Northern Ireland Court of Appeal makes new ruling on matters which should be referred to the executive committee in the context of environmental consenting

Introduction

The Court of Appeal in Northern Ireland recently delivered its judgment in An Application by No Gas Caverns Ltd and Friends of the Earth Ltd [2024] NICA 50 which was a challenge to a marine licence and related environmental consents granted for a 500 million cubic metre underground gas cavern storage facility in Larne Lough.

The challenge centred upon the failure of the Department of Agriculture, Environment and Rural Affairs (“DAERA”) to refer the matter to the Executive Committee pursuant to the Northern Ireland Act 1998 (“the NIA”) and follows similar challenges in Re Buick’s Application [2018] NICA 26 and Safe Electricity [2021] NIQB 93 (albeit these challenges related to the grant of planning permissions).

Facts

The proposal for the gas storage project has been in the pipeline since 2008, with terrestrial planning permission granted in 2012. The marine licence and related environmental consents were approved by Minister Poots in November 2021. The applicants in this challenge argued the Minister had erred in approving the consents because the project was “significant, controversial and cross-cutting” and therefore should have been referred to the Executive Committee in accordance with the provisions of the NIA. The Project has received significant opposition from local residents, ENGOs and politicians.

DAERA made several arguments in defence of the decisions including, inter alia, no previous marine licence applications had been considered by the Executive, there had been no discussion at Executive level on any of the other consents granted for the project and no MLA had sought to have the matter considered by the Executive Committee.

The Court held that the matter was significant – the project had “strategic and economic significance” with regard to energy security and supply in Northern Ireland and it would also have an “impact on current and emerging climate policy” as “there was sufficiently clear information available that approving the project had the effect of potentially locking in fossil fuel dependency for 40 years to come which was of obvious significance to a climate policy direct at net zero by 2050.” The Court determined that the Minister’s decision “that a strategic project of significance for all citizens in Northern Ireland in terms of security of energy was not significant is problematic”.

The Court also held that the decision was “controversial” given the level of objection, not only from local groups, but from “respected and independent” bodies such as Friends of the Earth and the RSPB as well as several political parties. With regard to “cross-cutting”, the Court stated that given the Department for Economy has “statutory and policy responsibility for gas supply and energy security”, it was a cross-cutting matter which should have been referred to the Executive Committee.

A second ground of challenge was raised relating to the local community fund of £1 million the developer had proposed to support local projects – the applicants argued this had been wrongfully taken into account as a material consideration by the Minister in his decision making on the basis of the Supreme Court decision in Wright. This ground was also successful notwithstanding the fact that the decision included no mechanism to secure payment of the money and therefore the appeal was allowed with the relevant marine licence and environmental consents quashed.

Implications

While this judgment pertains to decisions of the DAERA Minister who does not benefit from the legislative carve-outs that apply to the Minister for the Department for Infrastructure when making planning decisions via the Executive Committee (Functions) Act (NI) 2020, this is nonetheless an important judgment as it highlights the Court’s evolving approach to the concepts of “significant”, “controversial” and “cross-cutting”. Leave has been sought by both DAERA and the Notice Party – Island Magee Energy Limited to appeal the judgment to the Supreme Court.

If you would like further information, please contact Faye Phillips or another member of the Planning & Environmental team.

*This document does not constitute legal advice and should not be relied upon as a substitute for legal advice that is tailored to your individual circumstances.