Judgment of Ms. Justice Dunne delivered the 3rd day of February 2016
The commencement of any large infrastructure project is never easy. Before a sod is turned or a brick is laid there are many important details to be dealt with. Land may have to be acquired, whether by compulsory purchase order or otherwise. Planning permission has to be obtained. Public consultation may be necessary. Finance has to be put in place. Depending on the nature of the project, there may be any number of hurdles to be overcome. It will not come as a surprise to anyone that such projects inevitably will be a matter of concern to those directly affected by them, despite the fact that such projects may be of benefit to the community as a whole. The person on whose land a motorway is to be built will naturally be concerned to lose their land, albeit, subject to compensation. No one wants to have a sewage treatment plant constructed adjacent to their home. Many people have issues with the erection of electricity pylons close to their homes, with the construction of wind farms and the list goes on. Apart from those directly affected by a project there are others in the community who may find a particular project objectionable on a variety of grounds. For example, the development of a motorway may give rise to concerns as to its impact on the archaeological heritage of the area through which it is intended that the motorway should pass. There may be safety concerns for those living in the vicinity of a project which involves hazardous operations. For others, the issue of concern may be the impact of the project on the environment in the area concerned. It is therefore not surprising that such projects often result in litigation initiated by those with such concerns with a view to stopping the projects altogether. Such litigation is often focused on whether or not the party responsible for the particular project has or is complying with requirements of planning permission. This is such a case.
Background
The first named respondent (“Shell”) was granted planning permission on the 22nd October, 2004 by An Bord Pleanála for the development of two sites of 160 hectares approximately and 117 hectares approximately in Bellanaboy Bridge and Bangor-Erris, County Mayo leading to the construction of a gas terminal for the reception and separation of gas from the Corrib gas field and for a peat deposition site, respectively. Mr. Sweetman commenced these proceedings by Originating Notice of Motion on the 9th March 2005 seeking, inter alia, relief pursuant to s. 160 of the Planning and Development Act, 2000, (“the Act”). The reliefs sought by Mr. Sweetman in these proceedings were broadly described by the learned trial judge, Smyth J. as follows:
The overall object of the proceedings was to stop the development taking place and requiring the restoration of the lands affected, by Shell. Mr. Sweetman in his grounding affidavit described himself as a photographer and said that he had a keen interest in the environment and in protecting the Irish countryside. He stated that on most weekends over the course of the period between March 2001 to 2005, he stayed within sight of Shell’s site, the subject matter of the proceedings. He further stated that he has devoted a lot of his time to protecting the environment and in particular, areas of special amenity rich in wildlife and plant life. He also stated that he was a member of An Taisce and of the Irish Heritage Trust.
When the matter came on for hearing before Smyth J. in March 2006, it was agreed between Mr. Sweetman and the second and third named respondent that the proceedings against those respondents could be struck out. Despite the fact that a large number of reliefs were sought in the originating notice of motion, by the time the matter came on for hearing before the learned trial judge only two issues were pursued by Mr. Sweetman. The first of those related to Condition No. 1, which provides:
Smyth J. observed in the course of his judgment:
“Thirty eight conditions follow upon condition 1 in respect of a large and complex development. It is clear from the document as a whole that it envisages much interaction as between the applicant [Shell] and the planning authority during the course of giving effect to the permission.”
The second issue relates to Condition 37, which provides:
It should be noted that the fact that Mr. Sweetman chose to pursue the reliefs claimed in respect of only Condition No. 1 and 37 was notified to Shell on the eve of the hearing before the learned trial judge.
The learned trial judge dismissed the application. He concluded that as a fact and as a matter of law there had been substantial compliance with Condition 37. He added that as had been agreed by counsel for Shell certain formalities remained to be fulfilled.
Mr. Sweetman has now appealed from the judgment of the learned trial judge of the 14th March, 2006 and the order of the High Court made on the 28th March, 2006 refusing Mr. Sweetman the reliefs sought in respect of the alleged non-compliance with Conditions 1 and 37 of the planning permission.
The appeal
A notice of appeal dated the 30th day of April, 2006 was filed on behalf of Mr. Sweetman. The grounds of relief were that Smyth J. erred in law and/or on the facts as follows:
“1. In holding that the respondent herein had complied with all the terms and conditions of planning permission, register reference no. 03/3343 and An Bord Pleanála reference 16.207212, and had not carried out any unauthorised development for the purposes of the Planning and Development Act 2000; in particular holding that there had been compliance with Condition 37, concerning having the stipulated security in place before commencing the development.
2. In disregarding the submissions of the applicant/appellant’s counsel at the outset of the hearing that the only grounds of objection then being pursued and the orders that his client was seeking was simply a determination as to whether or not Condition 37 and Condition 1 had been complied with; that in the event of such a determination being made, it was reasonable to assume that the respondent would duly and promptly comply but if such compliance did not occur then the more onerous orders being sought in the originating motion should be made.
