Usk District Residents Association Ltd v an Bord Pleanála, Ireland and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mr. John MacMenamin
• Judgment Date: 08 July 2009
• Neutral Citation: [2009] IEHC 346
• Court: High Court
• Docket Number: [2008 No. 1071 JR]
• Date: 08 July 2009

Usk & District Residents Association Ltd v Bord Pleanála & Ors

COMMERCIAL

BETWEEN/

USK AND DISTRICT RESIDENTS ASSOCIATION LTD.

APPLICANT

AND

AN BORD PLEANÁLA

AND

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

KILDARE COUNTY COUNCIL

NOTICE PARTY

AND

GREENSTAR RECYCLING HOLDINGS LTD

NOTICE PARTY

[2009] IEHC 346

[1071 J.R./2008]

THE HIGH COURT

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Objective bias - Reasonable apprehension that decision maker biased - Waste facility - Landfill - Previous judicial review- Prejudgment of same issue by members of board - Recommendations by court - Failure by board to act on judicial recommendations regarding composition of deciding panel - Onus on board to avoid perception of prejudgment - Legal duty - Doctrine of necessity - Whether evidence established objective bias - Whether justified by way of legal defence - DD v Gibbons [2006] IEHC 33[2006] 3 IR 17 distinguished; Coughlan v Pattwell [1993] 1 IR 31, O'Neill v Beaumont Hospital Board [1990] ILRM 419, O'Callaghan v Mahon [2007] IESC 17[2008] 2 IR 514, O'Neill v Irish Hereford Breed Society Ltd [1992] 1 IR 431, Johnson v Darr 144 Tex 516 272 SW 1098 [1925], Bennett v British Colombia Securities Commission [1994] CAN L II 912(BCCA), Committee for Justice and Liberty v National Energy Board [1978] 1 SCR 369 considered; Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412 and Dublin Wellwoman Centre Ltd v Ireland [1995] 1 ILRM 408 applied - Fair procedures -Court order in respect of subject land not followed - Reasons not given - Duty to give adequate reasons - Test to be applied - Whether inadequate reasons given -Permission granted without conditions - Alleged failure by board to adequately consider relevant environmental considerations in accordance with statute - Whether decision irrational - Whether board failed to adequately address itself to material considerations - Whether consequently decision itself made without jurisdiction - Mulholland v An Bord Pleanála [2005] IEHC 306[2006] 1 IR 453 applied; Weston v An Bord Pleanála [2008] IEHC 71 (Unrep, MacMenamin J, 14/3/2008), South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, Talbot v An Bord Pleanála [2008] IESC 46[2009] 1 IR 375, O'Donoghue v An Bord Pleanála [1991] ILRM 750, White v Dublin City Council [2004] IESC 35[2004] 1 IR 545 considered - Practice and procedure - Locus standi - Attorney General and State - Role of Attorney General in protection of public interest - Whether State may seek subsequently to impugn decision of board -Whether State and Attorney General had legitimate interest - Statutory interpretation - Directives - Objective of directive to be considered -Ambiguity - Principles to be applied in case of ambiguity - Jurisdiction - Jurisdictional deficiency of board - Board acting in excess of jurisdiction - Failure to address relevant legal consideration - Incorrect legal questions posed - Roles of agencies - Failure to carry out complete lawful environmental impact assessment - Demarcation of roles - Public participation -Non compliance with legislation - Martin v An Bord Pleanála [2007] IESC 23[2008] 1 IR 336 applied; Moore v Attorney General [1930] 1 IR 471, TDI Metro Ltd v Delap (No 1) [2000] 4 IR 337, Maher v An Bord Pleanála [1999] 2 ILRM 198, Pfeiffer v Deutches Rotes Kreuz [2005] ICR 1307, O'Connell v Environmental Protection Agency [2003] 1 IR 530, Commission v Germany C 431/92 [1996] 1 CMLR 196 , Commune de Mesquer v Total France SA C188 07 [2009] All ER (EC) 525, Commission v Ireland C 215/06 [2008] ECR I-04911, Klohn v An Bord Pleanála [2008] IEHC 111[2009] 1 IR 59, Edwards v Environment Agency [2008] 1 WLR 1578, Commission v Ireland C216/05 [2006] ECR I-10787, Commission v Ireland C 66/06 [2008] All ER (D) 208 (Nov), Wells v Secretary of State C201/02 [2004] ECR I-723 [2005] All ER (EC) 323, Berkeley v Secretary of State for the Environment [2000] 3 WLR 420, SIAC Construction Ltd v Mayo County Council [2002] 3 IR 148, Sweetman v An Bórd Pleanála [2007] IEHC 153[2008] 1 IR 227, Cairde Chill an Disirt Teo v An Bórd Pleanála [2009] IEHC 73[2009] 2 ILRM 89 considered - Planning and Development Act 2000 (No. 30), ss 34 & 160 - Local Government (Planning and Development) Act 1963 (No 28), s 26 -Waste Management Act 1996 (No 10), ss 4, 5, 40, 42 & 54 - European Convention on Human Rights Act 2003 (No 20), s 6 - European Communities (Environmental Impact Assessment) Regulations 1999 (SI 349/1989), reg 11 - Council Directive 2003/35/EC - Council Directive 85/337/EE - Leave granted (2008/1071JR - MacMenamin J- 8/7/2009) [2009] IEHC 346

Usk and District Residents Association Ltd v An Bord Pleanála

Facts The applicants had brought proceedings against An Bord Pleanla seeking to have an order of the Board granting planning permission quashed on a number of grounds. The development in question was a proposed landfill development in Usk, County Kildare. The applicant in previous proceedings had been successful in having a previous grant of permission quashed and the matter had been remitted to the Board for consideration. The Board after further consideration granted permission for the development for a second time and the applicants instituted judicial review proceedings. A number of claims were made by the applicants. It was contended that the Board were guilty of objective bias and had failed to address the non-implementation of a previous order of the Court under section 160 of the Planning Acts which directed remediation works to be carried out prior to the institution of the development. Further allegations were made that the Board had failed to address itself to relevant environmental considerations which should by law have been contained in the permission and that the Board had unlawfully failed to comply with the European Community Environmental Directives applicable to the development.

