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Cite as: [2006] IEHC 85, [2007] 3 IR 13

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Judgment Title: Sweetman v Shell E & P Ireland Limited & Ors

Neutral Citation: [2006] IEHC 85

High Court Record Number: 2005 17MCA

Date of Delivery: 14 March 2006

Court: High Court

Composition of Court: Smyth J.

Judgment by: Smyth J.

Status of Judgment: Approved

Neutral Citation Number [2006] IEHC 85

THE HIGH COURT

Record No. 2005 17 MCA
IN THE MATTER OF THE PLANNING AND DEVELOPMENT ACT, 2000
AND
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 160 OF
THE PLANNING AND DEVELOPMENT ACT, 2000
AND
IN THE MATTER OF THE LOCAL GOVERNMENT (WATER POLLUTION)
ACT, 1977 - 1990
AND
IN THE MATTER OF THE WASTE MANAGEMENT ACT 1996 - 2003
BETWEEN/
PETER SWEETMAN
Applicant
- and -
SHELL E&P IRELAND LIMITED AND LENNON QUARRIES LIMITED AND
T.J. LENNON
Respondents
APPROVED JUDGMENT DELIVERED BY
MR. JUSTICE T.C. SMYTH
ON TUESDAY, 14TH DAY OF MARCH 2006

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS

These proceedings relate to a development by the first
Respondent ("Shell) of a gas terminal near Bellanaboy Bridge
in County Mayo for the reception and separation of gas from
the Corrib Gas Field and a peat deposition site. Development
was sanctioned on foot of a planning permission granted by An
Bord Pleanala ("the Board") on 22nd October 2004 under
register reference 03/3343 which is subject to 42 conditions
(the "Planning Permission"). I was informed by counsel at
the hearing of the action that no work or development has
taken place on the site since approximately July 2005.

The applicant is a photographer and resides at 73, Grosvenor
Road, Dublin. He avers he has a keen interest in the
environment and in protecting the Irish countryside, he says
that on most week-ends over the course of the period March
2001-2005, he stayed within sight of Shell's site the subject
matter of these proceedings. Further he states that he has
devoted a lot of his time to protecting the environment and
in particular, areas of special amenity rich in wild life and
plant life. He is a member of An Taisce and of the Irish
Heritage Trust.

The Applicant instituted Judicial Review proceedings (Record
No. 1165JR/2004) to which Shell with others was a
co-respondent. Judicial review proceedings were also issued
by a Martin Harrington against Shell and others (Record No.
1164/2004 JR) the general purpose of which was to quash the
decision of the Board granting the planning permission. Both
proceedings aforesaid were the subject of a judgment of Mrs.
Justice Macken on 13th April, 2005. Both sets of proceedings
were with the agreement of the parties dismissed.

On or about the 15th January 2005 the Applicant's Chartered
Civil Engineer Mr. Ron Bergin received instructions from the
Applicant's solicitors advising him (Mr. Bergin) that certain
works were being carried out on lands near Bellinaboy Bridge,
County Mayo the subject matter of the permission. Both the
Applicant and Mr. Bergin swore affidavits in these
proceedings on 9th March 2005 and on the following day
Quirke, J. enlarged the time to issue and serve the Notice of
Motion (in these proceedings) and fixed a return date of 16th
March 2005. On that date, Quirke, J. ordered that Mr. Bergin
on 24 hours notice to the 2nd and 3rd defendants be at
liberty to inspect the quarry lands of the 2nd and 3rd
Respondents situate at Glencastle, Bunnahowen, Belmullet,
County Mayo, it was further ordered that Mr. Bergin on:

1) the completion of a Health and Safety course of
Shell
2) 48 hours notice to Shell
3) Under the supervision of Shell
be at liberty to inspect the development being
carried out by Shell of the gas terminal site
on the lands situate at Ballagelly South,
Bellanaboy Bridge, Co. Mayo.

The order fixed the time for filing affidavits to 31st March
2005 with the entitlement to the Applicant to serve any
replying affidavit before 4th April 2005.

On the matter being referred to me in mid-February, 2006, the
Applicant through junior counsel sought to file a further
affidavit. In the light of the Order of Quirke, J. the
respondent opposed the application and as the matter was
twice listed for hearing but not reached in the Court lists.
Having ascertained that the purpose of the replying affidavit
was to exhibit a new draft Development Plant of Mayo County
Council (the "Planning Authority") I determined that the
Applicant not be disadvantaged and that as this was a
document in the public domain and prepared under statutory
authority that the parties be entitled to refer to it at the
hearing, notwithstanding the late application for its
admission. On the hearing no such document was produced or
considered.

The reliefs sought by the Applicant may be broadly described
as:-

I A declaration that all of the works carried out
by Shell on its site at Bellyagelly South,
Bellinaboy Bridge, Co. Mayo are unauthorised,
unlawful and in breach of the planning
permission.
II A range of inhibiting injunctions against Shell
prohibiting:
(a) the carrying out any works on lands other
than lands within the red line of the
planning application map.
(b) the implementation of any part of
development authorised by the planning
permission.
(c) the discharge of polluting matter into
waters and/or storing excavated material
in such quantities, in such a manner at
such locations as the run-off must
inevitably discharge such materials into
adjoining water sources.
(d) the excavation of and/or removal of and/or
dealing in any materials whatsoever from
the quarry facility of the 2nd and 3rd
Respondent situate at Bunnahowen,
Glencastle, Belmullet, Co. Mayo unless and
until the 2nd and 3rd Respondent and/or
the 3rd Respondent is in receipt of a full
and valid grant of planning permission.
(e) Respondents to cease all works on the
lands situate at Bellyagelly South,
Ballanaboy Bridge, Co. Mayo.

