Halpin v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 24 May 2019
• Neutral Citation: [2019] IEHC 352
• Court: High Court
• Docket Number: 2016 No. 637 J.R.
• Date: 24 May 2019

BETWEEN

NIALL HALPIN (SUING BY HIS MOTHER AND NEXT FRIEND EILEEN HALPIN)

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

MEATH COUNTY COUNCIL

GREENFIELD VENTURES LIMITED

NOTICE PARTIES

[2019] IEHC 352

Simons J.

2016 No. 637 J.R.

THE HIGH COURT

JUDICIAL REVIEW

Planning permission – Screening exercises – Judicial review – Applicant seeking to challenge a decision of the respondent to grant planning permission – Whether the respondent carried out proper screening exercises

Facts: The applicant, Mr Halpin, applied to the High Court seeking to challenge a decision of the respondent, An Bord Pleanála, to grant planning permission for development consisting principally of an anaerobic digester plant. The proposed anaerobic digester plant was to be located in proximity to a site which was owned by the applicant’s parents. The intention was to construct a dwelling house on that site for use by the applicant and a number of other adults with special needs. The site upon which the proposed dwelling house was to be constructed was chosen precisely because it was located in a secluded area. The applicant and his parents were concerned that if the proposed development of the anaerobic digester plant proceeded then this seclusion would be lost. One of the issues in the proceedings was whether An Bord Pleanála, as competent authority, had proper regard to the impact which the proposed anaerobic digester plant would have on the proposed dwelling house. In particular, there was a dispute as to whether or not An Bord Pleanála properly addressed its mind to the separation distance between the proposed anaerobic digester plant and the proposed dwelling house. The proceedings also raised issues as to whether or not An Bord Pleanála carried out proper screening exercises in respect of the Environmental Impact Assessment Directive (the EIA Directive), and Directive 2012/18/EU on the control of major-accident hazards involving dangerous substances (the Seveso III Directive), respectively.

Held by Simons J that An Bord Pleanála was correct in characterising the proposed anaerobic plant digester as an “installation for the disposal of waste” for the purposes of EIA Directive. He held that there was no evidence before the court which suggested that the proposed development should instead have been characterised as an “integrated chemical installation”. He held that the EIA screening determination was therefore lawful. He held that there was no evidence before the court that An Bord Pleanála erred in its understanding of the separation distances between the two premises; rather, the existence of different figures was a function of the fact that the points from which distances were being measured were not the same. He held that, on the facts of the case, the conclusions which An Bord Pleanála reached in relation to the Seveso III Directive were unreasonable in the sense that there was no material before the board capable of justifying its conclusions. He found that there were two aspects of the board’s direction of 12 May 2016 which were of concern: first, the board concluded that there was no likelihood of the 10 tonne limit for biogas being exceeded; second, the members of An Bord Pleanála appeared to have thought that they were attaching the condition as recommended in the expert report commissioned by An Bord Pleanála from Byrne Ó Cléirigh Consulting.

Simons J held that he would make an order of certiorari setting aside the decision to grant planning permission.

Order granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 24 May 2019.

INTRODUCTION

1 The within proceedings seek to challenge a decision of An Bord Pleanála to grant planning permission for development consisting principally of an ‘anaerobic digester plant’. The anaerobic digestion process has been described in the planning application as involving the natural breakdown of organic material by bacteria in the absence of oxygen. The process inputs will include cow slurry, hen manure and silage. The products of this process are biogas (a mixture of methane and carbon dioxide) and digestate (a compost like organic fertiliser). The biogas is to be fed to a combined heat and power (‘CHP’) plant which will generate renewable electricity for export to the national grid. The shorthand the ‘ proposed anaerobic digester plant’ will be used to refer to the development the subject-matter of the impugned planning permission.

