Ni Eili v Environmental Protection Agency & Roche (Irl) Ltd

Court:High Court
Docket Number:1997/58 J.R.
Judge:Mr.Justice Kelly
Judgment Date:06 May 1997
Jurisdiction:Ireland
Neutral Citation:[1997] IEHC 79

[1997] IEHC 79

THE HIGH COURT

1997/58 J.R.
NI EILI v. ENVIRONMENTAL PROTECTION AGENCY & ROCHE (IRL) LTD
JUDICIAL REVIEW

BETWEEN

ORLA NI EILI
APPLICANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY
RESPONDENT

AND

ROCHE(IRELAND)LIMITED
NOTICE PARTY
1

Mr.Justice Kellydelivered the 6th day of May.1997.

BACKGROUND
2

On the 17th December, 1996 the Respondent, pursuant to the provisions of Section 88 of the Environmental Protection Agency Act, 1992(the Act) granted a revised licence to the Notice Party. The licence permitted that company to carry on the following activities, namely, the manufacture of pharmaceutical products and their intermediaries and the incineration of hazardous waste at Clarecastle, Co. Clare, subject to certain conditions.

3

The licence was issued under Section 88(2) of the Act. The granting of the licence was preceded by the making of objections to the Respondent by a group called the Clare Action Again Incineration, of which the Applicant was a member. The Respondent, having received these objections, convened an oral hearing to deal with them. Thishearingwas convened under Section 86 of the Act. It lasted for four days and the Inspector prepared a written report on foot of it. The group of which the Applicant was a member participated in the hearing. So also did the Applicant herself in that capacity.

4

On the 14th February, 1997 the Applicant obtained leave from Morris J. to seek Judicial Review in respect of the licence of the 17th December, 1996. She was permitted to seek -

5

i "(i) An Order of Certiorari quashing the decision of the Respondent dated the 17th day of December 1996 to grant a licence under Part IV of the Environmental Protection Agency Act, 1992to operate an incinerator at Clarecastle, Co. Clare.

6

(ii) A Declaration that the said decision of the Respondent was unreasonable in law and ultra vires the statutory powers of theRespondent.

7

(iii) A Declaration that the failure of the Environmental Planning Agency (sic) to give a reasoned decision to support its grant of a licence was in breach of its statutory duties under the Environmental Protection Act, 1992(sic) and constituted a breach of natural justice and constitutional fair procedures.

8

(iv) A Declaration that the failure of the Environmental Planning Agency (sic) to give a reasoned decision in support of its grant of a licence under Part IV of the Environmental Protection Agency Act, 1992 constituted a violation of the Applicant's constitutional right of access to the Courts.

9

(v) A Declaration that the oral hearing was not conducted in a judicial or impartial manner.

10

(vi) Such further or other Order as the Court deemsmete

11

(vii) An Order for costs".

12

The grounds upon which she was given leave to seek the aforesaid reliefs were as follows:-

13

i "(i) The Respondent's decision dated the 17th day of December 1996 to grant a licence for the operation of an incinerator at Clarecastle, Co. Clare is unreasonable in law and is not factually sustainable having regard to the evidence before the Agency of the dangers to the environment arising from the potentially harmful emissions from the incinerator and the fact that there was reasonable ground for believing that such emissions could cause significant environmental pollution and harmful effects to the health and safety of animals, including human life, and plant life.

14

(ii) The Respondent is under a statutory duty to have regard to specific factors before it exercises its discretion to grant or refuse alicence.The Respondent therefore, acted ultra vires its powers under statute in purporting to grant a licence under the Environmental Protection Act, 1992(sic) without having any due regard to these statutoryrequirements.

15

(iii) The Respondent took irrelevant considerations into account when deciding to grant the licence on hypothetical and unfinalised plans for the design and construction of the incinerator. In the circumstances the decision to grant a licence was premature.

16

(iv) In failing to give the Applicant an opportunity to make representations based on the form and design of the incinerator actually to be constructed, the Respondent caused a breach of the rules of natural justice and in particular the principle of audi alter am parterm and the right to be heard.

17

(v) In failing to give a reasoned decision by reference to the statutory obligation of the Respondent to have regard to certain specified factors to ground the grant of a licence, the Respondent erred in law and acted ultra vires and/or the said error appeared on the face of the record of the decision.

18

(vi) The Respondent is under a duty to have regard to the Report of the Inspector prepared at the oral hearing of the application but only the Respondent has authority under the Act to make a decision to grant orrefuse a licence under the Act. In failing to form an independent and reasoned decision the Respondent abrogated its duties under theAct.

19

(vii) The said Report was prepared by the Inspector who conducted the hearing, considered the evidence of the experts, heard oral submissions and questioned the parties whilst taking notes for the purpose of preparing his Report. In the circumstances the hearing was not conducted in a judicial manner in that the Report of the Inspector did not provide sufficient detail to permit a Court upon review to be able to ascertain the material upon which the decision was reached nor did it provide sufficiently accurate evidence of what transpired at the oral hearing to ground the Inspector's conclusions andrecommendations.

20

(viii) The giving of oral evidence on behalf of Roche Ireland Ltd. creates the appearance of non-independence and partially (sic) in the conduct of the oral hearing in that the expert was a former employee of the Respondent herein and the Inspector was a currentemployee.

21

(ix) The failure of the Respondent to give a reasoned decision constitutes an erosion of the Applicant's constitutional rights of access to the Court in circumstances where an appeal from that decision must be made within two months of the making of the decision. The Respondent's decision to grant a licence was therefore reached in breach of natural and constitutional justice in that the Applicant isnotgiven an adequate opportunity to assess her legal rights in respect of the decision.

22

(x) Such further and other grounds as may be supplied in due course ".

23

The Order of Morris J. and the relevant documents were served on the Respondent and the Notice Party. On the 9th April, 1997 a new firm of solicitors came on record for the Applicant. Up to then she had been represented by Sharon Callinan, a Solicitor attached to the Legal Aid Board Law Centre in Ennis. Her present solicitors, Messrs Noonan, Lenihan and Carroll, came on record on that date. On the same day a Notice of Motion seeking the reliefs permitted by Morris J. was served and was listed before me on the 28th April, 1997 for mention. On that day Counsel for the Applicant told me that he wished to apply for leave to amend by expansion his grounds for seeking the Judicial Review. He indicated that he wished to raise questions concerning the constitutionality of certain provisions of the Act. I indicated that I would be prepared to permit such an application to be made on notice to the Respondent and the Notice Party and also to the Attorney General. As all the parties before the Court on that date agreed that the matter was urgent, I decided that the motion seeking such amendment should, in addition, be served on the Attorney General. I did this so that I might have the benefit of the Attorney's views at that stage so as to avoid the possibility of an application to set aside being made by him subsequent to an order directing his joinder, if such were made. Such an application to set aside would, of course, further delay the hearing of this urgent matter.

24

On foot of this leave a motion was issued and heard by me on Thursday and Friday last, the 1 st and 2nd May, 1997. The motion brought by the Applicant seeks the following reliefs:-

25

a "(a) An Order pursuant to Order 84 of the Rules of the Superior Courts amending the Statement Required to Ground Judicial Review filed herein on the 14th day of February 1996.

26

(b) Such further or other Orders as this Honourable Court shall deem mete and just.

27

(c) An Order for costs".

28

The amendments which are sought are as follows:-

29

i "(d)(vi)(b) A Declaration by way of an application for Judicial Review that Section 85 of the Environmental...

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