with the decision of the 8th October 2015 on licence

(vii) If necessary an order pursuant to Article 234 of the TEU for a referral to the

A motion seeking the reliefs set out above was issued, grounded upon an affidavit of Mr.

3. On 2nd February 2017, the first, third and fourth-named applicants withdrew from the

proceedings and the legal representatives who, to that point, had acted for all the applicants,

came off record. It seems that the decision of the third and fourth-named applicants to

withdraw from the proceedings was linked to the fact that they had, in earlier proceedings,

challenged a decision of An Bord Pleanála dated 19th January 2011, granting approval for the

construction of an onshore pipeline associated with the project. The earlier proceedings were

settled and the settlement was reduced to writing. The settlement saw the applicants in those

proceedings, Ms. Muller and Mr. Sweetman, agree not to litigate before the courts or to make

a complaint to the European Commission, European Parliament, the Aarhus Convention

Committee, or any international body, any issue in respect of the above named consents or

any amendments thereof or modifications thereto, and not to procure, encourage or assist

others to institute or pursue any proceedings. While it is not entirely clear why the first-

named applicant joined the third and fourth-named applicants in withdrawing from the

proceedings, it is a fact that he did so, leaving Ms. Maura Harrington as the only remaining

applicant. She represented herself at the hearing before Binchy J. in the High Court. Prior to

the withdrawal from the proceedings of the other applicants, and at a time when they and Ms.

Maura Harrington were still legally represented, an issue paper was prepared. The Court has

been told that it was the subject of discussion and negotiation involving the four legal teams

that were then party to the proceedings i.e. the teams representing each of the respondents,

the notice party, and the applicants. It seems that the suggestion of an issue paper may have

emanated from a suggestion made by a judge in the course of a case management listing.

4. As one of the questions or issues referred to in the issue paper is central to the present

appeal and as the document is not a lengthy one, for ease of reference, it is convenient to set

“(1) (a) Was there an Environmental Impact Assessment carried out in accordance

(b) Was there an Environmental Impact Assessment carried out for the

(2) Is the applicants’ contention that an adequate Environmental Impact

Assessment was not carried out premised on an impermissible collateral attack

(3) Was the approach adapted by the respondents consistent with the judgment of

the European Court of Justice in Case C-50/09 and/or with C-50/09 relative to

(4) Did the first named respondent carry out an Appropriate Assessment for the

(5) Has there been a failure to give reasons in accordance with ground 12?

(6) Can a licence which has expired and was not in existence be the subject of a

(7) In the event that the answer to (1)(b) is in the affirmative, is the applicants’

claim in respect of transposition inadmissible by reason of the applicants’’

failure to provide proper particulars of the alleged shortcomings in national

law? If it is admissible, have the requirements of the Directive been

(8) Whether the proceedings previously brought and the subsequent settlement in

November 2011 are such as to disentitle or prevent these proceedings against

the State respondents and/or the EPA from being heard and determined, in

(9) Does the applicants’ failure to disclose the existence of the earlier proceedings

and of the settlement agreement in their application for leave to apply for

judicial review amount to a breach of the applicants’ duty of disclosure such

It is paragraphs (1)(a), and to a lesser extent, paragraph (6) of the above issue paper which are

5. The High Court Judge commented that the applicant’s statement of grounds was,

regrettably, prolix, repetitious and at times both general and vague in character. In the course

of careful and very comprehensive judgment, the judge summarised what he saw as the key

issues raised by the applicants in their statement of grounds and the responses of the

respondents thereto. In the course of this exercise, he identified twelve grounds. The judge’s

approach was then to turn to the issue paper, having referred to the fact that the applicant had

confirmed her agreement with the issue paper on the first day of the hearing. Having referred

to the submissions from the applicant and from the respondents on each of the issues, the

(1)(a) Was there an Environmental Impact Assessment carried out in accordance with

the requirements of Council Directive 20/11/92/EU [“the EIA Directive”]?

6. In relation to the first point on the issue paper, the judge was of the view that the

applicant had not identified any specific shortcomings in the EIA. One specific issue, that of

cold venting, which had been referred to by the applicant in her submissions, was addressed

by the Inspector (Ms. Jennifer Cope) in her report and had been subject to an EIA in

connection with the 2007 licence application. As to the applicant’s contention, echoing what

had been said by Mr. Sweetman in his grounding affidavits, that there had been no

assessment of changes to the project since the issue of previous consents, the judge saw that

as flatly contradicted by the evidence of the respondents. The judge said that it was clear that

the evidence established that the EIA conducted by the EPA was an assessment of the

activities as they are designed to operate and that he was satisfied that that was so. The judge

felt that the applicant’s other main argument under this heading was a legal rather than a

factual matter, and was to the effect that the entire project has to be the subject of a single

integrated assessment. The judge was of the view that it was clear from the authorities,

instancing Martin v. An Bord Pleanála [2008] 1 IR 336 and Commission v. Ireland Case C-

50/09, that there was no such requirement under the EIA Directive and that it was open to

competent authorities in member states to entrust the task of an EIA to several entities if that

was considered appropriate. Accordingly, the judge was satisfied that the applicant had failed

to establish that the EIA had not been carried out in accordance with the EIA Directive, and

consequently, the applicant’s challenge to the issue of the licence, insofar as it was grounded

upon an alleged failure to conduct an EIA in accordance with the EIA Directive, must fail.

