Permission for natural gas terminal in Shannon quashed by High Court after EU ruling

The decision follows a ruling from the European Court of Justice in a case taken by Friends of the Irish Environment (FIE) that has implications for major construction projects across Europe.

No project that has previously had planning permission which has now lapsed may have that permission renewed without going through a full, fresh planning application with environmental assessment.

Also, no project that has planning permission which is due to lapse and for which an extension is being sought can now receive that extension without a review of previous environmental assessments and public consultation to see if anything in the environment or in scientific knowledge has changed in the interim.

Shannon LNG falls into the latter category. Originally granted planning permission in 2008, it was not built within the 10-year period permitted, mainly because the recession intervened.

Irish planning law allows extensions to be favourably considered when construction does not begin because of “considerations of a commercial, economic or technical nature beyond the control of an applicant”.

New Fortress Energy, the company behind the terminal project, cited this provision in applying for an extension in 2017 before the 10 years were up.

An Bord Pleanála granted the extension in 2018, rejecting objections from FIE that the original permission had been granted without adequate environmental assessment as required by EU law given the terminal’s proximity to protected habitats.

FIE argued that any decision to extend the permission should at least allow for a look-back on the original assessments but also examine whether anything had changed in the interim.

The group, which had also unsuccessfully objected to the original planning permission in 2008, sought judicial review in the High Court. An Bord Pleanála argued that because the plans for the project itself had not altered, no additional assessments were required.

Judge Garret Simons referred the matter to the European Court of Justice and it recently returned its ruling to the High Court, resulting in the extension being quashed.

Solicitor Fred Logue who acted for FIE said the case had clarified complex issues of planning law which would have to be applied across Europe.

The case is of particular interest as the terminal would be used to import fracked gas from the US. Fracking is illegal in Ireland but despite the Government’s stated opposition to having fracked gas used here, there is no legal prohibition on importing it.

Tony Lowes of FIE said the Government must examine the lessons of the case to avoid such protracted legal battles in the future.

“There are probably few things more frustrating in life than knowing you are right and being unable to prove it, which is the situation we have been in for the last 12 years,” he said.

New Fortress Energy indicated in filings to the US companies regulator earlier this year that it anticipated an unfavourable ruling from Europe and would prepare a fresh planning application.