III A range of mandatory injunctions require:

(a) the restoration of lands upon which it is
alleged unauthorised development has been
carried out to its original condition as
existed prior to the carrying out of the
alleged unauthorised development.
(b) Shell to cease all works of opening
entrances from the public road onto lands
at Rossport South, Ballina, Co. Mayo
unless and until it has obtained a valid
grant of planning permission in respect of
such developments.
(c) Shell to cease all works establishing a
works compound and storage compound for
materials on lands situate at Rossport
South 'unless and until it has obtained a
valid grant of planning permission in
respect of such developments'.
(d) Each of the Respondents 'to obtain all
necessary consents pursuant to the Waste
Management Acts 1996-2003 for the storage
and/or disposal of waste arising from the
development'.
(e) the 2nd and 3rd Respondent to apply for
planning permission for 'the restoration
of the illegal quarry lands and
prohibiting works and/or use being carried
out thereon pending the determination of
such planning applications'.
(f) Shell to return the fencing posts and
other materials imported by it onto lands
situate at Rossport South on 1st March
2005 to 'the unauthorised timber
processing facility of T&J Standish
Limited at Leap Castle, Rosscrea, County
Offaly, whence they came, which timber
facility is unauthorised and operates
without the benefit of (any) planning
permission whatsoever and is currently the
subject matter of High Court proceedings
pursuant to the provisions of Section 160
of the Planning and Development Act,
2000'. [The court records indicate that
legal proceedings to which the aforesaid
company was a party were before Abbot, J.
on a number of occasions and adjourned
generally by him in December, 2005.]
(g) Shell 'to restore the lands upon which the
unauthorised development currently being
carried out at Rossport South, on (i)
opening entrances from the public road and
(ii) establishing a works compound to their original
condition as existed prior to the carrying out of the
alleged unauthorised works.

IV Orders entitling the Applicant to inspect:

(i) the works carried out and being carried
out at the sites of Shell at Bellyagelly
South, Bellanaboy Bridge, Co. Mayo.
(ii) the works carried out and being carried
out on the sites of the 2nd and 3rd
Respondent at Bunnahowen, Glencastle,
Belmullet, Co. Mayo.
The Applicant's affidavit and that of his adviser
Mr. Bergin, grounding the application allege, assert or
suggest widespread non-compliance by Shell with a number of
conditions of the planning permission and further that Shell
has engaged in unauthorised development. The Order of
Quirke, J. of 16th March 2005 permitted inspection of the
terminal site to ascertain whether unauthorised works were
being carried out thereon. Notwithstanding this facility and
the Applicant's liberty to file any replying affidavit(s) to
those filed on behalf of Shell so as to put before the Court
any real firm evidence of non-compliance or the carrying out
of any alleged unauthorised development no such affidavit
evidence has been put before the Court. This is a notable
feature of this case as the affidavits filed on behalf of
Shell identify many inaccuracies in the Applicant's
assertions.

Three minor points require mention (for completion):-

1) Between March 2005 and the hearing of this
application, the Applicant conceded that
the reliefs under (a) the Local Government
(Water Pollution) Acts, 1977-1990 and (b)
the Waste Management Acts 1996-2003 were
not properly sought in these proceedings
2) The 2nd and 3rd Respondent were subsequent
to March 2005 granted retention permission in
respect of the quarry by An Bord Pleanala. The
Applicant was an appellant to the Board against
the earlier decision of Mayo County Council to
grant retention permission. Nowhere is this
disclosed in the Applicant's affidavits. [It
was admitted to on the hearing of this
Application on the matter being raised by
Mr. Maurice Collins, SC, for Shell. The matter
coming on for hearing before me it was agreed
between the applicant and the 2nd and 3rd
Respondent, that the proceedings against those
Respondents be struck out.
3) Although it is asserted by the Applicant and on
his behalf that relief can be granted against
Shell on the basis of alleged unauthorised
developments elsewhere carried out by other
Respondents or T&J Standish Limited no
authority was offered in support of this
proposition and the matter was not pursued in
the hearing. It was submitted on behalf of
Shell that there was no legal basis for saying
that a developer carries out unauthorised
development by using, in the course of
development works, materials supplied by a
person who is engaged in unauthorised
developments. Furthermore there is no legal
basis for the contention of the Applicant that
works carried out in advance of obtaining an
IPC license for the developments are
unauthorised.

Onus of Proof
It is settled law that the onus of proof is on the Applicant
to make out his case and satisfy the Court that an order
under Section 160 should be made. In Dublin Corporation -v-
Sullivan (unreported, High Court 21st December, 1984) Finlay,
P. considering Section 27 of the Local Government (Planning
and Development) Act 1996 (the former equivalent to Section
160 of the Act of 2000) stated:-
"I am satisfied, since the Applicants come
seeking relief which would affect the
ordinary property rights of the Defendant
and which potentially could cause him loss
that in the absence of some express
provision to the contrary that does not
exist either in Section 27 of the 1976 Act
or otherwise in the planning code that the
general position must be that it is upon
the Applicants there rests the onus of
proving the case which they are making."

A like approach was taken by Gannon, J. in Furlong -v- AF&GW
McDonnell Ltd [1990] ILRM 48 and Keane, J. (as he then was)
in Dublin Corporation -v- McGowan [1993] 1 I.R. 405. Both
decisions of Finlay, P. and Keane, J. are authority for the
proposition that, where (as in the instant case) permanent
orders are sought pursuant to Section 160, the Applicant
cannot properly adduce or rely on hearsay evidence.
Accordingly, the onus is on the Applicant to satisfy the
court that there has been unauthorised development and also
that the Court should exercise its discretion to make an
order.

The Interpretation of the Planning Permission
The principles of interpretation are well established in
Readymix (Eire) Ltd -v- Dublin County Council and another
(Supreme Court, 30th July 1974) it was determined that a
permission should be interpreted objectively and not in the
light of subjective considerations on the part of either the
applicant or the decision maker. The principle so
established was approved in Jack Barrett (Builders) Ltd -v-
Dublin County Council (Unreported, Supreme Court, 28th July
1983). Furthermore the manner in which planning permissions
were to be construed was stated in XJS Investments Ltd -v-
Dun Laoghaire Corporation [1987] ILRM 659 by McCarthy, J.
Delivering the judgement of the Court, at p663:-

"Certain principles may be stated in
relation to the true construction of
planning documents:

(a) To state the obvious, they are not
Acts of the Oireachtas or subordinate
legislation emanating from skilled
draftsmen and inviting the accepted canons
of construction applicable to such
material.
(b) They are to be construed in their
ordinary meaning as it would be understood
by members of the public without legal
training as well as by developers and
their agents, unless such documents read
as a whole, necessarily indicate some
other meaning."

