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Re No Gas Caverns Ltd and Friends of the Earth Ltd [2023] NIKB 8
The High Court in Northern Ireland has dismissed a challenge brought by local residents and broader environmental campaigners against the decision of the Minister for Agriculture, Environment and Rural Affairs to grant, in particular, a marine licence under the Marine and Coastal Access Act 2009 (the “Decisions”) to Islandmagee Energy Ltd (“IMEL”).
The Department for Agriculture, Environment and Rural Affairs (“DAERA”) granted the marine licence to IMEL in November 2021, permitting the construction, operation and decommissioning of 7 natural gas storage caverns 1350m below sea level underneath Larne Lough with a total capacity of around 500 million cubic metres.
The Applicants challenged these Decisions on a number of grounds. By the time of the hearing there were 7 grounds of challenge, including that the Decisions were unlawful on the following bases: (a) the Minister ought to have referred the applications to the Executive Committee under ss.20 and 28A of the Northern Ireland Act 1998 as they involved “significant”, “controversial” and cross-cutting issues; (b) the Minister took into account an irrelevant consideration – a £1m community fund agreed by IMEL to support local projects and ideas; (c) there was a failure to comply with s.58 of the Marine and Coastal Access Act 2009 on climate change grounds; (d) breach of regulation 43 of the Habitats Regulations, including in relation to defective bird surveys; and, (e) a failure to assess the environmental impact of decommissioning by unlawful project splitting.
Following a 4-day hearing in May 2023, Humphreys J has now dismissed the claim.
On (a), Humphreys J considered that the Minister’s assessment of whether a development was “significant” or “controversial” could only be challenged on Wednesbury grounds. In all the circumstances, including that no other Minister contended that the issue was one for the Executive, his evaluative judgement could not be said to be irrational. On cross-cutting, the Applicants had failed to identify the statutory responsibilities of the Department for Economy that had been cut across or the manner in which it was said they had been cut across.
On (b), whilst the community fund was referred to in the EIA decision, the Judge found that the community fund was not treated as a material consideration by the Minister.
On (c), Humphreys J found that the Decisions aligned with the UK Marine Policy Statement, which underpins the obligation in s.58 of the Marine and Coastal Access Act 2009, such that there could be no breach on rationality grounds.
On (d), the Judge found that it was for DAERA to determine the adequacy of the information provided and this could only be challenged on Wednesbury grounds. Again, it was held that the scientific judgement made by the Department on the basis of the data obtained – that there was no reasonable scientific doubt regarding the absence of a likely significant adverse effect – was not irrational.
On (e), Humphreys J found that the decommissioning process had been assessed sufficiently and that the conclusions reached were rational. The fact that future works will be carried out in accordance with best practice standards prevailing at the time – possibly 40 years away – accorded with common sense and the goal of ensuring environmental protection.
The case has been reported on the BBC and ITV.
David Elvin KC and Yaaser Vanderman acted for IMEL.
