Court dismisses claim that EPA's wastewater connection agreement violates EU law by failing to assess storm water overflow impacts.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

THE HIGH COURT PLANNING AND ENVIRONMENT JUDICIAL REVIEW [2026] IEHC 106 Record No. H:JR:2025:1266 Between FRIENDS OF THE IRISH ENVIRONMENT COMPANY LIMITED BY GUARANTEE Applicant and UISCE ÉIREANN Respondent and PAT MCDONAGH THE ENVIRONMENTAL PROTECTION AGENCY and THE ATTORNEY GENERAL Notice Parties

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 26 FEBRUARY 2026

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 26 February 2026 ..................................................... 1

INTRODUCTION & FACTUAL BACKGROUND ........................................................................................................ 2

STATEMENT OF GROUNDS ................................................................................................................................... 4

EMPA 2011 & CASELAW THEREON ...................................................................................................................... 8

O’Connor (2020 – Court of Appeal) ................................................................................................................. 9

Heather Hill (2022 - Supreme Court) ............................................................................................................. 11

Diamrem (2023 - Court of Appeal) ................................................................................................................ 11

Validity & Disapplication of S.4(1) Damage Requirement – Fields Covered by European Law ..................... 12

S.4 – as Relevant ............................................................................................................................................ 13

OTHER STATUTORY PROVISIONS ........................................................................................................................ 14

Connection Agreements - S.61 WSA 2007, §1, Fourth Schedule, PDA 2000 & S.31 WSA 2007 .................... 14

Trade Effluent Discharge to Sewer Licences – S.16 WPA 1977 ...................................................................... 16

Urban Wastewater Treatment Directive........................................................................................................ 16

Water Framework Directive........................................................................................................................... 17

WWDR 2007 .................................................................................................................................................. 17

WW CONNECTION AGREEMENT, 20 May 2025 ................................................................................................. 18

ORDINARY APPLICATION OF SS.3 & 4 EMPA 2011 ............................................................................................. 20

FOIE’s Position ............................................................................................................................................... 20

Essential Questions & Purpose of the Proceedings ....................................................................................... 23

Environmental Damage Criterion of S.4 ........................................................................................................ 25

Mr McDonagh’s Position & “Crucial” Argument - Relationship between WW Connection Agreement & Trade Effluent Discharge Licence & between both & Effluent Discharge to Network ............................... 25 Causation not Authorisation is the Issue - Stateable Case that WW Connection Agreement will Cause

Environmental Damage in Future? ............................................................................................................ 27

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

Mr McDonagh’s 5 Principles .......................................................................................................................... 32

Ss. 3& 4 EMPA 2011 - Conclusion .................................................................................................................. 35

Aarhus/EU Law Issues – Validity and Disapplication of Damage Requirement ................................................. 36

CONCLUSION ..................................................................................................................................................... 36

Glossary of Acronyms/Terms ......................................................................................................................... 36

INTRODUCTION & FACTUAL BACKGROUND1

1. The Applicant (“FoIE”) in these proceedings seeks certiorari of a wastewater connection agreement (“the WW Connection Agreement”) made on 20 May 2025 between the Respondent (“UÉ”) and the Notice Party (“Mr McDonagh”) pursuant to s.61 WSA 2007.2 FoI has leave, obtained ex parte in these proceedings, to seek judicial review.3 In the motion now before me, FoIE seeks, and Mr McDonagh resists, confirmation by protective costs order (“PCO”) that Sections 3 and 4 of the Environment (Miscellaneous Provisions) Act 2011 (“EMPA 2011”) apply to these proceedings.

2. UÉ, on a merely pragmatic basis and without prejudice to its general position, conceded a PCO. I have so ordered.

3. Mr McDonagh does not seek to have leave to seek judicial review set aside and so for purposes of the motion, accepts that leave was properly granted and so, at least viewed generally, FoIE has a stateable/arguable case for relief – O’Connor.4 It is important to state that this judgment is concerned crucially with whether FoIE’s case is stateable in the particular sense required by s.4(1)(a) EMPA 2011.. In that sense it is, properly, somewhat one-sided. Opposition papers have not yet been filed and what follows should not be misunderstood as suggesting that FoIE will at trial succeed as to any factual dispute, in law or in obtaining relief.

4. The profusion of acronyms in this field is such that I have supplied below a glossary of acronyms and other useful terms.

1 Headings are for general assistance only and are not determinative of content thereunder.

2 Water Services Act 2007 as amended.S.61 WSA 2007, as relevant, provides:

(1) (a) A person who causes or permits the connection of a premises to waste water services, either directly or indirectly, without the agreement of

the provider of those services, commits an offence.

(b) For the purposes of paragraph (a), and without prejudice to subsection (6), the agreement of a water services authority under this

subsection may be made the subject of such conditions as the water services authority may specify.

(c) In considering whether to agree to a connection under this section, a water services authority shall be entitled to take into account the

matters referred to in paragraph 1 of the Fourth Schedule to the Act of 2000 in so far as they may apply to the provision of waste water services by it or

another person acting jointly with it or on its behalf.

(2) A person who causes or permits the discharge of any effluent or other matter to a waste water works, whether directly or indirectly, without

the agreement of the relevant water services provider commits an offence.

3 By order dated 15 September 2025.

O'Connor v Offaly County Council, Tag-a-Bin & Meath County Council, [2020] IECA 72, [2021] 1 IR 1 §62.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

5. I am satisfied that the following are clear.

a. An Coimisiun Pleanála (“ACP”) granted planning permission to Mr McDonagh on 21 October 2022,5 in accordance with its Inspector’s report, to build a motorway service station at Kilbreckan, Doora, Ennis, County Clare (“the Service Station”). The permission envisages that the Service Station wastewater will be discharged to UÉ’s Clareabbey WwTP (“the WwTP”). ACP’s inspector had reported that the WwTP had capacity to cater for the Service Station wastewater. b. Condition 13 of that permission required Mr McDonagh to make a WW connection agreement with UÉ before commencing the permitted development. c.

UÉ is a public body responsible for the provision of wastewater services in the State.6 It is empowered by S.31 WSA 2007 to provide wastewater services. Wastewater services include sewers for collecting sewage and wastewater treatment plants for treating it. d. A ww connection agreement is, by virtue of s.61 WSA 2007, a precondition to lawful connection of the Service Station’s wastewater disposal system to UÉ’s existing Ennis wastewater network (“the Network”). e. In considering whether and in what terms to make a WW connection agreement, UÉ must comply with s.31 WSA 2007 as it bears on the exercise of its provision of wastewater services. f.

Mr McDonagh applied to UÉ in November 2024 to make a WW connection agreement with him. That application, as required by UÉ, indicated the expected hydraulic7 and organic8 discharge load to the Network. g. The ww connection agreement application form also advised that where a trade effluent discharge to sewer licence9 is required it must be applied for separately, but that a full suite of quality analysis of the proposed discharge should be provided as part of the ww connection agreement application by filling out Table 1.10 Table 1 of Mr McDonagh’s application is blank as he did not, when making the ww connection agreement application, envisage requiring a trade effluent discharge to sewer licence.11 h.

Mr McDonagh commenced work on the permitted development on or about 1 February 2025. I am unaware why he did so without having complied with his obligation under Condition 13 of the planning permission to have made a ww connection agreement prior to commencing development. i. UÉ offered on 20 May 2025 to make a ww connection agreement with Mr McDonagh, enclosing a draft agreement. He accepted UÉ’s offer on the same day – whereby the WW Connection Agreement was made. j. The only practical purpose of connection to the Network is the discharge to it of the Service Station sewage effluent for treatment at the WwTP. k.

Mr McDonagh cannot act on the WW Connection Agreement by actually connecting to the Network unless and until he has got from UÉ a trade effluent discharge to sewer licence issued pursuant to S.16 WPA 1997.12

5 reference ABP-309207-21. Judicial review of that permission by another person, inter alia asserting lack of capacity in the WwTP, failed - Duffy v An

Bord Pleanála [2024] IEHC 558.

6 Water Services (No 2) Act 2013.

7 §30 & p12.

8 §33.

As distinct from a trade effluent discharge to waters licence. See s.4 Local Government (Water Pollution) Act 1977.

10 Table 1: Wastewater characteristic form (Only to be filled out if a Trade Effluent Discharge to Sewer Licence is required).

11 §34.

12 Local Government (Water Pollution) Act 1997, as amended: “16. — (1) A person …. shall not, ….. discharge or cause or permit the discharge of any

trade effluent …. to a sewer, except under and in accordance with a licence under this section granted by the sanitary authority ….”

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

l. Mr McDonagh has not yet sought a trade effluent discharge to sewer licence. The Service Station is in operation but he has not yet effected the connection authorised by the WW Connection Agreement.13 m. The WwTP operates in virtue, inter alia, of a Wastewater Discharge Licence (“the WwDL”) issued to UÉ by the EPA14 under the WWDR.15 The EPA must also regulate and enforce the WwDL.

n. The WwTP and the Network’s SWO’s16 discharge their effluent to the River Fergus – WFD17 surface water body “Fergus_070”.

o. FoIE’s ultimate concern in these proceedings is to avoid, by quashing the WW Connection Agreement, increasing by adding the Service Station effluent, the hydraulic and organic load on the WwTP, which it says is already overloaded and malfunctioning, and thereby to avoid exacerbating what it says the unlawful pollution of the River Fergus, its estuary and its European Sites, by the treated and untreated effluent which, it says, discharges from the Network (including the WwTP) to the Fergus. In recording FoIE’s concern, I express no view whether it is justified in fact.

STATEMENT OF GROUNDS

6. I have described above the primary relief sought by way of certiorari. The sole core ground on which it is sought is that:

“UÉ erred in law in considering it was entitled to make a connection agreement with Mr McDonagh pursuant to S.61 WSA, which would allow Mr McDonagh to connect to the overloaded Clareabbey WwTP.

S.31 WSA18 precludes UÉ from making such an agreement where the input to the WwTP exceeds its treatment capacity and/or the nominal p.e.19 it is licensed to treat, and the offer of a connection agreement

• breached the WwTP’s WwDL conditions,

• breached Article 5 of the Wastewater Discharge Authorisation Regulations 2007 (“WWDR”)20

• prevented the EPA exercising its functions pursuant to Article 6 WWDR,21

13 FoIE understands that wastewater is being tankered off-site for treatment and discharge elsewhere.

14 EPA Site visit report (SVR) of 18 November 2024.

15 Wastewater Discharge (Authorisation) Regulations 2007 (SI 684/2007), amended by the Wastewater Discharge (Authorisation) (Amendment)

Regulations 2010 (SI 231/2010), Wastewater Discharge (Authorisation) (Environmental Impact Assessment) Regulations 2016 (SI 652/2016), and

European Union (Waste Water Discharge) Regulations 2020 (SI 214/2020).

16 Storm water Overflows.

17 The Water Framework Directive 2000/60/EC establishing a framework for Community action in the field of water policy.

18 S.31(2) empowers UE to provide wastewater services “in accordance with any prescribed standards, for domestic and non-domestic requirements

taking full account of the following aspects of public policy, namely: there follows a list which includes

(a) proper planning and sustainable development

(b) protection of human health and the environment;

(c) relevant regulations and other statutory provisions made by the Minister or the … European Union;

(k) a river basin management plan or a programme of measures under the EU Water Framework Directive;

s.31(4) prohibits UE from providing waste water services “if doing so is inconsistent with any of the public policy issues specified in subsection 2.”

19 population equivalent.

20 Art 5. WWDR prohibits UE from discharging effluent from waste water works serving agglomerations whose effluent exceeds a specified population

equivalent save under a wwdl issued by the EPA.