These principles have been approved and applied subsequently
in a number of cases including Kenny -v- An Bord Pleanala
[2001] 1 IR 565 and Westport U.D.C. -v- Golden [2002] 1
ILRM 439.

The Applicants case:
Notwithstanding that the case as originally formulated,
sought relief under 21 heads, four only of which could be
considered as formal in nature, only two issues were pursued
at the hearing, of which limitation, notice to Senior Counsel
for Shell was given only on the eve of the hearing. The
issues were the alleged non-compliance with Conditions 1 and
37 of the planning permission.
Condition 1
This provides that the development shall be carried out in
accordance with specific plans and particulars-

"Save as may be amended by the following
conditions."

Thirty-eight conditions follow upon Condition 1 in respect of
a large and complex development. It is clear from the
document as a whole that it envisages much interaction as
between the Applicant (Shell) and the Planning Authority
during the course of giving effect to the permission.

The proposed development consists of two sites located
approximately eleven kilometres apart; the first of which is
identified as a site for the reception and refining of gas of
the Corrib Gas Field. This proposed development will require
the excavation and removal of a large quantity of peat for
the gas terminal site, and it is proposed to dispose of this
peat to the other site located at Shramore and Attavilly, Co.
Mayo.

The Applicant submitted that in the case of a Section 160
application it was unnecessary to prove that any planning
harm resulted from a non-compliance, that mere compliance is
all that need be proved. Furthermore it was contended that
an applicant need not prove that he/she has suffered any
detriment as a result of the alleged non-compliance, because
the entitlement to take such proceedings was not dependent on
any personal circumstances of the Applicant. While these
general propositions may be uncontroversial, to seek to move
the Court to grant injunctive relief in permanent form in
their absence "lacks the urgency of reality" to adopt an
expression of Henchy, J. in another context. [Cahill -v-
Sutton [1980] I.R. 249 at 283.]

The Applicant alleges that there had been a failure in
compliance because a large quantity of waste material of a
peaty nature has been deposited on adjoining lands owned by
Coillte Teoranta, which do not form part of the application
site; furthermore, that there has been a failure to comply
with the requirements in relation to the storage of peat.
There is some controversy on the affidavits as to 'run off'
from this material and whether such was deleterious or
otherwise. The issue having been expressly averred to in the
negative in the replying affidavits without contest, Dr.
Forde, SC, rightly did not pursue this facet of the
deposition. However, it was contended that the deposition
was not de minimis and was of such an amount and extent as to
attract the sanction of the Court.

Before referring to the factual issues, it is of importance
to refer to two specific conditions in the planning
permission appearing under the heading "Roads, Transportation
and Traffic Management".

"6. Prior to the commencement of peat
haulage operations from the terminal site,
the main entrance and adjoining
carriageway of R314 shall be realigned in
accordance with Mayo County council
Drawing Number 3225/04/02 to the
satisfaction of the planning authority.
8. The Roadside boundary on the R314
shall be set back in accordance with Mayo
County Council Drawing Number 3225/04/02,
and the set back area shall be made level
with the adjoining carriageway; these
works shall be completed to the
satisfaction of the planning authority at
the same time as the creation of the
proposed access to the settlement ponds."

The issue of the excavated material was approached by the
Applicant admitting that he took no exception to the
deposition of the material on the Applicants own land within
the red line of the planning application, but did complain of
material deposited on the Coillte lands immediately
adjoining. Mr. Bergin's affidavit paragraphs (11) and (12)
estimate the quantity of material and the area(s) of the
deposition. Mr. Gavin Lawlor's affidavit (sworn on the 31st
March, 2005) filed on behalf of Shell is a detailed response
to Mr. Bergin's position. I am satisfied and find as a fact
that both the main entrance to the terminal site and the
adjoining carriageway of the R314 that were the subject of
the realignment works fall within the planning application
boundary for the development of the terminal site, and this
area includes the road shoulder on both sides of the R314.
It is not disputed that the map in Exhibit "GL2" was part of
the lodged documentation available for public inspection at
the offices of the Planning Authority.

Insofar as works are alleged to have taken place in
realigning the road, Mr. Lawlor avers at paragraph 10 of this
affidavit sworn on 31st March, 2005, inter alia as follows:

"I say that any such works were required
by the Planning Permission were authorised
by and carried out on behalf of Mayo
County Council. On 16th December, 2004, I
wrote to Mayo County Council enclosing the
proposed work method statement for the
realignment works. On 23rd March, 2004
Mayo County Council confirmed by letter
that the work method statement for the
realignment works was in order. Exhibits
GL3 and GL4 verify the averments made in
the affidavit."

I am satisfied and find as a fact on the affidavit evidence
that the realignment works were completed on 18th February,
2005. The Planning Authority by confirmatory letter of 21st
February, 2005, bears out the averment of Mr. Lawlor. The
response to Mr. Lawlor's averments by Mr. Bergin is quite
detailed and is to the following effect:-

"12.
13. The realignment works required
excavation material, predominantly peat,
to be carried out. All material that was
excavated came from within the planning
application boundary identified in the map
exhibit GL2. Condition 7(a) of the
planning permission prohibits haulage of
peat until, "such time as the proposed
improvements of the Haul Route and the
return route are completed."

To comply with this condition, Shell is temporarily storing
the material excavated pursuant to the realignment works
until such time as the road improvements have been completed.

"14. Some of the excavated materials are
to be used in final landscaping works
within the terminal site, primarily along
the southern side of the R314. These
landscaping works have not yet been
commenced, and will be undertaken in
suitable seasonal and weather conditions.
Once the landscaping works are complete,
Shell intends to remove any surplus
excavated material off site to the peat
deposition site at Shramore, Bangor Erris,
Ballina, County Mayo. The peat deposition
site is licenced pursuant to Waste
Management Acts, 1996-2003 to accept this
material."

[I am satisfied that the waste licence exists and is referred
to as exhibit "GL6".]

