Carol Donnelly and Cavan Better Waste Management v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IEHC 834
• Court: High Court
• Docket Number: [Record No. 2018/17 JR]

Between

Carol Donnelly and Cavan Better Waste Management

Applicants

and

An Bord Pleanála

Respondent

and

Cavan County Council and Wilton Waste Recycling

Notice Parties

[2021] IEHC 834

[Record No. 2018/17 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Appropriate assessment – Applicants seeking an order of certiorari quashing the respondent’s direction to grant permission for a waste facility – Whether the respondent conducted a proper appropriate assessment

Facts: The applicants, Ms Donnelly and Cavan Better Waste Management, applied to the High Court seeking an order of certiorari quashing the direction of the respondent, An Bord Pleanála, on 9th November, 2017, to grant planning permission to the second notice party, Wilton Waste Recycling (the developer), for a waste processing plant in the townlands of Lismagratty and Corranure, on the following grounds: (i) that following the decision of the CJEU in Holohan v An Bord Pleanála (Case 461/17) it is not permissible for a planning authority to leave over matters for post-consent agreement between the developer and the planning authority, when the decision to grant planning permission would affect European sites, meaning sites protected under various EU directives, in particular Directive 2011/9/EU (on protection of the environment) and Directive 97/43/EEC (the Habitats Directive); (ii) that the respondent failed to carry out an appropriate assessment under the Habitats Directive, in particular due to its failure to ensure that there was a comprehensive hydrogeological survey of the streams and channels flowing underground from the development site to various European sites; (iii) that condition 2 in the planning permission granted to the second notice party was impermissible because it was too vague and therefore the permission is bad on its face; (iv) that conditions 3-15, which leave over various matters for post-consent agreement, are impermissibly wide and therefore the planning permission is flawed; (v) that the respondent’s decision and direction is bad, because they failed to give reasons for omitting condition 13, as recommended by the inspector in her report; (vi) that the decision by the respondent to leave over matters for post-consent agreement is bad, because the first notice party, Cavan County Council, would be biased when agreeing such matters, due to the fact that it was to sell the land to the second notice party for the operation of the waste facility; and (vii) that the inconsistency in the wording between condition 7 in the inspector’s report and condition 7 in the Board’s direction, means that the permission granted is ambiguous and fatally flawed.

Held by Barr J that: (i) the Holohan decision does not prevent points of detail being left over for post-consent agreement, even where the proposed development could have adverse effects on a European site; (ii) the respondent had performed a full and complete appropriate assessment and had adequately considered the environmental impact of the development, both on its own, and cumulatively with other developments in the area; (iii) there was nothing wrong with the respondent putting in a condition that the developer would have to comply with all the mitigating measures that had been specified by it in its planning application; (iv) the conditions left over for subsequent agreement were not impermissibly wide and were not such as to vitiate the planning permission granted to the developer; (v) there was no obligation on the respondent to give reasons why it reached the decision to grant the permission, but without condition 13 in the inspector’s report; (vi) if due to bias, or for any other reason, the local authority were to agree inappropriate matters with the developer, in the exercise of their powers under the conditions attaching to the planning permission, the applicants would have a right of action by means of initiation of judicial review proceedings; and (vii) until the typographical error was spotted by counsel, all the parties to the process, being the planning authority, the developer and the objectors, understood the condition to mean that the processing, sorting and storage of all waste, had to take place indoors.

Barr J refused all of the reliefs sought by the applicants in their notice of motion.

Reliefs refused.

JUDGMENT of Mr. Justice Barr delivered electronically on the 21st day of December, 2021

Introduction.

1 This is an application for relief by way of judicial review in respect of a direction given by the respondent on 9th November, 2017, to grant planning permission to the second named notice party (hereafter referred to as “the developer”), for a waste processing plant in the townlands of Lismagratty and Corranure, located approximately 3km from Cavan Town.

2 The first named applicant lives within 1,000m of the site of the proposed development. The second named applicant is a group, which was formed by the first named applicant after a decision had been made by the first named notice party to grant planning permission for the proposed development. The group was formed with a view to appealing the decision made by the first named notice party to An Bord Pleanála.

3 The applicants seek an order of certiorari quashing the respondent's direction to grant permission for the waste facility, on the following grounds:-

• (i) That following the decision of the CJEU in Holohan v. An Bord Pleanála (Case 461/17) it is not permissible for a planning authority to leave over matters for post-consent agreement between the developer and the planning authority, when the decision to grant planning permission would affect European sites, meaning sites protected under various EU directives, in particular Directive 2011/9/EU (on protection of the environment) and Directive 97/43/EEC (the Habitats Directive);

• (ii) that in the present case the respondent failed to carry out an appropriate assessment under the Habitats Directive, in particular due to its failure to ensure that there was a comprehensive hydrogeological survey of the streams and channels flowing underground from the development site to various European sites;

• (iii) that condition 2 in the planning permission granted to the second notice party, was impermissible because it was too vague and therefore the permission is bad on its face;

• (iv) that conditions 3–15, which leave over various matters for post-consent agreement, are impermissibly wide and therefore the planning permission is flawed;

• (v) that the respondent's decision and direction is bad, because they failed to give reasons for omitting condition 13, as recommended by the inspector in her report;

• (vi) that the decision by the respondent to leave over matters for post-consent agreement is bad, because the first named notice party would be biased when agreeing such matters, due to the fact that it was to sell the land to the second named notice party for the operation of the waste facility; and

• (vii) that the inconsistency in the wording between condition 7 in the inspector's report and condition 7 in the Board's direction, means that the permission granted is ambiguous and fatally flawed.

4 The respondent resists the applicant's claim herein. The grounds on which it argued that the final permission was valid and lawful, will be set out later in the judgment, when dealing with the various grounds of challenge put forward by the applicants.

General overview of the development and its proximity to European sites.

5 The proposed development consists of a waste processing and transfer facility. The site on which it is proposed to be developed has a stated area of 2.1 hectares, it is located in the townlands of Lismagratty and Corranure, adjacent to the Cavan/Cootehill Road, approximately 3km from Cavan Town Centre. The site is part of a wider land holding owned by Cavan County Council.

6 The main features of the proposed development, would entail demolition of the existing uninhabited dwelling house and domestic garage; the construction of a steel framed waste processing and transfer building; an external yard; two weighbridges and a weighbridge kiosk; an administration building, incorporating staff welfare facilities; parking and ancillary site development works.

7 It was proposed that the facility would accept various forms of waste up to 50,000 tonnes per annum. The primary focus of the facility would be the processing of mixed wastes to produce solid recovered fuel (SRF) from commercial, industrial and bulky waste sources. The SRF would be used as a fuel source within Ireland's cement industry, as a replacement for fossil fuels. At the oral hearing, the developer stated that the waste which would not be processed into SRF, would be transferred elsewhere for recycling, including some which would be exported, with some residual waste going to landfill, estimated to be no greater than 15%.

8 In the environmental impact statement (EIS) submitted by the developer, it was stated that the waste to be processed at the facility would be made up of the following: mixed municipal waste, which would be collected in the developer's kerbside bin collection vehicles. It was stated that the material would enter the odour abatement area of the facility and would be placed in an allocated waste storage bay as detailed in the drawings accompanying the application. The material would be inspected by an operator for unregulated quarantine materials, prior to being placed onto a waste trommel. Trommeling of the material would allow for extraction of commodities such as metals, recyclable materials and organic fines. All material with the exception of a small fraction of residual waste, would be diverted from landfill and would undergo further processing.

9 The second main type of waste accepted at the facility would be construction & demolition and commercial & industrial waste....