21 Art 6. WWDR deems the EPA competent to issue wwdls to UE and requires it, in considering wwdl applications, to have regard to, inter alia,

• Articles 4, 7 and 9 of, and the Second, Fourth and Fifth Schedules to, the Urban Waste Water Regulations,

• the environmental objectives of Article 4(1)(a)(b) and (c) of the Water Framework Directive,

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

• breached Article 4 of the UWWTD,22 as implemented by Article 4 of the Urban Wastewater Treatment (Amendment) Regulations 2001 (as amended),23 in circumstances where the WwTP discharge is to a water body, the Fergus River, that is non-compliant with Article 4 WFD.”24

7. By way of particulars of the core ground, and as here relevant, FoIE pleads as follows:25 a. UÉ is non-compliant with S.61 and S.31 WSA 2007 because it made a connection agreement with Mr McDonagh o despite the WwTP’s lack of capacity to receive the Service Station effluent.

o in breach of s.31 as the influent to the WwTP exceeds its capacity and the p.e. (organic load)26 for which the WwDL licenses the WwTP.

b. That caused non-compliance with Article 4, Annex I and Annex II UWWTD, as implemented by Article 4 UWWTR,27 and breach of UÉ’s obligations as a national administrative authority pursuant to Article 4(3)

TEU.28

c. This occurred in the context of a WwTP discharging to the Fergus River – a water-body that does not meet the requirements of Article 4 WFD because it is at only “moderate” water quality status but should be at “good” status and where wastewater is a significant pressure affecting that water quality.

d. This defeated the EPA’s29 obligations o as regulator of UÉ in respect of the WwDL, to ensure that ▪ the WwTP is operated in accordance with the UWWTR and Article 4 WFD.

▪ EIA and AA are done when required for the purposes of the EIA Directive30 and the Habitats Directive.31

• the requirement to prevent pollution of waters,

• The Urban Waste Water Treatment Directive (referred to in Regulation 2(3) WWDR).

and requires it, in deciding wwdl applications to set emission limits for pollutants likely to be present in the waste water ….. with the aim of achieving

good surface water status by December 2015 for the surface water body into which the waste water will discharge, including compliance with any

standards and objectives established for associated protected areas by December 2015.

By Article 3 WWDAR, “protected areas” are areas designated by EU Law for special protection of their surface water and groundwater or for the

conservation of habitats and species of European sites directly dependant on water and listed in the EPA’s register established in accordance with Article

8 of the Water Policy Regulations.

Article 4 (1). Member States shall ensure that urban waste water entering collecting systems shall before discharge be subject to secondary treatment

or an equivalent treatment …

23 Article 4. (1) In the case of urban waste water entering collecting systems, a sanitary authority shall provide treatment plants which provide for

secondary treatment or an equivalent treatment ….

(2) (a) …… a sanitary authority shall provide treatment plants which provide more stringent treatment than secondary treatment or an equivalent

treatment in respect of all discharges from agglomerations with a population equivalent of more than 10,000 into sensitive areas or into the relevant

catchment areas of sensitive areas where the discharges contribute to the pollution of these areas.

24 I have edited the wording without changing meaning.

25 I have amended, rationalised and edited the relevant text but without altering meaning. I am satisfied that the text I set out below conveys only

meanings acceptably clear from the particulars.

26 The amount of oxygen required to break down a given amount of waste is known as its biological oxygen demand (BOD). BOD is measured in terms of

its “population equivalent” – p.e.. Article 2 UWWTD defines 1 p.e. as the organic biodegradable load having a five-day biochemical oxygen demand (BOD5)

of 60g of oxygen per day.

27 Urban Wastewater Treatment Regulations 2001 (SI 254/2001) as amended by the Urban Wastewater Treatment (Amendment) Regulations 2004 (SI

440/2004), Urban Wastewater Treatment (Amendment) Regulations 2010 (SI48/2010). Subsequent to the making of the WW Connection Agreement,

the UWWTR were revoked by the Urban Wastewater (Nutrient-Sensitive Areas) Regulations 2025, made to further effect the UWWTD and the WFD.

28 Treaty on European Union.

29 Environmental Protection Agency.

30 2011/92.

92/43.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

o under the EU Water Policy Regulations32 (which, I note, are made to give further effect to the WFD)

for reviewing the impact of human activities on the WFD status of the River Fergus_070 waterbody under Article 4 WFD.

e. The WwTP is overloaded. UÉ’s wastewater capacity register and EPA SVRs33 indicate that it has no spare treatment capacity. UÉ’s 2023 AER34 indicates that there are no proposals to upgrade the WwTP.

f. UÉ data35 indicate that in the 572 days between 15 March 2023 and 20 October 2024, SWO discharges occurred on 362 days.

g. An EPA SVR dated 18 November 2024 indicated that o the WwTP receives wastewater from a p.e. of 6,150 against a design capacity of 6,000.

o input to the WwTP treatment tanks is limited to 145m3/hr - greater flows are diverted to the WwTP storm tank.

o Influent is diverted to the storm tank in dry weather - which is not best practice as it reduces storm tank capacity for storm events.

o records indicate that lack of WwTP capacity resulted in SWO36 discharges on 243 days out of 282 from 1 January to 8 October 2024.

o Documents provided to the EPA by UÉ failed to identify SWO locations which in fact existed and SWO discharge records were deficient o The Quay Road pumping station pumps wastewater from Clarecastle to the WwTP - which is not authorised by the WwDL.

h. That SVR in November 2024 required UÉ to, inter alia, o apply promptly for a WwDL review to provide for routing of the Clarecastle wastewater to the WwTP and for other changes. UÉ has not done so.

o prioritise upgrading the WwTP - including to provide capacity adequate to avoid flow diversion to the storm tank.

o ensure that unauthorised frequent SWO discharges cease and that adequate capacity is provided.

o identify and confirm regulatory compliance of all SWO locations.

8. Specifically as to breach of s.31 WSA, FoIE pleads that a. UÉ erred in law in considering itself entitled to make, pursuant to s.61 WSA, a ww connection agreement allowing connection to an overloaded WwTP.

b. S.31 WSA 2007 prohibits UÉ from providing wastewater services if doing so is inconsistent with any statutory instrument, EU legislation, or relevant guideline.

European Communities (Water Policy) Regulations 2003 as amended.

33 site visit reports.

34 Annual Environmental Report to the EPA.

35 provided to the EPA.

Storm Water Overflow.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

c. Article 4 UWWTD requires the State to ensure that urban wastewater entering collecting systems shall, before discharge, be subject to secondary or equivalent treatment. Article 4 UWWTR Implements that obligation and, inter alia, requires all discharges to the Fergus River to satisfy Parts 1 and 2 of the Second Schedule, UWWTR. (I note that this schedule specifies wwtp effluent quality parameters for BOD5, COD, suspended solids, total phosphorus and total nitrogen).

d. The SWOs identified by the inspector are of untreated effluent and so are non-compliant with Article 4 UWWTD and Article 4 UWWTR. Addition to those overflows (by the Service Station effluent) is also contrary to those Articles, and UÉ is prohibited by S.31 WSA from allowing it .

e. Condition 3 of the WwDL prohibits WwTP discharges save under and in accordance with the WwDL, and requires that SWOs be as specified in the WwDL Schedule, Article 4. No SWO is so specified.

f. WwDL Condition 4.13 requires UÉ to investigate, identify, assess and report to the EPA on SWOs every 3 years, including as to compliance with the “1995 Procedures and Criteria in relation to Stormwater Overflows” - policy directions issued by the Minister for the purposes of the UWWTD and UWWTR. UÉ is in ongoing breach of this obligation since 2013. Each AER to 2023 identifies37 only one SWO location and that the number of SWO events and the volumes thereof are unknown. However, UÉ has provided monitoring results to the EPA showing SWO frequency and volume in 2024, and the November 2024 SVR indicates that SWOs are non-compliant with the WwDL and the 1995 SWO Procedures. S.31 WSA 2007 precludes provision of additional wastewater services until compliance is achieved.

g. UÉ misdirected itself in law in considering that it could lawfully offer pursuant to S.61 WSA, and so unlawfully breached S.31 WSA in offering, wastewater services at Clareabbey WwTP - which lacks capacity to treat collected wastewaters and which overflows more frequently than is permissible - and the resulting WW Connection Agreement is invalid.

h. Also, UÉ is the national authority responsible for operating WwTPs in accordance with the UWWTD. By Article 4(3) TEU it must do all in its power to achieve the UWWTD’s objectives and to refrain from any action likely to jeopardise their achievement. UÉ misdirected itself in law in considering that it could make a ww connection agreement to provide wastewater services to Mr McDonagh via a non-compliant WwTP. The WW Connection results in a breach of Article 4 UWWTD and is invalid.

i. By the WW Connection Agreement to provide wastewater services to Mr McDonagh via a noncompliant WwTP, UÉ breached WwDL Condition 3 which prohibits discharge from the WwTP save under and in accordance with the WwDL, and that SWOs shall be as specified in WwDL Schedule Article 4. It specifies no SWO. UÉ has sought no WwDL review to specify such SWOs . Nonetheless it put a 6,150 p.e.

flow into a WwTP licensed for 6,000 p.e. - inter alia by diverting Clarecastle wastewater to the WwTP - such that excessive overflows consistently occur. Articles 5 and 5(1A) WWDR38 require that in such circumstances UÉ seek a WwDL review but it has failed to do so. In making the WW Connection Agreement, thereby adding further influent to the Network and overflows beyond those authorised, without first seeking a WwDL review and obtaining a WwDL amendment, UÉ unlawfully disregarded its

37 §4.1.

EU (Waste Water Discharge) Regulations 2007 as amended. The Statement of Grounds states “WwDL” but the error and its correction are clear.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

WwDL conditions 3 and 4.13 and acted contrary to S.31 WSA 2007 and the WW Connection Agreement is invalid accordingly.

j. These errors of law matter because the impugned connection to an overloaded system will increase the overloading and the volume and frequency of SWO events.39 Additional overflows to the Fergus River will increase pressure on river water quality where the river already fails to meet WFD-required40 “good”

water quality status.

k. Article 6 WWDR requires the EPA to do an EIA and/or AA and to ensure compliance with the UWWTD, UWWTD and Article 4 WFD, and to take account of the requirement to prevent water pollution and to protect drinking water. Those responsibilities, imposed on the EPA in order to comply with EU law obligations, are set at nought if UÉ increases the WwTP load above the 6,000 p.e. for which it is licenced by the WwDL. The November 2024 SVR states that the current load is 6,150 p.e. and the EPA directed UÉ to seek a WwDL review. The WW Connection Agreement will add an effluent hydraulic load of 25m3/day and an organic load of about 166 p.e. increasing the WwTP organic load to about 6,300 p.e.41 Yet UÉ has not sought a WwDL review.

l. UÉ therefore erred in law in making the WW Connection Agreement when S.31 WSA precluded it from doing because a connection would breach Article 5(1A) WWDR, preventing the EPA from exercising its Article 6 WWDR functions, and/or breaching Article 4 UWWTD and Article 4 UWWTR and the WwDL where the WwTP discharge is to a WDF water body, the Fergus River, that is failing to achieve its Article

4 WFD environmental objectives.

EMPA 2011 & CASELAW THEREON

9. S.7 EMPA 2011 provides for the bringing of the present motion.42 S.3 EMPA 2011 provides that in proceedings to which it applies each party (including any notice party) shall bear its own costs.” S.4 EMPA 2011 identifies as follows the proceedings to which s.3 applies.

“4.— (1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person —

a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement specified in or attached to a licence, registration, permit, permission, lease, notice or consent specified in subsection (4), or

b) in respect of the contravention of, or the failure to comply with such licence, registration, permit, permission, lease, notice or consent,

It is pleaded that this is so even if the treated Service Station effluent quality meets WwDL final discharge standard.

40 Article 4 and Annex V WFD.

41 based on a calculation provided in the Engineering Planning Report that accompanied the planning permission application.

42 “7. A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a

determination that section 3 applies to those proceedings.”

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.

