HICKEY v Bord Pleanála &ORS

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 10 June 2004
• Neutral Citation: [2004] IEHC 226
• Court: High Court
• Docket Number: Record No. 2002/862JR
• Date: 10 June 2004

HICKEY v. BORD PLEANALA &ORS

DUBLIN

(JUDICIAL REVIEW)

Between:

BRIGID HICKEY

Applicant

-and-

AN BORD PLEANALA

Respondent

-and-

GALEN CHEMICALS (DUBLIN) LTD, LOUTH COUNTY COUNCIL, MARTIN LYNCH, FRIENDS OF THE IRISH ENVIRONMENT, LOUTH IFA, NUALA HALPENNY, PATRICK AND MARTIN HICKEY AND LOUTH GREEN PARTY

Notice Parties

- and, by Order -

THE ENVIRONMENTAL PROTECTION AGENCY

Notice Party

[2004] IEHC 226

Record No. 2002/862JR

HC 226/04

THE HIGH COURT

Abstract:

Planning and environmental law - Pollution control licence - Powers and functions of An Bord Pleanála - Whether An Bord Pleanála can require Environmental Protection Agency to direct requirement of IPC licence for development - Whether An Bord Pleanála can consider environmental issues in planning application to which Environmental Protection Agency determined that IPC licence not required - Whether strict compliance with statute necessary in respect of pubic notice - Whether public notice adequate - Environmental Protection Agency Act 1992, section 98 - Local Government (Planning and Development) Act 1992, section 9.

section 98 of the Environmental Protection Agency Act 1992 provides, inter alia, that “Notwithstanding…any…provision of the Local Government (Planning and Development) Acts 1963 to 1991, where a[n integrated pollution control] licence… has been granted or will be required in relation to an activity, a planning authority or An Bord Pleanala shall not…decide to grant such permission subject to conditions which are for the purposes of the prevention, elimination, elimination, abatement or reduction of environmental pollution from the activity, and accordingly a planning authority in dealing with an application for permission or an appeal for any such development shall not consider any matters relating to the risk of environmental pollution from the activity…” The applicant sought judicial review of a decision of the respondent granting permission for a development near her home on the grounds that the development required an integrated pollution control licence from the Environmental Protection Agency, that the respondent had a duty to oblige the Agency to direct that a licence was required and that the public notices served by the respondent were inadequate as they had not adverted to the supposed requirement for such licence and the respondent had erred in considering the risk of environmental pollution itself from the development. The Agency had previously determined that the development did not require a licence. The applicant further contended that the time allowed by the respondent for response to a notice served under section 9 of the Local Government (Planning and Development) Act 1992 was inadequate.

Held by Smyth J in refusing the reliefs sought for which leave had been granted that there was no obligation on the respondent to direct the Environmental Protection Agency to require an IPC licence for a development as it had no jurisdiction to determine whether a development, which was the subject of a planning application, also required an IPC licence and the line of demarcation between it and the Agency was clear from section 98 of the Environmental Protection Agency Act 1992.

The restriction contained therein on the respondent considering the risk of environmental pollution arising from an activity to be carried on in a proposed development was limited to those cases where the activity required an IPC licence. There was a clear division of competence between An Bord Pleanála and the Agency, and as the there could not be an estoppel in the face of the Environmental Protection Act 1992, An Bord Pleanála was acting intra vires when imposing the conditions challenged.

Reporter: P.C.

In holding that the notice served under section 9 of the Local Government (Planning and Development) Act 1992 was adequate, that, compliance with prescribed statutory procedures should be treated as a condition precedent to the issue of planning permission and any deviation from the requirements had to, before it could be overlooked, be shown to be so trivial or so technical or otherwise so insubstantial that the prescribed obligation had been substantially complied

Citations:

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S9

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S98(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S98

ENVIRONMENTAL PROTECTION AGENCY ACT 19921992 SCH I PAR 5

ENVIRONMENTAL PROTECTION AGENCY ACT 19921992 SCH I PAR 12(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 PART IV

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 15(2)

O'CONNELL V ENVIRONMENTAL PROTECTION AGENCY & ORS 2003 1 IR 530 2003 2 ILRM 297

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S2

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S9(B)

MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64

RYANAIR LTD V AN BORD PLEANALA UNREP O CAOIMH 27.2.2004

PLANNING & DEVELOPMENT ACT 2000 S131

APPROVED JUDGMENT OF

MR. JUSTICE T.C. SMYTH

DELIVERED ON THE 10TH DAY OF JUNE 2004

1 Respondent (the Board), dated 18th November 2002, granting planning permission to the first-named Notice Party (Galen) for development comprising the construction of industrial buildings, including pharmaceutical manufacturing facilities, ancillary offices and staff facilities, boiler plant accommodation and related works at Ardee, County Louth. The Applicant resides in the immediate vicinity of the proposed development and she and her family carry on a market gardening and farming business in the area.

2 The Applicant did not appeal the notification of an intention to grant planning permission by the second-named Respondent (LCC) on 8th November 2001.

3 However, a number of appeals were taken against that decision, including an appeal from two sons of the Applicant. The Applicant became an observer to the appeal before the Board by reason of having responded to the notice published by the Board of receipt of the Environmental Impact Statement (EIS) in respect of the proposed development. The Applicant, having participated in the appeal, albeit as an observer, no issue was taken by the Board of the Applicant's locus standi to seek to issue these judicial review proceedings. However, the Board has put in issue the Applicant's locus standi to challenge the validity of the decision challenged on the basis of the time allowed to respond to a notice pursuant to Section 9 of the Local Government (Planning & Development) Act 1992, in circumstances where the Applicant did in fact respond to the notice served upon her within the time permitted.

4 There are, therefore, two issues raised by these proceedings requiring determination:-

5 1 The Applicant asserts that the proposed development was such as to require an Integrated Pollution Control Licence (IPC Licence) to be granted by the Environmental Protection Agency (the Agency) pursuant to the Environmental Protection Agency Act1992. Based on this assertion, the Applicant asserted that the public notices were inadequate as they did not advert to the supposed requirement for an IPC Licence and that the Board erred in its consideration of the appeal in considering the risk of environmental pollution from the activity to be carried on in the proposed development contrary to the provisions of Section 98(1) of the Environmental Protection Agency Act1992.

6 2. The Applicant contends that the time allowed by the Board for response to a notice served under Section 9 of the Local Government (Planning & Development) Act1992requesting further submissions or observations from the Applicant was inadequate.

THE LAW AND LEGAL SUBMISSIONS

(I) Section 98 of the Environmental Protection Agency Act 1992

7 Mr. C. Fitzgerald SC, for the Applicant, submitted that the proposed development is for purposes of an activity which falls within paragraph (5) of the First Schedule to the Environmental Protection Agency Act1992, and, consequently, requires an IPC Licence. Argument was advanced as to how the nature and extent of the intended development was described in the documentation; eg, tableting facility, pharmaceutical manufacturing facility, tableting facility and female health care facility. It is clear from the evidence (eg, paragraph (7) of the affidavit of Shane Herlihy sworn on 28th February 2003, and filed on behalf of Galen, that at least five months before LCC made its decision the Applicant had decided not to change the nature and extent of the notified development but "to change the type of products" that would be produced in the proposed facility. The description of the development is accurately recorded at paragraph 2, page 4 of the report of the Inspector of the Board. In law, context is all and the purpose of public notices are to convey to the public and interested parties, in particular, the nature and extent of the development, it is not intended to be an exhaustive description of the facility proposed. Even in the instant case (indeed, as in all in others a sense of proportion is to be applied) where the reference to the use of solvents is...