Mr. Lawlor avers that approximately 10,000 cubic metres of
the excavated material is temporarily stored on Shell land
holding, within the planning application boundary on the
shoulder of the R314. He further avers Mr. Bergin's estimate
in paragraph 11 of his affidavit of the volume of excavated
material being stored temporarily on Coillte Teoranta land
holding, is grossly inflated and accepts that approximately
1,000 cubic metres of excavated material is being stored
temporarily on Coillte Teoranta land holding, (which is
subject to a private contractual arrangement between Shell
and Coillte Teoranta).

Having considered the evidence as a whole and re-reading the
papers I am satisfied that there is deposition of peaty
material to the extent of approximately a half metre over
part of the lands of Coillte representing 9% of the totality
of the excavated material.

Exhibit "GL7" contains a copy of volume 1 of the EIS prepared
in respect of the proposed development of the terminal site.
Planning permission did not set out the areas where the
excavated material for the re-alignment works were to be
deposited. While undoubtedly paragraphs 3.3 and 3.4 of
volume 1 of the EIS prepared in connection with the proposed
developments identified the realignment works would be
carried out, the final construction methodologies of the
realignment works remained subject to agreement between Shell
and Mayo County Council.

Mr. Lawlor in his affidavit avers as follows (and it is
uncontradicted):-

"Arising out of discussions between Shell
and Mayo County Council to reach agreement
on the construction methodologies for the
realignment works, Mayo County Council
required deeper excavation of the road
area than was initially envisaged. In
this context, the construction
methodologies were agreed between Shell
and Mayo County Council as set out in
paragraph 10 of my affidavit above. There
is nothing in either the planning
permission documents or the construction
methodologies restricting the areas to be
used for the temporary storage of the
excavated material from the realigned
works."

In law context is all.

I am satisfied that the planning permission must be read as a
whole and the use of the word "amended" rather than
"required" in the final sentence of condition 1 is not in any
way significant. Condition 1 has to be read in conjunction
with condition 6 which expressly required realignment. With
regard to the storage of peat, the position is that the
material excavated as part of the realignment works was
predominantly peat and in accordance with condition 7(a) of
the permission, could not be transported along the Haul Route
to the deposition site until the road alignment works were
completed.

The temporary storage of part of the excavated material on
the Coillte site is by agreement with that party and it falls
within the spirit of the condition imposed by the Board.

Besides contending that the storage of peat pro tem was
agreed to by the Planning Authority and as a necessary
incident to the planning permission, the Respondent relied on
the provisions of the exempted Developments provided in Class
16 of Part 1 of Schedule 2 to the Planning and Development
Regulations 2001. This class covers:-

"The erection, construction or placing on
land, on, in, over or under which, or on
land adjoining which, development
consisting of works (other than mining) is
being or is about to be, carried out
pursuant to a permission under the Act or
is exempt of development, of structures,
works, plant or machinery needed
temporarily in connection with that
development during the period in which is
it being carried out."

The class involves four separate elements:-

1. Placing on land
2. Land adjoining
3 Development consisting of works
4. Needed temporarily in connection with development

Section 2 of the Planning and Development Act, 2000, defines
works as follows:

"Works" includes any act or operation of
construction, excavation, demolition,
extension, alternation, repair or
renewal..."

The conditions and limitations on the exemption provided for
in the regulations (SI600 of 2001) is expressed as follows:

"Such structures works plant or machinery
shall be removed at the expiration of the
period and the land shall be reinstated
save to such extents as may be authorised
or acquired by a permission under the
Act."

The period here is the period during which development is
being carried out. It was objected that while the material
placed on the Coillte lands may have been placed there
intended to be of a temporary character, that it is there for
a period of months as at the date of the hearing. However,
that is largely attributable to the fact that the other
conditions in the planning permission are not capable of
being operated and all works ceased on-site pending final
resolution of a range of litigious and other matters. I am
satisfied that notwithstanding that there is deposition of
some material on lands adjoining such it is incidental in all
the circumstances to the carrying out the permission and in
any event materials on lands adjoining such is exempted
development under Class 16. I take this view on the basis
that the material which is being generated by excavation is
properly described as works within the meaning of Class 16,
which is a class of exempted development which is clearly
aimed at facilitating construction work by permitting
temporary use of adjoining lands for, inter alia, the placing
or storage of structures, works, plant or machinery.

In the construction of the regulations, the Supreme Court
in Alf-a-Bet Promotions Ltd -v- Monaghan UDC [1980] ILRM 64
per Henchy J. at 69, it is stated:
"...what the Legislature has, either
immediately in the Act or mediately in the
regulations, nominated as being obligatory
may not be depreciated to the level of a
mere direction except on the application
of the de minimis rule. In other words,
what the Legislature has prescribed, or
allowed to be prescribed, in such
circumstances as necessary should be
treated as nothing short of necessary, and
any deviation from the requirements must,
before it can be overlooked, be shown, by
the person seeking to have it excused, to
be so trivial, or so technical, or so
peripheral, or otherwise so insubstantial
that, on the principle that it is the
spirit rather than the letter of the law
that matters the prescribed obligation has
been substantially, and therefore
adequately, complied with.

While that decision expressly related to Articles 14, 15 and
17 of the regulations of 1977, the reasoning is by analogy
applicable to class 16 part 1 of Schedule 2 of the
Regulations of 2001. I am satisfied and find as a fact that
there has been substantial compliance with the exempted
development regulations invoked by Shell.

On basis of the averment in Mr. Lawlor's affidavit, it is
arguable that in carrying works of excavation, additional to
those expressly mandated or incidental to the carrying out of
the permission, such (works) development was "carried out on
behalf of Mayo County Council" which resulted as a matter of
probability in an increase of excavated material - that such
was exempted development under S4(1)(f) of the Act of the
2000.
"The following shall be exempted
developments for the purposes of this Act-
development carried out on behalf
of, ... a local authority that is a
planning authority pursuant to a contract
entered into by the local authority
concerned, whether in its capacity as a
planning authority or in any other
capacity."

Even if there is no written contract available the works
carried out by agreement on behalf of the Planning Authority
have not been gainsaid by it. I do not rest any part of this
judgment on this point, although it was open to the
Respondent.