3. In holding that the various considerations for exercising the discretion obtained without taking any account of the aforesaid submission and the position of the applicant/appellant.”
In addition it was stated in the notice of appeal that the following orders were sought.
As can be seen, the focus of the appeal was on Condition 37.
Subsequent events
As stated above, the learned trial judge found as a fact and as a matter of law that there had been substantial compliance with Condition 37. It was acknowledged by Smyth J. that there were outstanding certain formalities to be fulfilled. An affidavit sworn herein on the 15th October, 2015 by Ann Hamilton, the finance director of Shell, sets out the details of the discussions between Shell and Mayo County Council in finalising the financial security arrangements. The “Corrib Gas Terminal Reinstatement Agreement”, together with a guarantee from Shell’s parent company, was entered into between Shell and Mayo County Council on the 16th August, 2011. A letter of the 22nd August, 2011 from Mayo County Council to Mr. Gavin Lawlor, Tom Philips & Associates, Shell’s planning advisers, stated that the “Council considers that the terms of Condition 37 of the decision of An Bord Pleanála Ref. PL16.207212 have been complied with”. Thus from the point of view of Shell and Mayo County Council as of the 16th August, 2011, not only had there been substantial compliance with Condition 37, all of the outstanding formalities had been completed.
What was happening in the meantime in respect of Mr. Sweetman’s appeal? The answer to that question is, simply, nothing. Ultimately, the matter was listed as an uncertified appeal for mention before the Chief Justice. Prior to the matter being listed for mention before the Chief Justice, the parties exchanged correspondence in the course of which the solicitors acting for Mr. Sweetman requested confirmation that Shell would furnish details as to when the “pre-commencement bond as required under Condition No. 37 had been formally lodged”. A copy of the documentation in that regard was also sought. The solicitors on behalf of Shell responded saying:
“Shell E&P Ireland Limited has fully complied with Condition 37 of planning permission (Ref: P03/3343). A parent company guarantee as originally agreed between the parties (and accepted by the High Court) has been provided to Mayo County Council. Therefore, SEPIL are of the view that there is no issue in dispute between the parties and the matter is now moot. We therefore call on you to withdraw your appeal without further delay.”
The appeal was not withdrawn despite the exchange of correspondence and at a further hearing before the Chief Justice on 8th October, 2015, it was agreed that Shell would provide the affidavit to which I have previously referred, namely, the affidavit of Ann Hamilton, for the purpose of exhibiting the documentation demonstrating compliance with Condition 37 and the recent correspondence between the parties. Prior to the matter being listed in the uncertified list of appeal, Mr. Sweetman had taken no steps whatsoever to advance the appeal in this matter.
Since the matter was at hearing in the High Court, the Corrib Gas Terminal has been constructed and is now completed.
The issues
The issues in the appeal identified by counsel on behalf of Mr. Sweetman were as follows:
(1) What is encompassed by the phrase “Cessation of activity at the terminal” in Condition 37?
(2) In March 2005, when these proceedings commenced or even a year later when they were heard and decided, had Shell complied with Condition 37? It is contended on behalf of Mr. Sweetman that the answer to this question was “manifestly no”.
(3) Since this Court is exclusively an appellate body and the supervening events were never considered in the High Court, has this Court jurisdiction to rule on disputes concerning them at all?
It was contended on behalf of Mr. Sweetman that the Court did not have such jurisdiction but in the event that that contention was wrong, questions were posed as to whether or not Shell was now in compliance with Condition 37 in the light of supervening events, a position which is contested by Mr Sweetman and whether at this juncture or on what conditions the Supreme Court should exercise its discretion as to the remedies applicable. It was not suggested that the gas terminal should now be shut down.
The issues identified by counsel on behalf of Shell were, firstly, the question of whether or not the appeal is now moot in the light of the steps that have been taken to complete the formalities outstanding to the satisfaction of Mayo County Council and secondly the effect of the lack of an appeal from the conclusion of the learned trial judge contained in paragraph 55 of his judgment that:
“Even if I were wrong in the determinations which I have made both as matters of fact and law concerning conditions 1 and 37 as above and the first respondent were considered as having failed to comply with the conditions or had engaged in unauthorised development, I would nonetheless exercise the discretion under s. 160 not to make an order having regard to the following factors:-
(a) the trivial and/or technical nature of the breaches;
(b) the bona fides of the first respondent;
(c) the attitude of the planning authority;
(d) the public interest and hardship to third parties;
(e) the delay on the part of the applicant in particular making it necessary to have an extension of time in which to proceed; and
(f) the failure to respond promptly to the replying affidavits, leaving on the court file a large number of complaints concerning the development which were wholly unwarranted.”
