Yellow Bins (Waste Disposal) Ltd v Environmental Protection Agency

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 09 July 2004
• Neutral Citation: [2004] IEHC 136
• Docket Number: [No. 801 J.R./2002]
• Court: High Court
• Date: 09 July 2004

[2004] IEHC 136

THE HIGH COURT

[No. 801 J.R./2002]

YELLOW BINS (WASTE DISPOSAL) LTD v. ENVIRONMENTAL PROTECTION AGENCY

JUDICIAL REVIEW

BETWEEN

YELLOW BINS (WASTE DISPOSAL) LIMITED

APPLICANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

AND

THOMAS O'CONNELL, BERNADETTE CREAN AND EDWINA MURPHY

NOTICE PARTIES

Citations:

WASTE MANAGEMENT ACT 1996 S43(5)(A)

WASTE MANAGEMENT ACT 1996 S54(4)

WASTE MANAGEMENT (PLANNING) REGS 1997 SI 137/1997

WASTE MANAGEMENT ACT 1996 S45

WASTE MANAGEMENT ACT 1996 S50

WASTE MANAGEMENT (LICENSING) REGS 1997 SI 133/1997 ART 43

WASTE MANAGEMENT (LICENSING) REGS 1997 SI 133/1997 SCH III PART 2

WASTE MANAGEMENT (LICENSING) REGS 1997 SI 133/1997 ART 43(3)

WASTE MANAGEMENT (LICENSING) REGS 1997 SI 133/1997 ART 42(3)

WASTE MANAGEMENT ACT 1996 S43(5)(B)(I)

WASTE MANAGEMENT ACT 1996 S43(5)(B)(II)

PLANNING & DEVELOPMENT ACT 2000 S257

WASTE MANAGEMENT ACT 1996 S54(4)(A)

WASTE MANAGEMENT ACT 1996 S54(4)(A)(I)

WASTE MANAGEMENT ACT 1996 S54(4)(A)(II)

PLANNING & DEVELOPMENT ACT 2000 S34

ELM DEVELOPMENTS, STATE V BORD PLEANALA 1981 ILRM 108

WASTE MANAGEMENT ACT 1996 S54

WASTE MANAGEMENT ACT 1996 S54(1)

WASTE MANAGEMENT ACT 1996 S54(3)

WASTE MANAGEMENT ACT 1996 S54(5)

NESTOR V MURPHY 1979 IR 326

DPP, IVERS V MURPHY 1999 1 IR 98

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

WASTE MANAGEMENT ACT 1996 S41(2)(A)(II)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 PART IV

WASTE MANAGEMENT ACT 1996 S43(5)(B)

MCNAMARA V AN BORD PLEANALA 1998 3 IR 453

Abstract:

Planning and Environment law - Waste management - Judicial review - Leave - Substantial grounds - Whether EPA exceeded its powers in attaching conditions to waste licence without consulting planning authority - Waste Management Act 1996, ss. 43, 54

The applicant applied for leave to apply for judicial review of the decision of the EPA. The applicant sought, inter alia, declarations that conditions of the waste licence granted by the EPA were ultra vires the powers of the EPA and irrational and an order of mandamus directing the EPA to grant a waste licence to the applicant with the conditions deleted. The applicant claimed, inter alia, that the EPA acted in breach of s. 54(4) of the Waste Management Act 1996 and exceeded its powers in attaching conditions without consulting the planning authority.

Held by O Caoimh J, in refusing the applicant leave that the applicant had not demonstrated substantial grounds as required by s. 43 of the Waste Management Act 1996. In circumstances where no planning permission had been granted and no application for planning permission was pending there was no reason why the EPA should consult with the planning authority. The applicant’s case had a superficial air to it which was devoid of reality.

Reporter: R.W.

Mr. Justice Aindrias Ó Caoimh

1 This is an application for leave to challenge a decision of the respondent hereinafter referred to as the Agency, in circumstances where pursuant to s. 43 (5) (a) of the Waste Management Act,1996(hereinafter referred to as the Act of 1996), the application is required to be brought on notice to this Court insofar as it questions the validity of a decision of the Agency. The relief which is sought in these proceedings is stated to be:

2 1. A declaration, by way of judicial review, that Condition No. 3.1 of the waste licence granted by the respondent to the applicant on the 8^th day of October, 2002, is null and void, being ultra vires the powers of the respondent, and/or irrational.

3 2. A declaration, by way of judicial review, that Condition No. 5.1.1 of the waste licence granted by the respondent to the applicant on the 8^th day of October, 2002, is null and void, beingultra vires the powers of the respondent, and/or irrational.

4 3. An order ofmandamus directing the respondent to grant a waste licence to the applicant within the terms of the respondent's decision of the 8^th day of October, 2002, with the aboveultra vires conditions deleted.

