Casey v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 14 October 2003
• Neutral Citation: 2003 WJSC-HC 1774
• Court: High Court
• Docket Number: 472 JR/2003
• Date: 14 October 2003

CASEY v. BORD PLEANALA

BETWEEN

MICHAEL CASEY

APPLICANT

AND

AN BORD PLEANAÁLA

RESPONDENT

MUNSTER PROTEINS LIMITED

TRADING AS WATERFORD PROTEINS

AIBP LIMITED

THOAMS MURPHY

KILENNY COUNTY COUNCIL

NOTICE PARTIES

2003 WJSC-HC 1774

472 JR/2003

THE HIGH COURT

JUDICIAL REVIEW

Abstract:

Judicial review - Certiorari - Planning and Environmental law - Practice and procedure - Leave to seek judicial review - Time limits - Whether grounds adduced by applicant substantial - Environmental Protection Agency Act, 1992 - Planning and Development Act, 2000.

The applicant brought an application seek leave to bring judicial review proceedings in respect of decision issued by An Bord Pleanála granting planning permission for construction for an odour abatement plant. A number of issues were raised by the applicant, who had not been formally involved in appeal before the Board nor had he been an objector at the planning authority stage. The applicant contended that relevant environmental issues had not been dealt with by the planning authority. It was argued that the plant would create atmospheric toxic emissions and the board had avoided its statutory obligation to consider the issue of pollution in granting permission. Issue was taken by the respondent as to the date of the issuing of the applicant’s proceedings which were, it was claimed, out of the time as set out in section 50 of the Planning and Development Act, 2000.

Held by Murphy J in refusing leave to seek judicial review. The proceedings had been issued out of time. The appropriate time to have raised the objection regarding the lack of an Environmental Impact Statement was when the matter was before the Board. The reasons given by the applicant for his non-involvement and delay were not sufficient for the court to extend the relevant time limit.

Judgment of by

Mr. Justice Murphy

dated the 14th day of October, 2003

1 The present application, on notice to the respondent and notice parties, is for leave to apply by way of application for judicial review in respect of a decision of An Bord Pleanála dated the 30^th April, 2003 to grant planning permission for the construction of a new odour abatement plant with associated stack at Waterford Proteins plant. An integrated pollution control licence, dated 2^nd April, 2001, was already in place. The applicant sought, if necessary, an order of certiorari referring certain questions for the determination of the European Court of Justice, an order extending time relative to the application and an order for leave to file further affidavits as may be necessary.

2 The application, the statement required to ground it and the affidavit of the applicant were sworn on the 25^th June, 2003, that is the Wednesday eight weeks after Wednesday the 30^th April being the date of the decision of An Bord Pleanála. Accordingly, an issue arises in relation to the eight week time limit pursuant to order 84 of the Rules of the Superior Courts.

3 The applicant, Mr. Casey, lives near the proposed development. The first named notice party, Munster Proteins Limited, trading as Waterford Proteins, is a subsidiary of AIBP Limited, the second named notice party. Mr. Casey had not been formally involved in the appeal before An Bord Pleanála nor was he an objector. The appeal had, in fact, been taken by Thomas Murphy, the third named notice party who swore an affidavit herein on the 21^st July, 2003, twelve weeks after the decision. His grounds of appeal were not included in this application.

4 The grounding statement on which relief was sought can be summarised as excess of jurisdiction and a failure to determine the appeal having regard to the obligations of Council Directive 85/337/EEC in relation to Environmental Impact Assessment.

5 The decision of An Bord Pleanála dated the 30^th April, 2003 was to grant permission for the construction of a new building to accommodate additional odour abatement technology for the treatment of process odour in the form of a recuperative thermal oxidiser and associated stack and site works at Christendom, Ferrybank, Waterford in the planning area of Kilkenny County. The Board granted permission for the proposed development in accordance with the plans and particulars. The decision was based on the following reasons and considerations:

"Having regard to the industrial zoning objective for the area and pattern of development in the area, which was predominantly industrial, the relatively low level of the site and the screening afforded by near by woodland, it is considered that, subject to compliance with the conditions set out below, the proposed development would not seriously injure the amenities of the area or of property in the vicinity. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area."