Accordingly, as counsel on behalf of Shell pointed out, even if the learned trial judge had been in error in coming to the conclusion that there had been substantial compliance with Condition 37, nonetheless he would not have granted relief pursuant to s. 160 of the Planning and Development Act 2000.
Section 160 of the Planning and Development Act 2000
It would be helpful to set out the relevant provision of s. 160 at this point. Section 160(1) of the 2000 Act provides as follows:
“Where an unauthorised development has been, is being or is likely to be carried out or continued, the High Court or the Circuit Court may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate, the following:
(a) that the unauthorised development is not carried out or continued;
(b) in so far as is practicable, that any land is restored to its condition prior to the commencement of any unauthorised development;
(c) that any development is carried out in conformity with the permission pertaining to that development or any condition to which the permission is subject.
(2) in making an order under subsection (1), where appropriate, the Court may order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alteration of any structure or other feature.”
The interpretation of planning permissions
Certain principles have long been accepted as being appropriate to bear in mind in considering the construction of planning documents. The leading statement is to be found in In re XJS Investments [1986] I.R. 750 at page 756 where McCarthy J. put the matter as follows:
“Certain principles may be stated in respect of the true construction of planning documents:-
(a) To state the obvious, they are not Acts of the Oireachtas or subordinate legislation emanating from skilled draftsmen and inviting the accepted canons of construction applicable to such material.
(b) They are to be construed in their ordinary meaning as it would be understood by members of the public, without legal training as well as by developers and their agents, unless such documents, read as a whole, necessarily indicate some other meaning. . . .”
That case concerned a decision to refuse permission for residential development by reference to the development plan for the area concerned. In the present case, part of the arguments put forward in this Court on behalf of Mr. Sweetman relate to the interpretation of the phrase “Cessation of activity at the terminal”. Insofar as it may be necessary to consider the meaning of that phrase in the course of this judgment, any such consideration will be guided by the principles enunciated by McCarthy J. in In re XJS Investments Limited.
Some observations
I have already adverted to the fact that a large scale development will inevitably attract opposition. Some developments will attract more opposition than others. Those which carry an element of risk, involve hazardous operations or in some other way have a major impact on a particular locality will inevitably attract most opposition. The project at issue in this case involved the construction of a gas terminal. In the circumstances, it is hardly surprising that the development was accompanied by a great deal of opposition, including demonstrations at the sites apart altogether from legal objections of the kind involved in these proceedings. It is understandable that Mr. Sweetman, a person who has an avowed interest in the environment and in areas of “special amenity rich in wildlife and plant life” would be concerned at the implications for the environment in the development of such a large infrastructure project. When proceedings such as this are commenced, no doubt prompted by concerns for the environment, it is important that such proceedings are properly formulated. I have already summarised the type of reliefs sought by Mr. Sweetman in the originating notice of motion and I should also refer to an observation of Smyth J. in regard to the proceedings commenced by Mr. Sweetman. He stated at page 19 of his judgment (2007 3 IR 13) as follows:
“The applicant's affidavit and that of his adviser, Mr. Bergin, grounding the application allege, assert or suggest widespread non-compliance by [Shell] with a number of conditions of the planning permission and further that [Shell] has engaged in unauthorised development. The order of Quirke J. of the 16th March, 2005, permitted inspection of the terminal site to ascertain whether unauthorised works were being carried out thereon. Notwithstanding this facility and the applicant's liberty to file any replying affidavit(s) to those filed on behalf of [Shell] so as to put before the court any real firm evidence of non-compliance or the carrying out of any alleged unauthorised development, no such affidavit evidence has been put before the court. This is a notable feature of this case as the affidavits filed on behalf of [Shell] identify many inaccuracies in the applicant's assertions.”
Smyth J. also noted that a number of the reliefs sought, namely those sought under the Local Government (Water Pollution) Acts, 1977 to 1990 and the Waste Management Acts 1996 to 2003 were conceded by Mr. Sweetman not to have been properly sought in these proceedings. Thus Smyth J. was critical of the wide ranging allegations that were made by Mr. Sweetman as to unauthorised development in circumstances where there were “many inaccuracies in the applicant’s assertions”. It goes without saying that a person invoking the jurisdiction of the courts in proceedings of this kind has a responsibility in relation to the assertions being made in the proceedings. Assertions have to be supported by evidence. Equally, such a person has a responsibility to ensure that the proceedings are managed appropriately and speedily. Delay in the conduct of the proceedings may cause hardship to the party entitled to develop a particular project and in cases of excessive delay, the delay may disentitle the applicant to the relief sought in the proceedings. In the context of this case, the learned trial judge observed at page 37 of the judgment as follows:
“Where an injunction under the Planning Acts would cause gross or disproportionate hardship to a respondent relief may be withheld. In Avenue Properties Ltd. v. Farrell Homes Ltd. (as earlier cited) 21 Barrington J. declined to grant an order because it would have been ‘unduly harsh and burdensome to grant an injunction notwithstanding the fact that the respondents are formally in the wrong.’ Likewise, the potential hardship to the respondent has also been recognised as a relevant factor in the exercise of the court's discretion:
Dublin County Council v. Sellwood Quarries Ltd.,1981ILRM 23,
O'Connell v. Dungarvan Energy Ltd., unrep., Hg. Ct. Finnegan J. 7th February 2001,
Evidence establishes that [Shell] has expended very considerable monies in circumstances where it bona fide believed that the planning authority agreed that it had complied with the conditions of the planning permission. Even if I were wrong in my determination of fact and law as to conditions 1 and 37, I would exercise my discretion in refusing to grant the relief sought by reason of the hardship to [Shell] especially having regard to the delay on the part of the applicant which has had the effect of very significantly increasing the financial loss that would be suffered if an order under s. 160 had the effect of delaying the completion of the development were now made.”