(2) Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of the following: … (b) water, including coastal and marine areas; … (e) landscapes and natural sites; (f) biological diversity, including any component of such diversity, …”

O’CONNOR (2020 – COURT OF APPEAL)43

10. As to the interpretation of s.4 EMPA 2011 and as O’Connor considered the prior authorities in detail, it suffices to start with O’Connor. Mr O’Connor, a riding school operator, alleged that Tag-a-Bin operated its adjacent premises in breach of its waste collection permit such that he had been forced to close his riding school. He sought by judicial review to quash Tag-a-Bin’s renewed waste collection permit on the basis that Offaly County Council had ignored his complaints. He sought, and the Court of Appeal granted him, a PCO under s.3 EMPA 2011. Murray J held, upholding the judgment and order of Baker J in the High Court, that,44 a. S.4 defines the proceedings to which s.3 applies. A case either falls within ss. 3 and 4 or it does not.

b. The issue is not the form of the proceedings, but the nature of the relief claimed. Ceteris paribus, Ss. 3 and 4 apply to judicial review proceedings.

c. Discernment of “the purpose of” proceedings within the meaning of s.4(1)(a) requires looking to the proceedings as a whole, objectively and at a general level to discern their true objective in reality and substance.

d. The reference in s.4(1)(a) to a “statutory requirement” is “free standing”.45 S.4(1)(a) is engaged by proceedings for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement.

e. Contrasting ss.4(1)(a) and (b) shows that the Oireachtas o differentiated between two types of claim – on the one hand a claim to ensure compliance with or to enforce a statutory provision, and on the other hand a claim in respect of the contravention of such a provision.

o excluded claims alleging contravention of statutory requirements from costs protection under ss.4(1)(b), but not from costs protection under ss.4(1)(a).46

f. S.4(1)(a) is “forward looking”. It does not encompass proceedings to correct past illegality. Its application

is limited to proceedings which, looking to the action as a whole and at a general level to the true objective of the proceedings, seek to ensure compliance into the future with, or enforce into the future,

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

44 Most of what here follows can be found at §80 et seq of the judgment of Murray J.

45 McCoy v Shillelagh Quarries, [2015] IECA 28, §25-28.

judgment of Murray J §32.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

an identified statutory requirement. The applicant must identify some action into the future which it is seeking to compel in accordance with a statutory requirement, or to compel to be conducted in a particular way in accordance with a statutory requirement.

I would add that it seems to me that the applicant may alternatively show that compliance with a statutory requirement will result in the non-occurrence of some action or event in the future (such as a polluting event) which the applicant wishes not to occur. As was said in Jennings:

“Given the facts and substantive decision in O’Connor it seems to me that one can read this passage as encompassing, not merely actions which the applicant seeks to compel, but also those which (s)he seeks to prevent.”47

g. S.4(1)(a) applies to proceedings to preclude the continuation of an allegedly unlawful ongoing state of affairs. Mr O’Connor’s concern when issuing the proceedings was with an alleged ongoing state of affairs

– an allegedly unlawful activity. Tag-a-Bin was allegedly collecting waste on foot of an invalid permit.

That alleged invalidity arose from breach of a number of legislative provisions. If the underlying claim were well-placed, it would mean that a separate statutory provision (s.34(1) of the Waste Management Act 1996, which authorised the issue of permits) was being breached, because an activity which could only lawfully be conducted on foot of a permit was being conducted on foot of an invalid permit. The question whether there was compliance with s.34(1) required that the underlying invalidity be determined by the court. The proceedings thus understood fell within s 4(1)(a).

h. The standard of proof of his/her case which an applicant for a PCO is required to meet that of stateability or, which is the same thing, arguability. Put another way, an applicant for a PCO in specifically judicial review must show a case “in which leave would be properly granted”.

i. To decide a motion under s.7 the court must be confident, on the information before it, that it could (a)

determine whether the proceedings fell within s 3 and (b) be sure that nothing was likely to happen after the making of a PCO that could affect the answer to that question. That said, given that the court is concerned only to characterise the proceedings, determine whether they disclose a stateable claim, and determine whether that characterisation brings the claim within s.3, the answer to both questions should be discernible in many cases.

11. Notably, in dismissing the appeal and in upholding the order made by Baker J in the High Court, Murray J said,

“14. In substance, the trial judge thus felt these proceedings comprise an action by which the applicant seeks to ensure compliance with the statutory requirement that a waste facility be licensed by law. The applicant, she said, impugns the granting of a permit and by that means seeks to ensure compliance with a statutory requirement that there be a valid licence. Similarly (at para 45), as to the vires argument, the object of the proceedings was to obtain compliance by the respondent with the

§198.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

statutory requirements that it should issue a permit only when competent to do so, and only when the relevant statutory requirements were met. Accordingly, and having regard to fact that there was no collateral or extraneous purpose to the proceedings, the court held that the threshold test in s.4(1)(a) was satisfied, and the proceedings were for the purposes of ensuring compliance with a statutory requirement within the meaning of the provision.”

HEATHER HILL (2022 - SUPREME COURT)48

12. Murray J’s judgment in Heather Hill unsurprisingly cites O’Connor extensively and to the extent it repeats the law as laid down in O’Connor, I will not repeat it. Murray J considered that the EMPA was part49 of the State’s implementation of the NPE requirements of the Aarhus Convention.50 Though the proposition does flow from O’Connor, Murray J’s observation bears noting that s.4 EMPA 2011 “defines the proceedings to which it applies not by reference to the legal basis for the actions it is sought to impugn, but by reference to the purpose of the action and the subject matter of the claim.”

13. In the present case, Heather Hill51 was cited also for its characterisation as understandable the view taken in Jennings52 that the fundamental effect of O’Connor is that S.4(1)(a) of the 2011 Act encompasses proceedings in judicial review intended to quash an invalid permit which, if not quashed, would authorise future activity likely to result in environmental damage. Both FoIE and Mr McDonagh appeared to agree that Murray J had approved that view taken in Jennings – or at least they were prepared to proceed on that basis.53

DIAMREM (2023 - COURT OF APPEAL)54

14. In Diamrem, Woulfe J observed55 that, colloquially, a “purpose” of particular proceedings can be identified at a variety of levels, from the highly general to the narrowly particular, as direct only or as including indirect purposes and/or as discerned objectively or as the subjective intention/motivation of the applicant for relief. Woulfe J cited authority – Rowan and CLM56 - for differing approaches to discerning purpose within the meaning of s.4. He preferred CLM in rejecting the criterion of the applicant’s subjective intention/motivation (in that case alleged by the respondent to be commercial57) and in seeking to discern,

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

49 S.50B PDA 2000 being the other.

50 Murray J §196 - The NPE requirement, derived from Article 9(4) of the Aarhus Convention, is that judicial remedies in environmental law proceedings

be not prohibitively expensive. The Aarhus Convention is the Convention On Access To Information, Public Participation In Decision-Making And Access

To Justice In Environmental Matters done at Aarhus, Denmark, on 25 June 1998.

51 §194.

52 Jennings v An Bord Pleanála [2022] IEHC 249 §211. In the transcript references to “section 211” should be read as to §211 of Jennings.

In the case of Mr McDonagh, see Transcript 14:44 and 15:09.

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

55 §52 et seq.

56 Rowan v Kerry County Council [2012] IEHC 544, CLM Properties v Greenstar [2014] IEHC 288.

Allegedly to force the closure of the respondent’s car park to facilitate the appellant's park and ride facility.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

objectively, what in reality and substance was the proceedings’ purpose. On the facts he found that the proceedings fell within s. 4(1)(a).

15. Woulfe J

• noted that in Callaghan58 the High Court had held that s.4(1)(a) required a causative link between the failure to ensure compliance with, or the enforcement of, a statutory requirement and damage to the environment.

• applied O’Connor, to the effect that an applicant for costs protection must “go beyond mere assertions of damage or likely damage to the environment, and to make out a stateable argument that damage to the environment is occurring or is likely to occur.” However, even this is a “low bar”.59

VALIDITY & DISAPPLICATION OF S.4(1) DAMAGE REQUIREMENT – FIELDS COVERED BY EUROPEAN LAW

16. As has been seen, by its terms and as interpreted in O’Connor, s.4(1)(a) applies s.3 costs protection only where non-compliance with or non-enforcement of the specific statutory requirement, is likely to cause, damage to the environment. A complex controversy arose in the North East Pylon litigation whether this damage requirement is valid in EU Law and, on a reference to the CJEU, was the subject of Case C-470/16.60 The outcome was considered in North East Pylon #561 and in Jennings.62 It is that the environmental damage requirement

• is inapplicable as it relates to national environmental law “in the fields covered by EU environmental law”,

• but remains applicable as it relates to national environmental law in the fields not covered by EU environmental law. In North East Pylon #563 that has been termed “purely” national law.

17. However, as to what is meant by “fields covered by EU environmental law”, Jennings64 cites Humphreys J in North East Pylon #5 as rejecting a limitation of the concept to national law as to rights “created by EU law”. Humphreys J considered it a wider concept. Murray J in Heather Hill agreed.65 He noted that in LZ (“the Slovak brown bear case”),66 the CJEU had said that “a specific issue which has not yet been subject to EU legislation may fall within the scope of EU law if it relates to a field covered in large measure by it”. Murray J held that when considering whether a ground of review was in a field covered by EU environmental law, the question was not whether the specific ground engaged a provision of a directive per se, but whether it was functioning in a zone significantly regulated by EU law. However, as to its application in

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

59 §§61 & 66.

60 Case C-470/16, North East Pylon Pressure Campaign v An Bord Pleanála; judgment 15 March 2018.

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

62 Jennings v An Bord Pleanála, [2022] IEHC 249, [2022] 5 JIC 0302. Inter alia, §146 states, speaking of the effect of the Aarhus convention NPE rule:

“The net result, introducing a perhaps unfortunate dichotomy, seems to be that even if the damage criterion imposed by the 2011 Act renders that Act

inadequate for purposes of the EU law interpretive obligation as bearing on national environmental law in a field covered by EU environmental law, that

same damage criterion is unobjectionable in application of the Irish Law presumption of legislation in conformity with International Law as bearing on

national environmental law in a field not covered by EU environmental law.”

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

64 §119.

65 §210 et seq.

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

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

the circumstances of Heather Hill he considered that the law in this regard is not clear and that were it critical to his decision reference to the CJEU would be needed.67 It seems to me however that this observation must be understood as emanating from an apex court obliged by Article 267 TFEU in certain circumstances of uncertainty in EU law to refer the matter to the CJEU. The High Court may, but is not obliged to, refer.

18. As to how to disapply, in applying the NPE rule of EU law,68 the s.4(1) damage requirement in a case in which the national law in question is in a field covered by EU environmental law, FoIE suggests that has been the subject of considerable judicial debate, summarised in Diamrem.69 To be clear, the debate was canvassed by the parties in Diamrem but not decided by the court. As the court found sufficient evidence of damage, a decision as to the position absent damage was unnecessary.

19. As the debate was canvassed in that case, Diamrem records that in North East Pylon #5 Humphreys J had suggested that in a case of alleged non-compliance with a national law in a field covered by EU environmental law the Court, in applying the NPE rule of EU law, could leave s.4 and its damage requirement in place and provide the same costs protection as is provided for in s.3 by applying the general discretion of the court as to costs under Order 99 RSC.70 The respondent had suggested that Diamrem had to, but had failed to, show that s.4(1)(a) or (b) applied other than as to establishing environmental damage and that, it had to show also that the case fell within Article 9(3) and (4) of the Aarhus Convention – which is the ultimate source of the NPE Rule and apply only to alleged contraventions of “national law relating to the environment”. Presumably the argument was that, whereas s.4 applies to contraventions of national law likely as a matter of fact to cause environmental damage, Aarhus applies only where the national law itself relates to the environment.

20. A further argument was made that whereas ss.3 and 4 EMPA 2011 ordinarily require that all parties bear their own costs, under the NPE rule an award of costs against an unsuccessful applicant is possible as long as it is not prohibitive in quantum. However, as I am being asked merely for a protective declaration on the principle of costs protection, I need consider that issue no further.

S.4 – AS RELEVANT

21. FoIE relies exclusively on part only of s.4(1)(a) and I accept Mr McDonagh’s view71 that, while the statutory context is relevant, it helps to isolate the literal elements of s.4(1) on which FoIE relies. Before doing so I should reiterate that caselaw establishes that the words “statutory requirement” are freestanding

67 That the law is uncertain in this respect was also raised in Diamrem but it was unnecessary to decide the point.

The requirement, derived from Article 9(4) of the Aarhus Convention that judicial remedies in environmental law proceedings be not prohibitively

expensive.

69 Diamrem Limited v Cliffs of Moher Visitors Centre Limited [2023] IECA 235.

70 Rules of the Superior Courts.

Transcript 14:33.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

and are not restricted in their meaning by the words which immediately follow.72 Also, it is common case that

s.4(3)73 is irrelevant in this case. So, the elements of s.4(1), read literally, on which FoIE relies in seeking costs

protection s.4(1) are as follows:

“4.— (1) Section 3 applies to civil proceedings … instituted by a person for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement … where the failure to ensure such compliance with, or enforcement of, such statutory requirement, …74 is causing, or is likely to cause, damage to the environment.”

