Usk District Residents Association Ltd v Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 28 July 2006
• Neutral Citation: [2006] IEHC 272
• Court: High Court
• Docket Number: 2004/694JR
• Date: 28 July 2006

[2006] IEHC 272

THE HIGH COURT

2004/694JR

USK & DISTRICT RESIDENTS ASSOCIATION LTD v ENVIRONMENTAL PROTECTION AGENCY

USK & DISTRICT RESIDENTS ASSOCIATION LTD v ENVIRONMENTAL PROTECTION AGENCY

JUDICIAL REVIEW

BETWEEN

USK AND DISTRICT RESIDENTS ASSOCIATION LIMITED

APPLICANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

AND

GREENSTAR RECYCLING HOLDINGS LIMITED

NOTICE PARTY

WASTE MANAGEMENT ACT 1996 S43(5)(A)

WASTE MANAGEMENT ACT 1996 S42(2)

WASTE MANAGEMENT ACT 1996 S42(3)

WASTE MANAGEMENT ACT 1996 S43(5)

WASTE MANAGEMENT ACT 1996 S43

MCNAMARA v AN BORD PLEANALA 1995 2ILRM 125

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

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

KSK ENTERPRISES LTD v BORD PLEANALA 1994 2 ILRM 1

PLANNING & DEVELOPMENT ACT 1992 S19(3)

G v DPP 1994 1 IR 374

ARKLOW HOLIDAYS v AN BORD PLEANAL & ORS UNREP CLARKE 18.1.2006

WASTE MANAGEMENT ACT 1996 S40(4)(C)

WASTE MANAGEMENT (LICENSING) REGS 2000 SI 185/2000

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1994 SI 84/1994 ART 25

WASTE MANAGEMENT ACT 1996 S40(2)(B)(II)(I)

XJS INVESTMENTS LTD v DUN LAOGHAIRE CORPORATION 1986 IR 750 1987 ILRM 659

WASTE MANAGEMENT ACT 1996 S5(2)(A)

WASTE MANAGEMENT ACT 1996 S5(2)(B)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S62(1)

WASTE MANAGEMENT ACT 1996 S40(4)

RSC O.84 r20(7)

PLANNING AND ENVIRONMENTAL LAW:

Waste management

Waste licence - Condition - Whether void for uncertainty - Whether licence granted in breach of statutory provision - Whether compliance with statutory provision requiring prevention or reduction of waste emissions - Whether substantial grounds for granting leave - Waste Management Act 1996 (No10), s 40(4)(c) - Re XJS Investments Ltd [1986] IR 750 considered - Leave to apply for judicial review granted (2004/694JR -Finlay Geoghegan J - 28/7/2006) [2006] IEHC 272 Usk and District Residents Association Ltd v Environmental Protection Agency

This was an application for leave to issue judicial review proceedings seeking an order of certiorari of a decision of the respondent to grant a waste licence to the notice party. The application was made on notice to the respondent and notice party as required under s. 43(5) of the Waste Management Act 1996.

Held by Finlay Geoghegan J. in granting leave that the applicant had made out substantial grounds for contending that the licence was invalid as it was granted in breach of the prohibition in s. 40(4)(c) of the Act of 1996.

Reporter: R.W.

1 Judgment of Ms. Justice Finlay Geoghegan delivered the 28th day of July, 2006.

Ms. Justice Finlay Geoghegan

2 This is an application for leave to issue judicial review seeking an order of certiorari of a decision of the respondent made on 8th June, 2004, to grant a waste licence to the notice party and related reliefs. The application is made on notice to the respondent and notice party as is required under s. 43(5)(a) of the Waste Management Act,1996 ("the Act of 1996"). The motion was issued on 4th August, 2004. The unusual delay in the hearing of the application for leave was caused by applications and appeals in relation to security for costs.

3 The applicant is a company limited by guarantee. Its members are residents in the district of Usk, County Kildare, some of whom live close to the site of the proposed waste management facility. The applicant has participated in the relevant licensing procedure under the Act of 1996 which culminated in the granting of the licence to the notice party by the respondent by decision of 8th June, 2004.

Factual background

4 On 10th December, 2001, the notice party made an application for a waste licence to the respondent for the operation of a waste management facility at Usk, Dunlavin, County Kildare. With the application there was lodged an Environmental Impact Statement.

