Judgment Title: Harrington -v- The Environmental Protection Agency
Neutral Citation:  IEHC 307
High Court Record Number: 2014 122 JR & 2014 32 COM
Date of Delivery: 30/05/2014
Court: High Court
Composition of Court:
Judgment by: Barrett J.
Status of Judgment: Approved
Neutral Citation:  IEHC 307
THE HIGH COURT
[2014 No. 122 J.R.]
[2014 No. 32 COM]
IN THE MATTER OF AN APPLICATION UNDER THE ENVIRONMENTAL PROTECTION AGENCY ACT 1992 - 2013, AND IN THE MATTER OF AN APPLICATION
THE ENVIRONMENTAL PROTECTION AGENCY
SHELL E & P (IRELAND) LIMITED
JUDGMENT of Mr. Justice Barrett delivered on the 30th day of May, 2014.
1. These proceedings are judicial review proceedings brought under O. 84 of the Rules of the Superior Courts 1986, as amended. The applicant has sought in the proceedings to challenge the decision of the Environmental Protection Agency on 6th January, 2014, to amend Integrated Pollution Prevention and Control or ‘IPPC’ Licence (P0738-01), granted on 12th November 2007. The hearings centred on the issues of delay, whether the quashing of a decision to grant a revised IPPC licence resurrected or reinvigorated the previously subsisting licence, the possibility that this application represents an impermissible collateral attack on the 2007 IPPC licence, a purported failure by the EPA to state any reasons for its decision of 6th January last, and various alleged errors on the face of the decision of 6th January last.
3. Separately, by 7th January, 2014, the EPA was required to have examined all licences issued in respect of activities listed in Annex I to the Industrial Emissions Directive, i.e. Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) (Recast) (O.J. L334, 17.12.2010, p. 17), in order to determine if each such licence complied with the requirements of that directive. This examination process was mandated by section 82A of the 1992 Act, as inserted by regulation 8 of the European Union (Industrial Emissions) Regulations 2013 (S.I. No. 138 of 2013). Section 82A provides that, if the EPA is of the opinion that the licence can be brought into conformity with the Industrial Emissions Directive by amending one or more of the conditions or schedules to the licence, and the making of the amendment will not significantly alter the character of the licence, the EPA is statutorily empowered to make those amendments. In the case of Shell, the activity for which the 2007 IPPC licence was granted was an activity listed in Annex I of the Directive. Accordingly, the EPA was required by law, and not consequent upon some application by Shell, to examine the terms of the 2007 IPPC licence to determine if it complied with the requirements of the Industrial Emissions Directive. On 6th January, 2014, the EPA duly amended the 2007 IPPC licence to bring it into conformity with the Industrial Emissions Directive. From that date the 2007 IPPC licence was deemed to be an industrial emissions licence (P0738-01), granted under Part IV of the 1992 Act. On 5th February, 2014, prior to the commencement of the instant proceedings and in circumstances where no challenge had been brought or intimated to the clearly communicated position of the EPA that the 2007 IPPC licence continued in force, Shell applied to the EPA for a review of this industrial emissions licence. This last application is currently before the EPA and, of course, Mr. Harrington will have a full opportunity to make whatever submissions he wishes to make as part of that process.
