McBride v. Galway Corporation [1997] IEHC 140; [1998] 1 IR 485 (31st July, 1997)

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1. By Order of Budd J. dated the 24th day of June, 1996 the Applicant was granted leave to apply for various reliefs against the Respondent by way of Judicial Review. Those reliefs were set out and described at paragraph d of the Statement dated the 24th day of June, 1996 upon which this application has been grounded. Fourteen separate reliefs were sought by the Applicant although these were reduced to nine at an early stage in the proceedings and subsequently, close to the conclusion of the proceedings, the reliefs sought were amended and expanded to a total of twelve substantive reliefs all of which were of an injunctive or declaratory character.

3. In 1963 a report was submitted to the Respondent (which then was and still is the sanitary and planning Authority for the City of Galway), dealing with such drainage on a comprehensive basis and recommending that all sewers within the City be gravitated to an area known as South Park and that after screening the sewage should be pumped out to sea across an island known as Mutton Island to discharge on the south side of that island. In a subsequent report in 1972 it was recognised that at some future date treatment for the sewage would probably be required.

4. In 1983 tenders were invited for the construction of a pumping station at South Park but following upon acceptance of a tender there were objections raised by a group of city residents who disagreed with the location of the pumping station and the Respondent decided to abandon the concept of locating the pumping station at South Park, deciding that approval should be sought from the Minister for the Environment to relocate the pumping station at Mutton Island. This revised proposal envisaged a causeway from South Park to Mutton Island which would incorporate the trunk sewer which was required to service the pumping station on the island. This revised proposal was approved by the Minister for the Environment in May of 1986. Thereafter further studies were undertaken by Dr. A. Lewis of University College Cork and by An Foras Forbartha which related to the proposed causeway and to the marine regime in the area. Thereafter by letter dated the 12th July, 1988 Messrs. P. H. McCarthy Son & Partners on behalf of the Respondent wrote a letter to the Secretary, Department of the Marine, Lesson Lane, Dublin 2:

Part of the Causeway will be in the area between high and low water and part will be beyond the low water mark. Please advise regarding requirements in order to obtain a Foreshore licence and also if permission is required under any other Act for the construction of the Causeway below low water mark. Attached is a copy of DWG No. 284/3/340 which shows Causeway.

5. Drawing No. 284/3/40 which accompanied the foregoing letter enclosed a site plan of South Park, the foreshore and Mutton Island together with the proposed South Park pumping station, the proposed relocation of that pumping station and the proposed Causeway. The drawing also disclosed the proposed Causeway in section together with other details and the drawing appears to be dated "Nov. 83".

"The position is that a licence under the Foreshore Act, 1933 was granted to Galway Corporation on 17th November, 1978 to lay a sewerage outflow pipe on the foreshore between South Park and Mutton Island. The licence provided only for the laying of a sewerage pipe and the revision to the original 1977 proposal was not taken into account before this was issued. Although full details of the revised scheme have not been made available to the Department it is understood that likely components include relocation of the Pumping Station to Mutton Island, the construction of a permanent causeway linking the island with the mainland and the possible relocation of the outfall site....before the matter receives any further consideration it will be necessary for the attached questionnaire to be duly completed and returned to the Department together with a copy of the most recent study on the impact of the scheme. It will also be necessary for the Department to be furnished with full particulars of the Main Drainage Scheme with particular reference to the location of the outfall pipe and any dye studies which have been carried out.

9. The letter was also accompanied by a Questionnaire headed "questionnaire in respect of Foreshore Applications for the laying of Effluent disposal pipes." It requires the Applicant to answer nine separate questions in writing.

On the basis of the study results the Corporation decided to proceed with the scheme incorporating enhanced preliminary treatment (fine screening and land burial of the screenings) and provision for secondary treatment if required at a later date.

16. There followed a series of meetings between officials of the Respondent and officials representing the Minister for the Marine and an exchange of correspondence between the various officials representing both parties.

2. The officials of the Department of the Marine at all times dealt with the Respondent as the applicant in respect of a lease or licence to use the foreshore between South Park and Mutton Island for the purpose of constructing a drainage scheme which comprised a new pumping station and treatment works at Mutton Island and a causeway which was intended to provide access to that new pumping station together with an outfall pipe for disposal of the sewage.

3. The officials of the Department of the Marine were reluctant to grant such a lease or licence in the absence of a firm commitment by the Respondent to provide within its proposed scheme for the secondary treatment of sewage prior to its discharge into Galway Bay.

4. Discussions and negotiations took place between officials of the Respondent and officials of the Department of the Marine at the end of 1988 and during the first half of 1989 and on at least one occasion (probably in February 1989) a draft licence was prepared but final agreement was not reached as to its terms and no licence was granted.

5. By the 19th September, 1989 agreement as to the terms of an appropriate lease or licence appeared to be close and by that date an Environmental Impact Statement (hereinafter referred to as "the 1989 E.I.S.") had been carried out on behalf of the Respondent and forwarded to the local engineer and probably to the Minister for the Marine.