It is relevant to refer to that passage from the judgment of the learned trial judge because of the reference to delay on the part of Mr. Sweetman in the conduct of the proceedings before the High Court. Following the decision of the learned trial judge set out in his judgment and perfected in the order of the High Court on the 28th March, 2006, a notice of appeal was lodged by Mr. Sweetman on the 30th April, 2006. The appeal then lay dormant until 2014 when it appeared in a list of uncertified cases on the direction of the Chief Justice. It is entirely inappropriate that any appeal should be left in abeyance for upwards of eight years but given the nature of the appeal in this case, such delay is all the more inappropriate. It must be borne in mind that the relief sought in the notice of appeal was firstly a declaration that Condition 37 has not been complied with and secondly and more pertinently an order that, in the event of full and prompt compliance with Condition 37 not being effected, any further works on the development be restrained. It could not seriously be expected by Mr. Sweetman that having sat back for eight years and allowed Shell to complete a multimillion Euro development of the kind involved in this case should then come to court to pursue an appeal in which part of the relief sought is to restrain “any further works on the development”. It is simply not acceptable to conduct litigation of this kind in that way. From Mr. Sweetman’s point of view, if a court was to find in his favour on the legal issues, he would face great difficulty in persuading a court to grant him any relief having regard to the change of circumstances since the matter was first decided in the High Court. From the point of view of Shell, one can only begin to imagine the implications from a financial point of view if a court were minded to allow the appeal and to grant the relief sought by Mr. Sweetman. That is to say nothing whatsoever of the impact such an order could have on employment and the local economy in the area where the gas terminal is now situated.
In fairness to Mr. Sweetman, it was urged on this Court that when the matter was before the High Court it was never Mr. Sweetman’s case that the orders sought should be made there and then, namely, to stop all works. Rather it was suggested that the Court was being invited to make a determination that Shell were in breach of Condition No. 37 and to afford Shell an opportunity to comply with Condition No. 37. In practical terms, that is the approach urged on the Court at the hearing of the appeal.
Given that Mr. Sweetman was effectively seeking injunctive relief it was always going to be the case that an important factor in deciding whether or not to grant such relief would be the exercise of discretion by the trial judge. Smyth J. in the passage above referred to the fact that Shell had by the time the matter came before him expended very considerable sums of money and that the delay on the part of Mr. Sweetman in prosecuting the proceedings before the High Court had “the effect of very significantly increasing the financial loss that would be suffered if an order under s. 160 had the effect of delaying the completion of the development . . .”
At that time, the development of the site was in the early stages. However, since the appeal was lodged, Shell proceeded with and has now completed the development and the first gas from the Corrib field has now been brought on shore. Thus, the position on the ground has changed considerably since the proceedings were before the High Court.
The fact that the development has been completed in the meantime may explain why Mr. Sweetman has said that he is now inviting the Court to make a determination that Condition 37 has not been complied with and to allow Shell an opportunity to comply with Condition 37 rather than seeking an order that the terminal be “shut down”. In truth, the fact that it was necessary to “force” the appeal on for hearing through a listing in the uncertified appeals list might be an indication that Mr. Sweetman has lost his enthusiasm for the case made before the High Court.
Condition 37
Condition 37 was designed to ensure that “upon the cessation of activity at the terminal” there would be in place a fund to provide for the satisfactory reinstatement of the site. It provided that this could be achieved by means of a cash deposit, a bond of an insurance company or other security. There was to be an agreement empowering Mayo County Council to apply such security to the satisfactory reinstatement of the site. Significantly, Condition 37 provided that “the form and amount of the security shall be as agreed between Mayo County Council and the developer”.
