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No Gas Caverns Ltd and Friends of the Earth, Re Application for Judicial Review
Factual and Procedural Background
This is an appeal from a decision of the trial judge dated 31 August 2023, which dismissed the Appellants' judicial review challenging the grant of a marine licence, discharge consent, and abstraction licence to Company A ("the notice party"). These consents were granted to progress a project involving the installation of a 500 million cubic metre underground gas cavern storage facility in Larne Lough. The Department of Agriculture, Environment and Rural Affairs ("DAERA") granted the licence in November 2021, with the responsible Minister at the time ultimately taking the decisions.
The judicial review initially proceeded on multiple grounds, including environmental concerns and alleged breaches of the Habitats Directive. However, on appeal, the challenge was distilled to two principal grounds: (i) whether the Minister erred in not referring the decision to the Executive Committee as required by sections 20 and 28A of the Northern Ireland Act 1998; and (ii) whether the Minister unlawfully took into account a £1 million community fund voluntarily offered by the developers for local benefit.
The background to the project spans from 2008, with planning permission granted for terrestrial parts in 2012 and subsequent marine licence and related consents issued in 2021. The project is situated within the wider context of Northern Ireland's climate change commitments, including the net zero target by 2050 and legislative measures such as the Climate Change Act (Northern Ireland) 2022.
Legal Issues Presented
- Whether the Minister erred in concluding that the decisions granting the marine licence, discharge consent, and abstraction licence did not require referral to the Executive Committee under sections 20 and 28A of the Northern Ireland Act 1998.
- Whether the Minister unlawfully took into account the existence of a £1 million community fund in the decision-making process, contrary to the legal principles established in R (Wright) v Resilient Energy Severndale Ltd [2019] UKSC 53.
Arguments of the Parties
Appellants' Arguments
- The Minister's decisions were significant, controversial, and cross-cutting and thus required referral to the Executive Committee under the constitutional framework.
- Determinations of significance and controversy are matters of law, or at minimum require a high-intensity rationality review rather than a low-intensity Wednesbury review.
- The project potentially locks in fossil fuel dependency for 40 years, conflicting with climate policy targets.
- The community fund was impermissibly considered in the decision-making process, rendering the decision unlawful under established Supreme Court precedent.
Respondent's Arguments
- The matters were not significant, controversial, or cross-cutting, so no obligation arose to refer to the Executive Committee.
- The Minister's assessment was a matter of rationality, not legality, and could not be described as irrational.
- The community fund was mentioned in the environmental impact statement but was not treated as a material consideration in the decision.
- Affidavit evidence from the Principal Scientific Officer supported the Minister's approach and decision.
Notice Party's Arguments
- Supported the Minister's decision and urged the court to uphold it.
- Emphasised that the marine licence decision supplemented prior terrestrial planning permission granted in 2012.
- Highlighted substantial community benefits including jobs, investment, energy security, and the £1 million community fund.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Wright) v Resilient Energy Severndale Ltd [2019] UKSC 53 | A community fund cannot be a relevant or material consideration in planning decisions. | The court held that the Minister unlawfully took into account the community fund, rendering the decision unlawful under this precedent. |
| Re Buick's Application [2018] NICA 26 | Significant or controversial planning applications should be referred to the Executive Committee. | The court applied this to conclude that the Minister erred in not referring the project to the Executive Committee. |
| Kennedy v Charity Commission [2015] AC 455 | Judicial review intensity depends on context; a higher intensity of review may apply in constitutional matters. | The court applied a higher intensity rationality review to the Minister's decision on significance and controversy. |
| Mansell v Tonbridge & Malling Borough Council & Others [2017] EWCA Civ 1314 | Caution against excessive legalism in administrative decision-making. | The court acknowledged this principle but distinguished the present case given the high-level ministerial decision-making involved. |
| R v Parliamentary Commissioner for Administration, ex parte Balchin [1996] EWHC Admin 152 | Decision must not be irrational or illogical; error of reasoning can invalidate a decision. | The court found the Minister's failure to rationalise the decision on significance to be irrational under this principle. |
| Re Central Craigavon Councils Application [2011] NICA 17 | Considerations around inadvertent breaches of the Ministerial Code. | The court found no inadvertent or unconscious breach in this case, so this precedent was not applied. |
| Re Heffron's Application [2017] NIQB 25 | Judicial review concerns legality of decision-making, not merits. | The court reiterated that it was not deciding merits but the lawfulness of the decision process. |
| Re Bow Street Mall's & Ors Application [2006] NIQB 26 | Judicial review focuses on legality, not merits. | The court confirmed the supervisory role limited to legality. |
Court's Reasoning and Analysis
The court began by analysing the statutory framework under sections 20 and 28A of the Northern Ireland Act 1998 and subsequent amendments, which require referral to the Executive Committee for significant, controversial, or cross-cutting matters. The purpose is to ensure collective decision-making on issues affecting multiple ministerial portfolios.
The court accepted that determining whether a matter is significant or controversial involves ministerial judgment subject to rationality review, but given the constitutional context, a higher intensity of review applies.
Applying these principles, the court found the Minister's decision not to refer the project to the Executive Committee was problematic. The Minister provided no explanation for why the project was not significant or controversial despite extensive evidence and submissions indicating strategic importance for energy security, economic impact, and climate policy implications.
The court highlighted that the project was described in official documents and by the developer as strategically significant for Northern Ireland’s energy market and security. The project’s potential to lock in fossil fuel dependency conflicted with Northern Ireland’s legally enshrined climate commitments.
Regarding controversy, the court found that widespread objections from political parties, local representatives, and respected environmental bodies clearly met the threshold of controversy. The Minister’s colleagues’ failure to seek referral did not negate the Minister’s duty to make a rational assessment.
On the cross-cutting ground, the court concluded that the Department for Economy had statutory and policy responsibilities relevant to the project, and thus the matter was cross-cutting, engaging multiple departments’ statutory responsibilities beyond incidental effect.
Turning to the community fund, the court noted that while the fund was mentioned in the environmental impact assessment and decision documents, there was no clear rationalisation by the Minister as to whether it was taken into account. The court found the respondent’s argument—that absence of a licence condition meant the fund was not a material consideration—unconvincing. Given the Supreme Court precedent forbidding consideration of such funds, the court held the decision-making process was flawed on this point.
Overall, the court found the Minister’s decisions on both grounds failed the standard of lawful and rational decision-making, necessitating the appeal’s success.
Holding and Implications
The appeal is ALLOWED on both grounds.
The court held that the Minister erred in not referring the decisions to the Executive Committee, as the project was significant, controversial, and cross-cutting within the meaning of the Northern Ireland Act 1998 and related constitutional arrangements. Furthermore, the Minister failed to demonstrate that the community fund was excluded from consideration, contrary to established legal principles.
The direct effect is that the impugned decisions are unlawful and must be reconsidered in compliance with the statutory and constitutional requirements identified. No new precedent beyond the application of existing law was established. The court will hear the parties on remedy and costs.
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