22. S.4(5) stipulates that, ““damage”, in relation to the environment, includes any adverse effect on any matter specified in paragraphs (a) to (l) of subsection (2)”; and ““statutory body” means… (a) a body established by or under statute….” However, as has been seen, the list of matters specified in paragraphs (a) to (l) of subsection (2) is inexhaustive of the meaning of damage to the environment.

OTHER STATUTORY PROVISIONS

23. As has been seen, reliance on the “statutory requirement” criterion in s.4(1)(a) requires identification of a specific statutory requirement, non-compliance with which or non-enforcement of which is alleged to cause or be likely to cause environmental damage.

CONNECTION AGREEMENTS - S.61 WSA 2007, §1, FOURTH SCHEDULE, PDA 2000 & S.31 WSA 2007

24. As stated, the WW Connection Agreement was made pursuant to s.61 WSA 2007. As relevant, S.61 provides as follows:

“61 (1) (a) A person who causes or permits the connection of a premises to waste water services, either directly or indirectly, without the agreement of the provider of those services, commits an offence.

(b) For the purposes of paragraph (a), …. the agreement of a water services authority under this subsection may be made the subject of such conditions as the water services authority may specify.

(c) In considering whether to agree to a connection under this section, a water services authority shall be entitled to take into account the matters referred to in paragraph 1 of the Fourth Schedule to the Act of 200075 in so far as they may apply to the provision of waste water services by it ……..

72 McCoy v Shillelagh Quarries, [2015] IECA 28, §25-28, O'Connor v Offaly County Council, Tag-a-Bin & Meath County Council, [2020] IECA 72, [2021] 1 IR

1.

(3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so - (a) where the

court considers that a claim or counter-claim by the party is frivolous or vexatious, (b) by reason of the manner in which the party has conducted the

proceedings, or (c) where the party is in contempt of the court.

74 I have excised “has caused”, in light of O’Connor.

PDA 2000: 4th Schedule: Reasons for the Refusal of Permission which Exclude Compensation.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

(2) A person who causes or permits the discharge of any effluent or other matter to a waste water works, whether directly or indirectly, without the agreement of the relevant water services provider commits an offence.

25. The matters referred to in §1 of the Fourth Schedule PDA 2000, of which, in accordance with s.61, UÉ may take account in deciding whether to agree to a connection, include whether the proposed development

• would be premature by reference to constraints including an existing deficiency in the provision of sewerage facilities,

• the capacity of existing or prospective sewerage facilities being required for prospective development in various listed circumstances.

• is in an area where it is necessary to limit the risk of there being any serious danger to human health or the environment.

• would cause serious pollution, including water pollution, connected with the disposal of waste.

• would have a significant adverse effect on the conservation and protection of the environment including, …. European sites … or

• would not be consistent with the objectives of a river basin management plan.76

26. It is difficult to see such considerations as in any degree potentially weighty, or to see a purpose in the reference in s.61 to §1 of the Fourth Schedule PDA 2000, if UÉ, in making a ww connection agreement, was not concerned with the prospects of all of the making of the connection to a UÉ network, discharge of wastewater to such network via such connection and any environmental damage by reason of such discharge.

27. S.31(2) WSA 2007 empowers UÉ to provide water services (which includes wastewater services) but only

“taking full account of the following aspects of public policy, namely:

(a) proper planning and sustainable development;

(b) protection of human health and the environment;

(c) relevant regulations and other statutory provisions made by the Minister or the … European Union;”

28. The reference in s.31 WSA 2007 to EU legislation prompts reference to s.5 WSA 2007. It records that the purpose of the WSA 2007 includes effecting, as relates to water services, EU directives including the WFD and the UWWTD.77 Both the WFD and the UWWTD are, of course, concerned with the quality of, and avoidance of pollution of, waters into which wastewater networks, including wwtps, discharge effluent.

76 In this respect see §19(b) of the Fourth Schedule to and s.10(2)(c) PDA 2000.

Directive 91/271/EEC concerning urban waste water treatment.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

29. While “taking full account of”, as required by s.31(2), is clearly more emphatic than a mere “have regard to” obligation, S.31(4) WSA 2007 is more emphatic still. As notable here, it prohibits UÉ from

providing “water services” (i.e. including “waste water collection, storage, treatment or disposal”) “… if doing

so is inconsistent with any of the public policy issues specified in subsection (2) …”.

30. I am satisfied that, whatever view one takes of the extent of the purpose and effect of a ww connection agreement, it is made by UÉ in respect of its provision of water services (specifically, in the collection of wastewater) such that s.61 and s.31 must be read together such that UÉ, in making a connection agreement,

• must take full account of the matters listed in s.31, including (though not limited to) the policies of the WFD and the UWWTD.

• is prohibited from making a connection agreement “inconsistent with any of” those policy issues. It may well be that in discerning whether, against the backdrop of those duties, to make a particular connection agreement, UÉ will be entitled to make an evaluative judgement and to the benefit of a margin of appreciation – perhaps a considerable margin. But those issues, which may perhaps arise at trial, do not arise for consideration here. Here, the existence of the duties is what matters.

TRADE EFFLUENT DISCHARGE TO SEWER LICENCES – S.16 WPA 1977

31. S.16(1) WPA 1977, in effect, prohibits discharge of trade effluent to a sewer save under and in accordance with a trade effluent discharge to sewer licence issued by UÉ.78 S.16(2) empowers UÉ to “at its discretion refuse to grant a licence” or to grant one subject to conditions. It is generally clear from ss.16(2)(b), 16(3) and 16(4)(a)(i) that such conditions may relate to the quality and polluting potential of the trade effluent discharging to a sewer and to the “periods during which a discharge may be made or may not be made”. S.16(12) provides that “A person shall not be entitled solely by reason of a licence under this section to make, cause or permit a discharge to a sewer.”

URBAN WASTEWATER TREATMENT DIRECTIVE

32. Notable in the UWWTD are that

• Recital 7 records – “Whereas to prevent the environment from being adversely affected by the disposal of insufficiently-treated urban waste water, there is a general need for secondary treatment of urban waste water…”

• Article 1(2) identifies the objective of the UWWTD as being “to protect the environment from the adverse effects of … waste water discharges.”

• Article 4 requires Member States to ensure that urban waste water entering collecting systems shall before discharge be subject to secondary or equivalent treatment.

78 The parties agree that it is clear that s.63 WSA 2007 is to replace S.16(1) WPA 1977 but the Irish Statute Book records that s.63 has not been

commenced - https://www.irishstatutebook.ie/eli/isbc/2007_30.html#commencement.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

• Article 10 requires Member States to ensure that the urban waste water treatment plants built to comply with the requirements of Articles 4, 5, 6 and 7 are designed, constructed, operated and maintained to ensure sufficient performance under all normal local climatic conditions. So, the general requirement of the UWWTD is for “complete treatment at all times of the year of all the discharges” (Case C-316/06, Commission v Ireland79), failure to treat urban waste water cannot be accepted under usual climatic and seasonal conditions, can be tolerated only where the circumstances are out of the ordinary and, under usual climatic conditions, account being taken of seasonal variations, all urban waste water must be collected and treated and it would be contrary to the UWWTD if overflows of untreated urban waste water occurred regularly. (Case C-301/10, Commission v UK80). See generally, Duffy.81

• Annex 1 requires inter alia o A – limitation of pollution of receiving waters due to storm water overflows.

o B – that wwtp discharges meet effluent quality requirements for BOD5, COD and suspended solids, set out in Table 1.

WATER FRAMEWORK DIRECTIVE

33. The WFD is highly complex. It suffices here to refer to Article 4(1)(a). It provides environmental objectives as follows:

“1. In making operational the programmes of measures specified in the river basin management plans:

(a) for surface waters

(i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the application of paragraphs 6 and 7 and without prejudice to paragraph 8;

(ii) Member States shall protect, enhance and restore all bodies of surface water, ……… with the aim of achieving good surface water status …… “

WWDR 2007

34. Article 5 WWDR 2007 prohibits UÉ from discharging effluent from wastewater works serving agglomerations whose effluent exceeds a specified population equivalent save under a wwdl issued by the EPA.

35. Article 6 WWDR 2007 deems the EPA competent to issue wwdls to UÉ and requires it,

• in considering wwdl applications, to have regard to, inter alia,

79 Commission v Ireland: C-316/06 ECLI:EU:C:2008:487, [2008] ECR I-124, [2008] All ER (D) 53 (Sep).

80 European Commission v United Kingdom (C-301/10), [2013] Env. L.R. 13 (2012).

Duffy v ABP & McDonagh [2024] IEHC 558.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

o Articles 4,82 783 and 984 of, and the Second,85 Fourth and Fifth Schedules86 to, the Urban Waste Water Regulations,87 o the environmental objectives of Article 4(1)(a) WFD, o the requirement to prevent pollution of waters, o The UWWTD.

• in deciding wwdl applications to set emission limits for pollutants likely to be present in the wastewater ….. with the aim of achieving good surface water status by December 2015 for the surface water body into which the wastewater will discharge, including compliance with any standards and objectives established for associated protected areas by December 2015.

36. By Article 3 WWDR 2007, “protected areas” are those designated pursuant to EU Law for special protection of their surface water and groundwater or for the conservation of habitats and species of European sites directly dependant on water and listed in the EPA’s register established in accordance with Article 8 of the Water Policy Regulations.

WW CONNECTION AGREEMENT, 20 MAY 2025

37. The WW Connection Agreement,

a. Is of the kind contemplated by s.61 WSA 2007 – i.e. it is for “the connection of a premises to waste water services”. It provides for the connection of the premises in question – the Service Station - via the Network to the WwTP.

b. Defines88

o "Water Services" as “all services, including ….. Wastewater collection, storage, measurement, treatment or disposal”.

I observe that this is the definition found in s.2 WMA 2007. Also, Article 3 UWWTD requires that agglomerations be provided with urban waste water collecting systems. Collection is clearly effected by connection of wastewater generators to UÉ networks. So, connection is a water service and a wastewater service within the meaning of the relevant Irish and EU legislation. One may add that the UWWTR89 requires that “A collecting system shall take into account waste water treatment requirements.”

82 Duty to provide secondary treatment wwtps.

83 Duty to ensure treatment before discharge of urban waste water entering a collecting system.

84 Relates to industrial waste water – irrelevant here.

Quantitative standards for reduction, by treatment of wastewater, of BOD5, COD and suspended solids.

86 Reference methods for monitoring and evaluation of results.

87 the Urban Waste Water Treatment Regulations 2001 ( S.I. No. 254 of 2001 ).

88 §1.

Urban Wastewater Treatment Regulations 2001 (SI 254/2001), First Schedule, Collecting Systems.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

o "Wastewater" as sewage or other sewage effluent discharged, or to be discharged, to a drain, service connection or sewer.

o "Service Connection" as, inter alia, a drainage pipe from wastewater works to the boundary of the customer's premises to be used for connecting the customer premises with wastewater works.

o "Wastewater Works" as “Sewers and their accessories, and all other associated physical elements used for collection, storage, measurement or treatment of Wastewater”. I am happy that it includes wastewater treatment plants.

c. Identifies its Principal Obligations90 as including o Connection Works by UÉ to facilitate the connection of the Service Station to the Network.

o That Mr McDonagh will “comply with all … applicable Laws and obtain all necessary easements, licences, permits or authorisations that may be required in connection with the performance of its obligations and its receipt of the Water Services pursuant to this Connection Agreement.”

I observe that this Principal Obligation articulates not merely the expectation that wastewater services will be received by Mr McDonagh but that they will be received “pursuant to this Connection Agreement”.

d. Requires that before any tie-in to the Network, Mr McDonagh must have obtained a “Trade Effluent Discharge Authorisation” - in this case a trade effluent discharge to sewer licence issued by UÉ91 - and that failure to obtain it will result in UÉ refusing to accept discharges to the Network.92 e. Notes that Mr McDonagh proposes a “full” onsite wwtp, pumping station, rising main and associated discharge manhole and is responsible for obtaining all required licences/consents/permissions associated with that private infrastructure.93 f. Imposes Special Conditions that o Mr McDonagh’s onsite wwtp must at least94 match the WwTP WwDL discharge requirements and ensure that his onsite wwtp effluent doesn't impact on the biological95 load to the WwTP.

o Service Station effluent discharge to the Network can be accepted only at off peak times, as will be outlined in the “associated” trade effluent discharge licence and Mr McDonagh must construct a 24- hour effluent storage tank.96

I observe that this restriction of discharge times is clearly intended to manage the hydraulic quantum of flow to and load on the WwTP.