Held by MacMenamin J in granting the relief sought and quashing the Board's order. The evidence established objective bias on the part of four out of the six decision-makers of the Board by way of prejudgment of the same issue. It had not been justified as the Board had contended by the defence of legal duty. There had been environmental and planning consequences arising from the restoration of the site (in compliance with a previous court order) which the Board had failed to address. The Board had failed to address itself appropriately to its own jurisdictional remit and to ensure that highly relevant planning matters such as noise and dust were the subject of conditions in the permission granted. The question of environmental pollution caused by construction of the facility fell to be dealt with by the Board. The landfill liner question was a construction issue. The Board failed to deal with it and was in breach of its duties under the EIA Directive. The Board should not have been over- respectful of the perceived statutory remit of the EPA as exercised in the related waste licence. The order of certiorari sought would be granted.

Reporter: R.F.

PLANNING & DEVELOPMENT ACT 2000 S160

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1982 S10

O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419

O'CALLAGHAN & ORS v JUDGE MAHON & ORS 2008 2 IR 514 2007/47/9902 2007 IESC 17

O'NEILL & BOVA GENETICS LTD v IRISH HEREFORD BREED SOCIETY LTD 1992 1 IR 4311991 ILRM 612 1991/5/1177

BULA LTD & ORS v TARA MINES & ORS (NO 6) 2000 4 IR 412 2000/3/925

JOHNSON v DARR 1925 144 TEX 516 1925 272 SW 1098

FLAMM JUDICIAL DISQUALIFICATION: RECUSAL & DISQUALIFICATION OF JUDGES 2ED 2007 581

WASTE MANAGEMENT ACT 1996 S54(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

D (D) v JUDGE GIBBONS 2006 3 IR 17 2006/14/2845 2006 IEHC 33

COUGHLAN v JUDGE PATWELL & DPP 1993 1 IR 311992 ILRM 808 1992/1/128

BENNETT v BRITISH COLUMBIA (SUPERINTENDENT OF BROKERS) 1994 CANLII 912 (BC CA)

COMMITTEE FOR JUSTICE & LIBERTY v NATIONAL ENERGY BOARD 1978 1 SCR 369

WOOLF & LE SUEUR & JOWELL DE SMITHS JUDICIAL REVIEW 6ED 2007

DUBLIN WELLWOMAN CENTRE LTD & ORS v IRELAND & ORS 1995 1 ILRM 408 1994/9/2704

MULHOLLAND & KINSELLA v BORD PLEANALA (NO 2) 2006 1 IR 4532006 1 ILRM 287 2005/40/8371 2005 IEHC 306

WESTON v BORD PLEANALA & SOUTH DUBLIN CO COUNCIL UNREP MACMENAMIN 14.3.2008 2008/61/12702 2008 IEHC 71

SOUTH BUCKINGHAMSHIRE DISTRICT COUNCIL & ANOR v PORTER (NO 2) 2004 1 WLR 1953 2004 4 AER 775

PLANNING & DEVELOPMENT ACT 2000 S34(10)

TALBOT v BORD PLEANALA & ORS UNREP SUPREME 23.7.2008 2008/60/12417 2008 IESC 46

O'DONOGHUE v BORD PLEANALA 1991 ILRM 750 1991/5/1081

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 5452004 2 ILRM 509 2004/50/11423

EEC DIR 97/11

ENVIRONMENTAL PROTECTION AGENCY ACT 1992

TREATY OF ROME 1957 ART 10

TREATY OF ROME 1957 ART 249

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S26(1)

MARTIN v BORD PLEANALA & ORS 2008 1 IR 3362007 2 ILRM 401 2007/39/8046 2007 IESC 23

EEC DIR 85/337 ART 2

EEC DIR 85/337 ART 4

RSC O.84

MOORE & ORS v AG & ORS (NO 2) 1930 IR 471

TDI METRO LTD & HALLIGAN v JUDGE DELAP (NO 1) 2000 4 IR 337 1999/23/7640

CASEY THE IRISH LAW OFFICERS 1996 148

TREATY OF ROME 1957 ART 226

CMSN v IRELAND 2009 ENV LR D3

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) (AMDT) REGS 1999 SI 93/1999 SCHED 1 PART II PARA 11(B)

MAHER v BORD PLEANALA 1999 2 ILRM 198 1999/17/5078

WASTE MANAGEMENT ACT 1996 S40(1)

WASTE MANAGEMENT ACT 1996 SCHED 3 PARA 5

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

PROTECTION OF THE ENVIRONMENT ACT 2003 S38

WASTE MANAGEMENT ACT 1996 S5(1)

PFEIFFER & ORS v DEUTSCHES ROTES KREUZ KREISVERBAND WALDSHUT EV 2005 1 CMLR 44 2004 ECR I-8835

O'CONNELL v ENVIRONMENTAL PROTECTION AGENCY 2003 1 IR 5302003 2 ILRM 297 2003/42/10181

CMSN v GERMANY 1996 1 CMLR 196 1995 ECR I-2189

WASTE MANAGEMENT ACT 1996 S54(3A)

WASTE MANAGEMENT ACT 1996 S40(4)

WASTE MANAGEMENT...