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Approval of Shell Corrib gas project may be examined

The Irish Times – Friday, March 5, 2010

MARY CAROLAN and LORNA SIGGINS

THE STATE and oil giant Shell have lost their bid to stop two Mayo residents pursuing High Court claims as to whether a ministerial consent given eight years ago for the Shell Corrib gas pipeline is valid.

Ms Justice Mary Laffoy ruled yesterday that Brendan Philbin and Bríd McGarry were entitled to have that issue and other public law claims determined by the court.

Responding to the ruling , Ms McGarry of Gortacragher, Co Mayo, said last night that she was “delighted that we can continue with our counter-claim”.

Ms McGarry and her mother Teresa owned 20 per cent of the land on the original Corrib gas pipeline route.

McGarr Solicitors, acting for Ms McGarry and Rossport landowner Mr Philbin, said the defendants welcomed the judgment. Shell EP Ireland said it had no comment to make.

The residents claim it is in the public interest to have the court decide the issues.

Among the issues they want determined is whether the consent of the minister for natural resources of April 2002 for the gas pipeline was valid. They are also challenging the constitutionality of provisions of the Gas Act 1976 under which the consent was provided.

In preliminary motions, the State and Shell had asked Ms Justice Laffoy to rule that the residents were out of time to bring claims for orders quashing the ministerial consent and various compulsory purchase orders over certain lands acquired for the pipeline, including lands of Mr Philbin.

The residents had set out their claims in 2005 in a defence and counterclaim to proceedings brought against them by Shell, which led to five men, including Mr Philbin, known as the Rossport Five spending 94 days in jail after refusing to abide by an order not to interfere with the pipeline work.

Shell later discontinued its proceedings after saying it would seek an alternative route but the residents want to proceed with their counter-claim.

Ms Justice Laffoy found while the reliefs sought fell within the scope of the relevant court rules, the time limits set out in those rules did not apply in the circumstances of this case.

She said the challenge to the ministerial consent and the compulsory acquisition orders was first initiated by the residents via their defence to a private law action by Shell against them.

In that action, Shell relied on the validity of the consent and acquisition orders to establish the lawfulness of and justify its actions against the residents, she said. The residents claimed Shell’s conduct was unlawful and were seeking remedies in those circumstances.

If she was wrong and the time limits applied, she believed the residents had not set out good reasons for extending the time limits.

The impugned consent and other instruments related to a major infrastructural project involving enormous expenditure by Shell and the residents were not entitled to take a tactical decision to postpone their public law challenge pending the outcome of the planning process.

The judge noted the court’s jurisdiction to review the constitutionality of provisions of the Gas Act 1976 is derived from the Constitution. Once a person has the necessary legal standing to bring such a challenge, no time limit could curtail that jurisdiction, she said.

The judge ruled the residents were not barred from pursuing the claims advanced in the public law module of their case.

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