Dunne v Offaly County Council

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 21 May 2019
• Neutral Citation: [2019] IEHC 328
• Court: High Court
• Docket Number: [2017/244 J.R.]
• Date: 21 May 2019

BETWEEN

ELAINE KELLY DUNNE, NOEL MOORE, ANN FLYNN, DAVID KELLY, ANNETTE MCGRATH, MARY LOUGHREY, LOUISE O'SULLIVAN, CLAIR MOORE, MATT KELLY

AND

MICHAEL KELLY

APPLICANTS

AND

OFFALY COUNTY COUNCIL

RESPONDENT

AND

GUESSFORD LIMITED TRADING AS OXIGEN

NOTICE PARTY

[2019] IEHC 328

O'Regan J.

[2017/244 J.R.]

THE HIGH COURT

Judicial review – Waste permit – Review – Applicants seeking an order of certiorari quashing the decision of the respondent to review a waste permit for a recycling and transfer facility operated by the notice party – Whether the respondent lacked the relevant jurisdiction to review the relevant permit

Facts: The applicants, who all resided in Offaly, applied to the High Court for an order of certiorari quashing the decision of the respondent, Offaly County Council, of the 20th December, 2016 to review a waste permit for a recycling and transfer facility operated by the notice party, Guessford Ltd trading as Oxigen, at Barnam, Daingean, Co. Offaly. The notice party had made application to the respondent under the Waste Management Regulations 2007 for a review of the permit granted in 2011 for a five-year period. The applicants’ grounds were to the effect that the respondent granted the permit without carrying out either an environmental impact assessment (EIA) or a screening for same or an appropriate assessment (AA) or screening for same. It was further complained that the permit was granted notwithstanding that the notice party did not comply with planning permission and that the respondent failed to provide reasons for its decision and failed to have regard to the applicants’ submissions. A further ground was to the effect that the council granted a permit for activities that were excluded from a permit which issued on the 22nd January, 2016 and was subsequently quashed by consent in July, 2016, without explanation or reason.

Held by O’Regan J that the screening assessment undertaken which appeared to comprise the site inspection and the report of the 8th December, 2016 involved mitigation measures which possibly effect reducing the impact on a European site and therefore a full AA assessment (stage two phase) was required to be undertaken prior to any decision being made. Further, in the circumstances, such screening did not in O’Regan J’s view confirm that there were no doubts as to the absence of significant effects on the Raheenmore Bog SAC. Therefore, O’Regan J held that the respondent lacked the relevant jurisdiction to review the relevant permit. In addition, O’Regan J held that the reasons for the grant of the review of the permit were not reasonably clear.

O’Regan J held that, on the basis of the foregoing, the applicants were entitled to an order quashing the decision of the 20th December, 2016 so that the matter should be remitted to the respondent.

Order granted.

JUDGMENT of Ms. Justice O'Regan delivered on the 21st day of May, 2019

Issues

1 Leave was afforded to the applicants to maintain the within judicial review proceedings by order of Mr. Justice Noonan on the 20th March, 2017. All of the applicants reside in Offaly and their application is for an order of certiorari quashing the decision of the respondent of the 20th December, 2016 to review a waste permit for recycling and transfer facility operated by the notice party at Barnam, Daingean, Co. Offaly. The notice party had made application to the respondent under the Waste Management Regulations 2007 for a review of the permit granted in 2011 for a five-year period.

2 Several grounds were canvassed by the applicants at the hearing before this Court although not all of same were incorporated within the statement of grounds notwithstanding that at several stages throughout the hearing it was indicated that it was inappropriate of the applicants to attempt to maintain such additional grounds. In this regard this Court is relying on the observations made by Haughton J. in Alen-Buckley v. An Bord Pleanala [2017] IEHC 541 when at para. 15 he observed that new arguments were raised but not pleaded sufficiently or at all in the applicant's statement of ground. Judge Haughton was satisfied that the rules of pleading governing judicial review are clear and require the applicants to state specifically each ground advanced and to particularise matters as appropriate.

3 Linking new matters back to generally pleaded grounds is not permissible. In para. 16 Judge Haughton quoted from o. 84, r.20 to the effect that new arguments or evidence should be subject matter of an amendment of pleadings without which the court cannot have regard to the submissions which fall outside those pleaded in the statement of grounds.