Prior to the commencement of the development there had been an exchange of correspondence between Shell and Mayo County Council. In a letter of 10th December, 2004, Shell wrote to the County Council in the following terms:
“We . . . confirm that we intend to put in place the following arrangements in order to secure the satisfactory reinstatement of the gas terminal site:
1. The provision of a parent company guarantee from the parent company of Shell E&P Ireland Limited (SEPIL) Shell Overseas Holdings Limited (SOHL) (“SOH”) or its successors and assigns to secure the satisfactory reinstatement of the gas terminal site on cessation of activity at the terminal. The final guarantee will require formal board approval in due course.
SOH is a company registered in England and Wales and has substantial assets. As of the date of its last audited accounts, namely for the calendar year 2002, SOH reported total assets less current liabilities of 17,625.4m. SOH would provide the Council with a copy of its audited accounts on an annual basis. SOH would also provide the Council with an independent credit assessment report in respect of SOH.
The guarantee would be for a sum equal to €20m, the current estimated cost of reinstating the gas terminal. This sum would be escalated throughout the life of the guarantee in accordance with the relevant Consumer Price Index (Building Cost Index). The guarantee would be put in place for a period so as to cover the time when decommissioning of the gas terminal site will occur. There shall be five yearly reviews of these arrangements by both parties to assess the adequacy of the financial provisions; and
2. an agreement empowering the Council to apply the parent company guarantee, or part of it, to the satisfactory reinstatement of the gas terminal site. The guarantee would be able to be activated by the Council in the event of SEPIL failing to reinstate the site to the satisfaction of the Council following cessation of operations. Any disagreement between the Council and SEPIL in this regard would be referred to the determination of An Bord Pleanála, or any successor of the Board.
We undertake that we shall promptly progress the putting in place of the arrangements referred to above in consultation with and to the satisfaction of, the Council, within six months from the date of this letter. If at the expiry of a five month period the agreement is not in place, SEPIL must enter into discussions with the Council and the Council may extend the period at its discretion or, alternatively, take whatever action the Council deems appropriate.”
By letter dated the 10th December, 2004, Mayo County Council wrote to Shell and in connection with Condition 37 stated as follows:
“Mayo County Council agrees to the terms set out in your letter of undertaking submitted Friday, 10th December, 2004 as security to secure the satisfactory reinstatement of the site following cessation of activity at the terminal.”
Smyth J. in the course of his judgment (2007 3 IR 13) observed that the completion of the security arrangement had been “overtaken by events” namely the institution of seperate judicial review proceedings by Mr. Sweetman and by a Mr. Harrington and that the completion of the matters referred to in the correspondence on the 10th December, 2004 was put “on hold” as a result of those proceedings. He observed in the course of his judgment at page 29:
“What is required by the condition is that an agreement is made between Shell and Mayo County Council prior to development for the purpose of ensuring the restoration of the site when activity ceases. The form and amount of the security to be given is to be determined by the Planning Authority. There is no obligation requiring delivery of any specific amount by Shell or any other person. Neither is a form of the documentation laid down in the condition.”
He continued at page 30:
“When the condition left the form and amount of the security to be agreed - this was the prerogative not of Shell but by of the Planning Authority. The importance of the agreement of the Planning Authority is crucial - clearly an acceptance of a derisory sum by way of security would not be within the context of so large and complex a development viewed by a court as genuine and proper compliance. However, an element of judgment is left with the Planning Authority - with a default mechanism if the amount tendered by Shell is inadequate or the amount sought by the Planning Authority was excessive or an uncommitted letter were tendered. Likewise the planning authority must agree to the form of security offered, whether it be in the form of a letter of comfort or other form is a matter within their judgment.”
He noted that objection was taken to the form of the document, i.e. the letter of the 10th December, 2004 as not being “a security” and that what was being tendered was a promise that Shell’s parent company would provide a guarantee. Smyth J. stated:
“In my judgment this is a case in which if matters had progressed as envisaged in December 2004 all the necessary form of documentation as a matter of probability would have been duly executed.”
As he observed, judicial review proceedings were commenced in December 2004 and subsequently in March 2005 the instant proceedings were commenced by Mr. Sweetman. He then concluded at p. 32:
“I find as a fact and as a matter of law that there has been substantial compliance with Condition 37. Undoubtedly there remains outstanding, as agreed by Mr. Maurice Collins SC appearing for Shell, certain formalities to be fulfilled. In the course of the submissions no authority was advanced to the Court substantiating the right of a third party to challenge an agreement actually made between a planning authority and a ‘developer’ and to invoke the discretion of the Court to set aside such agreement.”
Thus as can be seen, Smyth J.’s conclusion was that there had been substantial compliance with the terms of Condition 37 notwithstanding that the formal arrangements had not been put in place between Shell and Mayo County Council. Since that time, the formal requirements to comply with the terms of the letter of the 10th December, 2004 as agreed between Shell and Mayo County Council have been put in place as described in the affidavit of Ann Hamilton sworn herein on the 15th October, 2015. The Corrib Gas Terminal Reinstatement Agreement together with a guarantee was entered into between Shell and Mayo County Council on the 16th August, 2011. By letter dated the 22nd August, 2011, Mayo County Council wrote to Shell’s planning advisers and stated that the “Council considers that the terms of Condition 37 of the decision of An Bord Pleanála Ref. PL16.207212 have been complied with”.
