Ryan v an Bord Pleanála and Others

• Jurisdiction: Ireland
• Judge: Mr Justice David Holland
• Judgment Date: 27 February 2025
• Neutral Citation: [2025] IEHC 111
• Court: High Court
• Docket Number: 2023/1252 JR

In the Matter of Section 50 of the Planning and Development Act 2000 (As Amended)

Between

Tom Ryan

Applicant

and

An Bord Pleanála the Minister for Housing Local Government and Heritage, Ireland and The Attorney General

Respondents

and

Analog Devices International, Limerick City and County Council the Environmental Protection Agency

and

IDA Ireland

Notice Parties

[2025] IEHC 111

2023/1252 JR

THE HIGH COURT

PLANNING AND ENVIRONMENT

JUDICIAL REVIEW

Planning and development – Judicial review – Environmental impact assessment – Applicant appealing from decisions granting planning permissions – Whether an environmental impact assessment was required in respect of the developments

Facts: The applicant, Mr Ryan, sought certiorari quashing two decisions (the Impugned Decisions) of the first respondent, An Bord Pleanála (the Board), on Mr Ryan’s appeals from decisions of the second notice party, Limerick City and County Council (the Council), to grant planning permissions to the first notice party, Analog Devices International (Analog), for proposed developments at its Campus at Raheen Industrial Business Park, Raheen, County Limerick. The Board’s Impugned Decisions were those: dated 7 September 2023 granting permission for the “Hydrogen Development” on a 5.2 hectare site which formed part of Analog’s Campus (the Hydrogen Decision); and dated 12 September 2023 granting permission for the “Fanfare Development” on a 9.52 hectare site which formed part of Analog’s Campus (the Fanfare Decision). The applicant’s grounds were as follows: the Fanfare and Hydrogen Decisions are invalid because the Board misdirected itself in law as to whether an environmental impact assessment (EIA) was required in respect of the Fanfare and Hydrogen Developments, either as an industrial estate development, an urban development, a chemicals storage development, or a groundwater abstraction development, and it failed to consider cumulative impacts of the developer’s entire installation and cumulative impacts with other development in the area, and accordingly it failed to carry out EIA screening in accordance with s. 171A and s. 172 of the Planning and Development Act 2000, Article 109 of the Planning and Development Regulations 2001, and Articles 2, 3, 4, Annex II and Annex III of the EIA Directive; and the Fanfare Decision is invalid because the Council and the Board failed to make a determination for the purposes of Articles 2, 4, 5 and 6 of the European Communities Environmental Objectives (Surface Waters) Regulations 2009 giving effect to Article 4 of Directive 2000/60/EC establishing a framework for Community action in the field of water policy as to whether the Fanfare Development would cause deterioration of water quality, or would prejudice the attainment of good quality for waters, and the Board failed to have regard to relevant material in the possession of the Council and the third notice party, the Environmental Protection Agency, which those bodies should have, but did not, furnish to the Board.

Held by the High Court (Holland J) that Mr Ryan chose, in Analog, a target against whom there was no evidence that it had caused or contributed to, or that its proposed developments would cause or contribute to, the pollution of which he complained. Holland J held that the risk allegedly posed by Analog was no more than hypothetical and theoretical. Holland J noted that Mr Ryan did not even allege that Analog’s proposed developments would pose a risk; he speculated without evidence that they might. Holland J held that, in respect of both grounds, Mr Ryan bore a relatively light burden but failed to discharge it.

Holland J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT OF Mr Justice David Holland DELIVERED 27 FEBRUARY 2025

