The High Court has referred to Europe a number of questions relating to a five-year extension of planning permission for a liquid gas terminal on the Shannon Estuary.
Mr Justice Garrett Simons has asked the Court of Justice of the EU (CJEU) to give a preliminary ruling on a number of questions raised in a case brought by Friends of the Irish Environment (FIE) against An Bord Pleánala.
The board granted the five-year extension for the development to Shannon LNG which is a notice party in the case. The project will include the construction of four large tanks, jetties to receive ships, and associated works at Kilcolgan, near Tarbet in north Co. Kerry.
FIE claims the board failed to take account of the possibility of the significant effects the proposed development will have on local wildlife and flora, including Bottlenosed Dolphins in the Lower River Shannon special area of conservation.
FIE also claims there was a failure to take account of the 2015 Climate Action and Low Carbon Development Act 2015 which is intended to drive Ireland’s transition in line with its commitments under the Paris Agreement.
The dispute centres on whether the five-year permission extension engages the EU Habitats Directive which means the planning authority is obliged to fulfil certain procedural requirements before agreeing to a project which is likely to have a significant effect on a European conservation site.
Mr Justice Simons said the issue was whether those procedural requirements only applied when the original planning permission was granted or, alternatively, whether they also apply to the subsequent decision to extend for five years which involves no physical change to the original permission.
The board and Shannon LNG maintain that a mere temporal change - the period within which work can be carried out - does not require screening or assessment under the Habitats Directive.
FIE says it does.
Mr Justice Simons said recent High Court and Supreme Court decisions found the Habitats Directive did not apply in a case where an extension of permission had been granted.
However, there had been a significant legal development since last November when Juliane Kokott, Advocate General at the CJEU, delivered an opinion in a separate case saying the extension of duration of a building development is, in principle, subject to the Habitats Directive.
Mr Justice Simons said it had been accepted by all parties that the outcome of the case involving the Kokott opinion could have a significant bearing on this case.
Given Mr Kokott's opinion, it cannot be said that the applicability of the Habitats Directive to the five-year planning extension was clear.
In the circumstances, the judge decided it was necessary to refer a number of questions to the CJEU for preliminary ruling.
These include whether the five-year extension decision constitutes the agreement of a project such to trigger the Habitats Directive.
It also includes the question of to what extent, if any, is the obligation of the national court to interpret legislation insofar as possible in accordance with the Habitats Directive and the Aarhus Convention, providing the parties have expressly raised those issues.
The judge adjourned the matter generally pending a decision of the CJEU.