7. With that object the officials of the Department of the Marine wrote to the Minister for the Environment by letter dated 30th March, 1989 enquiring whether he would be prepared to sanction the provision of secondary treatment of effluent for the Respondent's scheme and were advised that the necessity for such treatment had been neither established nor ruled out and a monitoring proposal was made.

8. On the 9th October, 1989 the Respondent resolved to incorporate secondary treatment within its scheme from its outset and on the 5th March, 1990 the Minister for the Environment approved the inclusion of full secondary treatment from the commencement of the Respondents' Scheme. On the

21st March, 1990 Messrs. P. H. McCarthy Son & Partners (on behalf of the Respondents) wrote to Mr. O'Broin (on behalf of the Minister for the Marine) advising that sanction had been received for the provision of secondary treatment and requesting "...the completion of a foreshore licensing agreement for the construction of the proposed causeway and outfall".

"...the drafting of the licence is at an advanced stage and awaits receipt, from either Galway Corporation or your firm of the final drawings of the treatment plant, layout and outfall pipe. Listed hereunder for your information are the main conditions which it is proposed to attach to the licence:

10. By agreement between the Respondent and the Minister for the Marine an interim and relatively informal licence was granted to the Respondents by letter dated the 7th September, 1990 whereby the Minister for the Marine granted the Respondent a licence to commence its work on the area of the foreshore indicated on an attached map "...pending completion of the legal formalities regarding the necessary lease under the Foreshore Act, 1933..." in connection with ".... the Galway main drainage scheme" subject to an indemnity.

18. That letter drew the attention of the Respondent to the requirement for the submission by the Respondent to the Minister for the Marine of an Environmental Impact Statement which it was stated "...will be required in respect of the main scheme at a later date.".

11. In September of 1990 it was confirmed that the 1989 E.I.S. had been furnished to and received by the Minister for the Marine and on the 23rd July, 1991 the Department of the Environment advised the Respondent that the 1989 E.I.S. was inadequate and required the preparation of a new Environmental Impact Statement which was duly undertaken on behalf of the Respondent by Messrs. P H. McCarthy Son & Partners who completed the study and submitted the enviromental Impact Statement (hereinafter referred to as the 1992 E.I.S.) to the Respondent on the 3rd July, 1992 for endorsement by the Respondent which occurred on the 16th July, 1992. The 1992 E.I.S. was submitted to the Minister for the Environment on the 17th July, 1992 and a copy of the 1992 E.I.S. was submitted to the Minister for the Marine on the 23rd July, 1992.

12. The Respondent complied with the statutory obligations imposed upon it pursuant to the provisions of the Local Government (Planning and Development) Regulations 1990 as to publication, notification, circulation, certification and otherwise subject to the qualification that the notification and submission of documentation to Bord Failte Eireann required by Article 40 (1) of those Regulations was made upon a body known as "Ireland West" which the Respondent claims is an integral part of Bord Failte Eireann and indistinguishable therefrom.

13. On the 26th August, 1993 the Minister for the Marine submitted a draft Lease to the Respondent and following detailed exchanges of correspondence and clarification relative to mapping and other requirements, an area of the foreshore was demised by the Minister for the Marine to the Respondent by Indenture of Lease dated the 11th day of March 1996 and made, between the Minister for the Marine of the one part and the Respondent of the other part, for a term of thirty five years from the 1st day of February 1996. At no time did the Respondent ever make a formal application to the Minister for the Marine for a Lease and accordingly the grant by the Minister of the Lease dated the 11th day of March 1996 made pursuant to the provisions of

Section 2 of the Foreshore Act, 1933 appears to have followed upon an application by the Respondent for a lease or licence of part of the foreshore pursuant to Section 2 or 3 of the same Act and to have been treated as such at all relevant times with the consent and compliance of both parties.

14. The Applicant is a long time resident of Claddagh, which is immediately adjacent to South Park and Mutton Island, and is also a member of a group, which is called Save Galway Bay Group, whose members have been expressing concerns over the Respondent's proposed scheme since 1989 and whose members made submissions which were intended to be taken into consideration in the preparation of both the 1989 E.I.S. and of the 1992 E.I.S. In May of 1996 the Applicant notified the Respondent of his intention to seek relief by way of judicial review against the Respondent on the grounds that essential steps required by law had not been followed and necessary legal requirements not fulfilled.

15. In August 1993 the Save Galway Bay Group of whom the Applicant is a member commissioned the firm of L. G. Mouchel & Partners to undertake an independent assessment of the Respondents' drainage scheme and the report of L. G. Mouchel & Partners was published in January of 1994 whereupon the Respondents re-commissioned Messrs. P. H. McCarthy Son & Partners to examine and comment upon the report of L. G. Mouchel & Partners.

19. No. 79/409/EEC of 2nd April, 1979, The European Communities (Conservation of Wildbirds) (Amendment) (No. 2) Regulations 1994 (SI No. 349 of 1994) (hereinafter referred to as "the 1994 Birds Regulations") designated the inner Galway Bay area as a "Special Protection Area" (hereinafter referred to as "SPA"). the land area of Mutton Island was excluded from the SPA although the entire inter tidal area between Salthill and Mutton Island was included therein.