Relief sought in the instant proceedings
10. Turning to Mr. Harrington’s statement of grounds and the arguments made on his behalf in court, the court was struck throughout these proceedings that the gravamen of virtually all of his complaints was that the EPA treated the 2007 IPPC licence as continuing in force. However, the truth of the matter is that the applicant knew from sometime in October 2013 that this was the position of the EPA; he knew this because he was expressly told as much in the letter of 22nd October, 2013. Even so, Mr. Harrington did not raise any issue with the content of this letter, nor did he seek to challenge it by way of judicial review, an option that was available to him. It is an unavoidable truth that the EPA made a decision on 6th January, 2014, but that was but a further instance of the EPA doing what it indicated in its letter of 22nd October, 2013 that it would do, i.e. treat the 2007 IPPC licence as subsisting. Unhelpfully for Mr. Harrington, there is case-law which indicates that the date for determining when time runs on the bringing of proceedings such as the instant proceedings is the date when the claimant knew or ought to have known that it was appropriate for him or her to commence proceedings. So, for example, in Uniplex (UK) Limited v. NHS Business Services Authority (Case C-406/08)  ECR I-00817, the High Court of England and Wales sought a preliminary ruling from the European Court of Justice as to whether, amongst other matters, in proceedings seeking to establish an infringement of the public procurement rules the time runs from the date of the infringement of those rules or from the date on which the claimant knew or ought to have known about the infringement. In giving judgment, the European Court of Justice stated, at para. 32, that:
Legal Status of the 2007 IPPC licence
14. A preliminary issue that arises is whether the decision of the EPA, once quashed, was to be treated as void ab initio. Here the weight of authority suggests that it should be so treated. In Murphy v. The Attorney General  1 I.R. 241, the Supreme Court held that certain provisions of the Taxes Consolidation Act 1967 which were found to be repugnant to the Constitution were void ab initio and never had the force of law. In A v. Governor of Arbour Hill Prison  4 IR 88, where an offence established under the Criminal Law (Amendment) Act 1935, was found to be unconstitutional, that unconstitutionality pertained from the moment the Bunreacht came into force. In Shelly v. District Justice Mahon  1 I.R. 36, the Supreme Court held that a criminal conviction imposed by a District Court judge who had not been properly appointed was, per Walsh J. at 43, “absolutely null and void and not simply voidable”. Of particular interest in the context of the instant proceedings is the fact that Walsh J. did not consider that this finding affected in any way the legality of the initial complaint which grounded the conviction. Thus, per Walsh J., at 44:
16. The position that an ultra vires enactment is void ab initio and has no effect has also been adopted by the courts of England and Wales and by the Privy Council in a longstanding suite of cases from F. Hoffmann La Roche & Co. A.G. v. Secretary of State for Trade and Industry  A.C. 295, through Percy v. Hall  QB 924, to Mossell (Jamaica) Limited v. Office of Utilities Regulations  UKPC 1. Closer to home, Hogan and Morgan, at para. 11-85 of their definitive text on Administrative Law in Ireland (4th edition), assert that the “conventional view” is that the principle accepted by the Irish and English courts that legislation found to be unconstitutional/invalid is void ab initio also applies, subject to exceptions, to administrative decisions that are held to be ultra vires a statute, i.e. the decision is void ab initio. Given the abundance of Irish and foreign case-law and learned commentary to which the court has just referred, the court holds that the effect of the High Court’s order of 15th October, 2013, was to render the EPA’s decision of 5th June, 2013, void ab initio.
17. What are the implications of this last finding for the 2007 IPPC licence? The argument before the court on this point focused largely on two previous decisions of the Irish courts, in The State (Abenglen Properties) v. Corporation of Dublin  I.R. 381 and Deerland Construction v. Aquaculture Licence Appeals Board  1 IR 673. In Abenglen, Walsh J. pointed to the practical absurdity that would arise if an allegedly invalid decision of Dublin Corporation had the effect that the person challenging such decision was to obtain default planning permission, however outrageous that person’s proposed development. Thus, per Walsh J., at 396:
19. The decision of the High Court in Deerland appears, at first glance, to create a significant difficulty for the EPA and Shell. In that case, Kelly J. held that the quashing of a decision of the Aquaculture Licence Appeals Board that had itself annulled a previous decision of the Minister of the Marine and Natural Resources did not have the effect that the Minister’s decision was revived. One possible conclusion to be drawn from this, and one urged upon the court by Mr. Harrington, is that in the present case the quashing of the decision of 5th June 2013 did not have the effect that the 2007 licence was thereafter to be treated as continuing in effect. Counsel for Shell has made much play of the fact that the legislative framework in Deerland provided for the ‘annulment’ of the Minister’s decision by the later decision of the Aquaculture Licence Appeals Board whereas in this instance section 90(2)(b) of the 1992 Act provides that a revised licence “shall have effect in lieu of” the original licence. The effect of this difference in wording, counsel for Shell contended, was that the EPA’s decision of 5th June, 2013, to grant the revised licence had a suspensive effect insofar as the 2007 licence was concerned and that once the decision of 5th June was quashed, the 2007 licence was reinvigorated. In approaching Shell’s line of argument in this regard, the court is reminded of the emphasis placed by Henchy J. in Inspector of Taxes v. Kiernan  I.R. 117 on what the ordinary person would think of a finding that the term “cattle” when used in particular tax legislation might also embrace pigs, even if in some contexts such a reading might make or might at one time have made sense. Thus, per Henchy J., at 122:
(a) that is obscure or ambiguous, or
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of…in the case of an Act [the Oireachtas or the parliament concerned], the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.”
(a) to a prosecution under any enactment other than this Part, or
(b) to proceedings under -
(i) section 10 or 11 of the Local Government (Water Pollution) Act, 1977.
