Usk District Residents Association Ltd v Environmental Protection Agency

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kelly
• Judgment Date: 14 March 2007
• Neutral Citation: [2007] IEHC 86
• Docket Number: [No 1139 J.R./2006]
• Date: 14 March 2007

Usk and District Residents Association Ltd v An Bord Pleanála

JUDICIAL REVIEW

BETWEEN

USK AND DISTRICT RESIDENTS ASSOCIATION LIMITED

APPLICANT

AND

AN BÓRD PLEANALA IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

GREENSTAR RECYCLING HOLDINGS LIMITED AND KILDARE COUNTY COUNCIL

NOTICE PARTIES

[2007] IEHC 86

[No 1139 J.R./2006]

THE HIGH COURT

COMMERCIAL

PLANNING AND ENVIRONMENTAL LAW

Planning permission

Judicial review - Grant of permission - Conditions - Conditions drafted by inspector - No record that conditions considered at meeting of respondent - Ground conceded - Discretion to remit matter where certiorari granted - Whether matter should be remitted to respondent - Nevin v Crowley [2001] 1 IR 113 considered - Certiorari granted and matter remitted to respondent (2006/1139JR - Kelly J - 14/3/2007) [2007] IEHC 86Usk and District Residents Association Ltd v An Bord Pleanála

The applicant’s application for leave to apply for judicial review and the substantive application for judicial review of An Bord Pleanala’s decision to grant planning permission to the notice party was conceded by the Board. The Board accepted that the court ought to grant an order of certiorari quashing its decision to grant planning permission due to its failure to record adequately or at all its decision approving the conditions attached to the permission. The applicant submitted that the court should simply grant an order of certiorari and not remit the case for further consideration by the Board. The defendants and the notice parties disagreed.

Held by Kelly J. in granting certiorari and remitting the matter: That certiorari ought to be granted solely on the ground conceded by the Board. In the circumstances of this case, having regard to the fact that the ground conceded by the Board was unknown to the applicants at the time it instituted its judicial review proceedings, it would be unjust not to remit the case for further consideration by the Board. It was recommended that the Board exercise its power to reopen the oral hearing and also arrange to have the case considered by members of the Board who had no previous involvement in the case.

Reporter: L.O’S.

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S2

DUBLIN CITY COUNCIL v FENNELL 2005 2 ILRM 288

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

FINNERTY v WESTERN HEALTH UNREP CARROLL 5.10.1998 1998/19/7047

O'BRIEN v MIRROR GROUP NEWSPAPERS LTD 2001 1 IR 1

KENNEDY v IRELAND 1987 IR 587 1988 ILRM 472

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

HANAHOE T/A MICHAEL E HANAHOE & CO v HUSSEY & CMSR OF AN GARDA SIOCHANA & ORS 1998 3 IR 69

CRIMINAL JUSTICE ACT 1994 S64

CRIMINAL JUSTICE ACT 1994 S32 EEC DIR 01/97

CRIMINAL JUSTICE ACT 1994 (SECTION 32 REGS 2003) SI 242/2003

CRIMINAL JUSTICE ACT 1994 (SECTION 32 (AMDT) REGS 2003) SI 416/2003

BERNSTEIN v BESTER 1996 4 BCLR 449

MCGEE v AG 1974 IR 284

NATIONAL IRISH BANK LTD & ANOR v RADIO TELIFIS EIREANN (RTE) 1998 2 IR 465

DESMOND v MORIARTY TRIBUNAL 2004 1 IR 334

BAILEY v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457

LESTER & PANNICK HUMAN RIGHTS LAW & PRACTICE 2ED 261

NIENITZ v GERMANY 1992 16 EHRR 97

GOODWIN v UNITED KINGDOM 2002 35 EHRR 447

JACOBS & WHITE EUROPEAN CONVENTION ON HUMAN RIGHTS 3ED 201

JACOBS & WHITE EUROPEAN CONVENTION ON HUMAN RIGHTS 3ED 209

BLADET TROMSO & STENSAAS v NORWAY 1999 29 EHRR 125 RSC O.84

Judgment of

Mr. Justice Kelly

delivered on the 14th day of March 2007

Introduction

1 The main issue dealt with in this judgment is the discretion of the court to remit a matter to an inferior tribunal for reconsideration by it, subsequent to the court granting certiorari to quash that tribunal's decision.

2 The question falls for consideration in circumstances which I will now outline.

Facts

3 On 24^th July 2006, An Bórd Pleanala (the Board) decided to grant planning permission to Green Star Recycling Holdings Limited (Greenstar) for the development and operation of a landfill capable of accepting 200, 000 tons of non-hazardous waste per annum. The development is planned for Usk, Kilcullen, Co. Kildare. The permission has a duration of ten years.