CONDITION 37
"Prior to commencement of development, the
developer shall lodge with Mayo County
Council a cash deposit, a bond of an
insurance company or other security to
secure the satisfactory reinstatement of
the site upon the cessation of activity at
the terminal, coupled with an agreement
empowering Mayo County Council to apply
such security or part thereof to the
satisfactory reinstatement of the site,
the form and amount of the security shall
be agreed between Mayo County Council and
the developer or, in default of agreement,
shall be determined by An Bord Pleanála.
Reason: To ensure the satisfactory
reinstatement of the site."

It is common case that the documentation that exists in
relation to this condition is that contained in Exhibit "A"
in the affidavit of the applicant and Exhibit "AMcL2" in the
affidavit of Agnes McLaverty sworn on 31st March 2005. The
sequence of events is that consequent upon the planning
permission dated 22nd October 2004, TPA, Town Planning
Consultants by letter dated 19th November 2004 informed the
Secretary of Mayo County Council that it was the intention of
Shell to forward submissions, on inter alia, Condition 37 in
the immediate future. Between that date and 10th December
there was a discussion or there were a number of discussions
in relation to Condition 37. A draft of an unsigned letter
dated 10th December 2004 was prepared by Shell setting out
its proposals for compliance which were (inter alia) stated
to be-

"Subject to internal Shell Group approval
we intend to put in place the following
arrangements..."

The draft concludes:

"We undertake that we shall promptly
progress the putting into place the
arrangements referred to above in
consultation with, and to the satisfaction
of the Council, with the aim of finalising
the arrangements within four months from
the date of this letter."

This draft (in my opinion more in the nature of a document
for discussion) was referred to a
Mr. Ian Douglas, Senior Planner, and
Mr. Peter Hynes, Director of Services both at Mayo County
Council, who by memo of 10th December 2004 made certain
recommendations to the Manager of the County Council. It
would appear that further discussions took place on the same
date (10th December 2004) and a revised submission (though
not so expressly designated in the text) was made by Shell on
official notepaper of Shell E & P Ireland Limited and, inter
alia, stated:

"We ... confirm that we intend to put in
place the following arrangements in order
to secure the satisfactory reinstatement
of the gas terminal site:
(1) The provision of a parent company
guarantee from the parent company of Shell
E & P Ireland Limited (SEPIL), Shell
Oversees Holdings Limited (SOHL) ("SOH")
or its successors and assigns to secure
the satisfactory reinstatement of the gas
terminal site on cessation of activity at
the terminal. The final guarantee will
require formal board approval in due
course.
SOH is a company registered in England and
Wales and has substantial assets. As of
the date of its last audited accounts,
namely for the calendar year 2002, SOH
reported total assets less current
liabilities of £17,625.4 million. SOH
would provide the Council with a copy of
its audited accounts on an annual basis.
SOH would also provide the Council with an
independent credit assessment report in
respect of SOH.
The guarantee would be for a sum equal to
€20 million, the current estimated cost of
reinstating the gas terminal. This sum
would be escalated throughout the life of
the guarantee in accordance with the
relevant consumer price index (building
cost index). The guarantee would be put
in place for a period so as to cover the
time when decommissioning of the gas
terminal site will occur. There shall be
five yearly reviews of these arrangements
by both parties to assess the adequacy of
the financial provisions; and
(2) An agreement empowering the Council to
apply the parent company guarantee, or
part of it, to the satisfactory
reinstatement of the gas terminal site.
The guarantee would be able to be
activated by the Council in the event of
SEPIL failing to reinstate the site to the
satisfaction of the Council following
cessation of operations. Any disagreement
between the Council and SEPIL, in this
regard would be referred to the
determination of An Bord Pleanála, or any
successor of the Board.
We undertake that we shall promptly
progress the putting in place of the
arrangements referred to above in
consultation with, and to the satisfaction
of, the Council, within six months from
the date of this letter. If at the expiry
of a five-month period the agreement is
not in place, SEPIL must enter into
discussions with the Council and the
Council may extend the period at its
discretion or, alternatively, take
whatever action the Council deems
appropriate."

By letter dated 10th December 2004 Mayo County Council wrote
to Shell acknowledging receipt of the submissions lodged with
it on 22nd December 2004,
8th December 2004 and 10th December 2004 regarding compliance
with the conditions set out by An Bord Pleanála which
required the agreement of the Planning Authority prior to the
commencement of development. In reference to Condition 37 it
is stated as follows:

"Mayo County Council agrees to the terms
set out in your letter of undertaking
submitted Friday, 10th December 2004 as
security to secure the satisfactory
reinstatement of the site following
cessation of activity at the terminal."

The applicant submitted that in the absence of the lodgment
of cash or a bond of an insurance company the words "other
security" in the condition must be read in para materia with
those of a cash deposit or insurance bond. Further that the
obligation to "lodge" has a bearing on the concept of
security, and that even if such was equated with a guarantee,
it had not been lodged in this case.

On Thursday, 16th December 2004, the judicial review
proceedings commenced by the applicant (in this case) and by
Mr. Harrington, earlier referred to in this judgment, were
issued. As those proceedings (which sought to query and
quash the decision of An Bord Pleanála) did not terminate
until mid 2005, not surprisingly many of the matters that
required attention and in particular Condition 37 were quite
clearly put "on hold".

While it is true, as Dr. Forde remarked, that no explanation
has been given as to why the matter was not progressed, it
seems to me no sensible or reasonable business person would
make business commitments in the absence of legal certainty
as to whether the planning permission would become fully
implementable.

What is required by the condition is that an agreement is
made between Shell and Mayo County Council prior to
development for the purpose of ensuring the restoration of
the site when activity ceases. The form and amount of the
security to be given is to be determined by the Planning
Authority. There is no obligation requiring delivery of any
specific amount by Shell or any other person. Neither is a
form of the documentation laid down in the condition.

Notwithstanding that terms of the letter of 10th December
2004 might be accepted by one planning authority and perhaps
not by another; merely emphasises the margin of discretion
that is left to the Planning Authority in determining the
form and amount. The mere fact that "other security" does
not measure up to requirements in other branches of the law
does not mean that there has been any failure on the part of
Shell to offer a security which has been found acceptable to
the Planning Authority.

