Advocate General opinion on Shannon LNG terminal’s planning extension published

An advocate for the Court of Justice of the European Union (CJEU) has released an opinion calling into question the extension of planning permission granted for the proposed Shannon Liquified Natural Gas (LNG) Terminal project (Permission). This was in response to a reference sent by the Irish High Court.

Specifically, the Advocate General concluded that a decision to extend the existing permission triggered the need for an Appropriate Assessment under the EU Habitats Directive. That assessment had not taken place when the original planning permission was granted.

While the CJEU is not bound to implement the Advocate General's recommendations, this opinion is likely to be persuasive in the CJEU's ruling, expected to be delivered next year (and the majority of CJEU decisions follow the Advocate General's opinion). The case will then be sent back to the Irish High Court for a final decision, which must be made in accordance with the CJEU's interpretation of the law.

Background

Permission was originally granted in 2008 to construct an LNG Terminal, and required construction to be completed within 10 years. No development works were carried out in that time. The developer sought a five year extension to the relevant period. In 2018, and An Bord Pleanála granted an extension to 2023.

Friends of the Irish Environment challenged the extension in the Irish High Court. One of the key grounds of challenge was whether a decision to extend the duration of the construction period of an existing planning permission constituted an 'agreement of a project' for the purposes of the Habitats Directive. If so, the extension would trigger the requirement for An Bord Pleanála to conduct an Appropriate Assessment of the effects of the project on two Special Areas of Conservation in the vicinity.

The High Court referred this question (among others) to the CJEU for a definitive statement of the law.

The Advocate General's opinion

In her opinion, Advocate General Juliane Kokott concluded that the extension of the duration of a permission to develop a facility, without which no works could be carried out, must be regarded as an independent agreement of a project such as to trigger the assessment requirements of the Habitats Directive.

In particular, she noted the following factors:

  • The case did not involve an old project that was authorised before the Habitats Directive came into effect. The original permission was already subject to the requirements of that Directive
  • The applicable EU requirements were clear in 2008, even if they had not been correctly implemented into Irish domestic law
  • If the 2008 permission had been correctly assessed in accordance with the Habitats Directive, the level of effort needed to assess the impact of any extension of time would be very limited. Such an assessment would only need to consider any changes that had occurred in the intervening period
  • Conversely, if the original assessment was deficient, it would be even more important to 'close any gaps' in that assessment
  • As a matter of Irish law, construction of the project would not be possible without obtaining an extension to the planning permission
  • Accordingly, the developer could not argue that it had a genuine 'legitimate expectation' that it would be able to deliver the project
  • The permission could not be viewed as allowing a 'recurring' activity to continue (ie rolling over a permission for an existing project, with no material change in adverse effects)
  • Instead, the extension decision would allow the works to be carried out for the first time, and therefore give rise to new potential adverse effects. Such an authorisation required assessment under the Habitats Directive

She went on to note the requirement in the Habitats Directive to contain 'complete, precise and definitive' findings capable of removing all reasonable scientific doubt as to the effects of the proposed works. The reference from the High Court had stated that the 2008 grant of permission did not contain any such findings. Accordingly, the 2008 permission could not be relied on to rule out the risk of adverse effects on the neighbouring Special Areas of Conservation.

Consequently, further scientific findings would be needed to:

  • Close the gaps in the 2008 assessment
  • Take into account any intervening changes in the project, the protected habitats and species involved, and relevant scientific knowledge
  • Assess the cumulative effects of the Shannon LNG project along with any other plans and/or projects that had been added since the original permission had been granted

Next steps

The matter will now proceed to the CJEU to issue a declaration on the legal position. The matter will then be sent back to the High Court for a final decision, in line with the CJEU's findings. In the meantime, this Opinion may be relied upon by third parties to challenge other planning permission extension applications or decisions on the basis of inadequate environmental assessment, and this may in turn trigger public participation rights.

If you have any queries about this decision, and its potential impact on your business, please contact Alison Fanagan, Alan Roberts, Jason Milne, or any other member of the Environmental and Planning team.

Date published: 11 May 2020