High Court rejects claim Roscommon Council breached court order over flood relief scheme

ireland
High Court Rejects Claim Roscommon Council Breached Court Order Over Flood Relief Scheme High Court Rejects Claim Roscommon Council Breached Court Order Over Flood Relief Scheme
The pipeline was designed to take water from Lough Funshinagh, a seasonal lake 12 km from Athlone and a protected site, to nearby Lough Ree.
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The High Court has rejected claims that Roscommon County Council breached a court order regarding a proposed flood relief scheme.

Friends of the Irish Environment (FIE) had alleged the council was in contempt of a court order made following the resolution of High Court proceedings it brought last August over the construction of a 3km pipeline.

The pipeline was designed to take water from Lough Funshinagh, a seasonal lake 12 km from Athlone and a protected site, to nearby Lough Ree.

The works were commenced because people living in the area have been subject to flooding in recent years, and there are concerns that some may have to abandon their homes.

In a judgement, Mr Justice Garrett Simons dismissed an application by FIE for orders that the council's chief executive, Eugene Cummins be attached and brought to court for his alleged contempt.

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The council, represented by Neil Steen SC, denied breaching any court order and said the remediation plan agreed in August was being complied with.

The council is carrying out those works to help alleviate severe flooding, which it claims threatens the homes of people living close to Lough Funshinagh.

Citing environmental concerns and breaches of EU laws, FIE brought a High Court challenge last August aimed at halting the pipeline's construction.

Obligations

That action was resolved after the council accepted it had not fulfilled certain obligations it should have in relation to the works, and agreed to remediate works it had already carried out.

However, late last month, FIE returned to court claiming the council had not complied with the order to remediate the site and had recommenced works on the scheme.

The court heard the new works were being carried out on foot of a different statutory scheme to those that were the subject of last August's action.

The council obtained approval for emergency flood relief works on October 14th under section 152 of the 2001 Local Government Act.

In his judgement on Thursday, the Judge held that the orders made last August did not preclude the council from seeking to carry out the flood relief works under a different statutory regime to the one that had been successfully challenged by FIE earlier this year.

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The effect of that order was not to subject these lands or this particular project to a permanent form of policing by the court, still less to sterilisation, he said.

Scaled back

The order made in August had precluded the council from carrying out a flood relief scheme under the 1949 Local Authorities (Works) Act.

The judge added that the works approved in October were "significantly scaled back" from those that were the subject of the challenge last August.

However, it was confirmed the new works would utilise the part of the pipe that was laid down before the challenge was brought last August. Last August's order required that the partially-built pipeline be sealed up or capped, the judge said.

These steps are now to be reversed, as the proposed flood relief works purportedly authorised in October necessitate the removal of the cap to allow the pipeline to be utilised.

This might appear that no sooner had the local authority carried out the remediation works than it immediately took steps to undo those works, he said. The correct characterisation, he added, was "more nuanced."

Judicial review

What had occurred was that the local authority complied with the High Court order by carrying out the remediation works and it has put in place a fresh development consent which it is prima facie entitled to rely upon.

The fact that the local authority has obtained a fresh development consent under a different statutory regime than before represents a significant change in circumstance, he said.

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The fresh development consent is, in the absence of legal proceedings challenging the same, presumed to be valid, he said.

The judge said that if FIE or anyone else wished to challenge the decision made by the council in mid-October to commence works, then they can bring judicial review proceedings.

On being informed that FIE may bring such an application, the Judge directed it should be made before him. However, the court was satisfied to dismiss FIE's application in regard to the alleged contempt.

The matter will return before the courts later this month, when any outstanding issues arising from the ruling, including who should pay the costs of the proceedings, will be addressed.

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