EMPA 2011 Costs Protection: A Wastewater Connection Agreement Can “Cause” Environmental Damage Even If Discharge Requires a Separate Licence

1) Introduction

Friends of the Irish Environment Company Limited by Guarantee (“FoIE”) brought judicial review proceedings seeking certiorari of a wastewater connection agreement (the “WW Connection Agreement”) made on 20 May 2025 between Uisce Éireann (“UÉ”) and Pat McDonagh in respect of a motorway service station development at Kilbreckan, Doora, Ennis, Co. Clare. The agreement was made pursuant to s.61 Water Services Act 2007 (“WSA 2007”) and contemplated connection to UÉ’s Ennis wastewater network and treatment at the Clareabbey wastewater treatment plant (the “WwTP”), which discharges to the River Fergus.

The immediate issue before the High Court (Holland J) was not the substantive legality of the WW Connection Agreement, but whether FoIE was entitled to the special environmental costs regime in ss.3–4 Environment (Miscellaneous Provisions) Act 2011 (“EMPA 2011”)—i.e., a protective costs order / “each side bears its own costs” regime—via an application under s.7 EMPA 2011.

Mr McDonagh resisted confirmation that ss.3–4 applied. His central contention was that the WW Connection Agreement did not authorise any discharge of trade effluent; discharge would only be authorised (if at all) by a separate trade effluent discharge to sewer licence under s.16 Local Government (Water Pollution) Act 1977. Therefore, he argued, quashing the WW Connection Agreement could not prevent environmental harm and ss.3–4 EMPA 2011 should not apply.

2) Summary of the Judgment

  • The Court held that the proceedings were brought “for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement” within s.4(1)(a) EMPA 2011, identifying the relevant statutory requirements as the combined obligations in ss.61 and 31 WSA 2007.
  • The Court rejected the idea that FoIE needed to show that the WW Connection Agreement authorised discharge. The statutory test concerns causation: whether the alleged failure to ensure compliance with the statutory requirement “is likely to cause” environmental damage.
  • On the low threshold of stateability / arguability, the Court found FoIE had shown a stateable case that the WW Connection Agreement would be causative of connection and (given the structure and purpose of the agreement and the development) the ensuing discharge, and that such discharge was likely to cause environmental damage.
  • Accordingly, the Court declared that ss.3–4 EMPA 2011 apply, granting FoIE costs protection.
  • The Court did not decide the more complex EU/Aarhus question about disapplying the EMPA “environmental damage” requirement in fields covered by EU environmental law, because FoIE satisfied the damage requirement on the facts.

3) Analysis

3.1 Precedents Cited

O'Connor v Offaly County Council, Tag-a-Bin & Meath County Council, [2020] IECA 72, [2021] 1 IR 1

This was the Court’s primary interpretive anchor for s.4 EMPA 2011. Holland J adopted O’Connor’s framework that: (i) the inquiry is about the nature and objective of the proceedings (not their form), (ii) s.4(1)(a) is forward-looking (aimed at ensuring future compliance/enforcement rather than correcting past illegality as an end in itself), and (iii) the standard on a s.7 motion is stateability / arguability akin to the leave threshold in judicial review.

Critically, O’Connor also emphasises that an applicant must do more than assert environmental harm; there must be a stateable argument that damage is occurring or likely. Holland J applied that “low bar” approach to the evidence of overflows, capacity exceedance and risk to the River Fergus.

Heather Hill v An Bord Pleanála & Burkeway Home [2022] IESC 43, [2024] 2 IR 222

Heather Hill reinforced that EMPA 2011 defines covered proceedings by reference to purpose and subject matter rather than the specific legal mechanism being challenged. It also featured in the parties’ submissions for the proposition (linked to Jennings) that s.4(1)(a) can encompass judicial review intended to quash an invalid permission which, if left in place, would authorise future environmentally damaging activity.

Holland J accepted that line of authority but clarified its significance: “authorisation” is not a freestanding statutory requirement under s.4(1)(a); it matters because it often evidences likely future conduct, i.e. it is typically a way of proving causation.

Diamrem v Cliffs of Moher Visitors Centre [2023] IECA 235 [2023] 10 JIC 0401

Diamrem was used for two points. First, it confirmed that an applicant must go beyond assertion and make out a stateable case of likely environmental damage, while acknowledging the threshold is modest. Second, it recounted (without deciding) debate about how to achieve “not prohibitively expensive” (NPE) compliance if the EMPA damage criterion is incompatible with EU law in a “field covered” by EU environmental law.

Holland J followed Diamrem’s sequencing: decide first whether the EMPA test is met on its own terms, and only then (if necessary) address EU/Aarhus disapplication. Because FoIE satisfied the EMPA damage criterion, the EU/Aarhus controversy was left open.

Callaghan v. An Bord Pleanála (No.2) [2015] IEHC 357

Callaghan was referenced (via Diamrem) for the proposition that s.4(1)(a) requires a causative link between the failure to ensure compliance/enforcement and environmental damage. Holland J treated that causation requirement as central—and then made it determinative against Mr McDonagh’s “authorisation-only” argument.

