Shell Vs Mayo Farmers: Report from High Court today 23/3/2005

mayo | environment | news report Thursday March 24, 2005 00:36 by William & Eoin

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Council representing landowners were Mr. Michael Forde S.C, Mr. Alan Toal, Mr. Peter Bland and Mr. Michael O'Donnell while Mr. Brendan Philbin and Ms. Bríd McGarry represented themselves.

Council representing Shell was Mr. Patrick Hanratty S.C. of Flood/Mahon Tribunal Fame.

Presiding Judge was President of the High Court Mr. Justice Finnegan.

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The third day of Shell Oil vs. Rosport took place on a court holiday given the haste with which Shell wants this matter expedited. The morning session saw extensive discussion of detailed legal and technical matters regarding whether Shell have Minesterial consent for the full extent of their plans. There is a main "corridor" along which Shell have been given permission by the Minister to excavate and lay their pipeline. However, along each side of this corridor there are "deviation strips", which they need in case they have to deviate aro

und a rock, and also for access, machinery, dumping of soil etc. Defence argues that Shell does NOT have the right to use these deviation strips without going back and getting permission, and also that compensation must be paid for use of the deviation strips (currently Shell is only due to pay compensation for the main corridor).

Main corridor is 14 metres in width.
Main corridor plus two deviation strips is 40 metres in width.

In the afternoon the defence elaborated with the following points:

* that if Shell's application were granted they would immediately fence off the entire length of the corridor wanted for the pipe laying while the trench itself may not be dug until some time in 2006. This would unduly inconvenience landowners. The defence noted that Bord Gáis only fence off before work as they need for digging. The judge agreed that this was a matter that would have to be explored.

* that if the application were granted to Shell Oil's exact specifications it would restrict convenient access for the landowners to their homes. Justice Finnegan stated that no matter what decision he came to, ease of access to landowners homes would be a prerequisite.

* that the injunction requested by Shell was for immediate exclusive access to parcels of land of 10,000 square feet for the construction of the pipeline while the ministers order only allowed Shell 3,000 square feet for this purpose and in their original correspondence with the landowners, Shell's reaffirmed that 3,000 square feet was the size of the land they needed for the pipeline. The defence emphasised that the injunction should be turned down on this point alone. The Judge argued their interpretation of the Ministers order with regard to the deviation allowed but eventually conceded that the defence were correct on this point. However, given that it is probably not possible for the pipeline to be constructed within the original estimated area of 3,000 square feet the Judge may be lenient on the plaintiff on this point.

10,000 square feet = (corridor width plus deviation strips times lenght of parcel)

3,000 square feet = (corridor width times lenght of parcel)

* that landowners would not be able to sell their lands without permission from the Shell Oil Corporation due to the rights given to the Corporation over the strip of land covering the pipeline. Shell Oil would in effect own the strip of land in perpetuity. The judge did not comment on this point though it did not seem to be incorrect.

* that one of the the pipelines in question was not for gas at all but would actually take waste water including toxic metals such as lead, mercury and cadmium from the well head across land and back to the Sea and as this pipeline wasn't an ancillary to the main gas pipeline it couldn't come under the terms of the ministers order. A waste pipeline across land would not be necessary for the functioning of the gas pipeline and as such may as well contain “coca cola”. The defence accused Shell of attempting to piggyback the waste pipeline on the ministers order to avoid paying the appropriate compensation that would be due to the landowners for loss of earning potential resulting from the pipeline and its construction. The judge would not be drawn on this point and seemed to come down on the side of the waste pipe being of equal importance to the other 2 pipes (Gas and Control).

* that Planning Permission for the pipeline or fence along the pipeline trench had not been sought or granted and that it would be appropriate for the planning authorities to consider the matter given the outstanding natural beauty of the area and the inconvenience to landowners from the construction of the pipeline. On the first point the judge argued that the pipe would be underground and then jested with the defence that they should perhaps take their own injunction against the construction of the pipeline given that planning permission did not exist.

* that an IPCL (Integrated Pollution Control Licence) from the Environmental Protection Agency( EPA ) was still pending for the entire refinery and that it was not good enough for Shell to be seeking to go ahead with the pipeline without this. The current stage of this was that the EPA had written to Shell seeking clarification on a number of points. The judge did not comment on this point.

The "focal scoir" from the judge was that he was sure all of these matters would be well debated at a hearing that would last a long time and be very costly to all those involved and that by the time it finished the pipeline would probably be located far from the defendants lands. The defence stated that they hoped such a hearing would take place closer to home in the West of Ireland.

Following Mr. O'Donnell's submission Justice Finnegan adjourned to 11am on Monday 4th April the next date that the courts will be in session. He asked that upon resumption his concerns with regard to the apparent plan to fence off the pipeline corridor, long in advance of commencement of work on the trench be addressed by council for the plaintiff Mr. Hanratty S.C.

As judicial review of the Bórd Pleanála decision to grant planning permission for the Gas Refinery is listed for the High Court for April 12th next.

Two injunctions, one against Shell Oil and another against a local quarry owner, for failure to comply with the terms of their planning permissions are also due for hearing in the near future.

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Background points

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First two days and start of third day of this injunction hearing consisted of Mr. Hanratty for Shell's submission as to the arguments for the company's application for an injunction. Today the defence stated that Mr. Hanrattys strongest point was the Ministers order. This refers to the order given by the then Minister for Marine and Natural Resources Mr. Frank Fahey T.D. in May 2002 granting planning permission for a pipeline along the route sought by Shell Oil. The points of law being argued mostly concern the Gas Act, 1976, brought in to facilitate Bórd Gáis, the Kinsale Head etc. and amendments to the act since.

The above arguments for the defence were made today by Mr. Bland and Mr O'Donnell representing the landowners.

Interestingly, it is the defendants (landowners) rather than the plaintiffs (Shell) who are referred to as "trespassers" in the proceedings.

A precedent contained in the Ministers order is that it is the first time a Compulsory Aquisition Order( C.A.O. ) has been granted to a private company.

The Planning permission granted does not include any condition that states that any of the profit from the Gas refinery go to the Revenue Commissioners or that any jobs are provided to locals or that any gas is provided to this country in the event of emergency shortages or that Shell pay a bond in case of any unforeseen Environmental disasters. One has to ask who exactly will benefit from this project bar Shell Oil and the other two part owners of the stake, Statoil and Marathon Oil.