Mootness and Discretion
For the purpose of considering whether it could be said that this appeal is now moot it would be helpful to recall the timeline involved in some of the events at the heart of these proceedings. First of all, planning permission for the development of the Corrib Gas Terminal was granted by An Bord Pleanála on the 22nd October, 2004. On the 10th December, 2004 agreement was reached between Shell and Mayo County Council on the form of security and the amount thereof. It was intended that the formal arrangements to give effect to that agreement would be put in place later. Two sets of judicial review proceedings were commenced, one by the applicant (Record No. 1165JR/2004) and the other by Martin Harrington against Shell & Others (Record No. 1164/2004JR), the purpose of which was to quash the decision of An Bord Pleanála to grant permissions. The other proceedings were subsequently dismissed with the agreement of the parties. These proceedings were commenced by Mr. Sweetman by originating notice of motion dated the 9th March, 2005. All works on the development stopped as described by Smyth J. in the course of his judgment at page 25: “pending final resolution of a range of litigious and other matters”. Subsequently, and immediately following the judgment delivered by Smyth J. on the 14th March 2006, Shell contacted the solicitors for Mayo County Council with a view to finalising the security arrangements. Correspondence was engaged in between Mayo County Council and Shell resulting ultimately in the Corrib Gas Terminal Reinstatement Agreement together with the guarantee referred to previously which was entered into on the 16th August, 2011. It was confirmed by letter dated 22nd August, 2011 that Mayo County Council was satisfied that the terms of Condition 37 of the decision of An Bord Pleanála had been complied with. Thereafter, as mentioned previously, the first gas was brought ashore in December 2015.
Given the fact that Smyth J. found as a matter of fact and of law that there had been substantial compliance with Condition 37 and bearing in mind that the formalities referred to by Smyth J. have now been completed, it is contended on behalf of Shell that as of the 16th August, 2011, when the guarantee was signed by the parties or the 22nd August 2011 at the latest when Mayo County Council expressed the view that Condition 37 had been complied with, the appeal has become moot.
Mr. Sweetman contends that the appeal is not moot and argues that Smyth J. was wrong to come to the conclusion that Condition 37 had been satisfied in March 2006 or that there had been “substantial compliance” with it. The point emphasised was that no security had been lodged by March 2006 when judgment was delivered. It is disputed that Shell was entitled to put matters “on hold” by reason of the commencement of legal proceedings.
It is undoubtedly the case that by March 2006 Shell was not in strict compliance with the terms of Condition 37. Smyth J. found that there remained outstanding at that time “certain formalities to be fulfilled”. He said at page 30 of his judgment:
“What is required by the condition is that an agreement is made between Shell and Mayo County Council prior to development for the purpose of ensuring the restoration of the site when activity ceases. The form and amount of the security to be given is to be determined by the Planning Authority. There is no obligation requiring delivery of any specific amount by Shell or any other person. Neither is a form of the documentation laid down in the condition.”
He went on to say at page 31 of the judgment:
“In my judgment the planning authority were entitled to agree to the form and amount of the security proffered. They have agreed with Shell to accept the security; its non-completion is overtaken by events initially in December 2004 (the Judicial Review proceedings). In March 2005 these proceedings began and notwithstanding that the bulk of the complaints made were answered by replying affidavits in that month, the complaints were allowed to stand on the Court file and not withdrawn for almost an entire year. In my judgment the planning authority could have had no doubt as to what was required by the condition. . . .”
Thus, Smyth J. came to the conclusion that there was substantial compliance with the condition. It was argued on behalf of Mr. Sweetman that Condition 37 had to be complied with prior to development and that as the security was not lodged prior to the commencement of the development, there was no compliance where the completion of the formalities had been put on hold. I am satisfied having regard to decisions such as Mountbrook Homes Limited v Oldcourt Developments Limited and Conroy v Craddock 2007 IEHC 336 that notwithstanding the fact that a pre-commencement condition requiring agreement between the developer and the planning authority on a particular issue has not been concluded but where there is subsequent agreement, a court will not generally grant relief pursuant to s. 160 of the Act.
Smyth J. went on to say that even if he were wrong in his determination of fact and law as to Conditions 1 and 37 he would have exercised his discretion to refuse relief because of the hardship to Shell having regard to delay. Leaving aside the fact that that conclusion is not the subject of appeal, the observations of Smyth J. as to the exercise of discretion have even greater force in circumstances where this appeal was lodged in the Supreme Court in April 2006 by Mr. Sweetman and was allowed to remain dormant until the matter was listed in the list of uncertified cases at the direction of the Chief Justice.