McCoy v Shillelagh Quarries, [2015] IECA 28

McCoy (also relied on in O’Connor) supported the proposition that “statutory requirement” in s.4(1)(a) is free-standing and not confined by the later list of licences/permissions/consents. This enabled FoIE to identify ss.61 and 31 WSA 2007 as the relevant “statutory requirement(s)”.

Jennings v An Bord Pleanála [2022] IEHC 249

Jennings was cited for a careful explanation of O’Connor’s “forward-looking” requirement: proceedings can still be forward-looking even if they challenge a past decision, where the point is to prevent future environmental harm. Holland J deployed this reasoning to rebut any suggestion that seeking certiorari of a 2025 agreement was inherently “backward-looking”.

North East Pylon Pressure Campaign v An Bord Pleanála; Case C-470/16

The judgment summarised the “North East Pylon” line: the EMPA environmental damage requirement is inapplicable in “fields covered by EU environmental law” (but remains applicable in purely national fields). Holland J did not decide whether the statutory requirements in issue fell within such a field because FoIE succeeded under the EMPA damage criterion anyway.

North East Pylon Pressure Campaign v An Bord Pleanála #5 [2018] IEHC 622

This High Court decision (Humphreys J) was referenced as part of the debate on what constitutes “fields covered by EU environmental law” and how to achieve NPE compliance. Holland J treated it as background context rather than determinative.

Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Case C-240/09) EU:C:2011:125, [2011] ECR I-1255

The “Slovak brown bear case” was cited (via Heather Hill) for the proposition that even where there is no specific EU legislation on a narrow issue, it may still fall within EU law if it lies in a field regulated in large measure by EU environmental law—again relevant to, but not decided within, the disapplication debate.

Duffy v An Bord Pleanála [2024] IEHC 558

Duffy was referenced on the underlying context of capacity and compliance issues (including discussion of permissible storm water overflow regimes and UWWTD obligations), but it did not supply the EMPA interpretive rule. It functioned mainly as environmental-law background in the present costs decision.

Duffy v An Coimisiún Pleanála & Glenveagh Properties [2025] IEHC 715

This was cited for the proposition that a wastewater connection agreement made in breach of UÉ’s obligations would be justiciable in judicial review. While Mr McDonagh did not contest justiciability on the motion, the reference reinforced the seriousness and legal cognisability of the impugned instrument.

Rowan v Kerry County Council [2012] IEHC 544 and CLM Properties v Greenstar [2014] IEHC 288

These authorities were discussed in Diamrem (and then noted here) on different approaches to identifying “purpose” under s.4. Holland J’s approach aligns with the objective, “reality and substance” method rather than any inquiry into the applicant’s subjective motivation.

Commission v Ireland: C-316/06 ECLI:EU:C:2008:487, [2008] ECR I-124, [2008] All ER (D) 53 (Sep) and European Commission v United Kingdom (C-301/10), [2013] Env. L.R. 13 (2012)

These CJEU authorities were used to explain the UWWTD’s substantive baseline: the general requirement is effectively “complete treatment at all times” under normal conditions, and regular untreated overflows are incompatible with the Directive (save in exceptional circumstances). This assisted the Court in understanding why the alleged overflows and capacity exceedance were plausibly linked to environmental harm (a key component of FoIE’s “damage” showing).

3.2 Legal Reasoning

(a) Identifying the “statutory requirement” and the “purpose” of the proceedings

The Court held that the “purpose” for EMPA s.4(1)(a) is not the applicant’s ultimate environmental objective (e.g., “stop pollution in the River Fergus”), but the legally defined purpose: ensuring compliance with, or enforcement of, an identified statutory requirement.

Holland J accepted FoIE’s formulation that the relevant statutory requirement was the combined effect of:

  • s.61 WSA 2007 (offence to connect without UÉ’s agreement; UÉ may consider planning-type constraints including sewerage deficiency and environmental risk), and
  • s.31 WSA 2007 (UÉ must take “full account” of public policies including environmental protection and EU measures, and must not provide water services inconsistently with those policies).

This combination mattered: it framed the connection agreement not as a purely technical “tie-in” to infrastructure, but as an exercise of statutory power in a policy-laden regulatory environment explicitly oriented to environmental protection and EU water law.

(b) The “environmental damage” limb: causation, not authorisation

The decisive doctrinal move in the judgment is the Court’s insistence that s.4(1)(a) does not require the impugned instrument to authorise the environmentally harmful act. The statute asks whether the failure to ensure compliance/enforcement of the identified statutory requirement “is likely to cause” environmental damage.

Mr McDonagh’s resistance to EMPA costs protection was built around a sharp conceptual separation: the WW Connection Agreement authorises only connection, while the trade effluent discharge to sewer licence authorises discharge. Holland J treated that as an “authorisation analysis” that misconceived the statutory test.

