Duffy v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 27 September 2024
• Neutral Citation: [2024] IEHC 558
• Court: High Court
• Docket Number: Record No: 2022/1101JR

In the Matter of Section 50 of the Planning and Development Act 2000, As Amended

Between:

Michael Duffy

Applicant

and

An Bord Pleanála

Respondent

and

Pat McDonagh

and

Clare County Council

Notice Parties

[2024] IEHC 558

Record No: 2022/1101JR

THE HIGH COURT

PLANNING & ENVIRONMENT

JUDICIAL REVIEW

Planning – Environment – Judicial review – Applicant seeking certiorari quashing the decision of the respondent granting the first notice party planning permission – Whether the respondent did not properly consider the applicant’s submissions

Facts: The applicant, Mr Duffy, applied to the High Court seeking certiorari quashing the decision (the Impugned Decision) of the respondent, An Bord Pleanála (the Board), dated 21 October 2022 granting the first notice party, Mr McDonagh, planning permission for the construction of a Motorway Service Area (the Proposed Development) adjacent Junction 12 of the M18 motorway on a site at Kilbreckan, Doora, Ennis, County Clare (the Site). The Site was about 3 km south east of Ennis. Mr Duffy’s case centred on issues of Appropriate Assessment (AA) as they related to potential adverse effect on the Lower River Shannon Special Area of Conservation (the SAC) and/or the River Shannon and River Fergus Estuaries Special Protection Area (the SPA) due, as he alleged, to deterioration, by reason of the Proposed Development, in the quality of Clareabbey Wastewater Treatment Plant (WwTP) effluent discharged to the River Fergus. More essentially still, he complained that the Board, in AA, did not properly consider materials before it and his submissions as to AA.

Held by Holland J that Mr Duffy pleaded no particulars and adduced no evidence to the Court, and adduced none to the Board, that the effluent from the Proposed Development would make the Clareabbey WwTP effluent, or its effect on the SAC and SPA any worse. Holland J found that Mr Duffy pleaded no particulars and adduced no evidence of any risk that, by its 24 Population Equivalent or its hydraulic addition to the Clareabbey WwTP load, the on-site WwTP effluent would in fact make any appreciable difference to the quality of its effluent or that any such difference was at all likely to incrementally adversely affect the integrity of the SAC and SPA in light of their respective conservation objectives. Holland J held that Mr Duffy did not plead particulars or adduce any evidence that the hydraulic addition of the Proposed Development to the Clareabbey WwTP load was in any appreciable degree likely to increase any risk posed by stormwater overflow (SWO) spills at either the Westfields PS SWO or the Storm Water Holding Tank SWO. Holland J held that the evidential burden on an objector requiring a decision maker to investigate an issue had not been addressed by Mr Duffy either before the Board or before the Court. The risks Mr Duffy posited were in Holland J’s view, and on the evidence before him, theoretical and hypothetical. He held that, as to the theoretical risk posited by Mr Duffy’s mere assertion of in-combination effect of the Proposed Development on the SAC and the SPA by WwTP effluent discharge, and framing the issue as it was framed in Reid v An Bord Pleanála #2 [2021] IEHC 362, there was no “material before the board to create real doubt” as to the risk of significant adverse effect on the integrity of a European Site; accordingly, it was not a “main issue” on which “main reasons” were required - O’Donnell v An Bord Pleanála [2023] IEHC 381. Holland J held that the question of engagement in such reasons with Mr Duffy’s submissions in that regard did not arise and the Impugned Decision could not be quashed on that account.

Holland J rejected Mr Duffy’s challenge to the Impugned Decision.

Application refused.

JUDGMENT OF Mr Justice David Holland DELIVERED 27 SEPTEMBER 2024

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND DELIVERED 27 SEPTEMBER 2024	1
INTRODUCTION & BACKGROUND	3
PRELIMINARY ISSUE — SLAPP	6
SCOPE OF JUDICIAL REVIEW	7
PLEADINGS, AFFIDAVITS & EXHIBITS IN JUDICIAL REVIEW & THE ISSUES IN THIS CASE	9
GROUNDS & OBSERVATIONS THEREON	13
Observation — Planning Refusal 07/798 as to adjacent lands	18
Observation — Adequacy of Information for AA	22
Observation — Engagement with Submissions	23
Observation #1 — UÉ's submissions	29
Observation #2 — UÉ's submissions	30
Observation — Plea that Clareabbey WwTP operates in breach of its WwDL.	31
Observation — SWOs & case C-427/17	33
OPPOSITION	36
GRAVAMEN OF CASE IS AA, ONUS OF PROOF, CURIAL DEFERENCE & READING PLANNING DECISIONS	37
WWTPS — LOAD & CAPACITY — HYDRAULIC & ORGANIC	40
STORM WATER BALANCING TANKS	42
CAPACITY OF & LOAD ON CLAREABBEY WwTP & STORM WATER TANK UPGRADE	43
Clareabbey Agglomeration WwDL	43
Clareabbey WwTP AERs	44
Table 1 Clareabbey WwTP Collected Load — AERs 2012 – 2021	46
2012 WwDL & 2012 AER Contrasted & Board's Acceptance of the Latter	46
Table 2 2012 WwDL & 2012 AER contrasted.	47
Capacity of a WwTP — A Relative Matter For UÉ	49
What Can Be Done With Excess Flow?	52
EPA Site Visit 2018	53
Table 3 — EPA Site Visit Report, May 2018 — extracts	54
Clareabbey WwTP Storm Water Holding Tank	55
MR DUFFY'S PARTICIPATION IN THE PLANNING PROCESS #1	57
MR MCDONAGH'S REPORTS & RESPONSES TO APPEAL	57
NIS, Ecological Impact Assessment & Engineering Planning Report — October 2020	57
Ecology Response to Appeals & CST Engineering Response to Appeals — February 2021	60
MR DUFFY'S PARTICIPATION IN THE PLANNING PROCESS #2 — THE BX RESPONSE	63
MR DUFFY'S PARTICIPATION IN THE PLANNING PROCESS AND THESE PROCEEDINGS — AN OBSERVATION.	66
BOARD'S DECISION & INSPECTOR'S REPORT	66
WESTFIELDS PS SWO	70
Table 3 2017, 2019, 2020 and 2021 AERs — SWO Reports.	76
LACUNAE AND DOUBT IN AA AND AA SCREENING	78
REASONS — ENGAGEMENT WITH MR DUFFY'S SUBMISSIONS	84
CONCLUSION	86

