The High Court has referred questions to the Court of Justice of the European Union (CJEU) over whether extending an expired planning permission for the proposed Shannon LNG terminal requires assessment under the Habitats Directive. It did not decide whether the extension granted by An Bord Pleanála was valid.
Friends of the Irish Environment Limited brought judicial review proceedings against An Bord Pleanála, with Shannon LNG Limited as notice party. The case concerns a 2018 decision to extend by five years a permission granted in 2008 for a liquefied natural gas regasification terminal. That permission allowed ten years for construction, but no development works began and the permission had expired before the board made its decision on 13 July 2018.
The board said there was no legal requirement to screen the extension under the Habitats Directive. It also said it had carried out screening, but assessed the effect of the time extension itself rather than the entire terminal project. The applicant argued that the directive required assessment and that the board could not extend a permission after it had expired. The board and developer disputed those claims.
Justice Garrett Simons concluded that an extension of planning permission could only be granted under section 42 of the Planning and Development Act 2000, which contains safeguards including consideration of whether required environmental assessments had been carried out. He held that section 146B, the route used for the application and the board’s decision, could not be used to bypass those safeguards.
The judge did not set aside the board’s decision on that basis. The developer argued that the applicant had not pleaded that section 146B was the wrong procedure. The judge referred questions to the CJEU about whether a court may interpret legislation on that basis where the issue was not expressly pleaded.
The court also left unresolved whether the expired permission could be revived. It referred questions on whether an extension engages Article 6(3) of the Habitats Directive; what an authority must assess; whether the original permission’s expiry, the absence of construction, or deficiencies in the 2008 assessment affect the answer; and whether an expired consent can be challenged through a later proceedings. The judge said those issues could not be decided until the CJEU ruled.
The reference also asks whether different rules apply to a permission that limits the construction period, as in this case, and one that limits the period of operation. The judgment records that the parties considered a pending CJEU case about extending the operating period of Belgian nuclear power stations potentially relevant, but the judge said it was unlikely to resolve all the issues before him.