The High Court has declared that the Environmental Protection Agency exceeded its powers when it used a technical amendment to change Youghal’s wastewater discharge licence in 2017. The court said the changes should have been handled through a licence revision procedure, which includes public participation.
The case concerned a 2012 licence for wastewater discharges from Youghal, County Cork. That licence required a treatment plant to be completed by 31 December 2015 and provided for a new primary discharge point at Ferry Point. The plant was not commissioned until December 2017.
Irish Water applied in February 2017 to use the existing Dunn’s Park outfall temporarily for treated wastewater while construction of the Ferry Point outfall was delayed. Its application also sought to extend deadlines for ending certain other discharges. The EPA approved the changes by technical amendment on 22 May 2017. The amendment also extended the deadline for completing the treatment plant, allowing untreated wastewater discharges to continue for almost two additional years. It did not change the applicable emission limit values.
Peter Sweetman challenged the EPA’s decision by judicial review. He argued that the changes could not be made as a technical amendment, including because the licence requirements had already been breached. The EPA argued that the amendment facilitated operation of the licence without changing its emission limits.
Mr Justice Garrett Simons concluded that the relevant environmental requirements under the licence included both the treatment plant deadline and requirements about discharge locations. He said the licence was not neutral about where discharges occurred, and that a technical amendment could not be used to regularise an ongoing breach of a licence condition. The court said Irish Water could have sought a revised licence under regulation 14 of the Waste Water Discharge (Authorisation) Regulations 2007.
The judge found the amendment ultra vires under regulation 33. He said allowing a material change of this kind without public participation would undermine the earlier decision-making process. The treatment plant had begun operating by the time of the hearing in January 2019, although the court recorded that four houses remained unconnected and continued to discharge untreated wastewater. Sweetman made no complaint about those houses.
The court did not set aside the May 2017 decision at this stage. Given the plant’s completion and the lapse of the six-year period for mandatory licence review, the judge considered it preferable for the EPA to carry out the statutory review and make any necessary revisions while complying with public participation requirements. The parties may seek further relief after that review.
The court did not decide Sweetman’s separate challenge under the Habitats Directive, finding it unnecessary to resolve the case. It said it would hear the parties on legal costs before making an order on that issue.