17. In 1995 a significant dispute arose between the Respondent, the Minister for the Environment and the European Commission relative to the funding of the Respondents' Scheme and the European Commission indicated that it would not assist in the funding of that scheme in that it favoured an alternative site at Lough Atalia which was a site which had been rejected by the Respondent after consideration of the 1992 E.I.S. In November, 1995 the Minister for the Environment approved the content document for the Respondents' Scheme and on the 15th February, 1996 a Notice inviting tenders for the construction of a causeway, sewer and ancillary works was inserted in the Official Journal of the European Communities.

1. That the Respondent may not lawfully proceed with its drainage scheme because it has failed to comply with the provisions of Section 13A of the Foreshore Act, 1933, (hereinafter referred to as "the 1933 Act") as inserted by the European Communities (Environmental Impact Assessment) Regulations 1989 (S.I. No 349 of 1989) (hereinafter referred to as "the 1989 E.I.A. Regulations") which requires that an application for a Lease of the foreshore shall be accompanied by an Environmental Impact Statement and requires the Minister for the Marine to carry out an Environmental Impact assessment both of which are claimed to be mandatory statutory requirements. It is claimed on behalf of the Applicant (a) that after the coming into operation of the 1989 Regulations on the 1st day of February, 1990 the Respondent made a "relevant application" for a Lease of the foreshore pursuant to Section 2 of the Foreshore Act, 1933 which was not accompanied by an E.I.S. as required by Section 13A of the 1933 Act and (b) that in consequence thereof no Environmental Impact Assessment was undertaken by the Minister for the Marine as required by Section 19B of the 1933 Act (as inserted by Article 13 of the 1989 E.I.A. Regulations).

2. That having made a "relevant application" to the Minister for the Marine for a lease of the foreshore pursuant to Section 2 of the 1933 Act the Respondents failed to comply with the provisions of Section 19 A of the 1933 Act (as inserted by Article 13 of the 1989 E.I.A. Regulations) which requires publication of various facts in relation to the application in certain newspapers and circulation of copies of the E.I.S. to certain "prescribed bodies" defined by ministerial regulations.

3. That the provisions of Section 21A of the 1933 Act (as inserted by Article 13 of the 1989 E.I.A. Regulations) which required publication of the decision of the Minister for the Marine within Iris Oifigiuil and certain newspapers were not complied with and that accordingly the Grant of the Lease was not lawful and the activity seemingly authorised thereby (the Respondent's drainage scheme) cannot be lawfully undertaken.

4. That if the "relevant application" made by the Respondent was made prior to the 1st day of February, 1990 (the date upon which the 1989 Regulations came into operation) then the Grant of the Lease and the activity seemingly authorised thereby (the Respondent's drainage scheme) were unlawful having regard to the direct application of Council Directive of the 27th June, 1985 on the assessment of the effects of certain public and private projects on the environment (No. 85/337/EEC, 0.J., L175/40 5 July, 1985) (hereinafter referred to as "the 1985 E.I.A. Directive") which imposed corresponding obligations upon the Respondent and the Minister for the Marine as those imposed by the 1989 E.I.A. Regulations.

5. That the Respondent has failed to comply with the obligations imposed upon it by Council Directive 92/43/EEC of 21st May, 1992 on the Conservation of natural habitats and of wild fauna and flora (O.J., L206/7, 22 July 1992) (hereinafter referred to as "the Habitat Directive") and accordingly cannot lawfully proceed with the development of its drainage scheme and should be restrained from doing so.

1. That on the evidence adduced at the hearing of this action relief by way of Judicial Review is inappropriate since such relief should be confined to what were formerly known as "Prerogative" or "Stateside" Orders and no such Order can be warranted on the facts of this case which should more appropriately have been commenced on foot of a plenary Summons seeking various forms of declaratory, injunctive and other forms of equitable relief on foot of oral evidence.

2. That relief, whether equitable in nature or by way of Judicial Review is inappropriate and unwarranted since the Respondent is in occupation of the lands which it intends to develop for its drainage scheme on foot of a valid subsisting Lease granted for that purpose by the Minister for the Marine to which no challenge has been or is likely to be mounted by the Applicant or any other person and in the absence of such a prior or concurrent challenge to the validity of the Lease the reliefs sought by the Applicant are inappropriate and misconceived.

3. That the application made by the Respondent to the Minister for the Marine for a Lease of the foreshore was not a "relevant application" for the purposes contemplated by Section 13A of the Foreshore Act, 1933 (as inserted by the 1989 Regulations) because that application was made on the 12th day of July 1988 or on the 8th day of August 1988 or within a short time thereafter and in any event was made before the 1st day of February 1990 upon which date the 1989 Regulations came into operation and accordingly the provisions of Section 13A of the Foreshore Act, 1933 did not apply to that application which was made properly and appropriately by the Respondent to the Minister for the Marine who granted the Lease in 1996 after consideration and clarification of a number of items of detail.

4. That the 1985 E.I.A. Directive did not have direct effect upon the Respondent or the Minister for the Marine between 1988 and 1990 or, alternatively, that it had effect only in relation to projects of the classes listed in Appendix 1 of the Directive (which did not include its proposed drainage scheme). In the further alternative the Directive can only be relied upon as between the European Commission and Member States or as between Member States inter partes .