Instead, the Court evaluated whether the connection agreement was causatively enmeshed with discharge. It held FoIE had a stateable case (indeed, on probability, for the motion’s limited purpose) that:

  • the exclusive practical purpose of connection was discharge to the network;
  • the WW Connection Agreement made obtaining the trade effluent discharge to sewer licence a condition precedent to tie-in;
  • the agreement imposed discharge-quality and discharge-timing conditions (e.g., storage tank/off-peak discharge), evidencing operational anticipation of discharge;
  • commercial and practical reality made it implausible that, once connected and licensed, the operator would continue tankering off-site indefinitely.

These factors justified treating the WW Connection Agreement as at least a significant causal contribution to future discharge, and therefore to the alleged future environmental damage.

(c) Forward-looking character

The Court accepted the proceedings were forward-looking: they aimed to prevent future additions to an already allegedly overloaded/malfunctioning network leading to future pollution events. Jennings was used to show that challenging a past decision can still be forward-looking where the key mischief is future harm.

(d) The standard of proof: stateability

Consistently with O’Connor and Diamrem, Holland J reiterated that the s.7 motion is not a mini-trial. FoIE needed a stateable case both on the statutory requirement/purpose limb and on likely environmental damage. The Court found that threshold met.

3.3 Impact

(a) Costs protection in “multi-consent” regulatory architectures

The judgment’s practical significance is that respondents cannot reliably defeat EMPA 2011 costs protection by arguing that the challenged decision is merely one “link in a chain” and does not itself authorise the final harmful act. Where the challenged act is plausibly a real-world cause of the ultimate harm—particularly where it is a necessary step and designed around the anticipated harmful/regulated activity—s.4(1)(a) can still apply.

(b) Wastewater governance: connection agreements as environmental decision-points

By treating s.31 WSA 2007 as integral to the analysis, the Court implicitly elevates the environmental-law salience of connection agreements: they are not merely customer-service documents but statutory instruments through which UÉ must operationalise environmental protection policy and EU-aligned obligations. This may encourage more direct scrutiny of network-capacity decisions in judicial review, at least at the arguability threshold for costs protection.

(c) Litigation incentives and access to justice

EMPA costs protection is designed to reduce prohibitive expense in environmental enforcement litigation. This decision makes that protection more realistically available in cases where environmental harm is mediated through infrastructure systems requiring multiple approvals (connection, discharge licensing, plant licensing). The Court’s causation-based approach reduces the risk that cost protection becomes hostage to formalistic categorisation of “what authorises what”.

(d) EU/Aarhus disapplication issues remain open

The Court avoided deciding whether the EMPA environmental damage requirement must be disapplied in this particular setting (UWWTD/WFD/WWDR), because damage was shown. Therefore, the “fields covered by EU environmental law” boundary—and the precise remedial technique for NPE compliance—remain questions for another case where environmental damage cannot be shown to the EMPA threshold.

4) Complex Concepts Simplified

Protective Costs Order (PCO) under EMPA 2011
In proceedings within s.4 EMPA 2011, s.3 generally applies an “each party bears its own costs” rule (subject to limited exceptions), reducing the financial risk of bringing environmental enforcement litigation.
s.4(1)(a) EMPA 2011: “purpose”
The Court asks: objectively, are the proceedings aimed at ensuring future compliance with an identified statutory requirement? The applicant’s broader motivation (e.g., “protect a river”) is not the statutory test, although it commonly explains why enforcement is sought.
“Forward-looking” proceedings
Even if the decision being challenged happened in the past (like a permit or agreement already issued), the proceedings can still be forward-looking if the point is to prevent future harmful activity or future environmental damage.
Stateable / arguable case
On a s.7 EMPA motion the court does not decide the full merits. The applicant must show a plausible, properly arguable case—similar to the leave threshold in judicial review.
Causation vs authorisation
“Authorisation” is whether a document legally permits an act. “Causation” is whether, in real-world and legal terms, the challenged act is a meaningful cause of the future event (here, discharge and consequent environmental damage). This judgment holds s.4(1)(a) turns on causation, not on whether the challenged instrument is the final authorisation.
Trade effluent discharge to sewer licence
A separate licence (here under s.16 Local Government (Water Pollution) Act 1977) that regulates whether and how trade effluent may be discharged to a sewer. The Court treated it as another causal “step”, but not as rendering the connection agreement irrelevant to the causation analysis.

5) Conclusion

The High Court confirmed EMPA 2011 costs protection for a judicial review challenging a wastewater connection agreement, holding that: (i) the proceedings’ purpose was to ensure compliance with the combined statutory requirements of ss.61 and 31 WSA 2007, and (ii) the environmental damage limb is satisfied where there is a stateable case that the impugned agreement will be causative of future discharge likely to damage the environment—even if a separate licence is also required and the agreement does not itself “authorise” discharge.

The judgment is a strong anti-formalistic statement on EMPA s.4(1)(a): environmental costs protection cannot be avoided by slicing a regulatory process into component permissions and insisting that only the “final authorisation” counts. What matters is whether the challenged act is a real and significant part of the causal pathway to likely environmental harm.