(1)(b) Was there an Environmental Impact Assessment carried out for the purposes of

7. The judge quoted the applicant as having said, in the course of her oral submissions,

that her submissions as regard question (1)(b) were the same as those advanced in relation to

question (1)(a). He put this issue in the context of the applicant’s contention that there had to

be a single integrated EIA of the entirety of the project. Put differently, the complaint was

that the State had not correctly transposed the EIA Directive into Irish law. The judge

repeated his earlier expressed view that there was no authority for such a proposition, and that

if anything, the manner in which the State had chosen to implement the EIA Directive had

been endorsed by the Supreme Court in Martin and by the CJEU in Case C-50/09. He said

that it followed from what he had said that the applicant had failed to establish that the EIA

conducted by the EPA was not carried out in accordance with domestic law.

(2) Is the applicants’ contention that an adequate Environmental Impact

Assessment was not carried out premised on an impermissible collateral attack to the

8. The judge pointed out that in her oral submissions, the applicant stated that it was

never her intention to attempt an impermissible collateral attack on earlier development

consents and that she had stated that she was not seeking to have earlier consents set aside.

The applicant had expressly stated that the question did not arise for her and she did not

address the question. The judge said that, strictly speaking, therefore, there was no need to

address the question, but that while the applicant had made it very clear that she did not wish

to mount a collateral challenge to earlier consents or licences, that there could be scarcely any

doubt that had in fact she done so, and further noting that such a challenge would have been

(3) Was the approach adapted by the respondents consistent with the judgment of

the European Court of Justice in Case C-50/09 and/or with C-50/09 relative to those

9. The judge commented that it was difficult to know precisely what case the applicant

was making as regards Case C-50/09. Indeed, no reference to that case was to be found in the

applicant’s submissions. The respondents had pointed to the fact that the CJEU had expressly

concluded that it was permissible to entrust the task of conducting an EIA to several entities.

Insofar as the CJEU identified a “gap” or a lacuna, that gap had been addressed by way of

amendments to the Environmental Protection Act 1992, and the Waste Management Act

1996, so as to impose an express obligation on the EPA to carry out an EIA. Accordingly, the

judge was satisfied that the reliance placed by the applicant upon Case C-50/09 was

(4) Did the first-named respondent carry out an Appropriate Assessment for the

10. The crux of the applicant’s issue with the assessment in this respect was that it was

purportedly conducted without due independence. The judge began his consideration by

holding that there was no obligation on the EPA to share the Scott Cawley Report. This was

an expert report commissioned by the EPA to confirm that the approach adopted by its own

Inspector had been a proper one. The judge was of the view that while the EPA had decided,

out of an abundance of caution, to obtain an independent view, that it had been under no

obligation to do so, and that really there was no difference in substance between what had

occurred and having the Inspector’s conclusions reviewed by a colleague within the Agency.

As to the suggestion that there was an obligation to disclose the Scott Cawley Report

pursuant to the provisions of the Aarhus Convention, the judge agreed that while a report had

been sought from an independent expert in the circumstances described, it was, in his view,

an internal report for the members of the EPA’s sole consideration. This flowed from the fact

that it had been obtained in the period after the public consultation had taken place. The judge

was of the view that the applicant had failed to put forward any basis upon which it could be

said that the assessment conducted by the EPA did not meet the requirements of the Council

(5) Has there been a failure to give reasons in accordance with ground 12?

11. The judge first explained that the reference to ground 12 was a reference to ground 12

advanced by the applicant in the statement of grounds. That ground had stated:

“[t]he first named respondent failed to give any reasons sufficient to justify the

The EPA submitted that the minutes, which record the decisions of that body, set out in

considerable detail its reasons for concluding that the licensed activities would not adversely

affect the integrity of any European site. The judge was satisfied that far from not giving any

reasons sufficient to justify the change in the emission level value (“ELV”), the report of the

Inspector, the report of the Technical Committee, and the minutes of the EPA all recorded a

detailed analysis of the issue and gave sufficient reasons to justify the decision. In a nutshell,

as the judge put it, the EPA had been satisfied that the increases in the ELV proposed did not

give rise to any pollution of Carrowmore Lake and would not affect the integrity of any

