An environmental group has lost a legal bid to bring the chief executive of Roscommon County Council before the High Court for alleged contempt over the council's decision to restart works on a pipe designed to prevent flooding at a lake in the county.
In the High Court today, Mr Justice Garrett Simons refused an application for an attachment order by Friends of the Irish Environment, finding no breach of an order he made on 25 August stopping the works and directing remediation of the pipeline at Lough Funshinagh.
He found that the recommenced works were being carried out on a different statutory basis, were of a smaller scale, and that if Friends of the Irish Environment wanted to contest them, it would have to seek a fresh judicial review.
In the absence of legal proceedings challenging them, the renewed works on the pipe are "presumed to be valid", he found.
Roscommon County Council said it was "satisfied" with today’s decision. Works on the outfall pipe have again recommenced.
Speaking on behalf of his clients, Eoin Brady, of FP Logue Solicitors, said that the Friends of the Irish Environment "are considering the judgment and their next steps".
The pipe is intended to bring relief to homes and land around the small lake, a rare "disappearing lake" and Special Area of Conservation.
The lough has seen rising water levels for the last six years that have inundated much of the surrounding conservation area and a small number of homes dotted around its edge.
The land and homes are not on a flood plain and many of the small total of lake dwellers can trace their families' presence there back to the 1700s.
In May, the chief executive invoked emergency powers under the 1949 Local Authorities (Works) Act and work on the pipe began, funded by the Office for Public Works.
In September, the council's chief executive, Eugene Cummins, told Prime Time that he felt he needed to act when water levels in the lough rose to 69m, the highest ever recorded.
"I knew I was in an emergency situation and something had to be done," Mr Cummins said.
He said the council’s senior engineer advised him that a road that had been raised in urgent works to block flood waters was in danger of collapsing, and in mid-May, the senior engineer and the director of services asked for immediate intervention to prevent a "code Red" risk to life.
"I had to do something and that something was to take the level of the lake down, by putting in a simple pipe. It’s nothing more than a simple pipe that would decant a small volume of water and keep these people safe in their homes", Mr Cummins said.
Between June and August, the pipe was laid to around 827.5 metres, close to, but still outside of, the conservation area.
On foot of the August High Court application of Friends of the Irish Environment, the works were stalled. The council conceded its use of the 1949 Act was "technically wrong", because the 1949 Act had not been brought into compliance with the EU Habitats Directive.
As part of the High Court order of 25 August, Mr Justice Simons approved a remediation plan for the pipework consented to by both sides. Under it, the pipe was to remain but was to be sealed with end caps.
This was done, but in October Roscommon County Council chief executive Eugene Cummins got fresh approval from councillors after a screening for environmental impact was carried out.
On 14 October, Mr Cummins issued a new order under a different law, section 151 of the Local Government Act 2001.
He concluded that the emergency works were not likely to have any significant effect on a protected European site, so that no application to An Bord Pleanála for approval under section 177AE of the Planning and Development Act 2000 was required, and that no environmental impact assessment was needed.
The works involved the resumption of the use of the section of pipe already laid, and the removal of the end caps installed under the remediation plan.
But Friends of the Irish Environment returned to the High Court and alleged that the chief executive’s action was in breach of the August court order.
It argued that the pipework must remain capped, the manholes sealed and that the remediation plan required that the pipes already laid "be rendered useless for their designed purpose of carrying water".
Today’s judgment saw the High Court rejecting that application. Mr Justice Simons found that his order of 25 August "cannot reasonably be interpreted" as precluding the carrying out of a smaller-scale project on a different legislative basis.
The fact that the local authority had authorised works under a different statutory regime represented "a significant change in circumstances", he declared.
He said the effect of the August order was not to subject the lands or project to "a permanent form of policing by the court, still less to sterilisation", or the local authority to have to apply to the High Court "for some sort of permission" to take subsequent administrative acts or decisions.
Roscommon County Council told Prime Time in September that, over the last five years, it has spent €450,000 of taxpayers' money on road raising, detours, and pumps to try to keep the people of Lough Funshinagh protected from the overspilling lough. The chief executive said the cost of putting the overflow pipe into the ground would be €1.5m.
In today’s judgment, Mr Justice Garrett Simons said he would hear from both sides on the appropriate costs order to be made.
