Halpin v An Bord Pleanala & ors

Factual and Procedural Background

The proceedings concern a judicial review challenging a decision by An Bord Pleanala to grant planning permission for the development of an anaerobic digester plant. This plant involves the breakdown of organic material to produce biogas and digestate, with biogas intended for renewable electricity generation. The plant is proposed near a site owned by the Applicant's parents, where a dwelling house for the Applicant and other adults with special needs has planning permission, subject to occupancy restrictions.

The Applicant’s family is concerned that the anaerobic digester plant will affect the seclusion of the proposed dwelling. Key issues include whether An Bord Pleanala properly considered the separation distance between the plant and the dwelling and whether appropriate screening under the Environmental Impact Assessment Directive (EIA Directive) and the Seveso III Directive was carried out.

This is the second decision by An Bord Pleanala on the matter. The first decision, made in 2013, granted permission despite the inspector's recommendation to refuse, citing insufficient information about feedstock and environmental impacts. That decision was quashed by the High Court in 2014 on consent and remitted for reconsideration, partly due to the absence of a proper EIA screening exercise.

Following the remittal, An Bord Pleanala undertook further procedural steps including an inspector’s addendum report recommending refusal unless an Environmental Impact Statement (EIS) was submitted. The Board ultimately granted permission again in 2016, recording a screening determination that no EIA was required and concluding the development did not constitute an establishment under the Seveso III Directive. The Applicant challenges these conclusions.

Legal Issues Presented

1. Whether An Bord Pleanala carried out a lawful screening exercise under the EIA Directive and correctly classified the proposed development.
2. Whether the proposed anaerobic digester plant constitutes an "establishment" under the Seveso III Directive and the Control of Major Accident Hazards Regulations 2015 (COMA Regulations 2015), triggering additional requirements.
3. Whether An Bord Pleanala properly addressed the separation distance between the anaerobic digester plant and the proposed dwelling house, including resolving alleged discrepancies in the stated distances.

Arguments of the Parties

Applicant's Arguments

• The EIA screening was unlawful because An Bord Pleanala mischaracterised the development as a waste disposal installation rather than an integrated chemical installation, which would mandate an EIA regardless of size.
• The Board erred in concluding that the development was not an establishment under the Seveso III Directive, particularly regarding the bulk storage of biogas exceeding the 10-tonne threshold.
• Condition No. 3 imposed by An Bord Pleanala is insufficient and unenforceable as it fails to incorporate recommended operational controls to ensure compliance with the 10-tonne biogas limit.
• The separation distance between the anaerobic digester plant and the proposed dwelling house was misstated in planning documents, with the Applicant asserting the true distance is significantly less, thereby affecting the Board’s assessment.
• An Bord Pleanala improperly left critical operational controls to be addressed by a local authority waste facility permit, contrary to principles requiring environmental concerns to be addressed at the earliest stage.

An Bord Pleanala's Arguments

• The Board correctly classified the development as a waste disposal installation, supported by relevant case law, and the screening determination was lawful.
• The question of whether the Seveso III Directive applies is a fact-sensitive matter within the Board’s expertise; the Board properly concluded there was no likelihood of exceeding the 10-tonne biogas threshold based on technical information provided by the Developer.
• Condition No. 3 must be read in conjunction with other conditions and the detailed plans submitted; the Board was entitled to reach its own conclusion independent of the expert report’s recommendations.
• The alleged discrepancies in separation distances arise from measuring different points and parameters; the Board had regard to the proposed dwelling and the distances were reasonably addressed.
• The Board’s reference to the waste facility permit does not constitute improper delegation but reflects the complementary regulatory framework.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the three main grounds of challenge in turn.

Regarding the EIA screening, the court emphasised that classification of a development under the EIA Directive is a mixed question of law and fact requiring evidence to support the classification. The Applicant failed to provide evidence substantiating the claim that the plant is an integrated chemical installation rather than a waste disposal installation. The Board’s classification as a waste disposal installation was supported by relevant case law and the nature of the process described. The screening determination complied with the statutory criteria under the Planning Regulations and was lawful.

On the Seveso III Directive issue, the court considered the adequacy of the material before An Bord Pleanala to justify its conclusion that the development was not an establishment subject to the Directive. The court found the Board’s reliance on vague and insufficient technical information inadequate to support the conclusion that the 10-tonne biogas threshold would not be exceeded. Furthermore, the condition imposed (Condition No. 3) did not incorporate the recommended operational controls to ensure compliance. The Board’s assertion that it had included the recommended condition was a material error of fact, amounting to an error of law that vitiated the decision to grant permission. The court noted that the Board failed to circulate the expert report to parties, limiting procedural fairness and the court’s ability to assess the merits fully.

Regarding separation distances, the court found that the discrepancies in distances arose from measuring different points and parameters rather than factual error. The Board had regard to the proposed dwelling and the relevant distances, and there was no evidence of error in its understanding. The court distinguished this from cases where incorrect distances were relied upon to the detriment of a party.

Overall, the court applied principles of statutory interpretation, procedural fairness, and curial deference to technical expertise, concluding that the EIA screening and separation distance issues were properly addressed, but the Seveso III Directive assessment was flawed.

Holding and Implications

The court's final decision is to make an order of certiorari setting aside the decision of An Bord Pleanala to grant planning permission for the anaerobic digester plant.

The direct effect of this decision is that the planning permission granted in June 2016 is quashed. The court will hear submissions on whether the matter should be remitted to An Bord Pleanala for reconsideration or dealt with through a fresh planning application.

No new precedent is established beyond the application of existing principles concerning classification under the EIA Directive, proper assessment under the Seveso III Directive, and the handling of separation distances. The decision reinforces the necessity for planning authorities to have adequate material and to properly implement conditions recommended by expert reports in environmentally sensitive developments.