Cork Harbour Alliance for a Safe Environment v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice David Barniville
• Judgment Date: 01 October 2021
• Neutral Citation: [2021] IEHC 629
• Docket Number: [2018 No. 593 J.R.]
• 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 629

[2018 No. 593 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice David Barniville delivered on the 1 ^st day of October, 2021

Index

1. Introduction	2
2. Summary of Decision	3
3. Summary of Principal Judgment	4
4. Events post Principal Judgment	7
5. Summary of the Parties' Submissions	9
6. Decision on Reliefs and Remittal	22
7. Summary of Conclusions	44
8. High Court Practice Direction HC 101	45

1. Introduction

1 . This judgment addresses the reliefs to be granted to the applicant arising from the judgment on the substantive issues in the proceedings which I delivered on 19 ^th March, 2021 [2021] IEHC 203 (the “principal judgment”). The applicant succeeded on two of the grounds of challenge advanced by it in respect of the decision of the respondent, An Bord Pleanála (the “Board”), dated 29 ^th May, 2018 granting planning permission for the development of an incinerator at Ringaskiddy, County Cork to Indaver Ireland Ltd, the first named notice party (the “impugned decision”).

2 . The two grounds on which the applicant succeeded were: ground 4 (the objective bias issue) and ground 1 (the prospective applicant/applicant: jurisdiction issue). The parties have been unable to agree on the reliefs which the court should grant in respect of those two grounds on which the applicant succeeded. With respect to ground 4, it is common case that the court should grant an order of certiorari quashing the impugned decision. However, while the applicant maintains that the court should make an order of certiorari simpliciter, the notice parties (who, for convenience, I will refer to as “Indaver”) contend that the court can and should remit its planning application to the Board to be considered and determined in accordance with the principal judgment. The Board's position is that it would be in a position to exercise its statutory duties and obligations in the event that Indaver's planning application was remitted to it. There is a slight divergence of views between the Board and Indaver as to the point in time in the process to which the application could be remitted. The applicant is resolutely opposed to any remittal of Indaver's planning application. It is, therefore, necessary for the court to determine whether it should grant an order of certiorari in respect of ground 4 and remit the application to the Board or whether it should grant an order of certiorari simpliciter. In the event that the court does decide to remit the application, the Board and Indaver request that the court make certain directions as to the basis on which the Board should deal with the remitted application.

3 . There is further significant disagreement between the parties as to the relief which the court should grant to the applicant under ground 1. The applicant maintains that the court should grant an order of certiorari on the basis that the consequence of the court's decision on this ground is that the Board did not, and does not, have jurisdiction to entertain an application for permission made by an entity other than the entity which was the “prospective applicant” under the Strategic Infrastructure Development provisions (the “SID provisions”) of the Planning and Development Act, 2000 (as amended) (the “2000 Act”). The Board and Indaver maintain that the court should not grant an order of certiorari on the basis of what they maintain was a clerical error in the name of the applicant for the permission and that, if necessary, the court could grant an appropriate declaration to reflect the applicant's success on this ground. They maintain that, if remitted consequent on an order of certiorari made in respect of ground 4, the court can direct the Board to amend or, alternatively, that the Board has the power to amend the name of the applicant for permission so as to refer to the correct entity, namely, the entity which was the “prospective applicant”. The applicant, however, maintains that the court should not make any such direction and that the Board does not have the power to amend the name of the applicant in the manner suggested.

2. Summary of Decision

4 . For reasons which I explain in this judgment, I am satisfied that, in respect of ground 4, the court should grant an order of certiorari quashing the impugned decision and should remit Indaver's planning application to be further considered and determined by the Board. I am not satisfied that the objections raised by the applicant to such remittal are well founded. Nor am I satisfied that the applicant's complaints that public confidence in the integrity of the planning process would be undermined in the event that such a remittal were made are reasonable or correct.