5. That the statutory obligations imposed upon the Minister for the Marine in respect of a "relevant application" made after the 1st February, 1990 for a Lease of the foreshore require him to "have regard to" any Environmental Impact Statement submitted to him under the terms of the 1933 Act as amended and that on the evidence adduced at the hearing it is clear that

6. That if any obligations were directly imposed by the 1985 E.I.A. Directive then the same were imposed upon the Minister for the Environment who is designated as the "competent authority" for the purposes of that Directive and not upon the Minister for the Marine and that accordingly the Lease granted by the latter was granted lawfully and validly.

7. That on the 24th August, 1990 the Minister for the Marine in exercise of the powers conferred upon him by Section 19A of the Foreshore Act, 1933 made regulations entitled The Foreshore (Environmental Impact Assessment) Regulations, 1990 (hereinafter referred to as the 1990 E.I.A. Regulations) which specified the appropriate "prescribed period" for the purposes of Section 19A(1)(d) of the 1933 Act and the "prescribed bodies" for the purposes of Section 19A(3) of the same Act. Accordingly since the application made by the Respondent for a lease of the foreshore was made before the 24th August, 1990 any obligations imposed upon the Respondent and upon the Minister for the Marine by Section 19A of the 1933 Act had no application to the Respondent's application since the amendments to the 1933 Act had prospective and not retrospective effect.

(a) the earliest date upon which the Habitat Directive could have had any form of direct application would have been in late May of 1994 which was two years after the date of notification (see article 23 thereof) and several years after the date when the Respondent's application was submitted to the Minister for the Marine and

(b) in fact the Respondent had no statutory or other obligation pursuant to the Habitat Directive until February of 1997 (after the commencement of these proceedings) when the Habitat Directive was given domestic statutory effect by the European Communities (Natural Habitats) Regulations (S.I. 94 of 1997) (hereinafter referred to as "the 1997 Habitat Regulations") and

(c) for those and other reasons the Respondent's drainage scheme does not require any appropriate or other assessment as to habitat either pursuant to the provisions of Article 6 of the Habitat Directive or on foot of any other authority or at all.

22. It has been argued on behalf of the Applicant that an application to the Minister for the Marine for a lease pursuant to the provisions of Section 2 of the 1933 Act must, of necessity, comprise a single formal request which must include precise details of the area to be demised and the nature and extent of any proposed development to be undertaken by the potential Lessee on the area to be demised. I am afraid that I cannot accept this contention. I am satisfied that the application made by the Respondent to the Minister for the Marine was relatively informal and that this was not unusual in the circumstances.

23. The application was commenced by way of a letter of inquiry directed by the Respondent's agents (Messrs. McCarthy Son & Partner) to the Secretary, Department of the Marine and dated the 12th day of July, 1988. This inquiry identified an area of land which was principally on the foreshore and the purpose for the demise which was stated to be:

(b) A document headed " Notes for Guidance of Applicants for Foreshore Leases/Licences" with the request that the former document be completed and additional information submitted "... before the matter receives any further consideration ...."

26. Upon receipt of that letter the officials acting for the Minister for the Marine dealt with the Respondent as the Applicant for a lease or licence of part of the foreshore identified by a drawing (no. 284/3/40) and required by the Respondent for the purpose of constructing a causeway from South Park to Mutton Island to provide access for a new pumping station and treatment works on the island on terms that initially preliminary treatment would be installed but that there would be provision for future secondary treatment incorporated in the design which was intended to service a population of 60,000 initially and 80,000 long term.

29. P. H. McCarthy Son & Partners (on behalf of the Respondent) dated the 8th August, 1988 the Respondent had clearly and unambiguously made known to the Minister for the Marine and his officials that the Respondent was applying for a lease or a licence of sufficient part of the foreshore to enable the Respondent to complete its main drainage scheme by constructing a causeway from South Park to Mutton Island which would provide access for a new pumping station and treatment works on the island. It was also made quite clear that secondary treatment was being considered and that the scheme was of sufficient magnitude to service a population of 60,000 to 80,000 people.

30. I am further satisfied that the Minister for the Marine and his officials took a very long time to consider the Respondent's application and made a number of demands upon the Respondent, one of which (secondary treatment from the outset) could not be accommodated by the Respondent until March of 1990.

31. It is clear, however, that from August of 1988 the Minister for the Marine (through his officials) was made fully aware (and kept constantly advised) of the requirements of the Respondent and it is abundantly clear from analysis of the documentary evidence adduced on behalf of both parties to these proceedings that the Minister (through his officials) had a significant influence upon the various decisions which were reached relative to the area which was to be demised and indeed the nature and extent of the development which was proposed. This influence, however, was exercised during the consideration by the Minister and his officials of an application by the Respondent for lease of the foreshore which was made in August of 1988.

32. Unless a contrary intention appears therefrom, the provisions of a statute are presumed to have prospective and not retrospective effect - see Hamilton -v- Hamilton [1982] I.R. 466 and O'H. -v- O'H. [1990] 2 I.R. 558. Nothing within the provisions of the 1989 E.I.A. Regulations suggests that they were intended to have effect in respect of projects initiated prior to the commencement date of the Regulations (the 1st February, 1990).