INTRODUCTION & BACKGROUND

1 The Applicant (“Mr Duffy”) seeks certiorari quashing the decision 1 (the “Impugned Decision”) of the Respondent (“the Board”) dated 21 October 2022 granting the First Notice Party (“Mr McDonagh”) planning permission for the construction of a Motorway Service Area (“the Proposed Development”) adjacent Junction 12 of the M18 motorway on a site at Kilbreckan, Doora, Ennis, County Clare (“the Site”). The Site is about 3km south east of Ennis.

2 The Impugned Decision was made by the Board on appeal from decision 20/781 of the Second Notice Party (“Clare County Council”) made on 17 December 2020 to grant permission for the Proposed Development. The Board's Inspector recommended that permission be granted. 2

3 The Proposed Development incudes an On-Site Wastewater Treatment Plant (WwTP) which will provide primary and secondary treatment of foul water only 3 prior to discharge to the public sewer for transmission to Uisce Éireann's (“UÉ”) Clareabbey WwTP, which serves part of Ennis. There it will add a p.e. of 24 4 to the Clareabbey WwTP BOD 5 load and

25 m ³/day to its hydraulic load. 6 UÉ has confirmed that Clareabbey WwTP has capacity to cater for the treated effluent from the on-site WwTP

4 However, Mr Duffy says that the fundamental core of this “net enough” case is that the Board did not assess the hydraulic capacity of Clareabbey WwTP. 7 He complains in particular that the Board did not engage with his submissions on that issue. 8

5 While there is dispute as to the relevant influent load on Clareabbey WwTP, the 2019 Annual Environmental Report 9 (“AER”) by UÉ for the Clareabbey agglomeration, 10 as to loading on the Clareabbey WwTP, put existing

While WwTP load and capacity issues are disputed and need some further teasing out, these figures indicate that the load placed by the Proposed Development on the Clareabbey WwTP will not overload it.

• • peak organic load at 4,829 p.e. as against a capacity of 6,000 p.e., leaving an unused margin of 1,171 p.e..

• • hydraulic load at an average of 1,862 m ³/day and a maximum of 3,995 m ³/day as against a peak hydraulic capacity of 4,050 m ³/day.

6 The Planning Application and Impugned Decision included in the Proposed Development a connection from the On-Site WwTP to the public sewer by way of an On-Site pumping station and a new rising main sewer of about 3km running west to the southern outskirts of Ennis. It will pass under the M18 motorway, thereafter underground via existing road margins/public road and then under the River Fergus and a railway line, to a new header discharge manhole. From that manhole, the effluent will discharge by a short new gravity sewer to a nearby existing manhole on a public gravity sewer to the UÉ Westfields Pumping Station which pumps to Clareabbey WwTP which is operated by UÉ. All influent to Clareabbey WwTP is pumped there from that Westfields PS. UÉ has undertaken to construct the header manhole and the sewer therefrom to the nearby existing manhole on the gravity feed public sewer (“the UÉ works”). 11

7 Clareabbey WwTP discharges to the River Fergus pursuant to an EPA 12 Waste Water Discharge Licence (“WwDL”) which issued in 2012. Discharge flow/volume is automatically

measured. 13 At the discharge location, the Fergus forms part of the Lower River Shannon SAC (“the SAC”). 14 The Fergus also forms part of the River Shannon and River Fergus Estuaries SPA (“the SPA”). 15 I am unclear if, at that discharge, the Fergus forms part of the SPA but nothing seems to turn on that

8 Mr Duffy, a civil engineer and planning consultant, 16 had objected to the Proposed Development on his own behalf – though not raising the specific issues he raises in these proceedings. He had also objected, separately, on behalf of a client, a Mr Bx. 17 Third party appeals were made to the Board – including by Mr Duffy for Mr Bx. He did not...