Joyce Kemper v an Bord Pleanala

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 24 November 2020
• Neutral Citation: [2020] IEHC 601
• Docket Number: [2020 No. 22 JR]
• Court: High Court
• Date: 24 November 2020

BETWEEN

SABRINA JOYCE KEMPER

APPLICANT

AND

AN BORD PLEANÁLA,

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

IRISH WATER DAC

NOTICE PARTY

[2020] IEHC 601

Allen

[2020 No. 22 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Allen delivered on the 24th day of November, 2020

Index

1 Introduction 1

2 Pleadings 5

3 The Overview 25

4 Recusal application 38

5 Alleged objective bias 40

6 Locus standi and issue specific locus standi97

7 Regional WwTP and Marine Outfall

The Entire Project 105

Site Selection 134

8 Consultation with the Environmental Protection Agency 174

9 The alleged failure to transpose 209

10 Public Consultation 229

11 Regional Biosolids Facility 251

12 AA Screening 267

Ireland's Eye SAC and Howth Head SAC

13 Appropriate Assessment 293

Baldoyle Bay SPA 300

Ireland's Eye SPA 313

Rockabill to Dalkey Island SAC 318

Lambay Island SAC 325

14 The Quiet Zone 333

15 Land spreading 360

16 Reasons 379

17 Conclusion 392

Introduction

1 This is an application for leave to apply by way of judicial review an order of certiorari quashing a decision by An Bord Pleanála (“ the Board”) made on 11th November, 2019 under s. 37G of the Planning and Development Act, 2000 to grant permission to Irish Water for the development of the Greater Dublin Drainage Project, comprising a new wastewater treatment plant (“ WwTP”) on a 29.8 ha site at Clonshaugh, a sludge hub centre on the same site, an orbital sewer running from Blanchardstown to Clonshaugh, a pumping station at Abbotstown, a regional biosolids storage facility at Newtown/Kilshane in Fingal, and an outfall pipeline into the Irish sea, about one km north-east of Ireland's eye.

2 In addition the applicant seeks declarations that the decision of the Board was ultra vires and contrary to Council Directive 2011/92/EU (“ the EIA Directive”) and Council Directive 92/43/EEC (“ the Habitats Directive”) and that it lacked sufficient reasons and was contrary to fair procedures.

3 Alternatively, the applicant seeks a declaration that the State respondents have failed to properly transpose the EIA Directive.

4 By direction of the court (Simons J.) made on 23rd January, 2020 the application was made on notice and following close case management was heard by way of a telescoped hearing over three weeks in July, 2020.

The pleadings

5 By s. 50(2) of the Planning and Development Act, 2000, the validity of the decision of the Board may not be questioned otherwise than by way of an application for judicial review under O. 84 of the Rules of the Superior Courts. By s. 50A(3), leave may not be granted under s. 50 unless the court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed. It is well settled, and it is common case, that the test to be applied is that propounded by Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125. In order for a ground to be substantial “ it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous…”.

6 The function of the court on an application by way of judicial review of a planning decision is well settled and has been repeatedly stated but I agree with the submission on behalf of the Board that it is useful at the very outset to recall it.

7 I will adopt the restatement by MacGrath J. in M28 Steering Group v. An Bord Pleanála [2019] IEHC 929, which in turn borrowed heavily from the judgment of Haughton J. in People Over Wind v. An Bord Pleanála [2015] IEHC 271:-

“76. This is an application for judicial review and it is important to recall the role of the court on such an application. In so far as alleged inadequacies in the EIS and AA are concerned, the notice party argues that it is a matter for the first respondent to consider the adequacy of the information contained in an EIS. This may, however, be subject to review in accordance with the principles set out in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39. In People Over Wind v. An Bord Pleanála [2015] IEHC 271, Haughton J. stated at para. 98:-

‘It has been consistently held in the courts that it is for the deciding authority to determine whether the EIS and the information contained therein satisfies the requirements of the Regulations and is adequate.’