5 The site the subject matter of the application had been a quarry. Quarrying by a third party continued on the lands the subject matter of the application until approximately March, 2003. Those activities are alleged by the applicants to have been unlawful but nothing turns on this for the purposes of this application.

6 On 3rd October, 2003, the respondent issued a proposed decision on the application for a waste licence in accordance with the requirements of s. 42(2) of the Act of 1996. The applicant made a written objection to the proposed decision as permitted by s. 42(3) of the Act of 1996 on 30th October, 2003. A Technical Committee of the respondent made a report on the objections of the applicant and the notice party dated 24th May, 2004.

7 The waste licence was issued by the respondent on 8th June, 2004.

Statutory criteria for leave

8 Section 43(5) of the Act of 1996 provides that leave shall not be granted challenging the decision of the respondent to grant the licence "unless the High Court is satisfied that there are substantial grounds for contending that the decision is invalid or ought to be quashed". There was substantial agreement between the parties as to the proper approach of the court in determining what are "substantial grounds" within the meaning of s. 43 of the Act of 1996. It is in accordance with the approach of Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125, where at p. 129 she stated:

"In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned in trying to ascertain what the eventual result would be. I believe I should go no further than satisfying myself that the grounds are "substantial". A ground that does not stand any chance of being sustained (for example, where the point has been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I do not also have to say that the applicant is confined in this argument at the next stage to those which I believe may have some merit."

9 The above approach was approved of by the Supreme Court in Re the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

10 I was referred also to the helpful consideration of the meaning of the phrase by McKechnie J. in Kenny v. An Bord Pleanála (No. 1) [2001] 1 I.R. 565 and his reference at p. 572 of the judgment to the observation of Finlay C.J. in KSK Enterprises Limited v. An Bord Pleanála [1994] 2 I.R. 128 that the similar threshold provided for in s. 19(3) of the Planning and Development Act, 1992 was intended "to result in a different and higher threshold than that normally applicable to an application for judicial review under the Rules of the Superior Courts, 1986". However, I also agree with McKechnie J. as he stated following his consideration of the meaning of the phrase that one cannot do better than return to the words used by Carroll J. in McNamara that the ground be reasonable, arguable and weighty. It is the requirement that it be "weighty" which appears to put the threshold higher than that required for an ex parte application under the Rules of the Superior Courts in accordance with the decision of the Supreme Court in G. v. D.P.P. [1994] 1 I.R. 374. It is not clear to me that one can describe in a comprehensive but abstract manner this heightened threshold.

11 In relation to an application for leave on notice to the proposed respondents I agree with the observations of Clarke J. in Arklow Holidays Limited v. An Bord Pleanála and Wicklow County Council (Unreported, High Court, 18th January, 2006), where in respect of such an application he stated:

"…The process envisaged is that, with the assistance of argument from all sides, the court has to form a judgment as to whether notwithstanding the points raised by those opposing leave there remains substantial or weighty arguments in favour of the challenge…

Thus where, even after having had the benefit of argument on both sides, the court remains of the view that there are substantial or weighty arguments either way, the court should not express any view on the relative strengths of those arguments. Rather leave should be granted and it is for court dealing with the substantive application to weigh the strengths of the relevant arguments."

Alleged substantial grounds

12 Counsel for the applicant in submission did not pursue all the grounds as set out at paragraph E of the statement of grounds. He confined the challenge to the validity of the decision to grant the licence to three grounds which may be summarised as follows:

13 1. Non compliance of the Environmental Impact Statement (EIS) with the relevant statutory requirements.

14 2. The invalidity of condition 3.12 of the waste licence.

15 3. The respondent acted ultra vires in granting the licence as it failed to comply with s. 40(4)(c) of the Act of 1996 in relation to the best available technology not entailing excessive costs relative to the buffer zone between the proposed waste disposal facility and sensitive receptors including private residences.

EIS

16 It is common case between the parties that on the facts of this application article 13(1) of the Waste Management (Licensing) Regulations 2000 required the notice party to submit with the application an EIS which complied with the Environmental Impact Assessment Regulations 1989 - 1999 and in particular article 25 thereof.

17 An EIS was submitted with the application in December, 2001. The applicant makes no complaint about the compliance of the EIS with the relevant statutory provisions in December, 2001. The alleged ground of invalidity is that as quarrying continued on...