90 §9.

91 The WWW Connection Agreement identifies a number of types of Trade Effluent Discharge Authorisation. Under s.16 of the Local Government (Water

Pollution) Act 1997, as amended: “16. — (1) A person …. shall not, ….. discharge or cause or permit the discharge of any trade effluent …. to a sewer,

except under and in accordance with a licence under this section granted by the sanitary authority ….”

Appendix 3, Special Conditions, Section 3.2 §4.

93 Appendix 3, Special Conditions, Section 3.2 §6.

94 More detailed requirements are also stated.

95 Organic.

Appendix 3, Special Conditions, Section 3.2 §7.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

g. States97 that

• The offer of a ww connection agreement is based on UÉ’s high-level desktop analysis of the feasibility of a connection.

• Once the offer is accepted UÉ will begin detailed design of the connection.

• If, in detailed design, UÉ forms the reasonable opinion that a connection either: A. is not feasible, practicable or safe; or B. would involve UÉ expenditure exceeding the Connection Charge,98 then UÉ may terminate the WW Connection Agreement.

ORDINARY APPLICATION OF SS.3 & 4 EMPA 2011

38. If FoIE is entitled to costs protection on an application of ss. 3 and 4 EMPA 2011, according to their terms, including as to environmental damage, it will be unnecessary to consider whether costs protection is available to it on another basis such as the application of ss. 3 and 4 EMPA 2011 disapplying its environmental damage criterion in accordance with Case C-470/16 North East Pylon and applying, via the legal routes identified in Jennings, the “NPE”99 costs principle of Article 9(4) of the Aarhus Convention as applicable to environmental litigation. Accordingly, I will consider first whether, on an application of ss. 3 and

4 EMPA 2011 according to their terms, including as to environmental damage, FoIE is entitled to a PCO. I note that this was the approach taken by the Court of Appeal in Diamrem.

FOIE’S POSITION

39. FoIE’s underlying position is set out in its Grounds as recorded above. It suffices here to recall that it asserts that

• The proceedings fall within S.4(1)(a) EMPA 2011 because they seek to ensure compliance with ss.61 and

31 WSA 2007 which, read together, o require UÉ to take full account of relevant national and EU law in making a ww connection agreement and o prohibit UÉ from providing wastewater services inconsistent with policies of relevant national and EU law.

• His planning permission required Mr McDonagh to make a ww connection agreement before commencing development.

• A connection agreement lawful in accordance with s.61 and s.31 WSA 2007 would, but the WW Connection Agreement by adding load to an already overloaded and malfunctioning Network, including its WwTP, unlawfully does not, comply with Article 4 of each of the UWWTD, UWWTR and WFD, which require that o all collected wastewater receive secondary treatment save exceptionally,

97 Appendix 3, Special Conditions, Section 3.2 §10.

98 Appendix 4 stipulates a wastewater connection charge of €156,093.

Not Prohibitively Expensive.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

o discharge of the treated effluent not cause or permit deterioration in WFD water quality of the River Fergus, its estuary and its European Sites (which Article 6(3) WWDR seeks to ensure through the WWDL.)

• The WW Collection Agreement also unlawfully results in breach of WWDL conditions 3 and 4.13,100 resulting in a breach of Article 4 UWWTD and Article 4 UWWTR.

40. From the foregoing it will be seen that FoIE’s underlying position is that the WW Connection Agreement will not merely result in the connection of the Service Station’s private sewers to the Network: it

will as matter of reality result in the discharge of the Service Station’s effluent to the Network and, ultimately,

whether by SWO or via the WwTP, to the River Fergus.

41. Broadly, as the general requirement of the UWWTD is for “complete treatment at all times of the year of all the discharges”,101 the hydraulic capacity of a wastewater network must be designed, constructed and operated for normal hydraulic loads. So, at EU law, SWO events are permissible only exceptionally and are excessive if regular – see the discussion in Case C301/10 Commission v UK, and in Duffy.102

42. FoIE says the proceedings are “forward looking”, as required by O’Connor, as they seek to ensure that additional untreated wastewater is not discharged in future. As to showing a “stateable argument that damage to the environment is occurring or is likely to occur”,103 FoIE say that

• the starting point is that the very premise of the UWWTD is that the discharge of untreated wastewater damages the environment, the protection from which, particularly from untreated and insufficiently treated wastewater, is the objective of the UWWTD – see UWWTD Recital 7 and Article 1(2) 104 and Case C-301/10 Commission v UK.

• the affidavits of William O’Connor105 and Daniel Owens106 provide expert evidence, sufficient for this purpose, of the prospect of environmental damage.

43. More specifically, FoIE adduces the affidavits of William O’Connor and Daniel Owens as expert evidence that

• the Network o is overloaded beyond its licensed hydraulic and organic capacity and lacks capacity to accept any significant additional connection.

100 Condition prohibits WwTP discharges save under and in accordance with the WwDL, and requires that SWOs be as specified in the WwDL Schedule,

Article 4. Condition 4.13 requires UÉ to investigate, identify, assess and report to the EPA on SWOs every 3 years, including as to compliance with the

“1995 Procedures and Criteria in relation to Stormwater Overflows.

101 Art 10 UWWTD and Commission v Ireland: C-316/06 ECLI:EU:C:2008:487, [2008] ECR I-124, [2008] All ER (D) 53 (Sep).

102 Duffy v ABP & McDonagh [2024] IEHC 558.

103 O’Connor and Diamrem.

104 Set out above.

105 Dr. William O'Connor PhD, MSc, BSc, CBiol, CEnv, FRSB, MCIEEM, Ecologist. He holds an MSc in Applied Hydrobiology, a PhD in Zoology, is a Fellow of

the Royal Society of Biology and is an environmental scientist with thirty years' experience in professional ecological management and a former Senior

Fisheries Biologist with the Electricity Supply Board.

106 Daniel Owens is an engineer specialising in wastewater treatment. He worked for Welsh Water for 20 years in a number of scientific roles. He has

undertaken numerous investigations of wastewater treatment plants and sewer networks and was the co-author of a UK Water Industry Research

report on best practice for UV wastewater disinfection.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

o overflows untreated and partially treated sewage excessively - more often than is exceptionally allowed for the purposes of Article 4 UWWTD - at various locations107 and on 362 days out of 572108 between 15 March 2023 and 20 October 2024. It overflows on 34.4% to 37% of days, spills 14.6% of its load and overflows when rainfall is not unusually heavy109 (i.e. not merely exceptionally).

o by such frequent and excessive overflows, and for some years, recurrently discharges significant quantities of raw or partially treated wastewater into the River Fergus - part of the Lower River Shannon SAC110 and the River Fergus Estuary SPA111 - having a significant effect on the water quality of the river and its nearby estuary. These discharges tend to cause environmental damage: altering sediment quality, reducing available dissolved oxygen and leading to episodes of low dissolved oxygen, thereby changing the composition of the benthic fauna and flora.112

• The Fergus Estuary’s EPA-assessed WFD status is 'At Risk' and 'Moderate' whereas the WFD requires ‘Good’ status. Wastewater is a key factor in this unsatisfactory rating - according to the EPA. The EPA assesses the estuary as having degraded fish and benthic communities and documented dissolved oxygen issues - exactly the biological elements most sensitive to wastewater pollution. Any increase in pollutant loading will worsen this situation.113

• In an already overloaded WwTP additional inflow, regardless of quality, will worsen operational performance and increase pollution risk.114

• Allowing extra loading, in the form of the Service Station effluent,115 onto the overloaded and malfunctioning Clareabbey WwTP, that is already and too frequently discharging significant quantities of raw or partially treated wastewater into the River Fergus and that is not compliant with its WwDL emission limits (including as the phosphorus), is likely to cause pollution, would risk further deterioration of river water quality, would make it more difficult to achieve "good" WFD water quality status and would result in the WwTP servicing an agglomeration with a population equivalent higher than that licensed by the WWDL.116

44. While the observation does not affect the outcome of this PCO motion, at trial this evidence may be disputed. For purposes of this motion only, Mr McDonagh does not dispute this evidence - confining himself to disputing its premise that the WW Connection Agreement authorises the discharge of Service Station Effluent to the Network – without which discharge relevant environmental damage cannot occur. 117

45. Accordingly FoIE says:

107 FoIE says overflows occur at the R458 roundabout (Clare Rd/ College View/ Tobarteascain), at the Westfields pumping station emergency surface

water overflow (SWO) and at the WwTP.

108 572 is the figure in the papers but a check suggests that the number of days is in fact 585. Nothing turns on that.

109 Affidavit of Daniel Owens.

110 Special Area of Conservation so designated for the purposes of the Habitats Directive.

111 Special Protection Area so designated for the purposes of the Birds Directive.

112 Affidavit of William O’Connor.

Affidavit of William O’Connor – citing the EPA’s Cycle 3, HA 27 Shannon Estuary North Catchment Report, May 2024.

114 Affidavit of William O’Connor – citing the EPA’s Cycle 3, HA 27 Shannon Estuary North Catchment Report, May 2024.

115 Attribution of the Service Sation effluent by Mr O’Connor is implicit but clearly so from the content of his affidavit overall.

116 Affidavit of William O’Connor – citing the EPA’s Cycle 3, HA 27 Shannon Estuary North Catchment Report, May 2024.

Transcript 14:51 et seq.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

• the WwTP lacks capacity to receive the Service Station effluent.

• Discharge of the Service Station effluent to the WwTP is likely to damage the environment - in essence by exacerbating the damage likely already caused by the Network – in particular its legally excessive SWO overflows.

ESSENTIAL QUESTIONS & PURPOSE OF THE PROCEEDINGS

46. It seems to me that, given the terms of ss.3 and 4 EMPA 2011 and at a general level, the two essential questions as to their application to a given factual matrix relate to a. The “purpose” of the proceedings. b. Any causative relationship of that purpose to any prospect of environmental damage.

47. However it seems to me important to recognise that the answers to these questions are likely to be enmeshed. Indeed, Mr McDonagh seeks to enmesh them. He submits that the true purpose of these proceedings is not to attack the WW Connection Agreement but is to address the alleged pollution of the River Fergus and environmental damage thereof by non-compliant WwTP effluent. In a colloquial and real sense, that is true. But is it the point?

48. A given act can have multiple purposes and the purposes of an act can often be, correctly, identified

differently at different levels of generality or as more or less characteristic of the act or at different degrees of

proximity to or remoteness from the act. However important the rule of law and however vital the courts’ proper interest in upholding it, from a litigant’s point of view environmental law is usually not, ultimately, an end in itself. The end is, at least usually, substantive environmental protection - of which a great part is the avoidance or minimisation of environmental damage. While upholding compliance with and enforcing statutory requirements, including of environmental law, is undoubtedly a proximate purpose of much litigation, in a very real sense the true ultimate proper purpose of much, maybe most, environmental litigation is one of substantive environmental protection. In such litigation, upholding compliance with and enforcing statutory requirements is a means to that end rather than the end itself. In that light, Mr McDonagh’s submission as to the real purpose of FoIE’s litigation here is understandable.

49. However, it seems to me that while the concept of a “purpose” correlates more readily to ends rather than means, the concept is sufficiently flexible that, depending on context, it may encompass means as well as ends. S.4(1)(a) seems to me to be such an instance. It expressly makes clear that the particular purpose with which it is concerned is a purpose at least usually (as litigants are typically concerned with practical outcomes, not with legalities abstracted from real consequences) best regarded as a means rather than an end. The purpose explicitly required by s.4(1)(a is that of “ensuring compliance with, or the enforcement of, a statutory requirement”. Whether that is best regarded colloquially as a means or an end or as the ultimate practical purpose of the litigation is, in the end, beside the point. The Oireachtas by s.4(1)(a) has deemed it the relevant “purpose” if costs protection is to ensue. In doing so, it must be presumed to have been fully aware that, in most litigation, “ensuring compliance with, or the enforcement of, a statutory

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

requirement”, is a means to a practical end rather than the end itself. Yet it is that to means, described as a purpose of the proceedings, which s.4(1)(a) is specifically addressed. Accordingly, Mr McDonagh’s argument that the true purpose of the proceedings relates to the alleged pollution of the Fergus by the WwTP, while true in its own terms, does not really address the question posed by s.4(1)(a) as to the purpose of the proceedings.

