Martin Harrington v Ireland and Attorney General (an Bord Pleanála) & others

JurisdictionIreland
CourtHigh Court
JudgeMacken J
Judgment Date26 July 2005
Neutral Citation[2005] IEHC 344
Docket Number[2004 No. 1164 JR]
Date26 July 2005
HARRINGTON v BORD PLEANALA
COMMERCIAL
JUDICIAL REVIEW

BETWEEN

MARTIN HARRINGTON
Applicant

AND

AN BÓRD PLEANÁLA
First Named Respondent

AND

IRELAND AND THE ATTORNEY GENERAL
Second Named Respondent

AND

SHELL E. AND P. IRELAND LIMITED, MAYO COUNTY COUNCIL AND OTHERS
Notice Parties

[2005] IEHC 344

RECORD No. 1164/JR/2004

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Judicial review

Application for leave - Locus standi - Substantial interest - Whether applicant entitled to raise issues not raised by him at appeal stage - Issues raised by third party - Exception to substantial interest requirement to enable court to scrutinise if serious failure properly to apply law - Substantial grounds - Ryanair v An Bord Pleanála [2004] IEHC 52, [2004] 2 IR 334; Lancefort Ltd v An Bord Pleanála (No 2) [1999] 2 IR 270; McNamara v An Bord Pleanála (No 1) [1995] 2 ILRM 125; Jackson Way Properties Ltd v Minister for Environment (Unrep, Geoghegan J, 2/7/1999) and Kenny v. An Bord Pleanála (No 1) [2001] 1 IR 565 applied - Meaning of "establishment" - Scope of establishment determined by Health and Safety Authority - Whether An Bord Pleanála required independently to determine scope of establishment - Council Directive 96/82/E., articles 3, 4, 12, 16 & 17 - European Communities (Control of Major Accident Hazards involving Dangerous Substances) Regulations 2000 (SI 476/2000), reg 29 - Planning and Development Regulations 2001 (SI 600/2001), regs 137 and 141 - Planning and Development Act 2000 (No 30), s 50 - Leave to apply for judicial review refused (2004/1164JR - Macken J - 26/7/2005) [2005] IEHC 344; [2006] 1 IR 388 Harrington v An Bord Pleanála

EEC DIR 96/82 ART 12

EUROPEAN COMMUNITIES (CONTROL OF MAJOR ACCIDENT HAZARDS INVOLVING DANGEROUS SUBSTANCES) REGS 2000 SI 476/2000 ART 29

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 141

EEC DIR 96/82 ART 3

EEC DIR 96/82 RECITAL 13

EEC DIR 96/82 ART 4

EUROPEAN COMMUNITIES (CONTROL OF MAJOR ACCIDENT HAZARDS INVOLVING DANGEROUS SUBSTANCES) REGS 2000 SI 476/2000 ART 29(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 137(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 141(1)

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 ART 137

PLANNING & DEVELOPMENT ACT 2000 S50

MCNAMARA v BORD PLEANALA 1995 2 ILRM 125

DROGHEDA PORT COMPANY v LOUTH COUNTY COUNCIL UNREP MORRIS 11.9.1997 1997/8/2757

KENNY v AN BORD PLEANALA (NO 1) 2001 1 IR 565

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

PLANNING & DEVELOPMENT ACT 2000 S50(4)(b)

PLANNING & DEVELOPMENT ACT 2000 S50(4)

RYANAIR LTD v LABOUR COURT UNREP HANNA 14.10.2005

LANCEFORT LTD v BORD PLEANALA & TREASURY HOLDINGS LTD 1999 2 IR 270 1998 2 ILRM 401

PLANNING & DEVELOPMENT ACT 2000 S50(4)(d)

EEC DIR 96/82 ART 4(d)

GAS ACT 1976 S40

PLANNING & DEVELOPMENT REGS 2001 SI 600/2001 PART II

EUROPEAN COMMUNITIES (CONTROL OF MAJOR ACCIDENT HAZARDS INVOLVING DANGEROUS SUBSTANCES) REGS 2000 SI 476/2000 ART 1371(a)

EUROPEAN COMMUNITIES (CONTROL OF MAJOR ACCIDENT HAZARDS INVOLVING DANGEROUS SUBSTANCES) REGS 2000 SI 476/2000 ART 138

ABENGLEN PROPERTIES, STATE v DUBLIN CORP 1989 IR 381

HICKEY v BORD PLEANALA & ORD UNREP SMYTH 10.6.2004 2004/21/4912

ROADS ACT 1998

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT UNREP GEOGHEGAN 2.7.1999 1999/14/3977

EEC DIR 96/82 ART 234

1

JUDGMENT delivered by Macken J. on the 26th day of July, 2005

2

The applicant is seeking leave to commence proceedings by way of judicial review for two orders in respect of the decision of the first named respondent, An Bórd Pleanála, to grant planning permission to the first named Notice Party, Shell E&P Limited, for the development of a gas terminal and peat deposition site. The applicant is an electrician. He resides about fifteen miles from the proposed terminal, and seeks to commence proceedings because, he says, he has concerns arising from the grant of permission to develop the terminal at a site at Bellnaboy, Co. Mayo.