6 Three conditions were included in relation to plans, colour scheme and external finish and obstacle lights for the purpose of aviation and safety in the interests respectively of clarity, visual amenity, and orderly development.

7 An Bord Pleanála had considered the report of its inspector, Andrew C. Boyle, dated the 25^th April, 2003, and the submissions on the file at a Board Meeting held on that 30^thApril, 2003, when the Board decided to uphold the decision to grant permission in accordance with this inspector's recommendation.

8 In the absence of the notice of appeal of Mr. Murphy, the Court accepts the summary of the appeal as contained in the inspector's report as being a concern with the visual analysis of the impact of the proposed stack of 40 metres.

9 It appears to have been submitted by Mr. Murphy that the planning authority had regard to section 34 (2)(c) of the Planning and Development Act, 2000 (the Act) and concluded from this that the control of emissions from the plant was a function of the Environmental Protection Agency. Accordingly, the planning authority only considered the external appearance of the proposal, including its visual impact. Mr. Murphy had, it seems, argued that section 98 (1 A) of the Environmental Protection Agency Act, 1992 as amended by section 256 (a) of the Planning and Development Act. This allows the planning authority, or the Board to refuse permission on environmental grounds for an activity which was licensable under the Environmental Protection Agency Act, 1992. The planning authority, he- maintained, had failed to pursue environmental issues despite the concerns of the Council's inspector, who recommended the seeking of several points of further information. Mr. Murphy had argued that, as the issues he raised were not adequately addressed during the course of the application, permission should be refused on that basis.

10 It had been further claimed that the actual site was not delineated on the 1:500 map, as required. The appeal noted that no details of the recuperative thermal oxidiser had been provided. The inspector dealt with the response to these matters and to the Integrated Pollution Control revised licence number 586.

11 The planning authority,inter alia, considered that it was correct not to have regard to the issue of emissions governed by other enactments. It was conscious that the development involved the provision of an odour abatement system to eliminate an odour nuisance present at the existing plant. The matters raised by the inspector were taken into account in reaching a decision. The planning authority drew attention to the responses from the environmental section and the South Eastern Health Board and the fact that the EPA were consulted, but offered no comments.

12 The planning authority indicated that the internal plant and machinery were not material considerations in that instance.

13 The inspector's assessment referred to section 5.18 of the Integration Pollution Control licence which required the applicants for planning permission, within a period of six months (that is on or before the 1^st October, 2001), to submit to the Environmental Protection Agency for approval proposals to further treat gases from the rendering and product cooling process. Those proposals were to examine appropriate technical options, including, but not limited to, recuperative thermal oxidisation.

14 On environmental matters it seemed to the inspector that the proposed development had been designed to comply with condition 5.18 of the revised Integrated Pollution Control Licence issued to the applicants. He recognised that it was open to the planning authority and to the Board to refuse permission on the ground of the risk of environmental pollution. He agreed with the view of the applicant for planning permission that it would have been perverse of the planning authority to have done so when the proposed development was designed to improve emissions in line with the requirements of the EPA. He considered it would not be appropriate for the Board to refuse permission on that basis.

15 The applicant had clarified, the inspector continued, in its response to a request for additional information from the planning authority, that it was necessary to have a stack of 40 metres high in order to ensure that the maximum potential emissions of NO2 and SO2 would not result in adverse impacts on ambient air quality in the vicinity of the plant. In its request for additional information, the planning authority had also required that the applicant demonstrate the visual impact of the development and this was to include photo montages taken from the strategic locations including north of the N25, the N25 itself, and from various locations in Waterford City. The applicant responded to this request by submitting photo montages showing the site of the proposed development from several locations.

16 The inspector accepted the submission in the response of the planning authority and recommended that permission be granted.

17 In its...