5 4. In the alternative, an order ofcertiorari quashing the respondent's decision of the 8^th day of October, 2002, to grant a waste licence to the applicant.

6 The grounds upon which this relief are sought are set out at para. E of the statement of the statement grounding the application and read as follows:-

"(i) Declaratory Reliefs sought at (d) (i) and (ii)"

1. Condition No. 3.1 attached to the waste licence granted by the respondent to the applicant provides as follows:

"The activity shall not be commenced until the infrastructure required under this licence is in place. Waste shall not be accepted at this facility without the written agreement of the Agency."

7 2. Condition No. 5.1.1 attached to the said waste licence states that:

"All waste processing shall only be carried out in the waste transfer/recovery building as set out in Condition 3".

8 3. The respondent acted in breach of the rules of natural and constitutional justice in imposing Conditions Nos. 3.1 and 5.1.1 in circumstances where the respondent knew, or should have known, that the applicant had applied for planning permission in respect of certain infrastructural works which application had been refused on appeal by An Bord Pleanála and therefore was no longer in existence.

9 4. The respondent acted in breach of the rules of natural and constitutional justice and/or in breach of the provisions of the Waste Management Act,1996(in particular, section 54(4) thereof), in failing to consult with the planning authority in whose functional area the applicant's waste recovery and disposal activities would be carried out, namely Kildare County Council.

10 5. In the circumstances, the respondent exceeded its powers in attaching Conditions 3.1 and 5.1.1 to the said waste licence, without having consulted with the said planning authority.

11 6. In attaching Conditions Nos. 3.1 and 5.1.1 to the waste licence granted to the applicant, the decision of the respondent is, to that extent,ultra vires, irrational and void as ignoring proper matters that the respondent should have taken into account.

12 7. In all the circumstances, the respondent acted unreasonably, irrationally and arbitrarily in attaching Conditions Nos. 3.1 and 5.1.1 in that the effects of the conditions are disproportionate to the benefit achieved; the cost of compliance is excessive; and the subject matter of the conditions are matters more properly regulated under Planning and Development Act,2000.

13 (ii) Reliefs ofmandamus and certiorari sought at (d)(iii) and (iv).

14 1. The grounds relied upon in paragraph (e)(i) are repeatedmutatis mutandis in respect of the application for relief herein.

15 An affidavit has been sworn by Patrick Kelly who is the Managing Director of the applicant which is a company carrying on the business as a waste collection, recovery and disposal operator, and he indicates that it has done so since 1982 at its current premises at Donore, Caragh, Naas, County Kildare. He indicates that the waste transfer station operated by the applicant company at those premises was in existence prior to the enactment of the Act of 1996 and regulations made thereunder. He says that the waste transfer station operated under the statutory permit scheme and pursuant to the provisions of certain planning permissions in respect of its waste activities.

16 Mr. Kelly outlines the planning history of the applicant as follows:-

17 2 "1. An application “for retention of a workshop for use for truck repair, metal fabrication and waste disposal transfer area” was refused by the planning authority but was granted on appeal to An Bord Pleanála on 10^th February, 1984.

18 2. An Bord Pleanála granted retention permission in respect of a temporary office, toilet, sheds and tanks, and planning permission for a septic tank on 17^th November, 1994. The planning authority had previously granted permission for this development, subject to conditions.

19 3. An application was submitted in relation to change of use of workshop to waste recycling plant and ancillary works. The application was granted by the planning authority but refused on appeal in 1995.

20 4. The planning authority granted permission for erection and use of a building for waste recycling and transfer. However, the development was again refused permission on appeal on 15^th May, 2002.

21 5. An application for retention of a parking area and temporary portacabin office is currently pending before Kildare County Council."

22 Mr. Kelly acknowledges that the terms of the Act of 1996 and the regulations made thereunder require the applicant to make application to the Agency for a waste licence in respect of the disposal of waste at its existing waste transfer facility on or before 1^stOctober, 1999. Accordingly, the applicant applied to the Agency for a waste licence on 30^th September, 1999. The Agency indicated it proposed to grant a waste licence and provided a copy of the proposed licence by notification dated 13^th May, 2002. An Bord Pleanála refused planning permission for erection and use of a building for waste recycling and transfer on 15^th May, 2002, being two days after the issue of the proposed decision. In the circumstances, Mr. Kelly says that he is advised that there was no longer a planning application in existence after that date. On this basis he believes that the Agency was obliged to consult with Kildare County Council pursuant to the provisions of s. 54(4) of the Act of 1996.

23 Mr. Kelly indicates that Environmental and Resource Management Limited was instructed by the applicant to make written objection to aspects of the proposed decision, in particular, in respect of several conditions attached to the draft licence. He says that these objections were made to the Agency under cover of a letter dated 10^th June, 2002. He indicates that the Agency granted...