The reliefs sought in these proceedings when commenced sought to prohibit the development of the Corrib Gas Terminal and the reliefs sought by him on this appeal included an order that any further works on the development “be restrained". Although Mr. Sweetman stated in this appeal that he does not now suggest that “a complete shut down should now be ordered” it is important to remember that the primary reliefs sought by Mr. Sweetman involve the prohibition of any works on the site and the restoration of the lands to their pre-development state. Given that Mr. Sweetman was seeking such relief it was always going to be the case that an important factor in deciding whether or not to grant such relief would be the exercise of discretion by the trial judge. Smyth J. in the passage above referred to the fact that Shell had by the time the matter came before him expended very considerable sums of money and that the delay on the part of Mr. Sweetman in prosecuting the proceedings before the High Court had “the effect of very significantly increasing the financial loss that would be suffered if an order under s. 160 had the effect of delaying the completion of the development . . .”.
At that time, the development of the site was in the early stages. However, since the appeal was lodged, Shell proceeded with and has now completed the development. Thus, the position on the ground has changed completely since the proceedings were before the High Court. It must be remembered that injunctive relief is discretionary. The granting of an injunction does not inevitably follow the finding by a court that there has been a legal wrong. Injunctive relief is dependant on an analysis of where equity lies in the case.
Simons in Planning and Development Law observed at para. 7-68:
“The equivalent section of the previous legislation had been described as a “fire brigade” section intended to deal with clear and urgent breaches the planning legislation.”
As a general observation, it seems to me that it cannot be appropriate for a party who sought injunctive relief under s. 160 of the 2000 Act and was unsuccessful to lodge an appeal and then allow that appeal to lie dormant for a number of years. This is even more the case where there was delay, as found by the learned trial judge, in prosecuting the proceedings before the High Court. Given that relief under s. 160 of the 2000 Act is discretionary in its nature, it is inevitable that where delay has occurred, the impact of an order restraining further development or in an appropriate case, the demolition of a development found to be in breach of planning conditions is bound to be greater than it would have been had the proceedings been prosecuted with the urgency that underpins applications for such relief. Therefore, it is less likely that a court would be inclined to exercise its discretion in favour of an applicant for such relief who has delayed in prosecuting the proceedings or in prosecuting an appeal thereby increasing the hardship that would be caused to the other party. Put simply, the longer the delay in prosecuting the proceedings including an appeal such that greater hardship is caused to the party affected, the harder it will be to persuade a court to exercise its discretion in favour of granting injunctive relief.
In this case, Mr. Sweetman allowed a period of some eight years to elapse while the appeal was pending. From the point of view of Shell one can only begin to imagine the implications from a financial point of view if a court were minded to allow the appeal and grant the relief originally sought by Mr. Sweetman. That is to say nothing of the impact on employment and on the local economy in the area if such relief were to be granted. The fact that the development has been completed in the meantime may explain why Mr. Sweetman has said that he is now inviting the Court to make a determination that Condition 37 has not been complied with and allowing Shell an opportunity to comply with Condition 37 rather than seeking an order that the terminal be “shut down”. To this extent, it may be observed that Mr. Sweetman recognises the uphill struggle he now faces by reason of the delay in prosecuting this appeal.
Other issues
It is now the case that Shell have completed the formalities to give effect to the terms as to the form and amount of security agreed between Shell and Mayo County Council as long ago as December 2004. It is on that basis that it is contended by Shell that the completion of the formalities has rendered the appeal moot.
By way of response, Mr. Sweetman has argued that the Corrib Gas Terminal Reinstatement Agreement together with the guarantee furnished by Shell Finance (Netherlands) BV, the parent company of Shell, is not sufficient to meet the requirements of Condition 37. The point is also made by Mr. Sweetman that, rather than the question of mootness, there is an issue as to this Court’s jurisdiction, being an appellate court, to resolve the dispute between Shell and Mr. Sweetman as to the interpretation of the reinstatement agreement and guarantee, particularly bearing in mind that Shell’s parent company is not a party to the proceedings before the Court.
In my view, Mr. Sweetman’s argument in this regard as to the interpretation of the reinstatement agreement and guarantee is misplaced. Condition 37 focuses on the provision of funds to secure “the satisfactory reinstatement” of the site. That is its purpose. The gas in the Corrib field is a finite commodity and when it is used up, there will be no further need for the gas terminal at the site. Therefore it was commonsense and prudent planning for An Bord Pleanála to include a condition in the planning commission that the site would be reinstated to its former condition once the terminal was no longer required. An Bord Pleanála in formulating that condition specified that the form and amount of the security shall be as agreed between Mayo County Council and the developer . . .”. Mayo County Council in its letter of the 22nd August, 2011 considered that the terms of Condition 37 of the decision of An Bord Pleanála have been complied with.