50. Viewing the question of identification of the purpose of the proceedings in the foregoing light, I accept that their “purpose” within the meaning of s.4(1)(a) is to ensure compliance with the combined statutory requirements of s.61 and s.31 WSA 2007 that UÉ may make a ww connection agreement only

• having taken full account, as required by s.31(2), of the public policies of sustainable development, protection of the environment and/or relevant regulations and other statutory provisions made by the Minister or the EU. As to such provisions, FoIE is entitled to point to the UWWTD, the UWWTR, the WFD, the WWDR and, via the WWDR 2007, to the conditions of the WWDL.

• where to do so would not result in its provision of wastewater services, by permitting either or both of connection to and discharge of effluent to its networks, in breach of the statutory prohibition, imposed by s.31(4) on its provision of water services “if doing so is inconsistent with any of the public policy issues specified in subsection (2) …”.

51. It appears to me that Mr McDonagh’s submissions – written and oral - did not get to grips with FoIE’s reliance not merely on s.61 but on s.61 taken with s.31 WSA 2007. His written submissions mention s.31 only twice: once merely reciting a reference to it in FoIE’s submissions and the second time to assert, incorrectly in my view, that FoIE’s reliance on s.31 was vague and proposing by way of answer that the WW Connection Agreement “does not authorise any such discharge”. As will be seen, in my view, even if correct, that answer is beside the point, which is causation, not authorisation, of discharge.

52. It is convenient also to observe at this point that Mr McDonagh’s written submissions, in asserting that FoIE “is fully aware that the operation of the WwTP is governed by the unchallenged and presumptively valid Wastewater Discharge Licence”, are nihil ad rem. Far from challenging the WwDL, as has been seen, FoIE predicts its breach by reason of the alleged non-compliance with s.61 and 31 WSA 2007 and complains accordingly.

53. Further, recollecting that a ww connection agreement is made pursuant to s.61 WSA 2007 and that s.61 entitles UÉ to have regard, in deciding whether to make a connection agreement, to the matters listed in §1 of the Fourth Schedule PDA 2000,118 and having regard to the substance of such matters,119 it is difficult to see them as potentially relevant or weighty if UÉ, in making a ww connection agreement, was not concerned both with the prospect of discharge via the contemplated connection to a UÉ Network and with the prospective adverse effects of such discharge.

118 Planning And Development Act 2000 as amended.

119 Set out elsewhere in this judgment but they include issues as to capacity of and deficiency in sewerage facilities, prospects of pollution and prospects

of adverse effects on European Sites.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

54. In this respect, it seems to me that the circumstances of this case resonate appreciably with the passage from O’Connor, which I have cited above, in which Murray J describes and upholds the view taken by Baker J in the High Court in granting a PCO. While the analogy is not precise and requires some adjustment of the text of Murray J’s description, I think it can fairly be paraphrased, in applying it to the present case, as follows,120

“…. these proceedings comprise an action by which the applicant seeks to ensure compliance with the statutory requirement that a [wastewater connection agreement be made in accordance with] law.

The applicant …. impugns the granting of a [wastewater connection agreement] and by that means seeks to ensure compliance with a statutory requirement that there be a valid wastewater connection agreement. Similarly …., as to the vires argument, the object of the proceedings was to obtain compliance by the respondent with the statutory requirements that it should issue a [wastewater connection agreement] only when competent to do so, and only when the relevant statutory requirements were met. Accordingly, and having regard to fact that there was no collateral or extraneous purpose to the proceedings, the court held that the threshold test in s 4(1)(a) was satisfied, and the proceedings were for the purposes of ensuring compliance with a statutory requirement within the meaning of the provision.”

55. Accordingly, I hold that the proceedings are for the purpose of ensuring compliance with a statutory requirement within the meaning of S.4(1)(a) EMPA 2011 – i.e. the requirements of ss.61 and 31 WSA 2007.

56. On that basis I move to the second essential question I have identified above – that of any causative relationship between that purpose and any prospect of environmental damage.

ENVIRONMENTAL DAMAGE CRITERION OF S.4

Mr McDonagh’s Position & “Crucial” Argument - Relationship between WW Connection Agreement & Trade Effluent Discharge Licence & between both & Effluent Discharge to Network

57. Mr McDonagh, wisely and correctly in my view, did not press an argument that FoIE had failed to show a stateable case that discharge of the Service Station effluent to the Network would cause environmental damage. Pollution of the River Fergus, risk to the WFD water quality-status of the Fergus River and/or its estuary and/or risk to the SAC and SPA would constitute environmental damage.

58. That is not to say, of course, that Mr McDonagh accepted that discharge of the Service Station effluent to the Network would cause environmental damage or that such a case would succeed at trial. But,

Alterations in text are identified by square bracketing.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

whatever about the war, in the present battle that was not the ground on which he chose to make his stand against the PCO. He chose, rather, to impugn the very notion of discharge as related to the impugned WW Connection Agreement such that, in his view, the question of causation of environmental damage does not even arise.

59. What Mr McDonagh describes as his “crucial” argument is that, on the facts of this case, the WW Connection Agreement authorises, at most and only, connection to the Network. It does not authorise discharge of effluent to the Network. Discharge will be authorised only by the trade effluent discharge licence. His counsel identified “one crucial feature of this case”: that “the connection agreement doesn't authorise discharge. And it follows that quashing the connection agreement will make no difference to the amount of water that's delivered to Clareabbey or that comes out of Clareabbey. That's the central feature of the application.” Of Mr McDonagh’s submissions, he said: “there is so much emphasis in the papers on the fact that the connection agreement doesn't authorise the discharge of anything to Clareabbey with the consequence, as I say, that if it's quashed, it just makes no difference to the amount of water that's delivered or not delivered to Clareabbey.” And, counsel said, “Quashing the connection agreement will not lead to the delivery of any … less water to Clareabbey. And that's simply because it doesn't authorise the delivery of any water to Clareabbey.”121 And, later he said: that the WW Connection Agreement “doesn't authorise discharge. So the fact that something contemplates or envisages discharge doesn't mean that it authorises it.”

60. By way of clarification, Mr McDonagh emphasises that he does not here dispute the justiciability in judicial review of the WW Connection Agreement. Though I do not rule out his so arguing at trial, I note without surprise given the statutory basis of ww connection agreements that in a Duffy case122 Farrell J observed that a ww connection agreement made in breach of UÉ’s obligations would be justiciable. Rather, Mr McDonagh’s submission addresses, for the purpose of the PCO argument, the precise legal effect of the WW Connection Agreement.

61. Mr McDonagh accepts that

• The only purpose of the WW Connection123 is to enable discharge.

• In the case of premises not requiring a trade effluent discharge to sewer licence (e.g. a dwelling), a ww connection agreement would suffice to authorise discharge to the Network. So his argument is particular to trade effluent, such as that from the Service Station.

62. However, counsel for Mr McDonagh says that as he does require a trade effluent discharge licence the WW Connection Agreement envisages, but does not authorise, discharge to. He says, correctly, that nothing goes from the Service Station to the UÉ Network until such a licence has been obtained and we must assume that UÉ will act lawfully in that regard.124 Accordingly, quashing the WW Connection Agreement will

121 Transcript 14:28 & 14:29 – emphases added.

122 Duffy v An Coimisiún Pleanála & Glenveagh Properties [2025] IEHC 715, §67. It concerned a different development in Ennis.

123 Not to be confused with the purpose of the proceedings, or, for that matter, of the statutory requirement – see above.

Transcript 15:15. & 15:17 – citing Farrell J in Duffy v An Bord Pleanála, EPA & Glenveagh [2025] IEHC 715 §52 et seq.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

not serve to avoid any act likely to cause environmental damage within the meaning of s.4 EMPA 2011. On that basis, costs protection is not available to FoIE.

63. FoIE replies, in effect, that Mr McDonagh’s is too simplistic an argument. It emphasises that the agreed and only purpose of connection is discharge and that both the WW Connection Agreement and the required trade effluent discharge to sewer licence are essential to discharge. Each is useless without the other. FoIE say they form a pair of consents to discharge of Service Station effluent to the Network. Though it did not use the phrase, I think it fair to characterise FoIE as arguing that together the WW Connection Agreement and the trade effluent discharge to sewer licence will together comprise a “composite consent” to connection to and discharge to the Network. One may add that possession of a trade effluent discharge to sewer licence is not merely necessary to discharge: as has been seen, it is a pre-condition to connection on foot of the WW Connection Agreement.125 Mr McDonagh may not connect unless and until after legally authorised to discharge. And, though counsel for FoIE did not put it precisely this way, he in effect submits that, as much as counsel for Mr McDonagh correctly asserts that no effluent goes from the Service Station to the UÉ Network until a trade effluent discharge to sewer licence has been obtained, just as much no effluent goes from the Service Station to the UÉ Network unless a ww connection agreement has been made.

Causation not Authorisation is the Issue - Stateable Case that WW Connection Agreement will Cause Environmental Damage in Future?

64. In my view, the fly in Mr McDonagh’s ointment is that s.4(1)(a) of the 2011 Act does not require that the statutory requirement, the non-compliance with which is alleged, be or involve in law an authorisation of anything. It need merely be that the non-compliance is in fact and in law causative of the likelihood of environmental damage – that is clear from Callaghan, O’Connor and Diamrem – and, for that matter, from the terms of s.4(1)(a). Of course, as has been noted, Jennings and Heather Hill hold that s.4(1)(a) “encompasses” proceedings in judicial review intended to quash an invalid permit which, if not quashed, would “authorise” future activity likely to result in environmental damage. That statement is correct. Counsel for Mr McDonagh submits that what FoIE must establish is that “if the connection agreement isn't quashed, the effect is that some continuing unlawful activity is authorised. That is what has to be established to bring it within Jennings.”126 I disagree. To say that a principle “encompasses” something does not imply that the something in question exhausts the principle or is a requirement of it. As to s,4(1)(a), such authorisation is relevant primarily as a form of causation: that for which authorisation is sought and granted is, not untypically, likely to occur. To say, as counsel for Mr McDonagh did, that “It's just not the case that any unauthorised activity is going to continue if the connection agreement is quashed”127 is to miss the point: the point is causation not authorisation.

65. It is true that Mr Lumley for FoIE, on affidavit asserted that “… the discharge permitted by the Connection Agreement … is likely to cause damage to the environment because the [WwTP] does not have

125 Appendix 3, Special Conditions, Section 3.2 §4.

126 Transcript 15:06.

Transcript 15:07.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

capacity to handle it …” However, that must be understood in terms of the two-part test set by s.4(1)(a). In my view the word “permitted” is to be understood here not in terms of authorisation but in terms of causative effect. In any event, the important element here is the prediction of causation of environmental damage.

66. In fairness, later in argument, counsel for Mr McDonagh appeared to adopt the causation approach.128 And in argument I stated my impression that,

“… leaving all other else aside, there really is only that crucial point in the case. I mean if I was to hold, for example, …..that there was indeed a prospect of the causation of damage by reason of the connection agreement, a prospect of discharge, … would you accept that were I to so hold, cost protection would follow or is there another string to your bow?”

Counsel very fairly replied:

“No, that's the central point, … I'm going to I hope demonstrate it, it can be approached in different ways, one is the forward looking backward looking requirement and the other is the necessity to establish environmental damage. But you are correct, that in either event the crucial point is the causation point. You just can't say that if you quash the connection agreement, that will [prevent]129 the delivery of water to Clareabbey130.”