Dr. Forde contended that what was on offer in the letter of
10th December 2004 was not "security" that the condition does
not permit Mayo County Council to accept what is not a
"security" because it is not at large when a condition such
as Condition 37 has been imposed by the board. In this
regard he relied on Kenny -v- Dublin County Council and
Another (unreported the High Court 8th December 2004,
Murphy J.) adopting O'Connor -v- Dublin Corporation
(unreported the High Court, O'Neill J.,
3rd October 2002) which held that what is required in a
compliance procedure is no more than a faithful
implementation of a decision of An Bord Pleanála. In short,
they must ascertain the true or correct meaning of the
condition attached to the planning permission and confine
themselves and the notice parties for such proposals as are
in compliance with the condition. In the instant case the
purpose of the security in Condition 37 is to secure the
performance of an obligation viz to ensure the satisfactory
reinstatement of the site. The obligation arises upon the
cessation of activity at the terminal. The condition does
not seek to dictate to the parties the form of the security
or its amount. The security does not necessarily involve any
third party to give an indemnity or guarantee. It is clear,
however, that whatever security is agreed upon, there must be
coupled with it an agreement empowering the County Council to
apply such security or part thereof to the reinstatement of
the site.

When the condition left the form and amount of the security
to be agreed - this was the prerogative not of Shell but by
of the Planning Authority. The importance of the agreement
of the Planning Authority is crucial - clearly an acceptance
of a derisory, sum by way of security would not be within the
context of so large and complex a development viewed by a
court as genuine and proper compliance. However, an element
of judgment is left with the Planning Authority - with a
default mechanism if the amount tendered by Shell is
inadequate or the amount sought by the Planning Authority was
excessive or an uncommitted letter were tendered. Likewise
the planning authority must agree to the form of security
offered, whether it be in the form of a letter of comfort or
other form is a matter within their judgment. What is
required in security in the context of the condition is an
assurance that the reason for its imposition can be realised.
Searching through legal dictionaries for definitions in a
variety of different statutes and circumstances is
interesting but of little real assistance in the instant
case. The approach to be adopted is that in XJS Investments
Limited (earlier referred to).

Agreement implies acceptance by the planning authority. The
importance for acceptance of was highlighted in The State
(Finglas Industrial Estates Limited) -v- Dublin County
Council (unreported, Supreme Court, 17th February 1983) which
considered that even where a planning authority were offered
(after the invocation of a default mechanism to determine the
amount and method of payment or of a contribution to a public
water supply and piped sewerage in the area) a cheque and
accompanying letter and they refused acceptance: an order of
Mandamus should not be made compelling the Council to accept
the cheque. While there were very specific facts in this
case, it nonetheless emphasises the central determinant -
"agreement".

Objection is taken in the instant case not to any question of
amount, but the form of the document (letter of 10th December
2004) as not being "a security" and that what was being
tendered was a promise that Shell's parent company in the
Shell Group would provide a guarantee, but this itself would
require the formal approval of the parent company and that a
period of six months would be required to finalise all
arrangements. In my judgment this is a case in which if
matters had progressed as envisaged in December 2004 all the
necessary form of documentation as a matter of probability
would have been duly executed.

Furthermore I entertain no doubt that if there were any
default by Shell in reinstatement to occur, the Court would
have no hesitation lifting the corporate veil in the interest
of justice to ensure that the guarantee offered by the parent
could be resorted to. The State (Thomas McInerney Limited)
-v- Dublin County Council [1985] IR 1 is of no assistance to
the applicant in the instant case.

In my judgment the planning authority were entitled to agree
to the form and amount of the security proffered. They have
agreed with Shell to accept the security; its noncompletion
is overtaken by events initially in December 2004 (the
Judicial Review proceedings). In March 2005 these
proceedings began and notwithstanding that the bulk of the
complaints made were answered by replying affidavits in that
month, the complaints were allowed to stand on the Court file
and not withdrawn for almost an entire year. In my judgment
the planning authority could have had no doubt as to what was
required by the condition. Indeed it is a condition they
themselves could have imposed in any grant of planning
permission they may have given to Shell as provided by the
Act of 2000 S34(3)(g) which provides that a planning
authority shall when considering an application for
permission under this section have regard to specific matters
set out in the Act and then impose conditions which include
conditions "for requiring the giving of adequate security for
satisfactory completion of the proposed development".

I find as a fact and as a matter of law that there has been
substantial compliance with Condition 37. Undoubtedly there
remains outstanding, as agreed by Mr. Maurice Collins SC
appearing for Shell, certain formalities to be fulfilled. In
the course of the submissions no authority was advanced to
the Court substantiating the right of a third party to
challenge an agreement actually made between a planning
authority and a "developer" and to invoke the discretion of
the Court to set aside such agreement.

In the course of his judgment in
Dublin Corporation -v- McGowan [1993] 1IR 405 at 411, Keane
J. (as he then was) stated that the predecessor to Section
160 (S. 27 of the Local Government (Planning and Development)
Act 1976) was "intended as a "fire brigade" section to deal
with an urgent situation requiring immediate action to stop
clear breaches of the Act". A number of decided cases have
emphasised the breadth of discretion that a court enjoys when
considering an application for relief under Section 160.
Even if there has been noncompliance with a term of a
planning permission or unauthorised development has occurred,
the Court enjoys the discretion which has been traditionally
held in relation to issues of injunction. This had already
been established as far back as Avenue Properties -v- Farrell
Homes Limited [1982] ILRM 21 Barrington J. at p26 that:

"... it would appear that applicants under
Section 27 could range from a crank or
busybody with no interest in the matter at
one of the scale to, on the other end of
the scale, persons who have suffered real
damage through the unauthorised
development or who though, they have
suffered no damage peculiar to themselves,
bring to the attention of the Court
outrageous breaches of the Planning Act
which ought to be restrained in the public
interest. In these circumstances it
appears to me all the more important that
the Court should have a wide discretion as
to when it should and when it should not
intervene."