33. The Applicant relies upon the case of In Re Athlumney [1898] 2 QB 547 and Case 106/89 Marleasing [1990] ECR I-4135 (with which I will deal in greater detail later) in support of the contention that the 1989 E.I.A. Regulations have a retrospective effect. Having considered the authorities cited on behalf of the Applicant and others, I cannot discover circumstances within this case which would be sufficient to displace the presumption against the retrospective construction of the 1933 Act as amended, particularly in the absence of an express or other provision within that legislation suggesting a retrospective application.

34. It follows from the foregoing that there has been no breach by the Respondent or by the Minister for the Marine of any of the following provisions of the 1989 E.I.A. Regulations and no failure on the part of the Respondent or the Minister for the Marine to comply with any of the requirements or obligations imposed by such provisions, that is to say:-

2. Classes of projects are listed (in Annex 1) which "shall be made subject to an assessment ...." and further classes of projects are listed (in annex II) which "...shall be made subject to an assessment .... where Member States consider that their characteristics so require." (Article 4)

(e) take the necessary measures to comply with the Directive within three years of its notification to Member States on the 3rd July, 1985 that is to say by the 3rd July, 1988. Compliance with the directive is achieved through legislation in each Member State and was achieved within this jurisdiction by the enactment (i) of the 1990 Planning Regulations and (ii) of the 1989 E.I.A. Regulations, both of which came into operation on the 1st day of February 1990.

37. It is contended on behalf of the Applicant that the 1985 E.I.A. Directive had direct effect within this jurisdiction and was directly applicable to the Republic of Ireland as a Member State of the (then) European Community and to the Respondent as an "emanation of the State".

38. It is necessary for me to consider this contention in the light of my finding that the application made by the Respondent to the Minister for the Marine for a lease of the foreshore was made in August of 1988.

"... wherever the provisions of a Directive appear, as far as their subject- matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the Directive or in so far as the provisions define rights which individuals are able to assert against the State." (see para. 25 of the Judgment.)

"...wherever the provisions of a Directive appear, as far as their subject- matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where the State fails to implement the Directive in national law by the end of the prescribed period or where it fails to implement the Directive correctly." (see para. (46) of the Judgment."

In Case 103/88, Fratelli Constanza SpA-v- Comune di Milano , [1989] ECR 1839, the European Court of Justice further endorsed the above mentioned passages in "Becker" and "Marshall" (see paras. 28 and 29 of the Judgment) and continued:-

"It is important to note that the reason for which an individual may, in the circumstances described above, rely on the provisions of a Directive of the proceedings before the national courts is that the obligations arising under those provisions are binding upon all the authorities of the Member States. It would, moreover be contradictory to rule that an individual may rely upon the provisions of a Directive which fulfilled the conditions defined above in proceedings before the national courts seeking an order against the administrative authorities, and yet to hold that those authorities are under no obligation to apply the provisions of a Directive and refrain from applying provisions of national law which conflicts with them. It follows that when the conditions under which the Court has held that individuals may rely on the provisions of a Directive before the national courts are met, all organs of the administration, including decentralised authorities such as municipalities, are obliged to apply those provisions." (see Para. 30 of the Judgment).

"A body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a Directive capable of having direct effect may be relied upon." (See para. 20 of the Judgment).

41. It follows from the foregoing that if the relevant provisions of the 1985 E.I.A. Directive "...appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise...." then they may be relied upon by the Applicant against the Respondent.

42. What now requires to be determined is whether or not the relevant provisions of the 1985 E.I.A. Directive "...appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise ..."

2(1) "Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects.

To this end Member States may inter alia specify certain types of projects as being subject to an assessment or may establish the criteria and/or thresholds necessary to determine which of the projects of the classes listed in Annex II are to be subject to an assessment in accordance with Articles 5 to 10. "

44. There are additional requirements imposed by Articles 5, 6, 7, 8, 9, 10 and 11 of the Directive which I am taking into account but, for practical purposes, do not propose to cite in full. It appears to me however that the express provisions of Articles 2, 4 and 6 of the Directive which I have cited above usefully exemplify the provisions of the Directive which are most relevant to these proceedings.

45. In the first instance I am satisfied that the Respondent's Scheme, being a waste water treatment plant, comes within the category of projects which are headed "PROJECTS SUBJECT TO ARTICLE 4(2)" in Annex II of the Directive.

46. Annex II (at no. 11(d)) expressly identifies "waste water treatment plants", thus removing any doubt on that issue and whilst there was some argument at the trial relative to the inclusion of "...long distance aqueducts ..." at paragraph 10 of that Annex (together with a suggestion that the Respondent's Scheme comprised two separate projects, each of which required separate environmental impact statements) I am satisfied that the Respondent's Scheme comprised a project of the class which was listed in Annex II of the Directive for the purposes which were contemplated by the Directive.

[1994] 2 C.M.L.R. 869 the direct application of the 1985 E.I.A. Directive was expressly considered by the Court of Sessions (Outer House) in Scotland with particular reference to Article 4(2) thereof and in particular "projects of the classes listed in Annex II" .

