Pat McDonagh fails in attempt to block legal costs protection for environmental group

Ann O'Loughlin

Supermac’s owner Pat McDonagh has failed in an attempt to block an environmental advocacy group from obtaining legal costs protection in its High Court challenge to an aspect of the businessman’s motorway service station development outside Ennis, Co Clare.

Justice David Holland on Thursday said Friends of the Irish Environment (FIE) should benefit from a protective costs order, which limits the legal costs a litigant is liable for in a court action.

Litigants who take certain cases relating to environmental issues can qualify for the order.

In its action, FIE wants the court to quash a wastewater connection agreement between Uisce Éireann and McDonagh.

This agreement allows for the new service station, the Banner Plaza, to be connected to Uisce Éireann’s wastewater treatment plant at Clareabbey, close to Ennis.

The service station, located off the M18 at Kilbreckan, Doora, is in operation, though it is not connected to the wastewater system.

FIE claims the Clareabbey treatment plant is overloaded, receiving wastewater in excess of its treatment capacity.

The group alleges Uisce Éireann breached legislation by entering into the agreement with McDonagh in circumstances where the plant is overloaded.

The group further alleges that allowing the service station to connect to the wastewater system will exacerbate unlawful pollution of the river Fergus.

FIE’s case is against Uisce Éireann. McDonagh the Environmental Protection Agency, and the Attorney General are notice parties in the action.

The group was given permission by the court to pursue the judicial review proceedings last September.

Mr McDonagh first lodged plans for the service station over a decade ago, eventually securing planning permission from An Bord Pleanála (now An Coimisiún Pleanála) in 2022.

The grant of planning permission was previously the subject of a separate High Court challenge, but the planning authority’s decision was upheld by the court last year.

In a judgment on Thursday, Holland said that cost protection provisions in the Environment (Miscellaneous Provisions) Act 2011 applied to FIE’s case over the wastewater connection.

Under the 2011 Act, cost protection is available to litigants who bring an action seeking to ensure compliance with a requirement or condition of certain licences or permits, and in circumstances where failure to comply is causing, or is likely to cause, damage to the environment.

The purpose of the proceedings is to ensure compliance with the Water Services Act 2007, the judge said. He said there was a “statable case” that discharge of effluent from the service station to the wastewater network is likely to cause environmental damage.

Opposing costs protection, lawyers for McDonagh argued that the wastewater agreement only authorises connection to the wastewater network, and not the discharge of effluent to the network.

McDonagh’s side submitted that discharge is authorised by a separate trade effluent discharge licence.

FIE rejected this argument as “simplistic”, emphasising that the “agreed and only purpose” of connection to the network is the discharge of effluent.

The case returns to court in March.