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State expected to appeal Corrib ruling

By: 
Mary Carolan - Irish Times

THE STATE is “almost certain” to appeal against a High Court decision clearing the way for the courts to determine whether the ministerial consent given eight years ago for the Shell Corrib gas pipeline is valid, a judge was told yesterday.

Charles Meenan, for the State, indicated yesterday to Ms Justice Mary Laffoy that it was almost certain an appeal would proceed against her decision last week rejecting his side’s arguments that residents Brendan Philbin and Bríd McGarry were out of time to have certain issues decided by the court.

The judge agreed to put a stay on her decision in the event of an appeal. She also granted the costs of the hearing of the application to the residents against the State.

In opposing the State’s application, the residents had claimed it was in the public interest, not just in the context of the Corrib pipeline but also in relation to similar major projects, to have the court decide various public law issues, including if the consent of the minister for the marine, communications and natural resources of April 2002 for the gas pipeline is valid.

The residents are also challenging the constitutionality of provisions of the Gas Act 1976 under which the consent was provided.

The State and Shell had asked Ms Justice Laffoy to rule the residents were out of time to bring claims for orders quashing both the ministerial consent and also various compulsory acquisition orders (CAOs) over certain lands acquired for the pipeline, including lands of Mr Philbin’s.

The residents had set out their claims in late 2005 in a defence and counterclaim to proceedings brought against them by Shell which led to five men – including Mr Philbin and known as the Rossport Five – spending 94 days in prison 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 sought to proceed with their counter-claim.

Last week, 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.

The challenge to the ministerial consent and the CAOs was first initiated by the residents via their defence to a private law action by Shell against them, the judge outlined. In that action, Shell had relied on the validity of the consent and CAOs to establish the lawfulness of and justify its actions and conduct against the residents and they disputed the lawfulness of Shell’s actions, she said.

The judge also noted the State accepted the claims relating to whether various provisions of the Gas Act are unconstitutional and/or in breach of the European Convention on Human Rights could not be struck out at this stage on grounds of being out of time.

Shell previously gave a court undertaking in April 2007 not to rely on the CAOs and, if necessary, to take steps to cancel the effect of those CAOs on the title of the residents in this case.

The company said the ministerial consents are irrelevant now in relation to the onshore pipeline but still of “fundamental importance” to the offshore pipeline.