"The project in the present case falls under Article 4(2). If the relevant Article had been Article 4(1), I think that a powerful argument could have been made that it should have direct effect since, although Article 2(3) as well as Article 5 and the following Articles, do allow some scope for the exercise of discretion by a Member State, there are basic requirements which might be read as precise and unconditional. However, I am unable to read Article 4(2) as being precise and unconditional. There is a marked contrast between Article 4(1) and Article 4(2) and, in my view, Article 4(2) can only be read as leaving it open to States to provide for an environmental impact assessment to be carried out or not, as they think proper, in cases falling within Annex II. Accordingly even if no regulations had been made in relation to forestry, there would have been no breach of the Directive by the United Kingdom. The discretion conferred by Article 4(2) is not a discretion as to the means of implementation but a discretion as to whether steps should be taken at all in the particular context. In that situation I cannot see how direct effect could be attributed to Article 4(2)." (See para. 34).

48. It is contended on behalf of the Applicant that the above passage from Kincardine is no longer an accurate statement of the law following upon the (later) decisions of the European Court of Justice in Case C-72/95, Aannemersbedrijf P.K. Kraaijeveld B.V. & Others -v- Gedeputeerde Staten Van Zuid-Holland , (unreported, first delivered 24th October, 1996) and reliance is placed upon the following passage:-

"However, although the second paragraph of Article 4(2) of the Directive confers on Member States a measure of discretion to specify certain types of projects which will be subject to an assessment or to establish the criteria or thresholds applicable, the limits of that discretion are to be found in the obligation set out in Article 2(1) that projects likely, by virtue, inter alia, of their nature, size or location, to have significant effects on the environment are to be subject to an impact assessment." (See para. 50).

49. In Question 3 the Court was asked whether a Member State which, in its national implementing legislation had classified particular projects at a level such that, in practice, all such projects were exempted in advance from the requirements of an impact assessment was exceeding the limit of its discretion under Articles 2(1) and 4(2) of the Directive unless all projects excluded could, when viewed as a whole, be regarded as not being likely to have significant effects on the environment.

"If Question 3 is answered in the affirmative, does that obligation have direct effect, that is to say, may it be relied upon by an individual before a national Court and must it be applied by the national Court even if it was not in fact invoked in the matter pending before that Court?"

"...... where, pursuant to national law, a Court must or may raise of its own motion pleas in law based on a binding national rule which were not put forward by the parties, it must, for matters within its jurisdiction, examine of its own motion whether the legislative or administrative authorities of the Member State remained within the limits of their discretion under Articles 2(1) and 4(2) of the Directive, and take account thereof when examining the action for annulment.

If that discretion has been exceeded and consequently the national provisions must be set aside in that respect, it is for the authorities of the Member State, according to their respective powers, to take all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment."

52. What distinguishes the Kraaijeveld decision from the instant case is that in Kraaijeveld the Member State had "..... in its national implementing legislation.... laid down specifications, criteria or thresholds for a particular project covered by Annex II in accordance with Article 4(2) of the Directive......" and it was held by the Court that insofar as the implementing legislation was inconsistent with the provisions of Article 4(2) of the 1985 E.I.A. Directive, the latter had direct effect and could be relied upon by an individual before a national Court.

53. There was no attempt by the Court in Kraaijeveld to determine whether or not the provisions of Article 4(2) of the 1985 E.I.A. Directive appeared "..... as far as their subject matter is concerned to be unconditional and sufficiently precise" to be relied upon by an individual against the State ".... where the State fails to implement the Directive in national law by the end of the prescribed period......" rather than ".... where it fails to correctly implement the Directive". (See para. 46 of Marshall).

54. I am bound to say that I find it impossible to interpret the provisions of Article 4.2 as being so "unconditional and sufficiently precise" to be capable of being relied upon by an individual against the State where the latter has failed to implement the Directive in its national law by the end of the prescribed period not only for the reasons advanced by the Court of Sessions in Kincardine but because analysis of Article 4(2) discloses that it would be virtually impossible to apply the provisions thereof with any precision.

56. Whilst the requirements in Sub-Article (2) to categorise projects and list them are present (subject to the qualifications noted in Kincardine), the consequential requirements of Articles 5 to 10 are couched in terms which can only be described as conditional, discretionary and imprecise and I instance, inter alia , the following:-

2. Article 6 requires Member States to ".... designate" various authorities who are likely to be concerned with the project because of their environmental responsibilities "... to be consulted for this purpose in general terms or in each case when the request for consent is made.... Detailed arrangements for consultation shall be laid down by the Member States".

3. Articles 6(2) and (3) appear to require Member States to make arrangements and set time limits for the submission of information to and consultation with the public in relation to various projects subject to the provision that ".... the detailed arrangements for such information and consultation shall be determined by the Member States.... depending on the particular characteristics of the projects....."

4. Article 9 appears to require "..... the competent authority" to inform the public of decisions and conditions related thereto and the reasons and considerations on which the decision is based ".... where the Member States' legislation so provides."

57. In the light of the foregoing I cannot see how, for practical purposes, such palpably conditional and imprecise provisions could possibly be capable of having direct effect upon a Member State or upon an "emanation of the State", if, for no other reason, than that the obligations imposed thereby cannot be identified with sufficient precision to accommodate their enforcement.

