Glassco Recycling Ltd v an Bord Pleanala
| Jurisdiction | Ireland |
| Judge | Mr Justice Cian Ferriter |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] IEHC 293 |
| Court | High Court |
| Docket Number | Record Number: 2021/699 JR |
In the Matter of Section 50, 50A and 50B of the Planning and Development Act, 2000, as Amended
And in the Matter of an Application of
[2023] IEHC 293
Record Number: 2021/699 JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Mr Justice Cian Ferriter this 25 th day of May 2023
In these judicial review proceedings, the applicant challenges a declaration made by the Respondent (“the Board”) on 28 May 2021, pursuant to s.5(1) of the Planning and Development Act 2000 (as amended) (“the 2000 Act”) that the increase in annual intake from 97,000 tonnes to 120,000 tonnes at its recycling facility in Naas, Co. Kildare is development and is not exempted development.
The applicant occupies and operates a glass and can recycling facility on a site at Osberstown Business Park, Caragh Road, Naas, County Kildare (“the facility”). Between former and current ownership, the facility has been in continuous operation for some 20 years. The applicant says that facility is unique in that it handles the vast majority of glass bottle and jars recycled in the country.
The facility has a comprehensive planning history. The applicant was granted permission in March 2007 for the construction of a glass recycling plant at the facility. In 2009, permission was granted to extend the facility to provide additional parking and storage. Retention permissions were granted in 2010 for the change of use of an industrial space to an office space and in 2011 for the construction of a free-standing plant for glass recycling. As we shall come to, the conditions attached to the various permissions dealt with, inter alia, issues of traffic, dust and surface water.
In 2012, the 2000 Act was amended to allow for applications for substitute consent, a procedure by which a party could apply to regularise the planning status of development (including permitted development) which had not, but ought to have been, subject to environmental impact assessment (EIA) (or screening for same). The applicant says that, having realised that the then parent planning permission for the facility ought to have been, but was not, subject to an EIA, it availed of the opportunity to apply for substitute consent under s.177E of the 2000 Act, submitting a remedial environmental impact statement (rEIS) in support of same. By decision dated 12 June 2014, the Board granted substitute consent for the facility. This substitute consent became the new parent permission for the facility.
The applicant says that the grant of substitute consent was not subject to any condition limiting the annual intake of glass and cans. The Board for its part contends that the permission was in respect of an intake of 97,000 tonnes, being the express basis of the application for substitute consent at the time. I will return to this issue later in the judgment.
The facility is also subject to a waste licence. A waste licence for the facility was first applied for in July 2011, and granted on 28 October 2014 (prior to then, the facility operated under a waste permit). Condition 1.2 of this waste licence provided for a limitation of 150,000 tonnes on the volume of waste which could be accepted annually.
On 3 December 2015, the Environmental Protection Agency granted a revised waste licence to the applicant for the operation of the facility. The licence was made subject to 12 conditions. As with the original waste licence, condition 1.2 of the revised waste licence provides for a limitation of 150,000 tonnes on the volume of waste which can be accepted annually. This licence remains in force.
Condition 1.6 of the current waste licence states that the licence is “ for the purposes of waste licensing under the Waste Management Act, 1996 as amended only and nothing in this licence shall be construed as negating the licensee's statutory obligations, or requirements under any other enactments or regulations.”
On 9 October 2014, Kildare County Council (“the Council”) granted permission for “ an extension to existing glass recycling plant”. The applicant contends that this grant of permission also did not place any condition limiting the annual intake of glass at the facility, nor did the subsequent permissions granted in June 2016 and August 2018. The October 2014 and subsequent permissions also noted that the facility was subject to the terms of a waste licence; the 2 June 2016 permission (for “construction of surface water treatment plant”) noted that “ The application relates to a proposed development which is for the purposes of an activity covered by waste licence W0279-01 issued by the Environmental Protection Agency” and materially identical wording is found in a permission of 20 August 2018, when the Council granted permission for construction of an optical sorting unit within the existing glass recycling plant.
