Cosgrave v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: MR. JUSTICE KELLY
• Judgment Date: 21 April 2004
• Neutral Citation: 2004 WJSC-HC 2282
• Court: High Court
• Docket Number: [2004 No. 34
• Date: 27 May 2004

2004 WJSC-HC 2282

THE HIGH COURT

34 JR./2004

HC 179/04

COSGRAVE v. BORD PLEANALA & ORS

DUBLIN

COMMERCIAL

MARY PAT COSGRAVE

Applicant

and

AN BORD PLEANÁLA, WICKLOW COUNTY COUNCIL, IRELAND AND THE ATTORNEY GENERAL

Respondents

and

GREENSTAR RECYCLING HOLDINGS LIMITED, MICHAEL MULVIHILL, EDEL MULVIHILL, EDEL MULVIHILL, ALISON CARTER, IRISH FARMERS ASSOCIATION (WICKLOW COUNTY EXECUTIVE) CARE OF WINIFRED STRAHAN, BALLYNAGRAN AND COOLBEG ACTION GROUP CARE OF DR. DIARMUID O'GRADA

Citations:

KENNY V BORD PLEANALA 2001 1 IR 565

WASTE MANAGEMENT ACT 1996 S54

WASTE MANAGEMENT ACT 1996 S54(3)

WASTE MANAGEMENT ACT 1996 S5

PLANNING & DEVELOPMENT ACT 2000 S265

PLANNING & DEVELOPMENT ACT 2000 S270

PLANNING & DEVELOPMENT ACT 2000 S257

PLANNING & DEVELOPMENT ACT 2000 PART III

PLANNING & DEVELOPMENT ACT 2000 PART VI

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 207

PLANNING & DEVELOPMENT ACTS 1963–1999

DPP V MURPHY 1999 1 IR 98 1999 1 ILRM 46

EEC DIR 99/31 ART 8(b)

COMITATO DE COORDINAMENTO PER LA DIFESA DELLA CAVA & ORS V REGIONE LOMBARDIA & ORS C-236/92 ECJ

EEC DIR 99/31 RECITAL 18

EEC DIR 99/31 ART 1

EEC DIR 99/31 ART 7

EEC DIR 99/31 ART 8

ENVIRONMENTAL PROTECTION AGENCY ACT 1992

WASTE MANAGEMENT ACTS

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1992 S4

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1992 S5

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1992 S6

MCANENLEY V BORD PLEANALA & MONAGHAN CO COUNCIL 2002 2 IR 763

Abstract:

Planning and environmental law - Judicial review - Certiorari - Whether European directives correctly transposed - Whether leave to seek judicial review should be granted.

The applicant sought leave to bring judicial review proceedings in respect of a decision by An Bord Pleanála to grant permission for the operation of a waste disposal facility. The applicant sought an order of certiorari in respect of the decision. Many of the applicant's arguments centred around the transposition of European legislation into domestic legislation. The applicant claimed that a number of European directives had been incorrectly transposed into Irish law and sought declarations to this effect.

Held by Kelly J in refusing to grant leave. The arguments raised regarding the transposition of directives did not relate to the particular decision of An Bord Pleanála. It was not open to permit a judicial review application to be made on this basis. It would appear that it would be open to the applicant to initiate plenary proceedings if the applicant wished to test the implementation of directives.

Reporter: R.F.

1 MR. JUSTICE KELLY DELIVERED ON WEDNESDAY, 21 APRIL 2004

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Applicant:

MR. B MOORE SC

MR. O'DONNELL BL

Instructed by:

CASEY & COMPANY

NORTH MAIN STREET

BANDON

CO. CORK

For the 1st Respondent:

MS. N HYLAND BL

Instructed by:

BARRY DOYLE & COMPANY

17 PERRY PLACE

DUBLIN 4

For the 2nd Respondent:

MR. D KEANEY BL

Instructed by:

DAVID SWEETMAN

LAW AGENT

WICKLOW COUNTY COUNCIL

COUNTY BUILDING

WICKLOW TOWN

For the 3rd Respondent:

MR. M CUSH SC

MR. McGRATH BL

Instructed by:

TONY JOYCE

CHIEF STATE SOLICITORS

ORMOND HOUSE

LITTLE SHIP STREET

DUBLIN 8

For the NOTICE PARTY:

MR. MAURICE COLLINS SC

MR. J. FITZSIMONS BL

Instructed by:

MS. DEBORAH SPENCE

ARTHUR COX

EARLSFORT CENTRE

EARLSFORT TERRACE

DUBLIN 2

3 COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

4 JUDGEMENT 4 – 16

5 MR. JUSTICE KELLY DELIVERED HIS JUDGMENT, AS FOLLOWS, ON WEDNESDAY, 21ST APRIL 2004

MR. JUSTICE KELLY: I should put this application in context.

6 The Applicant objects to a decision which was made by An Bórd Pleanála whereby Greenstar Recycling Holdings Limited was granted planning permission for a development involving 180,000 tonnes of waste disposal in Ballynagran and Coolbeg, County Wicklow. That decision was made on 26th November 2003, and the first relief which is sought is an Order of Certiorari quashing that decision. As I said yesterday, in addition to that relief, there are some 17 other orders which were sought at the outset. A number of these were withdrawn yesterday. The matter which I am considering now is the Applicant's application for leave to commence Judicial Review proceedings against the Respondents, Ireland and the Attorney General. Her application has been opposed by those Respondents and has also been opposed by the Notice Party, Greenstar Recycling Holdings Limited.

7 The reliefs which she seeks against Ireland and the Attorney General as are follows. She wishes to obtain in the substantive proceedings, if she is allowed to get that far, a declaration that Ireland failed to properly transpose into Irish law the provisions of Council Directive 85/337/EEC and Council Directive 97/11/EC relating to the carrying out of an environmental impact assessment on certain projects, the subject matter of those directives. That is relief number three in the original statement to ground this application.

8 She is also seeking a declaration that the provisions of Section 26 of the Local Government Planning & Development Acts, as amended by Article 6 of the European Communities Environmental Impact Assessment Amendment Regulations, 1994, SI 84 of 1994 is inconsistent with and contrary to the requirements of Council Directive 85/337/EEC as amended by Council Directive 97/11/EC. That was relief number 5 in the original application.

9 She also seeks a declaration that the provisions of Section 54(3) of the Waste Management Act, 1996which preclude the First Respondent, an Bórd Pleanála, from consideration of matters relating to the risk of environmental pollution from the activities associated with the proposed development are inconsistent with and contrary to the requirements of Council Directive 85/337/EEC and 97/11/EC and constitute an improper transposition of the requirements of that Directive into Irish law.

10 The original relief number 16 is also sought, namely, a declaration that the Respondent (sic) by virtue of the Waste Management Act, 1996and the Environmental Protection Agency Act, 1992is prohibited from considering the construction impacts of the purposed development and acted ultra vires in considering these aspects of the development in their consideration of the application.

11 She is not pursuing relief number 17 in its original form as against these Respondents, but is pursuing or seeking to pursue relief number 18, which is a declaration that Section 54 of the Waste Management Act 1996, Section 98 of the Environmental Protection Agency Act, 1992are inconsistent with the Constitution in that the Irish Constitution places primacy on European law and accepts that national legislation must be construed in the context of the constitutional obligation in that regard. It is said that Section 98 of the EPA Act [1992] and Section 54 of the Waste Management Act is inconsistent in that regard. It is also claimed that Section 98...