5 . I have concluded that the appropriate point in time to which the application should be remitted is the point in time immediately prior to the decision made on behalf of the Board by the deputy chairperson, Mr. Boland, on 23 ^rd October, 2017 not to afford the applicant and others the opportunity of responding to the further information and submissions received from Indaver earlier in October, 2017. The consequence of the remittal to that point in time is that the addendum or supplemental report of the inspector dated 7 ^th March, 2018 should not be considered by the Board in the course of its consideration of the remitted application as the applicant and others did not have the opportunity of commenting upon the further information and submissions provided by Indaver in early October, 2017.

6 . I have noted the wide range of powers available to the Board under the SID provisions, such as s. 37F(1) and s. 37F(2), and under s. 134 of the 2000 Act, as well as developments which have taken place in the period between the date of the impugned decision and the delivery of the principal judgment, and have concluded that it is not necessary for the court to direct that the Board exercise any of those or other statutory powers which it may have. However, I recommend that the Board does give proper consideration to exercising some or all of those powers and a failure to properly to do so may have adverse legal consequences for the Board, but I do not believe that it is either necessary or appropriate for me to make any direction in that regard.

7 . As regards the relief to be granted in respect of ground 1, I have concluded that it is strictly speaking unnecessary for me to decide whether to grant an order of certiorari on this ground as such an order is being made in respect of ground 4, However, in the event that I am wrong about that, I have concluded that it would be an appropriate exercise of my discretion to refuse to grant an order of certiorari in respect of the impugned decision on this ground on the basis of the clerical error in Indaver's planning application and that it would be a proper exercise of that discretion to grant an appropriately worded declaration to reflect the applicant's success on the point.

8 . I am further satisfied that the Board does have the power to amend the name of the applicant for permission so as to reflect the name of the originally intended applicant, namely, Indaver NV t/a Indaver Ireland. I direct that the Board make that amendment when considering the planning application remitted to it.

9 . I am satisfied that it is an appropriate exercise of my discretion to refuse certiorari in respect of this ground, in circumstances where (a) the court is already making an order of certiorari in respect of ground 4; (b) having regard to the close connection between the two Indaver entities concerned and the statutory objectives sought to be achieved under the SID provisions of the 2000 Act, those statutory objectives would not be undermined; and (c) the applicant was not prejudiced in any way as a result of the fact that the incorrect Indaver entity applied for the permission as a result of a clerical error.

10 . I am satisfied that this is an approach which the court is entitled to take, and should take, in the exercise of its discretion in light of earlier case law including The State (Toft) v. Corporation of Galway [1981] ILRM 439 (High Court, Costello J.) and unreported, Supreme Court, 30 ^th June, 1981 (Supreme Court) (“ Toft”) and Schwestermann v. An Bord Pleanála [1994] 3 IR 437 (“ Schwestermann”). I am also satisfied that that approach is consistent with the approach recently adopted, and the observations made, by Owens J. in the High Court in Pembroke Road Association v. An Bord Pleanála [2021] IEHC 403 (“ Pembroke Road”) and that it does not fall foul of the decision of the Supreme Court in Ecological Data Centres Ltd v. An Bord Pleanála and Urrinbridge Ltd v. An Bord Pleanála [2013] IESC 61 (“ Urrinbridge”). In circumstances where the impugned decision is being quashed under ground 4 and Indaver's planning application is being remitted to the Board for further consideration and determination by it, there is no irrevocable decision by the Board and the Board is not functus officio.

3. Summary of Principal Judgment

11 . The applicant originally maintained eleven grounds of challenge in respect of the impugned decision. Those grounds are summarised at para. 47 of the principal judgment. The applicant withdrew one of those grounds at the outset of the hearing (ground 2) but maintained ten of the grounds. The applicant succeeded on two of those grounds, ground 4 and ground 1.

12 . Ground 4 (objective bias) was the ground which took up most of the time at the hearing and I referred to it as the “most significant...