(6) Can a licence which has expired and was not in existence be the subject of a

12. The judge first observed that the question had not been correctly posed because it

assumed that the 2007 licence had expired and that was something that was in dispute

between the parties. The judge concluded that the applicant’s claim under this heading must

also fail. As this issue has featured prominently in the appeal, I will return to it in greater

detail later in this judgment. Suffice to say at this stage the affidavit of Gerry Costello dated

16th April 2016, retired Regulatory Affairs Manager of Shell, indicated to the satisfaction of

the judge that the activity had commenced in accordance with the letter submitted to the

(7) In the event that the answer to (1)(b) is in the affirmative, is the applicants’ claim

in respect of transposition inadmissible by reason of the applicants’’ failure to provide

proper particulars of the alleged shortcomings in national law? If it is admissible,

admissible, have the requirements of the Directive been appropriately transposed?

The judge referred to the fact that he had already determined that, for the purposes of

domestic law, the applicant had failed to establish that there was any defect in the EIA that

was carried out by the EPA. He felt that absent submissions addressing the question of

alleged shortcomings in national law, the applicant’s claim that the State respondents had

failed to transpose the requirements of the EIA Directive properly was inadmissible to the

(8) Whether the proceedings previously brought and the subsequent settlement in

November 2011 are such as to disentitle or prevent these proceedings against the State

respondents and/or the EPA from being heard and determined, in whole or in part?

13. The judge pointed out that the respondents had elected not to pursue that line of

opposition in view of the fact that the applicant was not a party to the settlement of the

(9) Does the applicants’ failure to disclose the existence of the earlier proceedings and of

the settlement agreement in their application for leave to apply for judicial review

amount to a breach of the applicants’ duty of disclosure such as to disentitle the

14. The judge pointed out that this question had been formulated when all named

applicants were party to the proceedings. The judge was of the view that the third and fourth-

named applicants should have brought the settlement of the 2011 proceedings to the attention

of the High Court at the application for leave stage. However, he felt that this was not an

issue that could disentitle the applicant to relief to which she might otherwise have been

15. The judge concluded his judgment by saying that given the applicant had failed to

obtain any of the reliefs sought, it followed that the application had to be dismissed in its

entirety. He also stated that he saw no necessity to make a reference to the CJEU as none of

16. The Notice of Appeal filed 25th January 2018 contains two substantive grounds of

appeal which identify particular paragraphs of the High Court judgment with which Ms.

(a) Paragraph 62 – the learned judge erred in law and fact in failing to completely answer

Q1(a) of the Issue Paper in circumstances where the Judge confirms at paragraph 50

of the judgment that the Applicant/Appellant was acting at a considerable

disadvantage. In those circumstances if the Applicant/Appellant was not so

disadvantaged the expert evidence required by the Judge to decide/determine Issue

(b) Paragraphs 81-87 – the learned judge erred in law and fact in failing to correctly apply

Section 92(1) EPA Act 1992 [as amended] and in particular failing to consider

whether the carrying on of the activity had or had not been substantially commenced

during the seven year period in circumstances where the Judge noted that ‘it is indeed

curious that there is nothing in the materials produced before the Court to indicate that

the EPA verified that the activities the subject of the 2007 licence had indeed

The appellant’s submissions sought to alter the above grounds of appeal so as to include

criticisms of paragraphs 61 and 63 of the High Court judgment and at the same time exclude

paragraphs 86 and 87 from consideration. It is accepted by Ms. Harrington that such a

reformulation was necessary due to an error on her own part which she attributes to her status

17. Insofar as the applicant now suggests that paras. 61 and 63 of the judgment of the

High Court should form part of the appeal, it is the case that there has been no application to

expand the grounds of appeal put before this Court. The ground of appeal in question

specifically and directly related to the decision of the judge not to seek to provide a full

answer to question (1)(a) on the issue paper. Any criticisms, therefore, of paras. 61 and 63 do

not form part of the appeal. However, the summary of the judgment set out above makes

clear that what the applicant is seeking to do at this stage is to argue that the EPA was

required to undertake a single integrated assessment pursuant to the EIA Directive and not

split the task of conducting an EIA among several entities as occurred here. This is the

substance of what I have labelled “Ground A”. The other issue, “Ground B”, concerns

whether the activities which form the subject matter of the case i.e. those conducted pursuant

to the 2007 licence were commenced within the seven-year period provided for by same.