4 In the events the grounds are to the effect that the respondent granted the permit without carrying out a recording either an environmental impact assessment (hereinafter ‘E.I.A.’) or a screening for same or an appropriate assessment (hereinafter ‘A.A.’) or screening for same. It is further complained that the permit was granted notwithstanding that the notice party did not comply with planning permission and that the respondent failed to provide reasons for its decision and failed to have regard to the applicants” submissions. A further ground is to the effect that the council granted a permit for activities that were excluded from a permit which issued on the 22nd January, 2016 and was subsequently quashed by consent in July, 2016, without explanation or reason.

5 Given that there was different personnel involved I am satisfied that there was no duty nor indeed jurisprudence identified by the applicants, to suggest that the respondent had to engage with the decision of the 22nd of January, 2016 and explain any difference in the permit granted.

6 During the course of the hearing it became apparent that two reports each dated the 8th of December, 2016, relied upon by the respondent as part of an effective screening for an A.A. and an E.I.A. were purportedly furnished to the applicants. However, it transpired that it was an incomplete copy of each report which was furnished and indeed the incomplete reports were exhibited in an affidavit on behalf of the respondent suggesting that inter alia the incomplete reports were on the public file. In those circumstances an application was made to amend the grounds relative to the complete reports and this application was successful resulting in a further ground relevant to the A.A. screening to the effect that -

‘reference in the report of the 8th of December, 2016 to control through the implementation of mitigation measures/permit conditions is contrary to EU law.’

The claim of the applicants is fully contested.

Background

7 Planning permission for a waste facility on the instant site was first afforded on the 18th of June, 2010. The site and waste licence was transferred to the notice party on the 28th of March, 2011. The notice party subsequently made an application for an enlargement of the activities on site and applied for planning permission, however, planning permission was refused in this regard on the 13th of September, 2011. It was in the context of this enlarged planning application that a letter issued from the Department of Arts, Heritage & the Gaeltacht on the 27th of July, 2011 wherein it was submitted that a full A.A. and E.I.A. be conducted. Accordingly, that letter is not currently relevant.

8 Initially a waste facility permit issued on the 2nd of February 2007 and was subsequently renewed on the 28th of March 2011 which latter mentioned renewal was a permit for a five-year period expiring on the 14th of December 2015. In advance of the expiry namely on the 18th of September, 2015 a review of the waste permit was sought by the notice party. It is common case that the applicants objected to the review on a number of grounds mentioned in their submissions to the respondent in this regard.

9 The respondent conducted a site inspection on the 20th of September, 2016 and subsequently a screening for an A.A. and a screening for an E.I.A. (asserted by the respondent) was the subject matter of reports of the 8th of December, 2016. A waste facility permit application report issued on the 20th of December, 2016 and on page 2 of that report it is recorded that the respondent carried out an A.A. screening in conjunction with the E.I.A. screening.

10 This suggests that the relevant screening was carried out in advance of the report of the 20th of December, 2016.

11 The respondent wrote to the notice party by letter of the 20th of December, 2016 and wrote to the applicants by letter of the 21st of December, 2016 which letters are identical save in the letter of the 21st of December, 2016 the letter concludes with the statement to the effect that the relevant permit is available for viewing at Offaly County Council during hours therein specified.

12 The letter to the notice party from the respondent of the 20th of December, 2016 appears to comprise the decision of the respondent in respect of the application and is brief in particular if one excludes the conditions attached to the permission. The letter states as follows:-

‘I refer to the application by Guessford Limited to review waste facility permit… Having reviewed the application, under article 35 of the above regulations, Offaly County Council have decided to grant a review of permit… The attached permit…with conditions refers.

In accordance with article 35(9) of the above reference regulations the council outline the following reasons for its decision.’

Thereafter conditions 1-9 inclusive attached to the permit are discussed. The letter then concludes with a request to insure all conditions of the permit are read.

13 In the full copy of the screening report for an A.A. of the 8th of December, 2016 page 12 is included (this page in fact was not initially part of a copy report furnished to the applicants). This page incorporates s.G entitled ‘...