A High Court judge has ordered the developers of a €500 million liquefied natural gas processing terminal in the Shannon estuary not to begin construction, and referred a case brought by Friends of the Irish Environment (FIE) to the Court of Justice of the European Union (ECJ).
Mr Justice Garrett Simons has asked the EU court to rule on issues relating to the European Habitats Directive, notably to what extent it should have applied when An Bord Pleanála (ABP) in 2018 extended planning permission for the project by five years.
In judicial review proceedings, FIE claimed the directive placed a particular onus on the proposed development that was not fully addressed when the extension was sought by Shannon LNG Ltd.
The terminal, due to be located between Tarbert and Ballylongford in Co Kerry, includes construction of a large jetty out into the estuary to cater for large LNG tankers importing gas from locations throughout the world.
The estuary is an EU-designated special area of conservation (SAC) and special protection area (SPA) for wild birds. It is also a “critical area” for bottlenose dolphins.
FIE also claimed ABP extended planning permission when the original permission in 2008 had expired, and the new application necessitated a separate evaluation of its climate change impact.
In his decision on Friday, Mr Justice Simons said the directive “obliges a competent authority to fulfil certain procedural requirements before agreeing to a project which is likely to have a significant effect on a European conservation site”.
ABP and the developers submitted the new application involved a mere change to the period within which the development could be carried out and did not require “screening or assessment under directive – though they had carried out a partial assessment.
Legal development
While the directive was found not to apply to a decision to extending planning permission for a new runway at Dublin Airport, there was a significant legal development since when last November the ECJ, in a preliminary opinion, said “the extension of duration of a development consent is, in principle, subject to the Habitats Directive”.
As a consequence, he decided to refer a number of questions to the court for preliminary ruling though it will not resolve all issues he has to determine. The ECJ case concerned the time-limit on the operational phase of two nuclear power plants due to be shut down in Belgium, while the Irish case was concerned with a time-limit on the construction phase of a project, he noted.
Mr Justice Simons has set out six questions to be addressed by the ECJ relating to the directive and how it might apply to “a decision to extend the duration of a development consent”.
He said he would be concerned if there was any attempt to move to construction of the LNG plant, and postponed any decision on costs.
Speaking outside the court, FIE director Tony Lowes said: "It's highly unlikely that the ECJ will not rule that an 'Appropriate Assessment' must be done before the project commences".
Shannon LNG said it was reviewing the decision “and remains fully committed to advancing this critical project for Ireland’s security and diversity of energy supply as swiftly as possible”.
The terminal "will keep Ireland at the forefront of the integration of renewables and natural gas in the transition to a low-carbon economy. The development will also provide significant economic benefits to north Kerry and the Shannon region", a spokesman said.
The project "is a Strategic Infrastructure Development and has been designated as a Project of Common Interest by the European Commission, "he added.