He re-emphasised that the standard of review applicable to the Board's decision in that regard was that set out in O'Keeffe at para. 101:-

‘The court cannot interfere with the decision of an administrative decision making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the case against the decision made by the authority was much stronger than the case made for it.’

77. In order to show that the Board acted irrationally, it is necessary for the applicant to establish that the Board ‘had before it no relevant material which would support its decision. Thus the court's jurisdiction to intervene is not unlimited.”

8 The court is limited to reviewing the legality of the decision. It is not itself to conduct an EIA or an appropriate assessment but will examine whether the competent authority, in this case the Board, applied the correct legal test and whether it reached the findings necessary to support its conclusions. The court is not to conduct an appeal on the merits of the Board's decision or any elements of it.

9 Judicial review proceedings are adversarial proceedings in which the applicant bears the onus of proof. That burden will not be met by mere assertion, but the applicant must bring forth, or more usually in a judicial review, point to, evidence which will establish the validity of the challenge.

10 The Board acknowledges that particular considerations apply in cases of appropriate assessment in which the court must be satisfied that the criteria for a complete and lawful appropriate assessment have been met but the court will acknowledge and respect the expert knowledge and expertise of the authority entrusted by law to make the decision.

11 The proposed WwTP plant is designed to deal with up to 500,000 PE, that is person equivalent, of sewage. The treatment process would remove all solids and the outfall pipeline would carry the treated effluent underground from the plant at Clonshaugh for 5,379 m. to Baldoyle, and then under the seabed for 5,934 m. to be attenuated through a multiport diffuser into the Irish sea. The eventual diameter of the permitted pipeline is 2,000 mm. The object of the project is to deal with an enormous volume of wastewater and if constructed it would generate huge volumes of sludge, biosolids and effluent.

12 The headline grabbing opening of the application was that permission for the proposed development had been granted without any consideration of what would come out of the end of the pipe. That is simply and obviously incorrect. The EIAR, in volume 3, Part A of 6, examined in great detail the hydrography of the proposed pipeline route and the impact of the construction and operation of the development. It looked at the existing quality of the receiving waters and the impact on those waters of the proposed discharge. It looked at the Water Framework Directive, and all of the relevant regulations, including the Urban Wastewater Treatment Regulations and the Surface Water Regulations. It looked at the impact of the discharge of treated effluent and the potential discharge of untreated waste water by reference to the maximum permitted concentrations of dissolved inorganic nitrogen, molybdate reactive phosphorous, biochemical oxygen demand, and Escherichia coli on the basis of Average Daily Flow, Flow to Full Treatment, and Process Failure. All of this material was considered by the Inspector who dealt extensively in her report with the question of marine water quality, the regulatory requirements, and the impact on marine water quality of the operation of the plant as well as the construction. Apart from the incorporation of the Inspector's report, the decision of the Board expressly spelled out the conclusion that the development would be acceptable in terms of the quality of effluent discharged into the receiving water environment and would not result in a deterioration of the quality of bathing water or shellfish waters.

13 Whether the assessment was adequate or not is another day's work, but it is plain that the nature and quantity of the effluent which would emerge from the pipe through the diffuser was considered by the Board.

14 Order 84, r. 18(1) of the Rules of the Superior Courts requires that every application for judicial review shall be made in accordance with the provisions of that order. Order 84, r. 18 (2) requires that all such applications should be grounded on a statement required to ground an application for judicial review in the prescribed form. Order 84, r. 20 (3) spells out that it shall not be sufficient for an applicant to give as his grounds an assertion in general terms of the ground concerned but should state precisely each such ground, giving particulars where appropriate, and identify in respect of each ground the facts or matters relied upon as supporting that ground.

15 It is not permissible to say, as the statement of grounds does in this case, that the facts and matters relied upon in support of each of the grounds pleaded and each of the reliefs sought are identified in the verifying affidavit and the documents exhibited to that affidavit. A purported incorporation by reference in the statement of grounds of all those facts and matters set out in the applicant's affidavit and in the documents exhibited is impermissible and ineffectual and betrays a failure on the part of the draftsman to understand the basic requirement of the rules.

16 The rules provide for a short form verifying affidavit. It is not...