The High Court has dismissed Irish Water’s appeal against a refusal to inspect a mussel bed at Youghal Harbour, finding that any inspection order must address potential environmental effects on the designated European site.
The appeal concerned an interlocutory application in a still-pending Cork Circuit Court case under section 97 of the Water Services Act 2007. Irish Water is seeking confirmation of a notice to lay a proposed wastewater pipe through the harbour seabed. The Circuit Court has not yet decided that substantive appeal.
Woodstown Bay Shellfish Limited holds a licence to occupy the harbour bed and operates a mussel farm there. The proposed scheme includes a 710-millimetre pipe along a route of about 365 metres. The judgment records that laying it would almost certainly disturb the seabed, potentially raising silt over the mussel beds and causing some or all of them to be lost. The possible mitigation measures were not at issue in this application.
Irish Water said it needed to sample the seabed and mussels to assess their location, condition and ecological setting, and to help the Circuit Court consider the proposed works. The High Court noted that the Circuit Court had power to order an inspection as a case-management measure, but said the site’s status as a Special Area of Conservation and Special Protection Area required environmental effects to be considered as well as relevance, necessity and proportionality.
The court also addressed an unauthorised inspection carried out by Irish Water’s consultant, MERC, in October 2016. The Circuit Court had subsequently barred admission of the intrusive evidence and evidence flowing from the samples, and awarded costs to Woodstown. The High Court rejected Woodstown’s argument that this made the appeal moot: the substantive hearing remained ahead, and Irish Water said it needed an inspection for that case.
Justice Baker held that the Circuit Court was right to refuse the requested inspection on the evidence and at the stage when it was sought. The Circuit Court must consider the inspection’s likely environmental impact and may decide whether it needs oral evidence before ruling. The High Court also said the full extent of Woodstown’s commercial activity was not necessary to establish before the section 97 hearing; the extent of any damage is relevant to compensation, which the Circuit Court cannot determine under that section.
The dismissal leaves the Circuit Court to determine Irish Water’s substantive appeal. It does not decide whether the pipe may be laid.