He also said that he was “simply saying” that if certiorari is “the consequence will not be damage to the environment. And that's the extent of the argument I'm making”.131 And he adopted causation as the correct framework of analysis when he said: “The question is the simple fact, is there a stateable case made by the applicant that a failure to quash the connection agreement is likely to lead to environmental damage?”132 Though he immediately followed that observation by one grounded in authorisation.133

67. I pressed counsel for Mr McDonagh on an analogy between the present WW Connection Agreement, connection on foot of which is contingent on the discharge to sewer licence, with a planning permission development on foot of which is contingent on satisfaction of further regulatory approval and/or a condition requiring further regulatory approval. In a very real sense my analogy was misconceived as the costs protection provisions of S.50B PDA 2000 applicable in judicial review of planning permissions differ from those of the EMPA 2011 – notably as to the absence of a damage requirement. Yet the discussion was, I think, illuminatory of the logic of and the ultimate basis of Mr McDonagh’s resistance to a PCO. The regulatory approval on which development on foot of a permission is contingent may or may not be forthcoming. Yet the permission may be impugned in proceedings which receive costs protection. Somewhat illogically it seems to me, counsel for Mr McDonagh accepted that “one could perhaps take the point in a case about a planning permission that … I might not persuade the local authority to give me a

128 Transcript 14:50 et seq.

Counsel said “cause” but clearly meant “prevent”.

130 i.e. the WwTP.

131 Transcript 15:21.

132 Transcript 15:35 Transcript 15:35: “And there is no doubt, Judge, that ….. we do have to obtain an authorisation.”

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

commencement notice, or I might not get some safety certificate” but yet he suggested that “come what may, …. it is likely that the planning permission, presumptively invalid,134 if not quashed, will cause environmental damage ….. Because it will acted upon.” The phrase “come what may” is difficult to understand if what comes is refusal of the further regulatory approval on which lawful development on foot of the permission is contingent.135 Accepting counsel’s observation for sake of argument, if that can be said of a planning permission as a matter of causation of development, I cannot see why it cannot be said of a ww connection agreement. Yet counsel relies on the possibility that a discharge to sewer licence will be refused while accepting that the possibility of an analogous regulatory refusal in the case of a planning permission would not have the same effect on the prospect of costs protection. However, and whatever the subtlety of reasoning involved in this position, it seems to me that counsel’s true redoubt was discernible in his retreat

to his authorisation analysis: “the planning permission in itself authorises you to build”136 – “the difference is

a planning permission, in principle, authorises you to build. There may be other steps that you have to take. Now a connection agreement, in principle, doesn't authorise me to do anything.”137 Of the WW Connection

Agreement he said: “it just cannot be said that it authorises discharge and therefore it follows …… that if the

connection agreement is quashed, that just makes no difference. And that, I suppose, is the fundamental

point …….”138 And again: “the difference is in the nature of the permission or licence or consent that you have.

In principle, planning permission authorises you to build. In principle, the connection agreement doesn't authorise you to discharge. And that's the essential difference ..”139

68. I repeat my acceptance, in hindsight, that my analogy was misconceived for the reasons I have given. But I am of the view nonetheless that the resulting discussion elucidated Mr McDonagh’s position appreciably and as ultimately grounded in his position that the WW Connection agreement does not authorise discharge.

69. As has been seen, I reject Mr McDonagh’s authorisation analysis as misconceived. And in any event, as will be seen, even if he is to be taken as accepting the causation rather than the authorisation analysis as correct, that ultimately does not assist Mr McDonagh.

70. Causation is a tricky concept - approaching the metaphysical on occasion. Entire textbooks have been devoted to causation.140 It is applied in practice, in considering the relationship between posited cause and posited effect, having regard to considerations such as context, purpose,141 practicality, proximity and remoteness. Causation has at least two types: “causa causans” (immediate or proximate cause of the event in question - in this case, the event consisting in the likelihood of environmental damage) and “causa sine qua non” (a cause without which the event would not occur). But these types are better viewed as analytical tools, useful on occasion, and not as rigidly descriptive, exhaustive or mutually exclusive categories. And, as to the second type, the word “causa” is often omitted from the phrase in common usage – it is often i.e. presuming it invalid for the sake of argument.

135 See discussion at Transcript 15:45 et seq.

136 Transcript 15:28 et seq.

Transcript 15:47.

138 Transcript 15:33.

139 Transcript 15:48.

140 E.g. Proof of Causation in Tort Law, Steel, Cambridge University Press, 2015; Torts Proximate Cause, Page, Foundation Press, 2022.

i.e. the purpose of the statutory requirement in question.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

rendered merely as “sine qua non”. That omission tends to obscure the fact that that, literally, the full phrase

is intended to describe a causative relationship – if of a particular type. Whether a causa sine qua non suffices as a cause for a particular analytical purpose or purpose in law may be highly context-dependent. And, of course, an event may have multiple causes – hence the phrase “causative contribution”.

71. As I have noted and for purposes of this motion only, Mr McDonagh does not dispute that, assuming discharge of Service Station effluent to the Network and through the chain of causation via an allegedly overloaded and malfunctioning Network (including the WwTP), FoIE has shown a stateable case that environmental damage in the Fergus river and/or estuary is likely. On that view, the real s.4(1)(a) question in this case, as to the relationship between the non-compliance with the statutory requirement and the criterion of environmental damage, is not whether the WW Connection Agreement in law authorises discharge but is whether it will cause discharge, if only as one of more than one cause and to an extent sufficient for it to be considered in law a cause.

72. In my view and on the facts here, the WW Connection Agreement is inextricably and causatively enmeshed with the occurrence of discharge of Service Station effluent to the Network. It is undoubtedly a causa sine qua non. But to dismiss it as merely that, or as non-causative in law on that account, would be a dismissal insufficiently rooted in the facts and circumstances of the case.

73. Narrowly and for the sake of argument taking the precise object of the WW Connection Agreement as the act of connecting to the Network, it is clear that, as has been said, discharge is the exclusive purpose of that connection.142 Further, the possession of a trade effluent discharge to sewer licence is not merely a pre-condition to discharge – it is, by the WW Connection Agreement, an express pre-condition to connection. And, given that requirement, immediately upon on foot of and by reason of the act of connection to the Network, Mr McDonagh will be entitled to discharge Service Station effluent to the Network. And until that act he will be unable to do so.

74. Also, UÉ’s standard ww connection agreement application form required, and Mr McDonagh’s completed application form provided, anticipated site-specific hydraulic and organic discharge loads – to what end if not to discharge? The form required completion of a wastewater characteristic form – again, to what end if not to discharge? (Mr McDonagh did not complete it only as, at that time, he erroneously did not consider that a trade effluent discharge to sewer licence was required. While I do not criticise his application, it is apparent in hindsight at least that he should have completed the wastewater characteristic form.)

75. The WW Connection Agreement, by imposing effluent standards143 in effect not merely notes Mr McDonagh’s onsite wwtp, it makes its construction, existence and operation and the quality of its effluent a condition of connection to the Network. Thus, the WW Connection Agreement also, in effect, makes

142 Not to be confused with the purpose of the proceedings, or, for that matter, of the statutory requirement – see above.

Appendix 3, Special Conditions, Section 3.2 §7.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

connection conditional also on his pumping station, the associated 24-hour storage tank and his rising main to the discharge manhole.144 Ceteris paribus, it seems highly unlikely – positively implausible – that, having invested no doubt considerable monies in building a wwtp, a pumping station, a 24-hour storage tank and a rising main, being in possession of a discharge licence and having made his connection to the Network, Mr McDonagh will let that investment lie fallow and instead continue to tanker his Service Station effluent offsite. In other words, as a matter of factual prediction, on connection to the Network, effluent discharge to the Network will all but inevitably follow. Indeed, though he considered it irrelevant in law, counsel for Mr McDonagh accepted that as a matter of moral certainty, on connection Mr McDonagh will discharge Service Station effluent to the Network.145

76. In fairness to him, I should say that Mr McDonagh did not seek to persuade me otherwise. Rather he preferred to narrowly characterise the precise act of connection which the WW Connection Agreement will authorise as quite distinct from the act of discharge to be authorised by the trade effluent discharge to sewer licence. If the applicable s.4(1)(a) criterion was of authorisation in law, his argument might not be implausible

– though I am not to be taken as accepting it. However, as to the true s.4(1)(a) criterion of causation of discharge, I consider that, even viewed as one of a number of causes (another being the trade effluent discharge to sewer licence), the purposive, practical, contextual and proximity relationships between the WW Connection Agreement and discharge of Service Station effluent to the Network amply suffice to deem the former causative of the latter.

77. The foregoing conclusion would suffice. But the matter goes further. I have cited above various provisions of the WW Connection Agreement which, Mr McDonagh accepts, clearly envisage effluent discharge to the Network via the agreed connection to the Network. In particular, and has been seen, an explicitly principal obligation of the WW Connection Agreement146 is that Mr McDonagh will “comply with all … Applicable Laws and obtain all necessary easements, licences, permits or authorisations that may be required in connection with ….. (his) receipt of the Water Services pursuant to this Connection Agreement.”147 As has also been seen, the WW Connection Agreement defines “Water Services”, for the purposes of the WW Connection Agreement and as defined in s.2 WMA 2007, as “all services, including ….. Wastewater collection, storage, measurement, treatment or disposal”. Thus, “pursuant to this Connection Agreement”, he

is to receive “All services, including ….. Wastewater collection, storage, measurement, treatment or disposal”.

It seems to me impossible to see, in the context of the agreed purpose of the WW Connection Agreement, that Mr McDonagh can in any intelligible sense receive those services “pursuant to the WW Connection Agreement” without both connection to and discharge to the Network.

78. Further again and as I said earlier, the two essential questions here – of compliance with a statutory requirement and of the causation of a likelihood of environmental damage - are enmeshed. So, as on any view a ww connection agreement is for the provision of water services (or, at very least a water service – connection to the collection Network) as defined by the WSA 2007, it is relevant to again note that s.31

144 Appendix 3, Special Conditions, Section 3.2 §7.

145 Transcript 15;40.

146 §9.

Emphasis added.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

requires that a ww connection agreement be made having taken full account of the public policies of sustainable development, protection of the environment and/or relevant regulations, the UWWTD, the UWWTR, the WFD, the WWDR and, via the WWDR 2007, the conditions of the WWDL and that a ww connection not be made inconsistently with those public policies. Those policies are in great part directed at the avoidance of pollution by effluent from waste water networks. Taking full account of them in making connection agreement is purposeful only in anticipation of discharge to the network via the connection in question.

79. Yet further, recollecting that a ww connection agreement is made pursuant to s.61 WSA 2007 and that s.61 entitles UÉ to have regard, in deciding whether to make a ww connection agreement, to the matters listed in §1 of the Fourth Schedule PDA 2000 and having regard to the substance of at least some such matters,148 it is difficult to see them as potentially relevant or weighty if UÉ, in making a ww connection agreement, was not concerned not merely with the act of connection but also with both the prospect of effluent discharge via the contemplated connection to a UÉ network and the prospective effects of such discharge.

80. Indeed, a decision to grant a PCO requires only a stateable case as to the issue of causation. I consider that FoIE has shown a stateable case that the WW Connection Agreement will be causative of the envisaged discharge to the UÉ Network. Alternatively and if needs be, I hold as a matter of probability that the WW Connection Agreement will be causative of the envisaged discharge. Accordingly, FoIE has a stateable case that the WW Connection Agreement will cause, at least in the sense of making a significant causal contribution, environmental damage. I hasten to re-emphasise that this is far from an ultimate

conclusion in FoIE’s favour on that issue. It is a conclusion drawn merely on the criterion of stateability laid down in O’Connor. However, from FoIE’s point of view and as to the environmental damage criterion, it suffices to support a PCO.

MR MCDONAGH’S 5 PRINCIPLES

81. Counsel for Mr McDonagh asserted in oral argument that 5 principles of law underlay his submissions.149

a. The first principle is that the statutory requirement element of s.4(1)(a) is freestanding and also is absent from s.4(1)(b). That is noted above and is not in dispute.

b. The second principle is that in considering s.4(1)(a) one must look to the purpose of the action as a whole and the subject matter of the proceedings and not to each individual claim. Heather Hill is authority that what was called splicing – allowing or refusing costs protection to individual grounds of

148 Set out above but they include issues as to capacity of and deficiency in sewerage facilities, prospects of pollution and prospects of adverse effects

on European Sites.