The Purported Necessity of a Single Integrated Assessment [Ground A]

18. I am happy to confirm that I am in agreement with the judge that there is no

requirement under the EIA Directive for a single integrated assessment, and I agree with his

view that it was open to the national authorities to entrust the task of conducting an EIA to

several entities. The judge’s approach was in accordance with the judgment of the Supreme

Court in Martin v. An Bord Pleanála, and in accordance with the decision of the CJEU in

Whether the Activities were “Substantially Commenced” within the Seven Year Period

19. The other ground of appeal advanced seems to have been promoted by the judge’s

“[i]t is indeed curious that there is nothing in the materials produced before the

Court to indicate that the EPA verified that the activities the subject of the 2007

In her submissions, the applicant had contended that there was nothing in the materials before

the High Court to indicate that the EPA had done anything to verify the confirmation that it

received from Shell, and the judge added that this appeared to be the case. Having made the

comment which has triggered the applicant’s interest, set out above, the judge went on to say

“[b]ut it is beyond any doubt that the respondents are correct in their submissions

as to the legal effect of s. 92(1) of the EPA Act. For a licence to cease to have

effect, the EPA must notify the licence holder that the activity has not commenced

Section 92 of the Environmental Protection Agency Act 1992, as substituted by s. 15 of the

92(1) Where, in the opinion of the Agency, the carrying on of the activity to

which a licence or revised licence relates has not been substantially commenced

within the period of three years beginning on the date on which the licence was

granted, or, as may be appropriate, the period referred to in paragraph (a) or (b)

of subsection (2), and the Agency notifies the licensee of that opinion, then that

(2) The Agency may, having regard to the nature of the activity to which a

licence or revised licence to be granted or granted by it will relate or relates, as

the case may be, and any arrangements necessary to be made or made in

connection with the carrying on of the activity and any other relevant

(a) specify for the purposes of subsection (1) a period of more than 3 years

beginning on the date on which the licence or revised licence is to be granted.”

20. In this case, it is not in dispute that licence number PO738-01 had stipulated a period

of seven years rather than three years. Paragraph 1.5 of that document provides:

“[h]aving regard to the nature of the activity and arrangements necessary to be

made in connection with the carrying on of the activity, the specified period for

the purposes of section 92(1) of the EPA Acts 1992 and 2003 is seven years.”

21. If one has regard to the terms of s. 92, it is clear that for the licence to cease to have

effect, there are two conditions that have to be satisfied. First, the Agency must form the

opinion that the carrying on of the activity to which the licence related had not been

substantially commenced within the relevant period i.e. seven years. Second, the Agency

must notify the licensee of that opinion. The section makes clear that it is on the giving of the

notice that the licence ceases to have effect. In this case, it is quite clear that the Agency

never formed the opinion that the activity had not substantially commenced within the period

of seven years, being the relevant period, and that no notice was ever given by the Agency.

22. When one considers the totality of what was before the court below, it seems to me to

be beyond argument that s. 92 does not assist the appellant. No evidence was presented by or

on behalf of the applicant to even suggest that the activity had not been substantially

commenced within the relevant period. Insofar as there was any evidence on this issue, it

went the other way. A letter was sent by Ms. Aoife Reynolds, Environmental Adviser to Shell

E&P (Ireland) Ltd. to Dr. Michael Henry of the Office of Environmental Enforcement dated

In accordance with Condition 11.1 of Licence Reg. No. PO738-01 Industrial

Emissions Licence, granted under Part IV of the Environmental Protection Agency

Act 1993, Sepil wish to advise you that it intends to commence operations on 1st

November 2014 of the Scheduled Activities at the Bellanaboy Bridge gas terminal,

Should you have any query with the attached, please contact Aoife Reynolds.”

Condition 11.1 had required the licensee to notify the Agency in writing one month in

advance of the intended date of commencement of the Scheduled Activity(ies) and in

advance of any planned maintenance event of the Corrib import pipeline using pressure

23. A second letter was written by Aoife Reynolds dated 11th November to Dr. Henry,

“Sepil wish to confirm that it is operating under its IE Licence PO738-01 at the

Bellanaboy Bridge gas terminal, Bellanaboy Bridge, Bellagelly South, County

Again, this confirms that the activity in question was well and truly underway such that it

could be said to have commenced substantially. For all these reasons, I am quite satisfied that

24. All this leads to the inescapable conclusion that this ground of appeal, to the extent it

is capable of being advanced at all, must fail. I am of the view that none of the grounds

advanced by the appellant have convinced me that there was any deficiency in the approach

taken by the High Court Judge which would warrant the interference by this Court.

25. Accordingly, for the reasons outlined above, I would dismiss the appeal. As the events

of the COVID-19 pandemic required this judgment to be delivered electronically, the views

1. I have had the opportunity to read the judgment delivered by the President and I

1. Having read the within judgment, I also agree with the approach adopted by the

Result: Dismiss Appeal

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Harrington v The Environmental Protection Agency & ors (Unapproved) [2020] IECA 84 (06 April 2020) URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA84.html Cite as: [2020] IECA 84

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