Martin -v- An Bord Pleanála & ors, [2007] IESC 23 (2007)

Docket Number:531& 535/04
Party Name:Martin, An Bord Pleanála & ors
Judge:Murray C.J.
 
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THE SUPREME COURT

Murray C.J. 531 & 535/04

Denham J.

Geoghegan J.

Between

ERIC MARTINApplicant / Appellant-v-

An Bord Pleanála, IRELAND

AND THE ATTORNEY GENERALRespondentSAND

INDAVeR ireland LIMITEDNOTICE PARTy

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

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").

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

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.

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.

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

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.

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.

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.

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.

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.

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

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".

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.

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 concerning the potential impact of the developer's project on the environment. An EIS is taken into account when the relevant authority is carrying out an EIA. The Directive does not, of course, use the term EIS. It is the term used in national legislation to denote a statement containing the information which a developer may be required to provide as provided for in Articles 5-10 of the Directive.

In this case no issue is taken with the substance of the EIA made by the Board within the ambit of its statutory competence. Moreover, it is clear, as the learned High Court Judge found, that the EIA conducted by the Board included an assessment of matters which could affect environmental pollution arising from the construction of the relevant plant.

This means in effect that there is no issue concerning the fact that the Board, for the purpose of deciding the planning application for the construction of the facility, carried out an EIA in accordance with its statutory obligations.

However the scope of the EIA carried out by the Board was limited in one particular respect. That limitation is the genesis of the appellant's case. The Board in carrying out an EIA for the purpose of the planning application was precluded from considering any matters relating to "the risk of environmental pollution from the activity", that is to say the activity arising from the operation of the waste management facility once it had been constructed. The underlying rationale for such a limitation on the functions of the Board is that as regards developments or projects which are required to obtain a waste licence from the Environmental Protection Agency (hereafter the "EPA") the risk of "environmental pollution from the activity" is a matter to be assessed by that Agency when deciding whether to grant such a licence. This division of responsibility for environmental assessment has, as its purpose, the avoiding of duplication of functions by the Board and the EPA in the case of such development or project. It means that in such a case the Board carries out an EIA for the purpose of the construction element of the project and the EPA carries out an EIA in respect of the activity that will be carried out in the operation of the plant to be constructed.

That limitation on the functions of the Board arose by virtue of the fact that the development in question is one for which a waste licence from the EPA pursuant to the provisions of the Waste Management Act 1996 is required.

Section 54(3) provides as follows:"Notwithstanding section 26 of the Act of 1963 or any other provision of the Local Government (Planning and Development) Acts, 1963 to 1993, where a waste licence has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the purposes of the activity-(a) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or

(b) decide to grant such permission subject to conditions which are for the purposes of prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,and accordingly-(i) a planning authority in dealing with an application for a permission or for an approval for any such development shall not consider any matters relating to the risk of environmental pollution from the activity;

(ii) An Bord Pleanála shall not consider any...

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