4 On 22^nd September 2006, the applicant commenced proceedings seeking leave to apply for judicial review of the Board's decision. That application was transferred into the Commercial List and was the subject of judicial case management. During the course of that process the solicitors for the Board, by letter of 23rd January 2007, informed the applicant's solicitors that the Board had decided to concede both the application for leave to seek judicial review and the substantive application itself.

5 Two reasons were given for this decision on the part of the Board. The first was "the absence of satisfactory records leading to the decision to grant permission as it ultimately issued". The second was "the fact that, for a period of time, the files in this matter were not available to the public". The Board described these as "unusual circumstances".

6 The letter then went on to explain in some detail how those circumstances arose. That explanation was subsequently put before the court in two affidavits. One was sworn by Brian Swift who is a member of the Board. The other was sworn by John O'Connor the Chairman of the Board.

Mr. Swift's affidavit

7 In his affidavit Mr. Swift recounts the fact that following an oral hearing, the Board's Inspector made a report and recommendation dated 19^th July 2005. The Inspector recommended a refusal of the permission citing four reasons for such refusal. Mr. Swift received the Inspector's report and recommendations on 21^st July 2005.

8 Mr. Swift presented the file to the Board on 15^th August 2005, and the Board determined to, and did, seek further information from Greenstar. A response to that was received on 9^th January 2006. The response was circulated to interested parties.

9 On 9^th June 2006, the Inspector provided an assessment of both Greenstar's response to the notice seeking further information and third party and other observations thereon. At that time she provided the Board with amendments to the text of her original report of 19^th July 2005. This second report from the Inspector contained three reasons for the refusal of the permission, one of the original reasons having been overtaken by the information provided to her. The Inspector also furnished extracts of her original report indicating in manuscript the amendments which had been made to it. She handed those documents directly to Mr. Swift on 9^th June 2006, without any covering memorandum or other document.

10 The matter came before the Board again on 20^th June 2006. At that stage, the Board had before it both reports of the Inspector. The Board decided to grant conditional permission despite the recommendations of the Inspector. At that meeting it was agreed that the Inspector would be requested to draft the conditions in accordance with the Board's determination. Mr. Swift communicated that request to the Inspector. However he omitted to request the drafting of a condition in relation to three matters agreed upon by the Board relating to road conditions and a community gain/liaison committee.

11 The Inspector prepared conditions in relation to Mr. Swift's request. The conditions as drafted by the Inspector were sent to Mr. Swift together with a memorandum of 22^nd June 2006, indicating that the Inspectors report had been amended. On that day he arranged for those conditions together with the Board direction he had prepared to be sent to the processing section of the Board in order to draw up the formal order. He is unable to recall whether the conditions drafted by the Inspector were discussed at a further formal Board meeting.

12 Mr. Swift went on annual holidays on the evening of 22^nd June, and returned on 24^th July, On his return, the Chairman of the Board indicated to him that he was not satisfied that the direction which Mr. Swift had drafted fully reflected all the Board's considerations in overturning the Inspector's recommendation to refuse permission. He asked Mr. Swift to amend it. The purpose of the amendments was primarily to ensure that the reasons for departing from the Inspector's recommendation reflected those settled upon by the Board at its meeting on 20^th June. Some amendments were also made to the conditions. The Board direction and order in their final form were produced and signed by Mr. Swift on 24^th July 2006. The amended final direction was dated as having been signed by him on 22^nd June, but this was an oversight. He confirmed that he signed the final version of the direction on 24^th July, but omitted to amend the date of signing.

Mr. O'Connor's affidavit

13 Mr. O'Connor confirms that at the meeting on 20^th June 2006, it was decided to grant permission subject to conditions. There was a discussion of the substance of the conditions which were to be attached to the permission. It was agreed that the Inspector who had dealt with the case would be requested to prepare a draft of the conditions to be incorporated into the decision order. The Inspector provided a draft of the conditions under cover of a memorandum to Mr. Swift on 22^nd June. The Chairman believes that the conditions drafted by the Inspector were further discussed by the Board members on 22^nd June. No record of such a meeting can be found. Because Mr. Swift was on holidays, Mr. Hunt, the Deputy Chairman of the Board, furnished the file and draft order that had been drawn up to the Chairman. He read the draft order, but did not consider that the reasons and considerations and conditions as set out in the draft adequately conveyed the Board's decision. He was of the view that they...