That case was concerned with a large commercial development
in a highly built-up area of Dublin city. In the course of
his judgment in the Supreme Court in White -v- McInerney
Construction [1995] 1 ILRM 374, Blaney J. having emphasised
the very wide discretion enjoyed by the Court observed as
follows :

"Counsel for the applicant contended that
the Court was bound to exercise its
discretion in a particular way, namely, in
order to ensure compliance with the
planning acts and accordingly an
injunction ought to have been granted
stopping the development until all the
conditions which were to be performed
before development commenced had been
complied with. Counsel did not, however,
refer the Court to any authority which
supported this restriction on the exercise
of the court's discretion and I am
satisfied that it would be wholly
inconsistent with a wider discretion given
to the Court under S. 27.

Morris -v- Gaffney [1983] IR 319, invoked a "gross violation"
by a developer of terms of a planning permission. Henchy J.
considered that there was no inhibition on the granting of an
injunction in a situation particularly where there was a
severe impact on the applicant, the neighbour of the
offending party.

In Leen -v- Aer Rianta Plc [2003] IR 394,
McKechnie J. in considering the earlier decisions and in
particular that of Morris -v- Garvey observed that it was
quite clear that Henchy J. in Morris's case did not intend
the excusing circumstances identified as being exhaustive (as
every court must decide each case on the individual facts and
circumstances surrounding it). Even if I were wrong in the
determinations which I have made both as matters of fact and
law concerning Conditions 1 and 37 as above and Shell were
considered as having failed to comply with the conditions or
had engaged in unauthorised development, I would nonetheless
exercise the discretion under Section 160 not to make an
order having regard to the following factors:

(a) The trivial and/or technical nature of the breaches;
(b) The bona fide Shell;
(c) The attitude of the planning authority;
(d) The public interest and hardship to third parties;
(e) The delay on the part of the applicant in particular
making it necessary to have an extension of time in which to
proceed;
(f) The failure to respond promptly to the replying
affidavits, leaving on the Court file a large number of
complaints concerning the development which were wholly
unwarranted.

There have been a number of cases over the last 20 years in
which the Court could have exercised its discretion not to
grant an order under Section 160 when the breach complained
of was trivial or technical. These are Dublin County Council
-v- Mantra Investments Limited [1980] 114 ILTR 102, Grimes
-v- Punchestown Developments Company Limited [2002] 1 ILRM
409, and Mountbrook Homes Limited -v- Oldcourt Developments
Limited [2005] IEHC 171 (22 April 2005). Finnegan J. (as he
then was) in O'Connell -v- Dungarvan Energy Limited,
22 February 2001, held that an immaterial variation from
permitted development would not even constitute unauthorised
development. In that case Finnegan J. quoted with approval
the following passage from the judgment of Lord Denning in
Lever (Finance) Ltd -v- Westminster Corporation [1973] All
E.R. 496:

"In my opinion a planning permission
covers work which is specified in the
detailed plans and any immaterial
variation therein. I do not use the words
"de minimis" because that would be
misleading. It is obvious that, as the
developer proceeds with the work there
will necessarily be variations from time
to time. Things may arise which are not
foreseen. It should not be necessary for
the developers to go back to the planning
authority for every immaterial variation.
The permission covers any variation which
is not material."

A like approach was adopted by Finnegan J. in
Cork County Council -v- Clifton Hall Ltd (High Court, 26th
April 2001).

While the actions of a developer may be bona fidei, this does
not of necessity excuse him from being the subject of a
Section 160 injunction. However, as observed by Keane J. (as
he then was) in McGowan's case, earlier cited, it would be:

"Manifestly unjust to have the draconian
machinery of the section brought into
force against a person who behaved in good
faith throughout."

O'Sullivan J. in Altara Developments -v- Ventola Ltd [2005]
IEHC 312 (6th October 2005) refused to make an order under
Section 160 in circumstances where the respondent had
received professional advice that what he was doing was in
compliance with planning permission before proceeding with a
particular phase of the development in question. O'Sullivan
J. observed :

"This is not a case of a developer pushing
ahead regardless. On the contrary it has
proceeded since November 2004 with the
active support and blessing of the
planning authority and in the reasonably
held opinion that it was not in breach of
the planning permission. In the
circumstances I decline to make any order
curtailing the respondent's construction
works as requested by the applicant."

Good faith was also a relevant factor highlighted in both
O'Connell's case and Leen's case earlier referred to and in
Grimes -v- Punchestown Development [2002] 1 ILRM 401 at 414.
While I am satisfied there has been no breach by Shell of the
terms of the planning permission or exempted development
regulations, nonetheless, if I were incorrect in that regard,
there has not been any deliberate disregard by Shell of the
requirements or any attempt to avoid the obligations imposed
by same.
The delay in giving necessary follow-up documentation on foot
of the agreement is explicable in my judgment in the light of
the multifarious pieces of litigation that have surrounded
this development. Clearly what was required was that the
form and amount would be agreed prior to developments. That
has occurred. The attitude of the planning authority to
proceedings taken by way of injunction before the courts has
been noted as of importance in a number of cases, some of
which are reported and others not, e.g. White -v- McInerney
Construction [1995] 1 ILRM 374, Mahon -v- Butler [1998] 1
ILRM 284, Grimes -v- Punchestown Development Company [2002]
ILRM 401 at 414 per Herbert J.

The instant case is stronger than many of the foregoing in
that the planning authority in this instance have refrained
from not only enforcement proceedings but confirmed that it
is satisfied that Shell has complied with the conditions as
issued so far as it is concerned. While I accept Dr. Forde's
submission that a planning authority's view is not
determinative, if there has been a failure by the planning
authority to properly understand the terms of the condition
laid down by the Board, I am satisfied in the instant case
they have not mistaken their rights, duties or obligations
under the condition. They have agreed with the amount and
form of the security, that they were entitled to do. They do
not require any further documentation prior to the carrying
out of the development. They certainly require to have the
back-up documentation in place as soon as is possible. The
interval of time suggested given the magnitude of the sum and
the complexity of the development is not unreasonable.

