Cork Harbour Alliance for a Safe Environment v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 19 March 2021
• Neutral Citation: [2021] IEHC 203
• Docket Number: [2018 No. 593 J.R.]
• Date: 2021
• Court: High Court

In the Matter of Sections 50, 50A and 50B of the Planning and Development Act 2000

Between

Cork Harbour Alliance for a Safe Environment

Applicant

and

An Bord Pleanála

Respondent

and

Indaver Ireland Limited,

First Named Notice Party

and

Indaver NV T/A Indaver Ireland

Second Named Notice Party

[2021] IEHC 203

[2018 No. 593 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Planning permission – Objective bias – Applicant challenging a decision of the respondent to grant planning permission to the first notice party – Whether the respondent’s decision was affected by objective bias

Facts: The applicant, Cork Harbour Alliance For A Safe Environment, challenged a decision of the respondent, An Bord Pleanála, dated 29th May, 2018 to grant planning permission for the development of a waste to energy facility (a waste incinerator with energy recovery) for the treatment of non-hazardous and hazardous waste at Ringaskiddy, County Cork to the first notice party, Indaver Ireland Ltd. Although the applicant raised a ground of challenge concerning the issue of the ownership of the lands on which the incinerator development was to take place (ground 2), the applicant’s counsel informed the High Court that the applicant was not pursuing that ground of challenge. The applicant maintained the other ten grounds of challenge set out in the amended statement of grounds: objective bias (ground 4); prospective applicant/applicant: jurisdiction issue (ground 1); project splitting (ground 3); timing of EIA/AA (ground 5); EIA/EPA issue (ground 6); EIA: alternatives and site suitability (grounds 7 and 8); EIA: dioxin issue (ground 9); EIA: human health (ground 10); and complaints re inspector’s report (ground 11).

Held by Barniville J that the applicant had succeeded on two of the eleven grounds of challenge. Barniville J concluded that the applicant had been successful in the case which it advanced under ground 4 (the objective bias ground). Barniville J held that the Board’s decision was affected by objective bias by reason of the prior involvement of one of its members, the then deputy chairperson of the Board, in work which he did in 2004 when employed by a firm of consultants who were engaged by Indaver to make submissions to Cork County Council and Cork City Council on reviews to those Councils’ waste management plans. Having considered the position in light of all the evidence and in light of the clear legal test for objective bias, Barniville J was satisfied that the work done by the relevant member of the Board had a clear, rational and cogent connection with Indaver’s application to the Board for permission for the development of the waste-to-energy facility at Ringaskiddy. Barniville J also found for the applicant on the case advanced by it under ground 1 (the prospective applicant/jurisdiction ground) which gave rise to an issue of statutory interpretation of a number of the SID provisions of the Planning and Development Act 2000. Barniville J held that the correct interpretation of those provisions requires that the person who applies for permission for a SID must be the same entity as the person who is referred to in the statutory provisions as the “prospective applicant”, being the person who has engaged in the required pre-application consultation procedure with the Board. Barniville J agreed during the hearing that he would leave over the issue as to what relief or remedy, if any, should be granted in the event that the applicant were to succeed on this ground. Barniville J set out some further considerations which may be relevant to the relief or remedy which may be appropriate in light of the applicant’s success on the issue of interpretation which arose for consideration under this ground. Barniville J concluded that the applicant was not entitled to succeed on any of the other grounds advanced by it at the hearing.

Barniville J held that he would consider further with counsel the appropriate reliefs to be granted and other orders to be made consequent upon the conclusions reached in this judgment.

Application granted.

