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

 
FREE EXCERPT

[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 Kelly delivered 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. This hearing was 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 the Respondent.

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 deems mete

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 a licence. 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 statutory requirements.

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 or refuse a licence under the Act. In failing to form an independent and reasoned decision the Respondent abrogated its duties under the Act.

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 and recommendations.

20

(viii) The giving of oral evidence on behalf of...

To continue reading

REQUEST YOUR TRIAL