Martin v an Bord Pleanála

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 10 May 2007
• Neutral Citation: [2007] IESC 23
• Docket Number: [S.C. Nos. 531 & 535 of 2004]
• Court: Supreme Court
• Date: 10 May 2007

[2007] IESC 23

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J.

531/04

535/04

Martin v An Bórd Pleanála

Between

ERIC MARTIN

Applicant / Appellant

-v-

An Bord Pleanála, IRELAND AND THE ATTORNEY GENERAL

RespondentS

AND

INDAVeR ireland LIMITED

NOTICE PARTy

EEC DIR 85/337

EEC DIR 97/11

EEC DIR 85/337 ART 4(1) (AS AMENDED)

EEC DIR 85/337 ANNEX 1 (AS AMENDED)

EEC DIR 85/337 ART 5 (AS AMENDED)

EEC DIR 85/337 ART 6 (AS AMENDED)

EEC DIR 85/337 ART 7 (AS AMENDED)

EEC DIR 85/337 ART 8 (AS AMENDED)

EEC DIR 85/337 ART 9 (AS AMENDED)

EEC DIR 85/337 ART 10 (AS AMENDED)

O'CONNELL v ENVIRONMENTAL PROTECTION AGENCY & DUNGARVAN ENERGY LTD 2003 1 IR 530 2003 2 ILRM 297 2003 42 10181

EEC DIR 85/337 ART 2(1) (AS AMENDED) LOCAL GOVERNMENT

(PLANNING & DEVELOPMENT) ACT 1963 S26(5)(d)

WASTE MANAGEMENT ACT 1996 S54(3)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S98

WASTE MANAGEMENT ACT 1996 S5(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S52

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S72(1)

WASTE MANAGEMENT ACT 1996 S39(1)

WASTE MANAGEMENT ACT 1996 S40(2)

WASTE MANAGEMENT ACT 1996 S40(2)(b)

WASTE MANAGEMENT (LICENSING) REGS 1997 SI 133/1997 ART 13

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 32

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 30

EEC DIR 85/337 ART 3 (AS AMENDED)

EEC DIR 85/337 ART 1 (AS AMENDED)

EEC DIR 85/337 ART 1(2) (AS AMENDED)

WASTE MANAGEMENT ACT 1996 S2

EEC DIR 85/337 ART 4(AS AMENDED)

EEC DIR 85/337 ANNEX IV (AS AMENDED)

R v SECRETARY OF STATE FOR THE ENVIRONMENT & ORS EX PARTE GREENPEACE LTD & ANOR 1994 4 AER 352

WELLS v SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT & THE REGIONS 2004 ECR I-00723

WELLS v SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT & THE REGIONS 2004 ECR I-00723

PLANNING & COMPENSATION ACT 1991 S22 (UK)

RADIOACTIVE SUBSTANCES ACT 1993 (UK)

EEC DIR 85/337 RECITAL I (AS AMENDED)

COMMISSION OF THE EUROPEAN COMMUNITIES v FEDERAL REPUBLIC OF GERMANY 1995 ECR I-2189

EEC DIR 97/11 RECITAL

EEC DIR 97/11 RECITAL II

EEC DIR 85/337 ART 1(3) (AS AMENDED)

EEC DIR 85/337 ART 5(1) (AS AMENDED)

EEC DIR 85/337 ART 5(2) (AS AMENDED)

EEC DIR 85/337 ART 2(2) (AS AMENDED)

EEC DIR 85/337 ART 4(2) (AS AMENDED)

SRL CILFIT & LANIFICIO DI GAVARDO SPA v MINISTRY OF HEALTH 1982 ECR 3415

TREATY OF ROME 1957 ART 234

PLANNING AND ENVIRONMENTAL

Environmental impact assessment

Environmental pollution - Transposition of Environmental Impact Assessment Directive into Irish law - Role of An Bord Pleanála and Environmental Protection Agency in environmental impact assessment process - Meaning of development consent - Whether or not development consent could consists of two or more decisions - Timing of environmental impact assessment - Meaning of earliest possible stage - Meaning of integrated assessment - R v Secretary of State for the Environment, ex parte Greenpeace Ltd [1994] 4 All ER 352 followed; Wells v Secretary of State for Transport, Local Government and the Regions (Case C-201/02) [2004] ECR I -00723 and O'Connell v Environmental Protection Agency [2003] 1 IR 530 distinguished - Council Directive 85/337/EEC - Council Directive 97/11/EC, first recital and articles. 1, 2, 3, 5 and 40 - Environmental Protection Agency Act 1992 (No 7), ss 52, 72 and 98 - Waste Management Act 1996 (No 10), ss 2, 5, 40, 39 and 54 - Applicant's appeal dismissed (531 & 532/2004 - SC - 10/5/2007) [2007] IESC 23Martin v An Bórd Pleanála

