Boylan v Limerick City and County Council

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Heslin
• Judgment Date: 16 December 2020
• Neutral Citation: [2020] IEHC 666
• Docket Number: [2019 No. 65 JR]
• Date: 16 December 2020

BETWEEN

CLAIRE BOYLAN

APPLICANT

AND

LIMERICK CITY AND COUNTY COUNCIL

RESPODENT

AND

P&D LYDON PLANT HIRE LTD

NOTICE PARTY

[2020] IEHC 666

Heslin

[2019 No. 65 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Waste facility permit – Environmental impact assessment – Applicant seeking an order of certiorari quashing the determination of the respondent to grant the notice party a waste facility permit – Whether the respondent’s decision was flawed and unlawful

Facts: The applicant, Ms Boylan, applied to the High Court seeking an order of certiorari by way of an application for judicial review quashing the determination of the respondent, Limerick City and County Council, to grant the notice party, P&D Lydon Plant Hire Ltd, a waste facility permit (WFP/L/2018/188), which permit was granted on 2 November 2018 in respect of lands at Clondrinagh, Co. Limerick. The applicant was the owner of lands adjacent to the lands which were the subject matter of the permit. By order made on 4 February 2019, the court granted the applicant leave to seek the reliefs set out in para. (c) on the grounds set out at para. (d) of the statement of grounds dated 31 January 2019: (1) the Council granted the permit without carrying out or recording either an environmental impact assessment (EIA) or a screening for EIA contrary to national and European law; (2) the Council granted the permit without carrying out or recording an appropriate assessment or a screening for appropriate assessment contrary to national and European law; (3) the Council granted the permit contrary to Article 18(4)(d) of the Waste Management (Facility Permit and Registration) Regulations 2007 as amended by the Waste Management (Facility Permit and Registration) (Amendment) Regulations 2008, in that the facility is and was not compliant with the planning permission granted in respect of the facility; (4) the Council failed to properly notify the public and/or the applicants of its determination; (5) the Council had granted a permit that requires EIA in circumstances where the development had already been carried out, in breach of the requirements in the EIA Directive and Habitats Directive; (6) the permit had been granted for a development that required EIA, however, no EIA was ever carried out in the context of the planning application; (7) the Council failed to have regard to the submission of the applicant in respect of the application.

Held by Heslin J that the respondent’s decision to grant the notice party the permit was a flawed and unlawful decision and the proper exercise of the Court’s discretion was to quash same, satisfied as he was that the relief claimed was not moot despite the surrender of the permit, satisfied also that the grant of the relief claimed was required in the interests of justice and equally satisfied that the applicant had neither been guilty of lack of candour with regard to seeking leave to bring the proceedings, nor had available to her a more appropriate alternative remedy.

Heslin J held that it was necessary to grant the relief sought by the applicant.

Relief granted.

JUDGMENT of Mr. Justice Heslin delivered on the 16th day of December, 2020

Introduction

1 In the present proceedings the Applicant seeks an order of certiorari by way of an application for judicial review quashing the determination of the Respondent to grant the Notice Party a waste facility permit (WFP/L/2018/188), which permit was granted on 2 November 2018 in respect of lands at Clondrinagh, Co. Limerick (hereinafter “the permit”). The Applicant is the owner of lands adjacent to the lands which are the subject matter of the aforesaid waste permit. By order made on 4 February 2019, the court granted the Applicant leave to seek the reliefs set out in para (c) on the grounds set out at para. (d) of the Statement of Grounds dated 31 January 2019.

The Grounds upon which relief is sought

2 For the sake of clarity, is appropriate to set out, verbatim, the grounds upon which relief is sought, as they appear in para. (d) of the Statement of Grounds, as follows:-

“(d) Grounds upon which relief is sought:

1. The Council granted waste facility permit (WFP/L/2018/188) without carrying out or recording either an environmental impact assessment or a screening for environment impact assessment (EIA) contrary to national and European law. The Council sought an environmental impact statement (EIS), however, there is no record of any actual environmental impact assessment having been conducted. Moreover, an EIS was submitted and not an environmental impact assessment report (EIAR) as required under the 2014 EIA Directive, accordingly, it was not possible for the Respondent to carry out a lawful EIA. No EIA is apparent under either directive ( 2011 or 2014).

