The Supreme Court has dismissed an appeal by Collette O’Connell over an integrated pollution control licence for a proposed gas-fired power station at Shandon, Dungarvan, Co Waterford.
In a judgment delivered on 21 February 2003, Fennelly J held that section 98 of the Environmental Protection Agency Act 1992 did not prevent planning authorities or An Bord Pleanála from considering pollution risks when deciding whether a project required an environmental impact statement (EIS). The Environmental Protection Agency (EPA) did not have an independent power to require an EIS.
Thesio Limited, a joint venture involving Rolls Royce Power Ventures Limited and Dellware Limited, proposed a combined cycle gas turbine plant with an output of 105 megawatts and a possible maximum heat output of 240 megawatts. The project was below the 300-megawatt threshold at which an EIS was mandatory. Dungarvan Urban District Council granted planning permission in March 2000 without requiring one. An Bord Pleanála upheld that decision on appeal in August 2000, concluding that the development was not likely to have significant environmental effects.
The EPA granted an integrated pollution control licence on 3 January 2001. O’Connell sought judicial review, arguing that the planning bodies were barred by section 98 from considering pollution when deciding whether to require an EIS, leaving no authority able to assess the project’s environmental effects as a whole. She also argued that the EPA could require an EIS and that it had failed to properly consider impacts on protected habitats.
The High Court dismissed her application in April 2002. On appeal, the Supreme Court found that the planning authority and the Board had power to consider all environmental effects, including pollution, when deciding whether a below-threshold project was likely to have significant effects and should be accompanied by an EIS. Section 98 restricted consideration of pollution when deciding whether to refuse planning permission or impose pollution-related conditions; it did not bar that earlier assessment. The Court said the Agency could consider an EIS supplied with a licence application and seek further information about it, but could not require an EIS itself.
The Court noted that the planning decisions had not been challenged within the applicable time limit and were immune from challenge in these proceedings. It said any failure by the planning bodies to require an EIS was within their powers and did not establish a failure by Ireland to implement the relevant European Community directives. It did not find that an EIS was required in this case.
On habitats, the Court noted that the proposed site was close to a Special Protection Area and that an ecological report submitted to the Agency considered possible effects on Dungarvan Harbour and five provisional National Heritage Areas within 10 kilometres. The report predicted no adverse effects. The Agency was entitled to accept it, and the Court rejected this ground of appeal. The appeal was dismissed.