3

While the respondents and the first and second notice parties filed notices of opposition, as well as the required written submissions, and were present at the hearing of this application, none of the other notice parties did so. Prior to the commencement of the hearing evidence as to the appropriate service of the motion on the several remaining notice parties was presented to the Court. I was satisfied that all procedural steps in that regard had been properly taken.

Brief Background Facts:
4

The following is a synopsis of the factual matters giving rise to the dispute between the applicant and the respondents. The proposed gas terminal is to be used for the reception and separation of gas taken from what is called the "Corrib" Gas Field located some 65 kilometres off the Mayo Coast. The entire of this undertaking will consist of a number of sub-sea gas wells flowing into an underwater pipeline. A collection system will be placed on the seabed and a pipeline will come ashore and run underground to the proposed terminal.

5

The site upon which the terminal is proposed to be built has an area of 160 hectares. The actual terminal building itself, together with some ancillary buildings, that is to say, the "footprint" as it is often called in architectural and/or planning terms, and the immediate surrounding area, comprises around 13 hectares and is enclosed by a perimeter or security fence. The pipeline from the gas field will run underground from the Mayo coastline at a point where it comes ashore at Dooncarten to the commencement of the terminal footprint at the site at Bellnaboy. This pipeline runs over ground only for the last five metres where it comes above ground and within the terminal footprint itself

6

On or about the 30th April, 2001, Shell E&P Ireland Ltd originally applied to Mayo County Council for planning permission for the development of the above described gas terminal. After a number of applications, appeals and refusals, planning permission was granted by An Bórd Pleanála on 22nd October 2004, subject to several conditions. The planning permission was sought and granted in respect of a development within the area surrounded by the perimeter fence already mentioned.

7

It is in respect of the above decision of the 22nd October 2004 that proceedings are now sought to be instituted.

Relief Sought:
8

The reliefs which the applicant seeks in his proposed proceedings are:

9

(i) an order of certiorari quashing the decision of An Bórd Pleanála of the 22nd October 2004; and

10

a (ii) a declaration that the failure of An Bórd Pleanála to ensure that it had all the necessary information it was required to have in accordance with Article 12 of Council Directive 96/82/EC, and any provisions of Irish law purporting to implement that Directive, vitiates its grant of planning permission;

11

The grounds upon which the reliefs are sought can also be synopsised fairly briefly.

12

The applicant claims that on a correct interpretation of Article 12 of Council Directive 96/82/EC on the Control of Major Accident Hazards Involving Dangerous Substances (hereinafter "the Directive"), An Bórd Pleanála is itself required to form an opinion as to whether a development in respect of which planning permission is sought concerns an "establishment" within the meaning of the Directive. Further it is not permitted to abrogate that role to a third party. An Bórd Pleanála did so and erroneously accepted and adopted the narrow and invalid interpretation of the term "establishment" which the National Authority for Occupational Safety and Health (hereinafter "the Health and Safety Authority") had itself erroneously adopted, and wrongly bound itself to that interpretation.

13

As a result, the applicant claims:

14

a) that the decision of An Bord Pleanála was ultra vires its powers, because its decision making process avoided the legal obligations placed upon it pursuant to the Directive and by the European Communities (Control of Major Accident Hazards involving Dangerous Substances) Regulations, 2000 ( S.I. 476/2000) (hereinafter the "Major Accident Hazards Regulations of 2000") which transposed the Directive into Irish law.

15

b) that the decision was also in breach of s.141 of the Planning and Development Regulations 2001 ( S.I. 600/2001), because An Bórd Pleanála failed to notify the Health and Safety Authority that it had received an appeal relating to the provision of an establishment the development of which would be relevant to the risks or consequences of a major accident within the meaning of the Directive.

16

c) that An Bord Pleanála failed in its obligation under section 141 of the said Regulations of 2001 to form an opinion as to whether the planning application or the appeal related to the provision of an establishment within the meaning of the Directive by adopting a limited and unlawful interpretation of "establishment" to include only the area within the above security or perimeter fence. In that regard 900 metres of pipeline, at least, extended from the security fence to the boundary of the developer's land take. This comprises part of the establishment according to the applicant, but was not included as part of the planning application. No technical advice was therefore sought or supplied in respect of this pipeline.

17

d) that An Bord Pleanála failed to obtain technical advice from the Health and Safety Authority in respect also of the pipeline extending beyond the boundary of the first notice party's land take to the gas field itself, which pipeline, according to the applicant, also forms part of an establishment within the meaning of the Directive.

The case against the Second Named Respondent
18

The second named respondent has been named in this application on the basis that it is contended...

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