Irish Water will have to wait on a judge's decision over whether it can proceed with plans to lay a sewage pipe through lands owned by the Duke of Devonshire and which would discharge treated waste water into Youghal Bay, writes Noel Baker of the Irish Examiner.
The case of Irish Water and Woodstown Shellfish Ltd ran for 14 days in the circuit court in Clonakilty, Co. Cork, before concluding today.
Woodstown is the occupier of the private foreshore, owned by the Duke along with several fisheries, the title of which goes back 500 years and predates the Magna Carta.
The waste water would be discharged at Ferrypoint in Co Waterford but the pipe would begin in Co Cork. It forms part of the €12.5m wastewater treatment plant in Youghal, Co. Cork, contracts for which were signed in 2015.
Woodstown has argued that were the plan to go ahead it would cause lasting damage to a special area of conservation and the mussel beds fished there, and would not be compliant with the EU Habitats Directive.
Irish Water has rejected that and in the hearing regarding a preliminary issue over compliance with Environmental Impact Assessment (EIA) and Appropriate Assessment (AA) requirements said it had adhered to all regulations in preparing for the project.
But Barrister Michael O'Donnell for Woodstown, which has fished mussels in the area since 2002, told the court in Clonakilty: "This is a scheme that, I submit, is chaotic."
He said it still required agreement by the National Parks and Wildlife Service and that "the cart is very much before the horse".
He said there were "levels of uncertainty" over the plan and concerns over its possible environmental impact at what was a European site under the Habitats Directive. Mr O'Donnell said the possibility of lasting damage to mussel beds could not be ruled out.
He also referred to evidence given by a witness during the course of the hearing that outlined how untreated water was still being discharged from two existing pipes even after a cut-off date at the end of 2015.
He added there was an overlapping of private, public and environmental interests.
David Holland, SC for Irish Water said Irish Water had a waste water discharge licence and that private and public land ownership issues needed to be disentangled.
He said an EIS was submitted and that an application had been made under section 97 of the 2007 Water Services Act to allow sufficient permission to proceed. He said there were no higher rights in this case than in any compulsory purchase order case.
"Our position has always been that an EIA has already been done," he said, claiming that Irish Water was "entirely compliant" with its requirements and that the waste water discharge licence and foreshore approval would not have been granted otherwise.
He said there was no evidence before the court that there will be a permanent loss of habitat, but rather a "mere assertion".
He said there was a "national problem" regarding the discharge of untreated waste water, one subject to legal action by the European Commission.
"It is a problem inherited by Irish Water," he said, adding that the plan would be part of the remedy.
Mr O'Donnell countered by saying it was "staggering that Irish Water would seek to benefit from the default with compliance".
Judge David Riordan said he was reserving his position and would give his decision on July 6 next, when a related matter brought by Lismore Realty Ltd will also be mentioned.