As Smyth J. noted at page 31 of his judgment, the form and amount of the security was ultimately a matter to be determined by Mayo County Council. No form of documentation to give effect to the agreement was specified in Condition 37. In other words, Mayo County Council had a measure of discretion in taking security from Shell in compliance with Condition 37. During the hearing before Smyth J., it had been argued that what was proposed by Shell was not “security”. Smyth J. disagreed. As he pointed out, it was the prerogative of Mayo County Council to determine the form and amount of security. Obviously there had to be agreement between the parties as to the form and amount of such security but ultimately it was for Mayo County Council to be satisfied that what was on offer complied with Condition 37. I cannot see any objection in principle to the approach taken by Smyth J. on this issue.
The current position is that formal documents and arrangements have been completed between Mayo County Council and Shell. The reinstatement agreement, together with a guarantee from Shell’s parent company, have been put in place. Mr. Sweetman has sought to say that the terms of the reinstatement agreement together with the guarantee do not comply with Condition 37. Apart altogether from any question as to the jurisdiction of this Court to consider the arguments of Mr. Sweetman as to whether or not the reinstatement agreement and guarantee are in compliance with Condition 37 it must be borne in mind that it is Mayo County Council that has to be satisfied as to compliance with Condition 37. Mayo County Council has decided that it is so satisfied. Mayo County Council is not a party to these proceedings and in my view, its decision that Shell has complied with Condition 37 cannot be challenged in these proceedings.
I would reiterate the fact that Mayo County Council in Condition 37 was given the task of agreeing with Shell the form and amount of security to secure the satisfactory reinstatement of the site. Condition 37 therefore conferred authority on Mayo County Council as to how this was to be achieved. In essence, Mr. Sweetman now purports to challenge that decision by arguing that the reinstatement agreement and guarantee are not sufficient to meet the requirements of Condition 37. That simply cannot be done in these proceedings given that Mayo County Council is not a party to these proceedings and it is its decision that is now being questioned in this appeal by Mr. Sweetman. I would merely observe at this point that it is not for this Court to substitute its view as to what would have been appropriate security to have been taken for the purpose of securing the satisfactory reinstatement of the site. In fairness to Mr. Sweetman, in his outline of the issues in his written submissions, he acknowledged the difficulty of raising this issue on the appeal.
Decision
Given that I am satisfied that it is not open to Mr. Sweetman on this appeal to challenge the decision of Mayo County Council to accept the reinstatement agreement and guarantee as being in compliance with Condition 37, it remains to be considered whether or not this appeal is now moot given that the formalities that were outstanding at the time of Smyth J.’s judgment have now been complied with.
It would be helpful to refer to Civil Procedure in the Superior Courts, 3rd Ed., Delany and McGrath and to a passage headed “Where the subject matter of an appeal has become moot” at paragraph 22.06. The learned authors stated:
Murray J. had similar comments to make in the case of Irwin v. Deasy and in that context Delany and McGrath observed at paragraph 22 - 08 as follows:
“Murray C.J. stated that while it is the general practice of the court to decline to decide most cases, in exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the court may determine such a question in the interests of the proper administration of justice. However, he stressed that the discretion to hear an appeal where there is no longer a live controversy between the parties should be exercised with caution, and academic or hypothetical appeals should not be heard. In his view exceptions might only arise where there is a question of exceptional public importance at issue and where there are special reasons in the public interest for hearing the appeal.”
So much has changed on the ground since the delivery of judgment by Smyth J. in this matter. Shell recommenced development on the site and completed the Corrib Gas Terminal while Mr. Sweetman allowed this appeal to lie dormant for so many years. In addition, Mr. Sweetman is not pressing the court to require a full shut down of the gas terminal and thus is no longer pursuing the reliefs sought on the appeal. Given that it is not open to challenge the decision of Mayo County Council to accept that Shell is now in compliance with Condition 37 on this appeal, it is all the more difficult to see how it could be said that there is a live controversy between the parties. In truth, Mr. Sweetman is unhappy with the terms agreed between Shell and Mayo County Council and is attempting to persuade this Court to re-write the terms of the reinstatement agreement and the guarantee. While Mr. Sweetman raised questions on the hearing of the appeal as to the adequacy and appropriateness of some of the terms of the Corrib Gas Terminal Reinstatement Agreement, namely, the definition of “Cessation of Operations” in Clause 1 and the inclusion of provisions for resolution of disputes between the parties by arbitration in Clause 6, and he has requested that this Court either adjudicate on the issues he has raised or remit the matter to the High Court for resolution of those issues, that is something that simply cannot be done. In my view this appeal is now a moot in circumstances given that there is no longer any live controversy left between the parties. In all the circumstances I would dismiss the appeal.
