Harten v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 29 January 2018
• Neutral Citation: [2018] IEHC 40
• Docket Number: [2013 No. 734 J.R.]
• Court: High Court
• Date: 29 January 2018

[2018] IEHC 40

THE HIGH COURT

McDermott J.

[2013 No. 734 J.R.]

BETWEEN

JAMES HARTEN

and

PATRICK HARTEN

APPLICANT

AND

AN BORD PLEANÁLA

RESPONDENT

AND

CAVAN COUNTY COUNCIL, RODNEY WILTON, ERNE VALLEY CONCERNED RESIDENTS

AND

ROBERT BOADEN

NOTICE PARTIES

Environment, Construction & Planning – S. 50(b) of the Planning and Development Act, 2000DA’), 2000 – Certiorari – EIA Directive – Environment Impact Statement (‘EIS’) – Appropriate Assessment (‘AA’)

Facts: The applicants sought an order of certiorari for quashing the decision of the first respondent for granting planning permission to the second notice party for proposed development comprising of the change of use of an existing mushroom compost manufacturing facility to a municipal sewage sludge facility. The applicants argued that the decision of the first respondent had failed to engage with the concerns raised by the Inspector, and that the first respondent did not give a reasoned decision. The applicants also contended that the first respondent had failed to pay attention to the flooding and hydrological issues highlighted in the Inspector's report.

Mr. Justice McDermott refused to grant the desired reliefs to the applicants. The Court noted that the first respondent's decision was in accordance with the Planning and Development Act, 2000. The Court found that though there was an error in drafting of the first respondent's decision, yet it was not an error of substance. The Court observed that the first respondent clearly set out the reasons of the decision that it was in compliance with the requirements laid down under s.177U(7)(a) PDA 2000.

JUDGMENT of Mr. Justice McDermott delivered on the 29th day of January, 2018

1 The applicants apply to this court by way of judicial review for the following reliefs:

(1) An order of certiorari quashing the decision of An Bord Pleanála dated 22nd August, 2013 granting planning permission for a development comprising a change of use of an existing mushroom compost manufacturing facility to a proposed municipal sewage sludge composting facility and all associated site works at Carnagh Upper and Kilcogy, County Cavan;

(2) A declaration pursuant to Article 10(a) of the EIA Directive that the applicants are entitled to challenge the within proceedings at a cost that is not prohibitive and/or is entitled to costs protection under the said Directive.

(3) A declaration that the within proceedings are proceedings to which s.50(b) of the Planning and Development Act, 2000 applies and that the applicants herein are entitled to the costs protection afforded by that section.

Background

2 On 31st July 2012 the Second Named Notice Party, Mr. Rodney Wilton, applied to the First Named Notice Party, Cavan County Council, for planning permission for a development comprising the change of use of an existing mushroom compost manufacturing facility to a municipal sewage sludge facility and associated site works. The proposed development the subject of the application for planning permission (Planning Reg. No. 12/209) comprised:

(1) the change of use of an existing mushroom compost manufacturing facility for use as a municipal sewage sludge facility;

(2) change of use and upgrading of existing main process buildings to facilitate sludge composting activities;

(3) change of use and upgrading of 3 composting tunnels (1 of which is partially constructed) to facilitate sludge composting;

(4) proposed new Bio-filter infrastructure to be positioned over the upgraded composting tunnels;

(5) proposed new advanced sewerage treatment unit and storage tank to accommodate staff toilet/wash room facilities located in existing office;

(6) two new storm water attenuation areas including by-pass separators;

(7) construction of a designated refuelling area;

(8) removal of the existing bridge and construction of a new bridge in a revised location across a local river, and

(9) all ancillary works.