2 The proposed anaerobic digester plant is to be located in proximity to a site which is owned by the Applicant's parents. The Applicant has special needs, and in particular, suffers from autism. The intention is to construct a dwelling house on this site for use by the Applicant and a number of other adults with special needs. Planning permission for the development of a dwelling house has been granted by the local planning authority (Reg. Ref. NA/110836). The permission is subject to a condition requiring the applicants to enter into a section 47 agreement restricting occupation of the dwelling to occupancy by the applicants for a period of five years. The shorthand the ‘ proposed dwelling house’ or the ‘ proposed residential development’ will be used to describe this development.

3 The site upon which the proposed dwelling house is to be constructed was chosen precisely because it is located in a secluded area. The Applicant and his parents are concerned that if the proposed development of the anaerobic digester plant proceeds then this seclusion will be lost. As discussed presently, one of the issues in the proceedings is whether An Bord Pleanála, as competent authority, had proper regard to the impact which the proposed anaerobic digester plant would have on the proposed dwelling house. In particular, there is a dispute as to whether or not An Bord Pleanála properly addressed its mind to the separation distance between the proposed anaerobic digester plant and the proposed dwelling house.

4 The proceedings also raise issues as to whether or not An Bord Pleanála carried out proper screening exercises in respect of the Environmental Impact Assessment Directive, and the Seveso III Directive, respectively.

EARLIER JUDICIAL REVIEW PROCEEDINGS

5 The decision the subject-matter of these judicial review proceedings is the second decision which An Bord Pleanála has made in respect of the proposed anaerobic digester plant. An Bord Pleanála made its first decision on 30 May 2013. The board granted planning permission subject to a number of conditions. This was so notwithstanding that the board's own inspector had recommended that planning permission be refused.

6 One of the two grounds upon which the inspector had recommended refusal reads as follows.

‘1. It is considered that the information submitted during the consideration of the application including the Environmental Report, lacks clarity in relation to the composition and proportions of input feedstock in relation to animal by-product material and other organic material. There is also lack of information on the frequency and volume of removal of digestate. The variation of the feedstock requires a robust plant design and implementation of mitigation and containment measures. The Board is not satisfied, on the basis of the information provided that the proposed development would not be likely to have significant adverse impacts on the environment. The proposed development would thus be contrary to the proper planning and sustainable development of the area.’

7 The inspector's rationale for recommending refusal on this ground is elaborated upon as follows at page 40 of her report of 23 April 2013.

‘I consider that the applicant was given every opportunity to demonstrate that potential impacts of the proposed development would not be detrimental to the proper planning and sustainable development of the area. There are issues of clarity in relation to the composition and proportions of input feedstock in relation to animal by-product material, energy crops and other organic material. There is lack of information on the frequency and volume of removal of digestate. The variation of the feedstock requires a robust plant design and implementation of mitigation and containment measures. Potential emissions should not necessitate a potential significant adverse impact on the existing adjacent equine businesses and residential dwellings. I agree with the planning authority that given lack of information in respect of origin of all material and type / composition of the material, volume and frequency of the input and removal of digestate in particular solid waste and the lack of cohesiveness between the written submission and the drawings it is considered that the proposed development could be prejudicial to public health.’

8 The board, in its decision, explained its rationale for not accepting the inspector's recommendation to refuse planning permission as follows.

‘In deciding not to accept the Inspector's recommendation to refuse permission, the Board had regard to EU, National, and County policies on waste management and sustainable energy, and considered that the proposed development was an appropriate form of development in an agricultural area, utilising primarily locally generated agricultural wastes. The Board was satisfied that the level of information on the composition and proportions of feedstock was generally clear, and that any residual concerns could be appropriately addressed by means of condition. The Board was also satisfied that adequate information was available on file in relation to volumes of digestate arising and provision for digestate storage prior to landspreading. The Board also noted that the proposed development would be subject to a waste permit.

Furthermore, the Board had regard to the locational requirement for the proposed development to be in a rural area, close to feedstock sources and landspreading areas. The...