2. The Council granted the said waste facility permit without carrying out or recording an appropriate assessment or a screening for appropriate assessment (AA) contrary to national and European law. Insofar as the developer submitted an appropriate assessment screening report, this screening report purported to screen out the development for AA having regard to mitigation measures. This is impermissible having regard to, inter alia, the recent decision of the CJEU in POW v. Coillte, Case C – 323/17.

Moreover, in any event, the screening report appears to be in respect of a smaller development comprising the deposition of 40,000 m ³; of material. In addition, given the proximity of the site to European Sites and in particular the Lower River Shannon SAC (350m). The findings of the screening report do not meet the required legal standard and are irrational. The decision does not account for, or deal at all with, the concerns expressed by the OPW in respect of the drainage mechanisms on site and/or the risks to the surrounding watercourses. This is one of a number of significant lacunae contained in the screening assessment presented by the Notice Party and/or otherwise in the information presented to the Council.

3. The Council granted the said permit contrary to Article 18(4)(d) of the Waste Management (Facility Permit and Registration) Regulations 2007 as amended by the Waste Management (Facility Permit and Registration) (Amendment) Regulations 2008, in that the facility is and was not compliant with the planning permission granted in respect of the facility. In particular, no planning permission exists for the activities permitted under the said waste facility permit. The planning permission granted in respect of the site only authorised the deposition of 40,000 cubic metres of material onsite, the permit greatly exceeds this quantity. Granting a permit in these circumstances is contrary to law.

4. The Council failed to properly notify the public and/or the Applicants of its determination. The Council have not provided any or any adequate reasons or considerations for its determination contrary to law. Insofar as reasons for the decision are given on p. 4 thereof, same do not meet the requirements of law. In particular, the said reasons are generic in nature and appear to deal with a development that is yet to be carried out. The decision does not at all deal with the fact that in fact the development has already been completed. The Council have failed to either provide an environmental impact assessment or appropriate assessment or any details of any of the assessments or screening assessments that it was required to carry out by law. In particular, there is no record of any EIA or AA or screening for either, contrary to national and European law. The decision fails to give any information on the rights of the public, including the Applicant, to review or appeal the said decision, nor does it give any practical information in respect of the procedure to be followed, including time limits, applicable legislation etc. This is contrary to national and EU law.

5. The Council have granted a permit that requires EIA in circumstances where the development has already been carried out. This is in breach of the requirements in the EIA Directive and Habitats Directive which required that the assessments to be carried out are carried out before the developments is commenced or completed. In particular, the decision is in breach of the decision of the CJEU in the Commission v. Ireland Case C – 215/06 that precludes the granting of retrospective development consents in respect of developments requiring EIA's. In addition, the waste facility permits as granted, the reasons there for and the conditions attached thereto all appear to be generic and appear to regulate a development that has yet to occur. The fact that this development has in fact already been carried out is nowhere apparent. The permit is not fit for purpose, the conditions are irrational, and, it is contrary to EU law.

6. The permit has been granted for a development that required EIA, however, no EIA was ever carried out in the context of the planning application. In these circumstances, it was not possible for a complete assessment to be carried out in advance of the grant of the waste facility permit as issues relating to land use, planning, traffic, site selection, alternatives etc. were never assessed for the purposes of EIA as part of the original planning application. Granting a permit in such circumstances is contrary to national and EU law and in particular contrary to the decision of the CJEU in Case C – 50/09 Commission v. Ireland.

7. The Council failed to have regard to the submission of the Applicants in respect of the application. This submission raised serious concerns in relation to the operation of the existing site, its planning status and lack of compliance, the local nuisance being generated, the issues arising in relation to drainage and the environmental pollution resulting. The decision in the council does not address any of these concerns and records no consideration of any of these...