58. As I have indicated I believe that the Kraaijeveld case can be distinguished from the instant case and from Kincardine (where the application was made "a couple of days" before the implementing regulations came into force and where, (as in this case), it was held that the regulations did not apply and that between the 3rd July, 1988 and the 15th July, 1988 (when the implementing regulations came into force) the Directive was incapable of being directly effective).

59. For the foregoing reasons, I am satisfied that the requirements imposed by Article 4(2) of the 1985 E.I.A. Directive were not directly applicable and did not impose upon the Respondent the obligations contended for by the Applicant.

60. I should add, that, in so far as the requirements imposed by Article 4(2) of the 1985 E.I.A. Directive can be identified (and as I have indicated I do not believe that identification can be satisfactorily achieved), it appears to me that they have been complied with in the instant case.

61. As I have also indicated I do not believe that the 1989 E.I.A. Regulations have a retrospective effect and I do not accept the contention advanced on behalf of the Applicant that if the 1985 E.I.A. Directive had direct effect within this jurisdiction between July 1988 and February 1990 (which I have held not to be the case) then the precise terms and provisions of the 1989 E.I.A. Regulations should be imputed or implied as having effect.

"It follows that, in applying national law, whether the provisions in question were adapted before or after the Directive, the National Court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty". (See para. 8).

62. I am afraid that I cannot accept that the foregoing passage provides any real authority for the proposition which has been advanced. Rather to the contrary it seems to me that it serves to highlight the difficulties of direct application in the absence of implementing legislation which was present in Kraaijeveld (and in Case C-133/94 Commission -v- Belgium [1996] E.C.R. I-2323 to which I was referred by the Applicant) but absent in Kincardine and in the instant case.

63. It was freely and candidly acknowledged by the Applicant himself in evidence and by the other witnesses who testified on his behalf that the drainage scheme proposed by the Respondent is vitally necessary in the interests of the local population in Galway and in the interests of the environment itself. The Applicant objects to the location proposed for the scheme and not to the scheme itself. He conceded that if he is granted the relief which he seeks then the Respondent can quite properly recommence its application, comply with the appropriate statutory provisions and locate the scheme where it is presently proposed. Accordingly, his complaint is one of form rather than substance. He claims that the application for a lease of the foreshore was not "accompanied by" an E.I.S. but admits that an E.I.S. was in fact received by the Minister for the Environment and that a copy of that document was received by the Minister for the Marine before either, (a) certification by the Minister for the Environment or (b) the Grant of the Lease by the Minister for the Marine.

65. The Applicant complains that the Minister for the Marine failed to publish various facts in certain newspapers and circulate certain information to "prescribed bodies" but concedes that the same information was widely published in the same newspapers and information circulated to the same prescribed bodies by the Minister for the Environment so that in so far as the requirements of the Directive can be identified they appear to me to have been complied with in at least as broad a manner as their somewhat general terms would appear to warrant.

66. The Habitat Directive is an expansion and to some extent a successor of Council Directive 79/409/EEC of the 2nd April, 1979 on the conservation of wild birds (1979) O.J.,L. 103/1 (hereinafter referred to as the 1979 Birds' Directive) which, inter alia , required a member State to take requisite measures to maintain the population of various species and in particular required that special conservation measures be taken to ensure the survival of various species by classifying suitable territories in number and size as:

(No. 2) Regulations 1994 (S.I. No. 349 of 1994) extended to the inner Galway Bay area a special protection area which had been designated under Article 4(1) of the Directive as a "Special Protection Area" (hereinafter referred to as "S.P.A.") by earlier regulations (S.I. No. 291 of 1985).

Having heard the evidence adduced on behalf of the Respondent by Mr. Oscar Merne I am satisfied that in this case there was clear compliance with the Birds Directive and no argument to the contrary was seriously urged upon me on behalf of the Applicant.

It was strongly contended on behalf of the Applicant, however, that the Respondent failed to comply with the obligations imposed upon it by the Habitat Directive which, the Applicant claims, is mandatory and has been directly applicable within this jurisdiction from the date of its implementation which was June of 1994 (See Article 23 of the Habitat Directive and Case C44/95 Regina -v- Secretary of State for the Environment, ex parte the Royal Society for the Protection of Birds [1996] ECR I-3805) until

The Habitat Directive imposes a number of obligations upon Member States designed to preserve, protect and improve the quality of the environment "....including the conservation of natural habitats and of wild fauna and flora...." those obligations are too numerous to recite herein but the provisions most strongly relied upon by the Applicant are those contained in Article 6 thereof which require (a) the establishment of conservation measures (sub-article 1) and (b) the assessment of individual sites (sub-article 3) together with (c) additional obligations in the event of a negative assessment (sub-article 4).

"Obligations arising under Article 6(2), (3) and (4) of this Directive shall replace any obligations arising under the first sentence of Article 4(4) of Directive 79/409 E.E.C. in respect of areas classified pursuant to Article 4(1) or similarly recognised under Article 4(2) thereof, as from the date of implementation of this Directive or the date of classification or recognition by a Member State under Directive 79/409/EEC where the latter date is later."