While the public interest and hardship to third parties may
not be of immediate concern in that there has been a stoppage
of development on site since mid 2005, nonetheless, I am
satisfied that even if there had been the noncompliance that
is contended for, I would regard same as technical and have
regard to the fact that Shell is operating an important
facility and has the interest of employees to consider.
Furthermore, the longer the development is delayed, the
longer the public will be discommoded. Counsel on behalf of
Shell cited number of authorities under this heading,
Stafford -v- Roadstone Ltd [1980] 1 ILRM 1, Dublin County
Council -v- Sellwood Quarries Ltd [1981] ILRM, Leen's case and Grimes' case already referred to, and O'Sullivan J. in
Altara Developments Ltd where he had express regard to the
potential hardship to employees of the respondent.

While the delay in taking the proceedings 10th December 2004
to March 2005 by the applicant may not be fatal, it has to be
taken in conjunction with the other features of this case.
Delay is a matter entitled to be taken into account by the
Court, per Finlay P. in Dublin Corporation -v- Mulligan
(the High Court, 6th May 1980):

"The length of time between the
commencement of an unauthorised use or the
making of an unlawful development and the
time when the application is made to the
Court under Section 27 must always remain
one of, but not the only material factor
in regard to the exercise by the Court of
its discretion as to whether or not to
make an order under Section 27."

Likewise in Dublin Corporation -v- Lowe per Morris J.
(unreported, High Court, 4th February 2000) and Herbert J. in
Grimes' case.

In the instant case I have particular regard to the fact that
it is apparent from paragraph 17 of the affidavit of the
applicant, Mr. Bergin carried out an inspection on 15th
January 2005. However, proceeding were not instituted until
9th March 2005 by which time Shell had carried out
substantial realignment roadworks at considerable expense.
No explanation has been offered by the applicant for this
delay. The effect of the delay was such that the affidavit
sworn by the applicant and Mr. Bergin on his behalf are
materially inaccurate in a number of important respects and
failed, for example, to disclose that the road alignment
works on R314 had been completed to the satisfaction of the
planning authority on 18th February 2005. The delay on the
part of the applicant also prejudiced Shell in its defence of
the proceedings in that it had been unable to verify the
position in relation to the allegations of water pollution
from deposited peat in circumstances where it was informed of
the applicant's allegations in that regard almost two months
after they had allegedly occurred. However, I do not attach
enormous significance to this feature as the question of run
off was abandoned by Dr. Forde during the course of the
proceedings. I do however attach some significance to the
position averred to in Mr. Costello's affidavit at paragraph
20 wherein he avers as follows, and I quote:

"On 28th February 2005 at approximately
11:00a.m. Simcim-Roadbridge was delivering
machinery to the temporary compound site
at Rossport. Flagmen were in place to
minimise local traffic disruption, in
accordance with the Road Traffic Act and
the Project Traffic Management Plan. It
was anticipated that the road junction
would be closed for at most five minutes
while a bulldozing machine was unloaded
from the truck. As the bulldozer was
being unloaded Mr. Sweetman appeared,
ignored the flagman and placed himself in
the path of the bulldozer so that it could
not be unloaded. Mr. Sweetman was asked
to move away several times as he was
causing an unsafe situation. Mr. Sweetman
remained in this location for
approximately half an hour demanding to
speak to someone important from Shell.
When finally he was advised that there was
no one for him to speak to, he moved away
and the bulldozer was unloaded. I say and
am advised that the operation took more
than half an hour whereas it should have
taken less than five minutes."

This position was confirmed in the exhibit to Mr. Costello's
affidavit referred to as Exhibit "GC3" being a letter or
statement of Clive Kelly as of
28th February 2005. He was the driver of a Jeep in front of
the loader from Bangor Erris to the T-junction at Rossport.
He was doing the escort duty for the safety of the bulldozer
as a wide load. This offers a most serious challenge to the
averments stated in paragraph 29 of Mr. Sweetman's affidavit.
When the matter is put in issue it is not replied to by
Mr. Sweetman. This represents a very serious distortion of
facts placed before the judge who dealt with the matter in
the first instance. A court granting of any form of
injunctive relief is dependent (it being effectively ex
parte) on the veracity and completeness of the information
given to the Court in the first instance.

Where an injunction under the Planning Act would cause gross
or disproportionate hardship to a respondent relief may be
withheld. In Avenue Properties -v- Farrell (as earlier
cited) Barrington J. declined to grant an order because it
would have been "unduly harsh and burdensome to grant an
injunction notwithstanding the fact that the respondents are
formally in the wrong." Likewise, the potential hardship to
the respondent has also been recognised as a relevant factor
in the exercise of the court's discretion.
(Dublin County Council -v- Sellwood Quarries,
O'Connell -v- Dungarvan Energy Ltd,
Grimes -v- Punchestown Development, and
Leen -v- Aer Rianta Plc). Evidence establishes that Shell
has expended very considerable monies and circumstances where
it bona fide believed that the planning authority agreed that
it had complied with the conditions of the planning
permission. Even if I were wrong in my determination as fact
and law as to conditions 1 and 37, I would exercise my
discretion in refusing the grant the relief sought by reason
of the hardship to Shell especially having regard to the
delay on the part of the applicant which has had the effect
of very significantly increasing the financial loss that
would be suffered if an order under Section 160 had the
effect of delaying the completion of the development were now
made.

Even if it is objected that no specific advice or evidence
has been tendered in this regard, evidence has been tendered
in the course of the documentation that very large sums of
money have been paid by way of agreed contributions as
provided for in other conditions of the planning permission
not the subject of the this judgment. Furthermore if these
proceedings have in any way as (a matter of probability that
they had) some contributory factor in the cessation of works
on site, then clearly they have brought additional hardship,
if not to Shell at least to employees and other suppliers of
goods, materials, and services.

I am satisfied and find as a fact and as a matter of law that
as from the date of the filing of the replying affidavits in
this case on 31st March 2005, it would be untruthful to say
that Shell have failed to comply with any of the terms and
conditions of the planning permission or carried out any
unauthorised development as alleged in these proceedings.
I dismiss the application.

THE JUDGMENT WAS THEN CONCLUDED

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