3 The application for planning permission was accompanied by an Environmental Impact Statement (EIS) and a Screening Report for Appropriate Assessment (AA). The site of the proposed development is located in Carnagh Upper, Co. Cavan, which is situated approximately 3.5km northwest of Kilcogy, 8km north of Granard and 17km southwest of Cavan town. Carnagh Upper is a rural area, the majority of land being used for agricultural activities, primarily agricultural grazing for cattle and horses. There is a pattern of ‘one off’ housing in the area. The proposed development is a 2.5 hectare site which is part of an overall land holding of 5.635ha. Access to the site is reached via an existing site entrance from Local Road L-65610. The western and southern boundaries of the site adjoin undeveloped agricultural land and the north/north east of the site adjoins the first applicant's land comprising a detached farmhouse and ancillary outbuildings, situated approximately 65m from the site of the proposed development. The appeal site lies within 150m of the Lough Gowna proposed National Heritage Area (pNHA), with the south western corner of the site being approximately 118m from the heritage area. Lough Oughter and Associated Loughs,a designated Special Protection Area (SPA) and Special Area of Conservation (SAC), are located approximately 15km from the site the subject of the planning application.

Planning Permission granted by Cavan County Council

4 On 7th February 2013 Cavan County Council granted planning permission for the proposed development subject to 19 conditions and in particular, that the developer:

• Obtains the necessary waste and sludge management certificates and permits under the Waste Management (Registration of Sewage Sludge) Facility Regulations, 2010 prior to the commencement of facility operations;

• Obtains the approval of Cavan County Council on reports concerning the operational efficiency of the odour management systems prior to the commencement of facility operations and activities;

• Complies with noise emission restrictions set down in Schedule 2 of the decision of 7th February 2013;

• Complies with operational hour restrictions set down in Schedule 2 of the decision of 7th February 2013;

• Undergoes consultation with, and submits method statements for any construction works that may impact on the watercourse for approval by, Inland Fisheries Ireland;

• Maintains an adequate programme for the maintenance of a wheel wash facility and any spillage collection facilities. Records of maintenance works are to be kept on the property for inspection by Council officials;

• Undertakes that all fuel oils to be used during the construction and operation of the facility shall be stored and bunded according to best practice;

• Submit, along with the bio-solid recipient farmer, a fully completed and signed Agreement and Land Owner Consent Letter;

• Install a proprietary treatment system and submit further plans for agreement which should indicate the type of system to be installed andits compliance with the published E.P.A's Code of practice on water treatment and disposal and other stipulated conditions in respect of the treatment and disposal of sewage effluent and maintenance of the system. Confirmation was to be provided that the plant installed was installed in accordance with the specifications of the supplier of the proprietary effluent treatment system. A written confirmation was required from a suitably qualified engineer that the percolation system had been constructed in accordance with the E.P.A's ‘Code of Practice: Wastewater Treatment and Disposal Systems Serving Single Houses 2009’.

• Retains all trees on site except those that require to be removed to facilitate the physical development of the site;

• Conform with the Inland Fisheries Ireland ‘Requirements for the Protection of Fisheries Habitat during Construction and Development Works at River Sites’;

• Complies with restrictions on traffic on the L65610 local road as set out in Schedule 2 of the decision of 7th February 2013;

• Implements in full all mitigation measures as outlined in the EIS submitted with the application for planning permission of the 31st July 2012;

• Employ, prior to commencement of the development, a specialist company to carry out an extensive asbestos survey and risk assessment to determine potential exposure levels;

• Complies with the prohibition on spreading biosolids within designated or proposed site, namely a Special Protection Area (SPA), Special Area of Conservation (SAC), or Natural Heritage Site, in particular Lough Gowna proposed Natural Heritage Area;

• Make alterations to the placement, direction, intensity and timings of lighting on site in the event of complaints regarding lighting associated with the proposed development.

Appeals to An Bord Pleanala

5 On 5th March 2013, the applicant and Fourth Named Notice Party, Mr. Robert Boaden, submitted an appeal to An Bord Pleanála against the County Council's decision of 7th February. A separate appeal was also submitted by the Erne Valley Concerned Residents, the Third Named Notice Party. In their appeal, the appellants raised a number of concerns relating to the traffic, flooding and odour implications of the proposed development. It was submitted that the Local Road L-65610 and other local roads were unsuitable to service the proposed development. They stated that the acceptance of the suitability of these roads was founded on incorrect and misleading data regarding both their historic and intended future use to service the proposed development. The appellants also stated that the claim in the EIS submitted by the second notice party that there are ‘inter-visible’ passing places along the L-65610 was incorrect, that the agreement of residents for use of privately owned set-backs as passing bays was not obtained and that the safety of the road for the purposes of carrying the traffic expected to arise out of the functioning of...