JUDGMENT of Mr. Justice David Barniville delivered on the 19 ^th day of March, 2021

Index

1. Introduction	2
2. Overview of Decision	4
3. Structure of Judgment	5
4. The Parties	6
5. General Background	7
6. Indaver's 2016 Planning Application: Pre-Application Consultation Procedure	10
7. Indaver's 2016 Planning Application: Decision-Making Process	12
8. The Board's Decision	20
9. The Proceedings	23
10. Ground of Challenge not Pursued By Applicant	26
11. Grounds of Challenge Maintained By Applicant	27
12. Ground 4: Objective Bias	27
13. Other Grounds of Challenge	85
14. Ground 1: Prospective Applicant/Applicant: Jurisdiction Issue	85
15. Ground 3: Project Splitting	119
16. Ground 5: Alleged Grant of Development Consent Before EIA and AA	137
17. Ground 6: Alleged Failure by Board to Carry out Assessment of Impact on Health and/or Failure by Board to Comply with Obligation to Carry out EIA by Relying on Role of EPA	152
18. Grounds 7 and 8 — Ground 7: EIA Site Selection and Alternatives; Ground 8: Site Suitability	161
19. Ground 9: EIA – Alleged Failure of Board to Deal With Alleged False Evidence and Credibility Issues	193
20. Ground 10: Alleged Failure to Carry out Proper EIA and/or Alleged Failure to assess Impact of Proposed Development on Human Health	222
21. Ground 11: Alleged Failure by Inspector to provide Board with Fair and/or Complete and/or Sufficient Report	228
22. Summary of Conclusions	240

1. Introduction

1 . These proceedings involve a challenge on several grounds by a Cork based community environmental group to a decision of An Bord Pleanála dated 29th May, 2018 to grant planning permission for the development of a waste to energy facility (a waste incinerator with energy recovery) for the treatment of non-hazardous and hazardous waste at Ringaskiddy, County Cork to Indaver Ireland Limited, the first named notice party.

2 . This is the latest in a series of challenges brought or supported by various persons or organisations, including the applicant, and Indaver NV, the second named notice party, to decisions of An Bord Pleanála and of the Environmental Protection Agency granting or refusing permission for earlier versions of a waste incinerator development at Ringaskiddy and granting an integrated pollution control licence to Indaver for incineration activities at Ringaskiddy. Planning permission was first granted by the Board to Indaver NV for an incinerator at Ringaskiddy in January, 2004. That decision was the subject of judicial review proceedings and no development was ever carried out on foot of it. The Board refused a second application for permission for an incinerator at Ringaskiddy in June, 2011. Indaver NV challenged that decision. That challenge was ultimately withdrawn in October, 2012. The applicant supported the first challenge and was joined as a notice party to the second challenge. In these proceedings, the applicant has challenged the decision made by the Board under the Strategic Infrastructure Development provisions (the “SID provisions”) in the Planning and Development Act, 2000 (as amended) (the “2000 Act”) to grant permission to Indaver Ireland Limited for a further version of an incinerator development at Ringaskiddy.

3 . The breadth of the challenge brought by the applicant to the Board's decision of 29th May, 2018 was formidable and the grounds of challenge advanced in the proceedings have required the court to consider and to determine a number of significant issues of administrative law as well as several significant specific issues of Irish and European Union planning and environmental law.

4 . The case was extremely well run and argued by all sides. I had the benefit of extremely detailed and helpful written submissions and was expertly brought through the submissions by counsel over the course of a hearing which lasted nine days. In reaching the conclusions which I have reached on the issues raised, I have considered and taken into account all of the submissions advanced by the parties in writing and at the hearing. While I have attempted to capture the most significant points raised by the parties in the course of this judgment, I have not specifically referred to or addressed every individual point raised or argument advanced by the parties. I have, however, taken all of them into account in forming my views and in reaching the conclusions expressed in this judgment.

2. Overview of Decision

5 . As I explain in detail in this judgment, I have found for the applicant on two of the grounds of challenge which it advanced, including on what appeared to me to be the most significant issue raised in the proceedings, namely, that the Board's decision was tainted by objective bias by reason of the prior involvement of the then deputy chairperson of the Board, who was also the presenting member of the Board in respect of the Board's consideration of the planning application at issue, as a consultant in work done for Indaver which did, in my view, have a clear, rational and cogent connection with the planning application considered by the Board. I have also found for the applicant on an issue concerning the jurisdiction of the Board to consider and determine an application for permission for a Strategic Infrastructure Development where the application was not made by the person who engaged in the pre-planning consultation procedures with the Board. This issue required a consideration of the particular statutory provisions in the 2000 Act applicable to Strategic Infrastructure Developments. While finding for the applicant on the correct interpretation of those statutory...