Craig v Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 26 August 2013
• Neutral Citation: [2013] IEHC 402
• Court: High Court
• Date: 26 August 2013

[2013] IEHC 402

THE HIGH COURT

[947/J.R./2011]

Craig v Bord Pleanala

BETWEEN

Enda Craig

Applicant

v.

An Bord Pleanála

Respondent

-And-

Donegal County Council

Notice Party

PLANNING & DEVELOPMENT ACT 2000 S226

PLANNING & DEVELOPMENT ACT 2000 S226(7)

PLANNING & DEVELOPMENT ACT 2000 S175

KENNY v TRINITY COLLEGE DUBLIN 2008 2 IR 40 2007/32/6662 2007 IESC 42

EEC DIR 337/1985

EEC DIR 337/1985 ART 3

CMSN v IRELAND UNREP ECJ 3.3.2011 (CASE NO C-50/09)

WASTE WATER DISCHARGE (AUTHORISATION) DISCHARGE REGS 2007 SI 684/2007 REG 44

BERKELEY v SECRETARY OF STATE FOR THE ENVIRONMENT (NO 1) 2000 3 AER 897 2001 2 AC 603 2000 3 WLR 420 2000 UKHL 36

EEC DIR 43/1992 ART 6(3)

EEC DIR 43/1992 ART 6

WADDENZEE v STAATSECRETARIS VAN LANDBOUW 2005 AER (EC) 353 2004 AER (D) 50 (SEP) 2005 2 CMLR 31 2004 ECR 1 -7405

CMSN v PORTUGAL C239/04 2006 ECR I-10183

USK & DISTRICT RESIDENTS ASSOCIATION LTD v BORD PLEANALA & ORS UNREP MACMENAMIN 8.7.2009 2009 IEHC 346

O'REILLY v CASSIDY 1995 1 ILRM 306

O'NEILL v IRISH HEREFORD BREED SOCIETY LTD 1992 1 IR 431

PLANNING & DEVELOPMENT ACT 2000 S106

PLANNING & DEVELOPMENT (STRATEGIC INFRASTRUCTURE) ACT 2006 S15

PLANNING & DEVELOPMENT ACT 2000 S146

SWEETMAN v BORD PLEANALA & ORS UNREP HEDIGAN 2.3.2010 2010/49/12200 2010 IEHC 53

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 94

KLOHN v BORD PLEANALA 2009 1 IR 59 2008 2 ILRM 435 2008/34/7322 2008 IEHC 111

R (HEREFORD WASTE WATCHERS LTD) v HEREFORD CO COUNCIL 2005 ENV LR 29 2005 EWHC 191 (ADMIN)

PLANNING & DEVELOPMENT ACT 2000 S34(10)

GREALISH v BORD PLEANALA 2007 2 IR 536 2006/27/5728 2006 IEHC 310

MULHOLLAND v BORD PLEANALA (NO.2) 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

PLANNING & DEVELOPMENT ACT 2000 S34(10)(A)

PLANNING & DEVELOPMENT ACT 2000 S34(10)(B)

O'NEILL v BORD PLEANALA UNREP HEDIGAN 1.5.2009 2009/45/11350 2009 IEHC 202

ARKOW HOLIDAYS LTD v BORD PLEANALA & ORS 2007 1 ILRM 125 2006/3/413 2006 IEHC 15

BULA LTD & ORS v TARA MINES & ORS 2000 4 IR 412 2000/3/925

PLANNING & DEVELOPMENT ACT 2000 S175(5)(A)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 111

P lanning and Environmental law Judicial Review- Environmental Impact Assessment- Water treatment plant- Bias- Impact assessment- Information- Planning and Development Act

Facts: The applicant sought to quash a decision of the respondent to grant approval for a waste water treatment plant. He submitted that the Court as entitled and obliged to consider whether there was substantial compliance with the requirements of the Environmental Impact Assessment Directive. He made allegations of inter alia subjective bias of a member to the respondent Board and he alleged that an inadequate assessment in its Environmental Impact Assessment and Statement, having carried out the assessment without sufficient information. He alleged further that the respondent had erred in law in considering the amount of effluent discharge into the proposed site.

Held by Hedigan J. that the reliefs sought would be refused. The statutory requirements had been complied with. The adequacy of the EIS was not something the Court would consider. There was no evidence that the discharge would affect the designated areas. The Board had had a very substantial amount of evidence before it to support the assessment made.

1 Judgment of Mr. Justice Hedigan delivered on the 26th of August 2013.

Application

2 1. The applicant seeks to quash the respondent's decision of the 12 August, 2011, to grant approval to the notice party under s.226 of the Planning & Development Act 2000 for a waste water treatment plant. The applicant submits that the Court is both entitled and obliged to examine whether or not there has been substantial compliance with the requirements of the Environmental Impact Assessment Directive and the adequacy of the Environmental Impact Statement delivered and if an error has been made then the decision should be quashed.