Transcript 14:33 et seq.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

challenge in a judicial review by reference to their subject-matter - is not the correct approach. Again, I do not understand that to be in dispute. But the splicing point hardly seems relevant anyway in a case in which there is only one ground of challenge. And it is also common case that, as counsel for Mr McDonagh put it “you have to identify the statutory requirement on which the proceedings are brought”.150 That has been identified as the requirement imposed, as to making ww connection agreements, by the combination of s.61 and s.31 WSA 2007. There is no dispute in this regard.151

c. The third principle is that, for s.4(1)(a) to apply, the proceedings must be “forward-looking” - as required by O’Connor. Again, I do not understand that principle to be in dispute. Counsel for Mr McDonagh argued that on the facts of this case “the relief in effect is one that which seeks to quash the connection agreement given in the past. It's not like O'Connor where there is some continuing illegality behind that, where if you don't quash the permission the illegality continues.”152 As to this:

o I accept FoIE’s submission that these proceedings are “forward looking” as required by O’Connor.

They seek to ensure that additional untreated or inadequately treated wastewater is not caused by the WW Connection Agreement to be discharged in the future from the Network to the Fergus River.

o As noted above, Jennings and Heather Hill suggest that s.4(1)(a) encompasses proceedings in judicial review intended to quash an invalid permit which, if not quashed, would authorise future activity likely to result in environmental damage. But such authorisation is relevant primarily as a form of causation: that for which authorisation is sought and granted is, not untypically, likely to occur.

o Insofar as it might be thought, as to the requirement that proceedings be “forward-looking”, that the reference in O’Connor to an “ongoing state of affairs” represented a requirement not satisfied in the present case, it is well to recall why, in Jennings, the view was taken that s.4(1)(a) applies to an action to quash a permit already made where likely to cause environmental damage in the future. In that case153 four possible temporal situations were identified, including ▪ An impugned event which commenced in the past, continues in the present and is anticipated to continue in the future.

▪ An impugned event in the past – such as, in O’Connor, a decision to grant a waste collection permit allegedly in breach of statutory requirements – which, once acted on, may result in environmental damage in the future.

In Jennings it was ▪ said that one could consider the facts in O’Connor as falling into both these categories.

▪ explained why the feature of a state of affairs being ongoing (i.e. from the past in into the present and the future) was not fundamental to the decision in O’Connor. Jennings includes the following:

Counsel said “that the proceedings are brought to enforce” – a phrase perhaps arguably more redolent of s.4(1)(b) than s.491(9a) but I take the point

to relate to s.4(1)(a).

151 Transcript 15:02.

152 Transcript 14:41.

§200 et seq.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

“In my view, the fundamental finding of Baker and Murray JJ154 is that S.4(1)(a) encompasses proceedings in judicial review intended to quash an invalid permit which, if not quashed, would authorise future activity likely to result in environmental damage.”155

“…… the real environmental mischief in view in O’Connor was future pollution. It is difficult to see why a question whether pollution had already occurred or was ongoing at the date of the impugned

decision should affect costs protection if, in any event, future pollution was in view.”156

“The “provision” sought to be enforced was that waste be collected in future only under a valid permit. For “on an ongoing basis” one may alternatively read “into the future”.” 157

“That the breaches were an “ongoing state of affairs” past and present speaks merely to their evidential value in anticipating environmental damage in the future.” 158

“There seems to me no reason in principle why the risk of future environmental damage may not be shown by means other than by evidence of past or ongoing damage.” 159 o Indeed, ultimately, counsel for Mr McDonagh agreed that his reliance on the “forward-looking requirement was not based on an argument that s.4(1)(a) did not apply to a challenge to a permit already issued but likely to cause future damage. It was “ultimately the same, point, Judge, the reason is because the connection agreement doesn't authorise the supply of any water.”160 Counsel’s point was that the relief sought, of certiorari of an agreement already made, was in that sense “classically backward looking, and it can be rescued from disqualification161 under section 4(1)(a) only if it can be said that it falls within what I describe as the Jennings saver. And it falls within the Jennings saver if it's a case in which it can be said that the proceedings seek to quash a permission which, if not quashed, would authorise future activity likely to result in environmental damage.”162 o As I have said above, ▪ such authorisation is relevant primarily as a form of causation.

▪ the issue is not authorisation of discharge but its causation and future damage consequential thereon and I have found that both are caused by the WW Connection Agreement.

o Accordingly, I do not see the third principle - the “forward looking” requirement - as assisting Mr McDonagh.

82. I should say that the fourth and fifth principles, as to damage, the requirement to prove damage and the standard of proof of damage became a little intermingled – if only in my mind. But I am happy that the

154 i.e. in O’Connor.

155 Jennings v An Bord Pleanála [2022] IEHC 249 §211. In the transcript references to “section 211” should be read as to §211 of Jennings.

156 Jennings v An Bord Pleanála [2022] IEHC 249 §205.

157 Jennings v An Bord Pleanála [2022] IEHC 249 §206.

Jennings v An Bord Pleanála [2022] IEHC 249 §207.

159 Jennings v An Bord Pleanála [2022] IEHC 249 §210.

160 Transcript 14:44. See also Transcript 15:03 et seq.

161 Transcript reads “its qualification” but the error and its correction are clear.

Transcript 15:06.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

following account addresses the substance of all the points raised. I should also say in this regard that counsel for Mr McDonagh noted163 that judicial views have differed as to whether a broad or a narrow view should be taken as to the meaning of damage for this purpose but he did not seek to argue that issue. I note that Diamrem suggests that the broader view may be ascendant.164 Subject to these observations, I return to Mr McDonagh’s fourth and fifth principles.

a. The fourth principle is that an applicant for a PCO must go beyond the mere assertion of likely future environmental damage. He/she must demonstrate a statable/arguable case that such damage is likely failing the certiorari sought – see, for example, Diamrem. However, as I have recorded, Mr McDonagh correctly did not press an argument that FoIE had failed to show a stateable case that discharge of the Service Station effluent to the Network would cause environmental damage. So, again, this issue returned Mr McDonagh to his crucial argument that the WW Connection Agreement did not authorise the discharge to the Network.165 And I have, above, rejected that as a basis of resistance to the claim for a PCO.

b. The fifth principle also relates to damage. Counsel for Mr McDonagh asserted that, “undoubtedly”, “where you're looking at issues of national law outside the field of European law, … the environmental damage requirement applies.”166 FoIE agreed but argued that the statutory requirement in question here was in a field covered by EU environmental law such that, in accordance with Case C-470/16,167 the environmental damage requirement of s.4(1) must be disapplied. I have outlined the law in this regard above. However, FoIE’s main answer to this point is that even assuming the environmental damage criterion applies, it is satisfied to the required standard of proof of a stateable case. And I have so held – see above as to the fourth principle.

83. Accordingly, I do not see that Mr McDonagh’s five principles avail his resistance to a PCO.

SS. 3& 4 EMPA 2011 - CONCLUSION

84. It follows from the foregoing analysis that I see the proceedings as satisfying both criteria of s.4(1)(a)

– that of ensuring “compliance with, or the enforcement of” a statutory requirement and that of showing a stateable case that non-compliance or non-enforcement is likely to cause environmental damage. FoIE is entitled to a PCO accordingly.

Transcript 14:47 et seq.

164 Diamrem v Cliffs of Moher Visitors Centre [2023] IECA 235 [2023] 10 JIC 0401 §62.

165 Transcript 14:50.

166 Transcript 14:47.

Case C-470/16, North East Pylon Pressure Campaign v An Bord Pleanála; judgment 15 March 2018.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

AARHUS/EU LAW ISSUES – VALIDITY AND DISAPPLICATION OF DAMAGE REQUIREMENT

85. As seen, in Diamrem168 the court found sufficient evidence of environmental damage, such that a

decision as to the position absent damage was unnecessary. As I have held FoIE entitled to a PCO on the application, according to their terms, including as to environmental damage, of ss. 3 and 4 EMPA 2011, it is unnecessary in this case to decide issues as to the validity of, or the disapplication of, the environmental damage criterion of s.4 as it relates to the particular statutory requirement in question by reference to the question whether it is in a field covered by EU environmental law.

CONCLUSION

86. On the bases stated above, I have held that

• the proceedings are for the purpose of ensuring compliance, as concerns the impugned WW Connection Agreement, with the statutory requirements of s.61 and s31 WSA 2007.

• If not quashed, the Impugned WW Connection Agreement will be causative of both connection to the Network and discharge of Service Station effluent to the Network and there is a stateable case that by such discharge environmental damage is likely.

It follows that I will declare that ss. 3 and 4 EMPA 2011 apply to these proceedings and FoIE are costs protected in accordance with the terms of ss.3.

87. I provisionally consider that FoIE, having succeeded on the motion, should have its costs thereof against Mr McDonagh only. I will list this matter on 9 March 2026 for final orders on the motion for costs protection and for directions as the need may arise.

26/02/26

GLOSSARY OF ACRONYMS/TERMS

Acronym/Term Meaning169 1995 SWO Procedures and Criteria in relation to Stormwater Overflows 1995” - policy Procedures directions issued by the Minister for the purposes of the UWWTD and UWWTR.

AA Appropriate Assessment pursuant to Article 6 of the Habitats Directive.

168 Diamrem Limited v Cliffs of Moher Visitors Centre Limited [2023] IECA 235.

Note: these are not definitions or technical descriptions. They are general descriptions intended to suffice merely for present purposes.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

Acronym/Term Meaning169 AER Annual Environmental Report. UÉ is obliged to make such a technical report to the EPA in respect of the operation of its waste water networks (including its WwTPs)

licensed by WwDLs. BOD5 5-Day Biochemical Oxygen Demand. A measure of the oxygen required to enable microorganisms to decompose organic matter. It is used as means of quantifying organic load of effluent on a wastewater network and/or wwtp, wwtp efficiency and wwtp effluent quality. COD Chemical Oxygen Demand. A measure of the oxygen required to fuel chemical oxidation of pollutants in waste water. It is used as means of quantifying water quality, wwtp efficiency and wwtp effluent quality. Combined System A waste water network which accommodates both sewage effluent and storm water. EIA Environmental Impact Assessment pursuant to the Environmental Impact Assessment Directive EMPA 2011 Environment (Miscellaneous Provisions) Act 2011. p.e. population equivalent. population A measure of organic load of effluent on a wastewater network and/or wwtp, equivalent expressed in terms of BOD5. SVR Site Visit Report of EPA inspection of a waste water network (including its WwTP)

licensed by a WwDL. SWO Storm Water Overflow

• In context this may refer either to the event of an actual overflow event or to the facility/location at/by which such overflow occurs.

• Generally, SWO facilities are provided in combined systems to cater for the hydraulic load of “storm events” – unusually heavy rain – during which the hydraulic capacity of the network, including its WwTP, is defeated and untreated effluent. Trade Effluent Distinct from trade effluent discharge to waters license – see S4 Local Government Discharge To Sewer (Water Pollution) Act 1977. Licence UÉ Uisce Éireann. UWWTD Urban Wastewater Treatment Directive. UWWTR Urban Wastewater Treatment Regulations 2001 (SI 254/2001) as amended by the Urban Wastewater Treatment (Amendment) Regulations 2004 (SI 440/2004), Urban Wastewater Treatment (Amendment) Regulations 2010 (SI48/2010). WFD Water Framework Directive. WSA 2007 Water Services Act 2007 WW Connection The Impugned Waste Water Connection Agreement made on 20 May 2025 Agreement between Mr McDonagh and UÉ pursuant to s.61 WSA 2007.

FoIE v Uisce Éireann, EPA & McDonagh [2026] IEHC 106

Acronym/Term Meaning169 ww connection A wastewater connection agreement made pursuant to s.61 WSA 2007. agreement WwDL Clarecastle WWTP Wastewater Discharge Licence. wwdl wastewater discharge licence. WWDR 2007 European Union (Waste Water Discharge) Regulations 2007 as amended. WWDR European Union (Waste Water Discharge) Regulations 2007 to 2020.

Collectively, the Waste Water Discharge (Authorisation) Regulations 2007 (S.I. 684 of 2007), the Waste Water Discharge (Authorisation) (Amendment) Regulations 2010 (S.I. 231 of 2010), the Waste Water Discharge (Authorisation) (Environmental Impact Assessment) Regulations 2016 (S.I. 652 of 2016) and the European Union (Waste Water Discharge) Regulations 2020. (S.I. 214 of 2020). WwTP Clarecastle WWTP. wwtp A wastewaster treatment plant.