Contents

JUDGMENT OF MR JUSTICE DAVID HOLLAND, DELIVERED 27 FEBRUARY 2025	1
INTRODUCTION & BACKGROUND	4
Proceedings & Grounds Pursued	9
Terminology & Effluent Collection Systems — a Note	10
ANALOG'S FANFARE EIA SCREENING REPORT — 8 JULY 2022 & 2019 INVESTIGATIONS	12
Analog's Fanfare EIA Screening Report	12
Analog's Risk Assessment of storm water Discharges & IDA CCTV Survey — 2019	14
Possibility of Misconnections to the Analog Storm Water System	16
MR RYAN'S UNDERLYING COMPLAINTS, LCCC INVESTIGATION & PLANNING PROCESS BEFORE LCCC	16
Ryan Complaints	16
Loughmore Canal Stakeholder Meeting — April 2022	17
JRE Technical Memorandum on Sampling Results — May 2022	18
Garland Reports — Draft, July 2022, Final February 2023 & LCCC to IDA August 2022	20
Fanfare — Ryan Objection to LCCC — August 2022, LCCC Planner's Report & LCCC Reports to EPA, September 2022 and December 2023	22
Observations as to the Evidence	25
LCCC Condition #3	26
HINGE OF MR RYAN'S CASE	27
MR RYAN'S FANFARE APPEAL, 28 September 2022 & ANALOG'S REPLY, 21 October 2022	29
Ryan Appeal & Comment thereon	29
Analog's reply to the Ryan Appeal — October 2022	31
INSPECTOR'S FANFARE REPORT	32
Fanfare — EIA Screening	34
BOARD DECISIONS, FANFARE CONDITION #2 & THE EFFICACY AND RATIONALITY THEREOF	35
EPA LICENCING	39
IPC Licence	39
Pending Licence Review P0224/05 & Baseline Report 2023	40
Incident of September 2022	41
Monitoring, EPA Assistance to LCCC Statutory Investigation & Zinc Monitoring — September 2023	43
EPA Letter 6 February 2024	47
ADMISSIBILITY OF HALL AFFIDAVIT & Tetra Tech Report & MATERIALS NOT BEFORE THE BOARD	49
Hall Evidence — Affidavit & Tetra Tech Report — July 2024	49
Analog's Response to Hall Evidence	50
Motions to Exclude the Hall Evidence	51
Board & Analog	51
Mr Ryan	52
Admissibility of Materials not Before the Board — General Note	53
Hall Evidence — Conclusion	57
Matters not Before the Board — the Case Pleaded	58
GROUND 2 — EIA — FANFARE DECISION & HYDROGEN DECISION	59
EIA — Pleadings	59
EIA — Whether it is Required and the Concept of “Mandatory” EIA — General Note	60
“Mandatory” EIA — a confusing usage.	62
EIA — Impugned Decisions & Inspector's report	62
EIA — Project Classes, Introduction to Reid & Abandonment of the Ancillary Purpose Test	65
EIA — Project Classes, Decision — Groundwater Abstraction — Chemical Storage — Industrial Estate Development	65
EIA — Interpretation of Annex II Classes	67
EIA — Urban development project — Class 10(b)	72
EIA — Annex II Class 13, change or extension of projects listed in Annex I or II	78
EIA — Conclusions	78
Nature of Development	78
Re-Writing the Decision & Discretion	78
Relief Discretionary	80
Sub-Threshold EIA	80
GROUND 4 — WATER FRAMEWORK DIRECTIVE — FANFARE DEVELOPMENT	82
WFD — Introduction & Status of Water Bodies	82
Nordrhein-Westfalen	84
Sweetman v An Bord Pleanála & Breadán Beo — 2021 & 2024	85
WFD — Grounds & Particulars	87
WFD — Board, Analog & EPA Positions	90
WFD — Discussion & Decision	91
WFD — The Present Case — Some Facts	91
WFD — Some Observations	92
Onus of Proof in Judicial Review & Theoretical Risk	92
CONCLUSION	98

INTRODUCTION & BACKGROUND

1 In these proceedings the Applicant, (“Mr Ryan”) a dairy farmer, of Ballynoe, Mungret, County Limerick, seeks certiorari quashing two decisions (“the Impugned Decisions”) of the First Respondent (“the Board”), of Mr Ryan's appeals from decisions of the Second Notice Party, Limerick City and County Council (“LCCC”) to grant planning permissions to the First Notice Party (“Analog”) for proposed developments at its Campus at Raheen Industrial Business Park, Raheen, County Limerick (“the Business Park”). Analog, since 1976, operates a manufacturing facility on its Campus, in the north-east corner of the Business Park. There, it manufactures integrated circuits on silicon wafers.

2 The Board's Impugned Decisions are those:

I will refer to the Hydrogen Development and the Fanfare Development collectively as “the Proposed Developments”.

• • dated 7 September 2023 granting permission 1 for the “Hydrogen Development”

  described below, on a 5.2 hectare site (the “Hydrogen Site”) which forms part of Analog's Campus.

• • dated 12 September 2023 granting permission 2 for the “Fanfare Development” described below, on a 9.52 hectare site which forms part of Analog's Campus.

3 The 9.52ha Fanfare Site encompasses all of the 5.2ha Hydrogen Site and, the exhibited drawings suggest, also encompasses by far the greater part of Analog's Campus and by far the greater part of its manufacturing and associated facilities. 3 References below to “the Site” are to the Fanfare Site. The main substance of the intended Fanfare Development will occupy a relatively small part of the “red line” 4 Fanfare Site but the proposed Fanfare works will include works to Analog's storm water drainage in the Fanfare Site generally within the “red line”. 5

4 In reality as the case ran, Mr Ryan's fire, to the extent it was concentrated at all on the Proposed Developments (a remarkable observation in itself) was concentrated on the permission for the Fanfare Development.

5 The proceedings were in substance defended by the Board and Analog. The Second, Third and Fourth Respondents (“the State”) filed opposition papers but did not appear at trial. Of the Notice Parties, LCCC and the IDA did not appear to the proceedings. This was in a degree unfortunate as they have had the central roles in a statutory investigation of the alleged pollution which has prompted these proceedings. As will be seen, they could have assisted the Court as to the factual matrix underlying the proceedings – perhaps as to the redaction of certain documents. It is understandable that they did not appear, as no relief was sought against them. But it was also their...