Rooney v an Bord Pleanála
| Jurisdiction | Ireland |
| Judge | Mr. Justice Aindrias Ó Caoimh |
| Judgment Date | 20 March 2003 |
| Neutral Citation | [2003] IEHC 100 |
| Date | 20 March 2003 |
| Docket Number | [No. 67 J.R./2000] |
| Court | High Court |
[2003] IEHC 100
THE HIGH COURT
Between:
and
and
and
Planning law - Permission Newspaper notice published by second respondent - Whether defective - Whether An Bord Pleanála has jurisdiction to consider matters relating to environmental pollution - Whether matters in relation to visual impact of development relate to risk of environmental pollution - Local Government (Planning and Development) Regulations 1994, article 15(2) - Local Government (Planning and Development) Act 1992, section 14(1) - Waste Management Act 1996 sections 5, 54 (3).
Facts: the applicants had been granted leave to seek judicial review of the decision of the first respondent to refuse their appeal against the decision of the second respondent to grant to the first notice party permission to retain certain waste treatment facilities constructed on a site in Carrowbrowne, Co. Galway. They submitted that the notice published by the first notice party with regard to its planning application failed to comply with the requirements of article 15 (2) of the Local Government (Planning and Development) Regulations 1994. The respondents submitted that the grounds or objections raised by the applicants related to the risk of 'environmental pollution' in relation to the development in question as that was defined in section 5 of the Act of 1996. The applicants further submitted that the change of law effected by the transfer of certain functions in relation to the assessment of risks of environmental pollution from the first respondent to the Environmental Protection Agency could not have been intended to have the result contended for by the first respondent which was that it had no jurisdiction to consider the visual impact of the development which they also took issue with in their appeal to the first respondent.
Held by Ó Caoimh J in refusing the relief sought, 1, that in the light of section 14 (1)(b) of the Local Government (Planning and Development) Act 1992, the first respondent was entitled to conclude that it should have dismissed the applicants' appeal as the matters at issue were matters to be addressed in the context of an application to the Environmental Protection Agency for an environmental licence for the facility in question and therefore the Board could not have considered the matter without trespassing into an area excluded from it by section 54 of the Act of 1996.
2. That the alleged failure to comply with article 15(2) of the Regulations of 1994 in relation to the publication of the notice was not such as to be so substantial as to deny the applicants any right, to which they were entitled, to advance any relevant ground of appeal to the Board.
3. With regard to the application of the European Community (Environmental Impact Assessment) Regulations, 1989 as amended, there had been compliance with same in the context of the landfill operation.
Reporter: P.C.
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 20th March, 2003.
This is an application brought by way of an application for judicial review of a decision of the first respondent (hereinafter referred to as "the Board") on planning applications relating to the retention of waste deposited and rehabilitation measures together with additional land filling and an entrance control site at Carrowbrowne, County Galway and for the construction of a leachate lagoon and ancillary works for treatment of leachate from Carrowbrowne landfill at Carrowbrowne in the county of Galway, which decision was made on the 23 rd December, 1999.
By order of this Court (O'Sullivan J.) made the 8 th May, 2000 the applicants were given leave to institute these proceedings to seek the following relief:-
1. An order of certiorari quashing the decision of An Bord Pleanala to dismiss the appeal on planning application register reference no. 98/4047, An Bord Pleanala register reference no. 07.111561.
2. An order of certiorari quashing the grant of permission consequent upon that dismissal of the appeal of Galway County Council which grant of permission is dated the 26 th May, 1999.
3. An order remitting the appeal reference no. 07.111561 to An Bord Pleanala so as to determine it in accordance with the provisions of the Local Government (Planning and Development) Acts 1963to 1999.
4. A declaration that the application planning register reference no. 98/4047 is not a valid application for the purposes of the Local Government (Planning and Development) Acts 1963to 1999or in the alternative that the grant of permission issued by Galway County Council does not comply with the mandatory requirements of the Local Government (Planning and Development) Acts 1963to 1999.
5. An order of certiorari quashing the decision of An Bord Pleanála to dismiss an appeal on appeal register reference no. PL07.111771, planning authority register reference no. 98/3858.
6. An order remitting that appeal to the first named respondent so that it can be determined in accordance with the provisions of the Local Government (Planning and Development) Acts 1963to 1999.
7. A declaration that the application register reference no. 98/3858, An Bord Pleanála reference no. PL07.111771 is not a valid application for the purposes of the Local Government (Planning and Development) Acts 1963to 1999nor has been made in accordance with the regulations made there under.
8. A declaration that the conditions attached to the grant of permission are other than in accordance with the provisions of the Local Government (Planning and Development) Acts 1963to 1999.
The grounds upon which the applicant seeks the said relief are as follows:-
1. An appeal against the decision of Galway County Council to grant planning permission consisting of a leachate lagoon and ancillary works for the treatment of leachate from Carrowbrowne town land, County Galway was submitted by the second named applicant.
2. The first named respondent by decision dated the 23 rdDecember, 1999 decided not to consider that appeal further and dismissed the appeal thereby the first named respondent failed to have regard to the submissions made and failed to properly determine the appeals lodged thereby authorizing the grant of permission by the Galway County Council for the aforesaid development.
3. The reason for the dismissal of the aforesaid appeal arose from the determination by the respondent, An Bord Pleanala, that the application related to an activity which was subject to the requirements of the Waste Management Act 1996 and required a license in respect of that Act and that the appeals submitted did not include material other than that relating to the risk of environmental pollution which they were obliged not to have regard to. The respondent erred in law in this contention.
4. Notwithstanding this conclusion the first named respondent acted inconsistently in failing, having regard to the decision made in respect to the nature of the proposed development, and failed to require that the applications submitted complied with the requirement of the Local Government (Planning and Development) Regulations 1994 and in particular Article 18(12)(i) as inserted by S.I. 261 of 1997.
5. The respondents determined an application which is an invalid application for the purpose of the Local Government (Planning and Development) Acts 1963to 1999and the regulations made there under.
6. Because the first named respondent determined that the application was such as to require it to be licensed pursuant to the Waste Management Act 1996the submissions made by the appellants were not taken into account but notwithstanding this determination they failed to ensure that the requirements of the Planning Acts insofar as these applications are concerned, were complied with and thereby failed to afford the applicants the necessary statutory protection in order to allow submissions in accordance with the requirements of those statutory provisions to be made.
7. Notwithstanding that the appeal once lodged provides the application for planning permission is to be made de novo to the board and is to be considered by them as if it was made to the board in the first instance, the board nonetheless, by dismissing the appeals, has sought to confirm the decision of the planning authority notwithstanding that that decision is inconsistent with the determination of the board as to the nature of the application and the nature of the decision that can be made.
In particular the grant of permission by the local authority contains a number of matters which the board refused to consider submission on from the appellants, but effectively determined that the decision of the local authority should issue in an unaltered form together with the conditions therein contained. The decision in those circumstances was ultra vires the powers of the board and contrary to the provisions of the local Government (Planning and Development) Acts 1963to 1999.
8. Planning application register reference no. PL07.111561, planning authority no. 98/4047 is a development for which an environmental impact statement should be carried out. The failure of the public notice accompanying the application to indicate that such a statement is necessary and the failure of the application to be accompanied by such a statement is a fundamental breach of the requirements of the Local Government (Planning and Development) Acts 1963to 1999and the regulations made thereunder and is contrary to the requirements of Council Directive...
To continue reading
Request your trial