Cork Harbour Alliance For A Safe Environment v An Bord Pleanala (Approved)

Factual and Procedural Background

The proceedings involve a challenge by a community environmental group ("Applicant") based in County Cork against a statutory planning authority ("Board") decision dated 29th May, 2018 granting planning permission to an Irish company ("Notice Party 1") for the development of a waste-to-energy facility at Ringaskiddy, County Cork. The development is a Strategic Infrastructure Development ("SID") under the Planning and Development Act 2000 (as amended).

This is part of a series of challenges relating to various applications and permissions for incinerator developments at Ringaskiddy by the same corporate group ("Indaver"). Earlier applications in 2001 and 2008 were either granted permission (which lapsed) or refused, with associated judicial review proceedings. The 2016 planning application, which is the subject of these proceedings, was submitted by the Irish company but arose from pre-application consultations conducted by the Belgian parent company through its Irish branch ("Notice Party 2").

The Board's decision followed a lengthy process including a pre-application consultation procedure, an oral hearing spanning seventeen days with over ninety witnesses, detailed inspector reports, requests for further information, and supplemental reports. The Applicant actively participated throughout, including through legal representation and expert evidence.

The Applicant sought judicial review challenging the Board's decision on multiple grounds, including jurisdictional issues, procedural fairness, environmental impact assessment ("EIA") adequacy, and alleged objective bias by a Board member.

Legal Issues Presented

1. Whether the Board's decision was affected by objective bias due to prior involvement of a Board member in work for Indaver in 2004.
2. Whether the Board had jurisdiction to grant permission to the Irish company given that the pre-application consultation was conducted by a different entity (the Belgian company).
3. Whether the Board unlawfully permitted project splitting by removing a waste transfer station from the application.
4. Whether the Board granted development consent before completing required EIA and Appropriate Assessment ("AA").
5. Whether the Board failed to properly assess the impact on human health or improperly relied on the Environmental Protection Agency ("EPA").
6. Whether the EIA was inadequate concerning site selection, alternatives, and site suitability.
7. Whether the Board failed to address alleged false evidence and credibility issues regarding dioxin emissions modeling.
8. Whether the Board failed to carry out a proper EIA or assess impacts on human health.
9. Whether the inspector failed to provide a fair, complete, and sufficient report to the Board.

Arguments of the Parties

Applicant's Arguments

• Objective Bias: The Applicant alleged objective bias arising from the prior involvement of the Board's deputy chairperson ("Member") in preparing submissions for Indaver in 2004 advocating for incineration at Ringaskiddy, which created a reasonable apprehension of bias in the Board's 2018 decision.
• Jurisdiction: The Applicant contended the Board lacked jurisdiction as the planning application was made by a different entity than the "prospective applicant" who engaged in the pre-application consultation, contrary to the statutory scheme of the SID provisions.
• Project Splitting: The Applicant argued that the Board allowed Indaver to split the project by removing a waste transfer station from the 2016 application to avoid the Seveso III Directive and a full EIA of the entire project.
• Premature Consent: The Applicant claimed the Board decided to grant permission before completing the EIA and AA, breaching EU law and national provisions.
• Health Impact and EPA Role: The Applicant asserted the Board failed to properly assess the impact on human health and improperly relied on the EPA's licensing role instead of conducting its own assessment.
• EIA Site Selection and Suitability: The Applicant challenged the adequacy of the EIS regarding site selection and alternatives, and contended the site was unsuitable given changed local developments.
• Dioxin Evidence: The Applicant raised issues about errors and discrepancies in expert reports on dioxin emissions, arguing the Board failed to address credibility and reliability concerns.
• Failure to Resolve Expert Disputes: The Applicant contended the Board did not resolve disputes between experts on potential health impacts and adequacy of the Health Impact Assessment.
• Inspector's Report: The Applicant claimed the inspector's report was incomplete and failed to fairly and accurately represent evidence and submissions from the oral hearing on numerous specific points.

Board's Arguments

• Objective Bias: The Board denied that the prior work by the Member in 2004 gave rise to a reasonable apprehension of bias, emphasizing the passage of time, the professional nature of the work (policy submissions rather than planning advocacy), and the absence of any direct connection to the 2016 planning application issues.
• Jurisdiction: The Board contended the SID provisions do not require the applicant for permission to be the same entity as the "prospective applicant" who engaged in the pre-application consultation, focusing on the nature of the development as the key factor, and relying on statutory provisions that planning permission enures with the land.
• Project Splitting: The Board maintained there was no unlawful project splitting as the waste transfer station was removed from the application legitimately, was not functionally interdependent with the incinerator, and that the Board was under no obligation to assess hypothetical future developments.
• Premature Consent: The Board asserted that no final decision to grant permission was made before completing the EIA and AA, explaining that the 17th May, 2018 meeting decision was preliminary and that the final decision with conditions was made on 29th May, 2018.
• Health Impact and EPA Role: The Board submitted it properly carried out an EIA including assessment of human health impacts, considered the EPA’s role in licensing emissions, and did not abdicate its responsibilities.
• EIA Site Selection and Suitability: The Board disagreed with the inspector’s criticisms, finding the EIS legally adequate and the site suitable, emphasizing that planning judgments on these matters are entitled to deference.
• Dioxin Evidence: The Board acknowledged errors in the original data but maintained it received corrected information, expert peer review, and was entitled to conclude on the basis of the totality of evidence that no significant health risk arose.
• Failure to Resolve Expert Disputes: The Board contended it was not required to resolve all expert disputes or address every submission individually, but rather to assess the direct and indirect environmental effects.
• Inspector's Report: The Board argued the inspector’s reports were comprehensive, fair, and accurate, providing the Board with sufficient information to make its decision.