(ii) section 20 of the Local Government (Water Pollution) (Amendment) Act, 1990,
(iii) section 28, 28A or 28B of the Air Pollution Act, 1987,
(iv) section 57 or 58 of the [Waste Management Act 1996]…or
(v) section 99H,
to prove that the act complained of is authorised by a licence or revised licence granted under this Part.”
24. In the present case, the court considers, having regard to all of the factors just mentioned, that the Oireachtas cannot have intended that in the event of a revised licence being quashed a legal vacuum should pertain and chaos such as that described above should ensue. The only logical reading of the Act, and one that is consistent with the approach adopted by the Oireachtas in section 92 and indeed with basic principles of fairness, is that the licensing arrangements which pertained before the revised licence was quashed should resume force. Such an interpretation does no violence to the language of the Act and appears entirely consistent with the purpose of the Act, far more so than the alternative. In this context it does not seem to matter whether the old licence is treated as having been resurrected from the legal grave or re-awoken from a state of stasis. What matters is that a situation of legal chaos, a situation that lawmakers simply cannot have intended, does not come into being. The court has concluded that the effect of the order of 15th October, 2013, which quashed the decision of the EPA to grant a revised IPPC licence was that the decision of the EPA was void ab initio. Consequently the revised IPPC licence was no longer in force and, having regard to all of the factors just mentioned, the only reading of the legislation which does not admit of absurdity is that upon the issuance of the order the 2007 IPPC licence immediately took force again and applied anew. In passing, the court notes that both readings of the relevant provisions of the 1992 Act, namely that propounded by counsel for Shell and that adopted by the court, arrive ultimately at the same end, viz. that the 2007 IPPC licence took effect upon the quashing of the decision to grant the revised IPPC licence. However, the court considers that a conclusion which rests on the longstanding rules of statutory interpretation, as identified in Nestor and Ivers and buttressed by the Interpretation Act 2005, that the court should seek to avoid pointless absurdity and adopt a construction which has regard to the legislative scheme as a whole, is preferable to an interpretive approach that seeks to attach a particular meaning to particular phrases but which is perhaps vulnerable to the criticism that the principal purpose in ascribing those particular meanings is to arrive at a pre-ordained end.
Collateral attack on the 2007 IPPC licence
27. Notwithstanding the foregoing, Mr. Harrington has sought in these proceedings to rely on the decision of the European Court of Justice in Commission v. Ireland (Case C-50/09)  ECR I-873 to support an argument that an environmental impact assessment was not carried out in respect of the 2007 IPPC licence. However, that case was concerned with a, now historical, lacuna in Irish law whereby it was possible that, in contravention of applicable European Union legislation, the EPA might receive a licence application and decide on questions of pollution before a related application was made to the relevant planning authority which alone at the time could require a developer to prepare an environmental impact statement. In the present case this lacuna simply did not arise, so Commission v. Ireland is of no real relevance. Here planning permission was granted by An Bord Pleanála in 2004, an environmental impact statement accompanied this application and planning permission was granted in October 2004 before the application was made for the IPPC licence in December 2004, with which later application, as was required under the statutory scheme in place at the time, a copy of the environmental impact statement that had been submitted during the planning application was forwarded with the IPPC licence application. Thus, while Mr. Harrington, now long out of time for doing so, has contended that the 2007 IPPC licence does not have the benefit of a valid environmental impact assessment, this has not been established. As a result, consistent with the decision of Finlay P. in Re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 14th December, 1977) that there is a rebuttable presumption that the acts of a planning authority are valid, the 2007 licence remains valid for all purposes unless and until set aside by the courts, and it has not been set aside.
Failure to state reasons
Fair procedures and legitimate expectations
(b) Where the Agency considers that it is necessary for the purpose of the performance of the functions conferred on the Agency under subsection (8) or (9), it may give notice to the licensee to furnish to the Agency, within the period specified in the notice, information, documents or other particulars specified in the notice.
(c) The Agency shall, as soon as may be after the performance of functions conferred on it under subsection (8) or (9) notify particulars of the amendment effected by that performance to each person who made an objection to the Agency under Section 87(5) in relation to any performance by the Agency of powers conferred on it under Section 83 or 90 as respects the licence or revised licence concerned.”
Error on the face of the record
(x) necessary measures will be taken upon the permanent cessation of the activity (including such a cessation resulting from the abandonment of the activity) to avoid any risk of environmental pollution and return the site of the activity to a satisfactory state, and
(xa) in the case of an industrial emissions directive activity, necessary measures referred to in subparagraph (x) including measures of appropriate duration shall be taken…”.