The High Court has restrained Roscommon County Council from carrying out further construction works on proposed interim flood relief works at Lough Funshinagh, pending the hearing and determination of a judicial review challenge.
In an ex tempore judgment delivered on 28 January 2022, Mr Justice Garrett Simons said the applicant, Friends of the Irish Environment CLG, had produced enough expert affidavit evidence to establish a real risk of negative effects on the Lough Funshinagh SAC and Lough Ree SAC/SPA if construction continued. He said the court could not resolve the conflict between expert evidence on an interlocutory application and applied the precautionary principle.
The council relied on flooding that had affected a local road and homes, and argued that works needed to be completed in spring to reduce flood risk during the coming winter. The judge acknowledged the public safety concerns but said the environmental risk, together with the council’s awareness of the issues since at least June and July 2020, tipped the balance in favour of interim relief. He attributed the delay in lawful flood relief works to the council’s own actions, including its attempt to use the Local Authorities (Works) Act 1949 in summer 2021.
The application concerns an order made by the council’s chief executive on 14 October 2021, which purported to authorise a revised scheme, including emergency and environmental screening decisions. The applicant challenges those decisions and, alternatively, the validity of relevant legislation. The revised scheme would incorporate about 800 metres of pipeline left in place from works begun in summer 2021. Those earlier works had been authorised under the 1949 Act; their development consent was later quashed by orders made with the parties’ consent on 25 August 2021 in separate proceedings.
The judge said the applicant had a strong argument that incorporating the earlier works without a forward- and backward-looking remedial assessment could breach EU environmental law. He also considered there was a strong argument that the works did not qualify as an emergency and that the council’s self-authorisation raised independence concerns under the EIA Directive. These were provisional observations on the interim application. The court did not determine the merits of the judicial review or decide the validity of the legislation.
The order restrains further construction works; it does not determine the challenge. The council had indicated it would hold off on the operational phase, pumping water from Lough Funshinagh, until further order. The four-day judicial review hearing was listed to begin on 2 May 2022. The costs of the interlocutory hearing were adjourned to 17 February 2022.