It is relevant to note that each of the planning permissions for the facility both prior to the substitute consent decision and subsequent to that decision contained conditions which in some shape or form addressed questions of surface water, dust and traffic impact – unsurprisingly in light of the nature of the activity at the facility which involves regular daily truckloads of glass being dropped to the facility.
On 13 February 2020, the applicant, through its consultant Tom Phillips Associates, referred a question to the Council pursuant to s.5, on the question of:
“ whether the proposed increase in annual intake from 97,000 tonnes to 120,000 tonnes at the Glassco Recycling facility is or is not development or is or is not exempted development within the meaning of the Act?”
The applicant says that it referred the question on a precautionary basis to ensure that no question mark hung over the planning status of the facility. It appears that the facility had been handling annual intake in the region of 120,000 tonnes in the years preceding the s.5 referral in any event.
In its consultant's submission to the Council dated 13 February 2020, the applicant submitted that the increase in annual intake from 97,000 tonnes to 120,000 tonnes was below all relevant mandatory EIA thresholds in respect of the form of development in issue. It submitted that the proposed increase in annual intake would have negligible impact on the environment in particular in relation to air, noise and traffic impacts and submitted a number of specialist assessments regarding those matters, including an Axis Environmental Services opinion of 6 January 2020; a Patel Tonra Environmental Solutions report of July 2018 assessing, inter alia, impact on dust, noise and surface water; and a Traffic Impact Assessment report (TIA) of November 2019 prepared by Stephen Reid Consulting (the latter in fact prepared on the basis of a 127,000 tonnes annual intake). It submitted these assessments in order to support its case that the proposed increase in annual intake was not development and constituted exempted development.
The submission stated that “ the issue to be resolved is whether or not an intensification of use arises such that a ‘material change in the use’ of the site will occur, resulting in development and the requirement for planning permission” and submitted (citing case law and textbook commentary) that it was entirely possible for an existing business to intensify or increase operations without necessarily resulting in a material change of use, submitting that the applicant's facility was one such example.
On 10 March 2020, the Council issued a declaration that the proposed increase the subject of the referred question was development and was not exempted development.
The Council approached the referred question by effectively treating the proposed increase as involving an increase in annual intake to 127,000 tonnes as opposed to 120,000 tonnes, leading it to form the view that a mandatory EIA was required such that the increase was not exempted development and, rather, required the submission of a planning application or an application for substitute consent accompanied by an EIA.
The applicant sought a review by the Board of the Council's declaration, as it was entitled to under s.5(3). On 30 April 2020, the applicant's consultant (Tom Philips Associates) lodged a submission with the Board in support of the review. This addressed the same question addressed by the Council i.e. “Whether the proposed increase in annual intake from 97,000 tonnes to 120,000 tonnes at the Glassco Recycling Facility is or is not development or is or is not exempted development within the meaning of the Act?”
In its consultant's submissions to the Board on the s.5 review application, the applicant submitted that the Council's approach (in forming the view that a mandatory EIA was required such that the increase was not exempted development) was in error and both the Board's inspector in his report and the Board itself accepted that the Council's approach in this regard was in error.
However, the applicant in its consultant's submission of 30 April 2020 to the Board in support of the review application did not confine its submissions to this aspect of the erroneous approach of the Council. It submitted, in short, that the increase in annual intake to 120,000 tonnes would not result in material planning impacts such that planning permission was required on that basis alone. It (correctly) stated that “ for planning permission to be required, intensification of use would need to occur to such an extent that material planning impacts were apparent”. The submission stated that “ the issue to be resolved is whether or not an intensification of use arises such that a ‘material change in the use’ of...
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O'Donnell and Others v an Bord Pleanála and Others
...IEHC 26, ( [2023] 1 JIC 2701 Unreported, High Court, 27th January, 2023) §§227, 237. (xiii) Glassco Recycling Ltd. v. An Bord Pleanála [2023] IEHC 293 (Ferriter J.), §67. 44 . While it is probably too much to expect that all cases will word the same point identically, it is clear that there......