Factual background

3 2 2.1 Donegal County Council plans to construct a waste water treatment plant (hereinafter "WWTP") in Co. Donegal for a population equivalent of 8,800 with an outfall into Lough Foyle at Carnagave, 1.5km north of Moville. It is envisaged that the plant will encompass four pumping stations, rising mains, overflow pipelines and associated road improvement works. Treated effluent outfall would be into Lough Foyle.

4 In September 2007 the Council sought an opinion from An Bord Pleanala under s.226 (7) of the Planning & Development Act 2000 (as amended) in relation to the proposed development, owing to the trans-boundary nature of the project (Lough Foyle borders both the Republic and Northern Ireland) and the potential environmental effects on the Lough. The proposed development and ancillary pipe work did not come above the threshold for a mandatory Environmental Impact Statement (hereinafter "EIS") - which is a population equivalent of 10,000 or more. However the Council requested An Bord Pleanála to treat it as a project requiring an EIS and on the 2 ^nd January, 2008, owing to the sensitivity of the site An Bord Pleanála determined an Environmental Impact Assessment (hereinafter "EIA") be prepared and submitted to it for approval.

5 3 2.2 On the 22 ^nd August, 2008, Donegal County Council applied, pursuant to s.226 of the Planning & Development Acts 2000-2011 to An Bord Pleanála for permission for the construction of the WWTP. The Board appointed Mr. Daniel O'Connor as inspector to advise on the application and he presided at an oral hearing on the 30 ^th June and the 1 ^st July, 2009. At the hearing a preliminary draft of the project was presented by the Council. On the 6 ^th October, 2009, he reported on this hearing and his report recommended for a number of reasons that the proposed development be refused. On the 4 ^th February, 2010, the Board met and requested further information in relation to the project from the Council. On the 8 ^th April, 2010, the inspector reported on this further information and again recommended refusal. In all the inspector recommended refusal of the application three times.

6 The Board disagreed with the inspector's opinion and planning permission for the project was granted subject to conditions in the Board's decision of the 12 ^th August, 2011.

7 On the 6 ^th October, 2011, the applicant made an ex- parte application to Peart J. and obtained leave to apply for judicial review of the Board's decision.

Environmental Assessment

8 3. The EIA is a four stage process. It commences with the submission of an EIS to An Bord Pleanála by the local authority under sections 175 and 226 of the Planning and Development Acts. An EIS is required where a WWTP has capacity in excess of 10,000 population equivalent and where there are sensitive environmental issues such as where a site is designated a special area of conservation (hereinafter "SAC") and would be affected by the project. Following submission of the EIS the local authority is obliged to publish a notice of the proposed development. Thereafter, third parties may make submissions/observations and such evidence as may be adduced before an inspector. This evidence and the report /recommendation of the inspector forms part of the totality of material placed before the Board. At the discretion of An Bord Pleanála a request for further information may be made for the purposes of the EIA. A copy of the EIS is also furnished to the EPA as a prescribed body, dealing with water quality.

Applicant's Submissions

9 2 4.1. Bias

10 The applicant had initially argued that the appointment of Mr. Conall Boland to the board of An Bord Pleanála raised an apprehension of subjective bias but he later amended this to allege an apprehension of objective bias. The applicant argues that the involvement of Mr. Boland in the determination of whether the project should be granted permission was inappropriate having regard to his past employment. Mr. Boland was previously a technical director of RPS Consultants (or its sister company) which carried out studies in respect of the development the subject matter of the application and produced what the applicant considers was a critical and contentious report entitled "Hydrodynamic and water quality modelling study" in the EIS. This report concerned an area of expertise with which Mr. Boland is familiar.

11 The applicant argues that the apprehension of bias is heightened due to the fact that Mr. Boland was central to the processing of the application for the WWTP. He was the author of all of the Board's directions regarding the application for the WWTP and in particular the Board's directions which on three separate occasions (being the 4 ^th February, 2010, the 8 ^th April, 2010, and the 24 ^th June, 2010) departed from its own inspector's recommendation to refuse consent for the proposed WWTP. The applicant submits that it is highly unusual if not unprecedented for an inspector to recommend refusal of consent three times and for the Board to ignore this recommendation.

12 The applicant contends that because the inspector's recommendation did not accord with the views of Mr. Boland he effectively removed the inspector entirely from the process by way of his final direction of the 24 ^th June, 2010, whereby the board sought information from the Environmental Protection Agency (hereinafter " EPA" )without any recourse to the inspector.

13 The applicant argues that there were other board members having no conflict of interest who could have undertaken the role Mr. Boland performed and his involvement was therefore unnecessary. Also of note, the applicant argues, is the fact that the Board's code of conduct would have required Mr. Boland not to handle the application for the WWTP had it come before him two years earlier as this would have been within one year...