Notice Parties' Arguments

• Notice Parties supported the Board’s positions on all grounds, emphasizing the absence of a cogent or rational link between the Member’s prior work and the 2016 application, the correctness of the Board’s jurisdictional position, the lack of unlawful project splitting, and the adequacy of the EIA and AA processes.
• They also supported the Board’s approach to the dioxin issue, the assessment of health impacts, and the sufficiency of the inspector’s reports.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed, fact-specific analysis of each ground of challenge based strictly on the evidence and statutory provisions before it.

On the objective bias ground (Ground 4), the court found that the prior involvement of the deputy chairperson of the Board in preparing submissions for Indaver in 2004 had a clear, rational, and cogent connection with the 2016 planning application. Despite the passage of time, the nature of the submissions and the role of the Board member created a reasonable apprehension of bias in the mind of a reasonable objective observer. The court emphasized the fundamental principle that justice must not only be done but must be seen to be done, and public confidence in the Board’s integrity must be maintained.

Regarding the jurisdictional issue (Ground 1), the court interpreted the Strategic Infrastructure Development provisions of the Planning and Development Act 2000 as requiring that the entity applying for permission be the same as the “prospective applicant” who engaged in the pre-application consultation procedure. The application was made by a different but closely related entity (a subsidiary), and while this constituted an error, the court reserved decision on the appropriate remedy, noting the close relationship and absence of prejudice to the Applicant.

On the project splitting claim (Ground 3), the court found no unlawful splitting. The waste transfer station was legitimately removed from the application and was not functionally or legally interdependent with the incinerator development. The Board was under no obligation to assess the environmental effects of a hypothetical future waste transfer station.

Concerning the timing of the EIA and AA (Ground 5), the court concluded that the Board did not grant permission before completing the required assessments. The 17th May, 2018 meeting decision was preliminary, and the final decision with conditions, which formed an integral part of the consent, was made on 29th May, 2018.

On the alleged failure to assess health impacts properly and alleged over-reliance on the EPA (Ground 6), the court found that the Board conducted its own EIA and assessment of human health impacts, appropriately taking into account the EPA’s licensing role without abdicating responsibility.

Regarding the adequacy of the EIA on site selection, alternatives, and site suitability (Grounds 7 and 8), the court found the EIS legally compliant and the Board’s planning judgment reasonable. The Board adequately explained its reasons for disagreeing with the inspector’s criticisms.

On the claim that the Board failed to deal with alleged false evidence and credibility issues relating to dioxin emissions (Ground 9), the court acknowledged the complexity and controversy but held that the Board was not obliged to resolve disputes over expert credibility and competence. The Board properly considered the available evidence, including corrected information and peer reviews, and reached a reasoned conclusion.

For the alleged failure to carry out a proper EIA or to assess impacts on human health (Ground 10), the court rejected the claim as an impermissible merits challenge, affirming the Board’s discretion and statutory duties were properly exercised.

On the final ground concerning the inspector’s report (Ground 11), the court held that the inspector’s report was fair, accurate, and sufficiently comprehensive. While not every submission or piece of evidence needed individual mention, the essential issues were fairly presented and the Board had ample material to make an informed decision.

Holding and Implications

The court found in favor of the Applicant on two grounds:

• Ground 4 (Objective Bias): The Board’s decision was tainted by objective bias due to the prior involvement of a Board member in work for Indaver closely connected to the 2016 planning application.
• Ground 1 (Jurisdiction): The Board lacked jurisdiction to grant permission to the Irish company because the application was made by a different entity than the “prospective applicant” who engaged in the pre-application consultation, although the court reserved decision on the remedy.

The Applicant did not succeed on the other grounds of challenge.

Implications: The decision directly affects the validity of the Board’s May 2018 planning permission for the waste-to-energy facility. It underscores the importance of procedural fairness and strict adherence to statutory provisions in planning applications, particularly regarding the identity of applicants and impartiality of decision-makers. No new precedent beyond the application of established legal principles was set. The court will consider appropriate relief and further orders with the parties in due course.