67. It is contended on behalf of the Applicant that the effect of Article 7 is that the requirements imposed by Article 6(2), (3) and (4) of the Habitat Directive are imposed in respect of any area which has been classified as an "S.P.A." pursuant to Article 4(1) of the Birds Directive and are accordingly imposed by the provisions of Article 7 of the Habitat Directive in respect of the inner Galway Bay area which has been designated an "S.P.A." under Article 4(1) of the Birds Directive.

68. Having listened carefully to the evidence adduced on behalf of the Respondent by Mr. Oscar Merne I am satisfied that the only assessment as to habitat, wildlife flora or fauna which has been carried out in respect of the Respondent's Scheme has been a thorough and comprehensive assessment sufficient to satisfy the requirements of the Birds Directive and that as yet no attempt has been made by the Respondent or any other person to comply with the provisions of Article 6 of the Habitat Directive.

69. It is clear from the terms of Article 7 of the Habitat Directive that the obligations which arise under Articles 6(2), (3) and (4) of the Directive replace the obligations arising under the Birds Directive with effect from the date when the Habitat Directive is implemented by Member States or, alternatively, (it is contended on behalf of the Applicant) if a Member State fails to implement the Directive within the time limited in that behalf (that is to say in this instance by June of 1994) then the Directive has direct effect since its provisions ".... appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise" to be relied upon by an individual against the State or "an emanation of the State".

70. For reasons with which I have already dealt herein I am quite satisfied that the provisions of the 1997 Habitat Regulations are not applicable to the Respondent's Scheme since they did not come into effect until the 26th February, 1997.

In Twyford Parish Council and Others -v- Secretary of State for the Environment and Another [1992] 1 C.M.L.R. 276, the High Court (Queens Bench Division) considered the potential direct effect of (perhaps ironically) the 1985 E.I.A. Directive on a highway project which had "been published but which had not yet been initiated (projects which can perhaps conveniently be regarded as being in the pipeline) ...", per McCullough J. at p.282.

71. The Court held that "...the answer to the question of whether or not pipeline projects were intended to be covered by the Directive is not to be found by balancing the advantages and disadvantages of one construction or the other or by considering the possible or even the practicable. The essential question is: what was the result which 85/337 required to be achieved by 3 July 1988, and the answer must come from the terms of the Directive itself." (See Para. (41))

74. • The relevant effects are those, 'direct and indirect', which the project is likely to have on 'human beings, fauna and flora, soil, water, air, climate and the landscape, ... material assets and the cultural heritage'.

"the conclusion to which I am led is, that while Directive 85/337 required a Member States to legislate to ensure that the environmental effects of projects in relation to which the ' decision-making processes' or the 'development consent procedures' had not yet started by 3 July 1988 would be assessed, it did not extend to projects in relation to which those processes or procedures were already in course." (See Para. (51)).

(1) sub article 1 requires "appropriate management plans specifically designed for the sites or integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types...."

(2) sub-article 3 requires that "...any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon ...shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives... the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public".

"These considerations suggest that the absence from the Directive of any requirement to implement transitional provisions and, if so, what provisions, is significant. Had it been intended that the Directive was to cover pipeline cases one would have expected it to have said so and to have stated how the gathering and consideration of the information was to affect the stages that had already passed". (See Para. (46)).

"It is one thing to bring tax provisions into force by a prescribed date; it is another to bring into force a series of provisions designed to influence, stage by stage, and at every stage, the conduct of development procedures which are likely, by their nature, to be in train for months if not years." (See Para. (48)) .

80. It is of significance to note that there is no requirement within the Habitat Directive for the identification and implementation of transitional provisions in respect of "pipeline cases" and whilst that Directive required Member States to legislate for the purposes of implementing the Directive nothing within the Preamble or other provisions of the Directive suggests that it was intended to extend to projects which had commenced prior to the date of implementation (June of 1994) including the Respondent's Scheme which was at a very advanced stage by June of 1994.

81. Furthermore it appears to me that analysis of the provisions of Article 6 of the Directive leads to the conclusion that its provisions could not be regarded as "...unconditional and sufficiently precise" to be relied upon by an individual against the State where the State fails to implement the Directive in national law by the end of the prescribed period (see the earlier part of this Judgment) and for that reason also I am satisfied that the Habitat Directive did not have direct effect within this jurisdiction between June of 1996 and the date of the commencement of these proceedings.

82. In the light of my findings herein it is not necessary for me deal with the arguments advanced by the Respondent relative to the nature of the relief which has been sought by the Applicant other than to remark that prima facie the Court would appear to have jurisdiction under Order 84 of the Rules of the Superior Courts to grant in appropriate cases the relief which is being sought herein.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McBride v. Galway Corporation [1997] IEHC 140; [1998] 1 IR 485 (31st July, 1997) URL: http://www.bailii.org/ie/cases/IEHC/1997/140.html Cite as: [1998] 1 IR 485, [1997] IEHC 140

High Court of Ireland Decisions

McBride v. Galway Corporation [1997] IEHC 140; [1998] 1 IR 485 (31st July, 1997)