1 JUDGMENT of Murray C.J. delivered on the 10th day of May, 2007

2 This is an appeal from an Order of the High Court of Smyth J. in which he refused the relief sought by the appellant which in essence sought to challenge the decision taken by the first named respondent, hereinafter "the Board", on 3rd March, 2003, granting planning permission to the first named notice party, hereinafter "Indaver", for the development of a waste management and incinerator facility in Duleek, Co. Meath. As the appellant stated in his submissions, he seeks to challenge the lawfulness of the decision of the Board on a number of grounds including that the national legislative provisions on foot of which the decision to grant planning permission was made were incompatible with the obligations imposed on the State by Council Directive 85/337/EEC of 27th June, 1985, on the assessment of the effect of certain public and private projects on the environment as amended by Directive 97/11/EC of 3rd March, 1997, (hereinafter collectively referred to as "the Directive").

3 Having dismissed the appellant's application the learned High Court Judge certified a question of law for the purposes of an appeal to this Court. I refer to the nature and terms of the question later.

Background facts

4 The essential facts of the case are not in dispute. The development which Indaver intend to carry out consists of an incinerator waste management facility and associated development. The proposed development is to be carried out on a 25 acre site. The learned High Court Judge described the development as intended to consist of a range of structures which include a main processing building of 13,480 square metres incorporating a waster reception hall, waste sorting plant, bunker, operation / turbine buildings, boiler, grate furnace, ash bunker, demineralisation unit, boiler feed pumps, flu gas treatment building, solidification unit, Air Conditioning unit, turbine cooler and a 40 metre high stack. In addition it is proposed to have a number of ancillary structures - a pump house building of 200 square metres, recycling and water treatment. The facility will also include a process to recover energy from the waste in the form of steam and electricity, the latter for export to the national electricity grid.

5 In order to proceed with the construction and operation of the waste management facility Indaver are required by national law to obtain planning permission for the development, in the first instance from the local planning authority and in the event of an appeal, which there was in this case, from the Board. Secondly, it is required to obtain a Waste Licence from the Environmental Protection Agency pursuant to the provisions of the Waste Management Act 1996.

6 Without both the planning permission and the waste licence it cannot proceed with the development.

7 Planning permission was granted to Indaver by the local planning authority and the grant of this permission was appealed to the Board by a number of third parties who objected to the proposed development. Indaver also lodged an appeal seeking the removal or modification of a condition in respect of the source or origin of the waste to be disposed of.

8 When the application came before the Board on appeal the Board had the function of examining the application for permission de novo. For this purpose it was also under a duty to carry out an Environmental Impact Assessment. As part of the appeal process an oral hearing was conducted over four consecutive days.

9 On 27th February 2003, the Board decided to grant permission subject to an extensive range of conditions which included limitations on the origin and volume of waste, the establishment of a community liaison committee, archaeological appraisal, traffic management, water supply and drainage arrangements, noise abatement and monitoring during construction, the prevention of ground water and surface water pollution and a range of other conditions.

10 It is common case that the development or project in question is of such a nature as to require that an Environmental Impact Assessment (hereafter referred to as "EIA") be carried out prior to any consent being given to the project to proceed as required by the Directive. Accordingly national legislation must provide for the carrying out of the appropriate EIA.

11 The obligation to carry out an EIA in a project of the nature involved in this case derives principally from Article 4 paragraph 1 of the Directive which provides that projects listed in Annex I of the Directive should be made subject to an assessment in accordance with Articles 5 to 10. Again, it is common case, that the project in question here falls within Annex I.

12 The statutory and regulatory measures implementing the Directives in national law have been described by Fennelly J. as a "statutory maze" (O'Connell -v- The Environmental Protection Agency & Ors [2003] 1 I.R. 530 at 533) but hopefully, because of the net issues which have been raised in this appeal and the common position taken by the parties on certain questions, it will not be necessary to pass through that maze and refer to all the relevant provisions.

The Planning Process

13 In this case the Board did carry out an EIA before it granted planning permission subject to certain conditions. This is consistent with Article 2(1) of the Directive which requires "Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment ... are made subject to a requirement for development consent and an assessment with regard to their effects".

14 As the appellant has acknowledged, s. 26(5)(d) of the Local Government (Planning and Development) Act 1963, consistent with the obligations imposed by the Directive, requires the Board, when determining an application on appeal in respect of which an Environmental Impact Statement was submitted by the appellant, to have regard to that statement and to other information relating to the effects of the development on the environment.

15 An Environment Impact Statement (hereafter referred to as "EIS") is a statement which a developer may be required to submit to a relevant authority so as to provide them with specified information...