A local environmental group has been given a huge boost in a legal challenge over the granting of planning permission for a €160 million incinerator at Ringaskiddy in Cork Harbour.
Mr Justice David Barniville ruled on Friday that Cork Harbour Alliance for a Safe Environment (CHASE) was entitled to succeed on two of its 11 grounds of challenge to a fast-track planning permission granted by An Bord Pleanála (ABP) in May 2018.
He will make final orders in the case on a later date after the sides have considered his 241-page judgment.
The board had, by a five to two majority, granted permission to Indaver Ireland Ltd for the development after a board inspector had recommended refusal.
The permission was granted under the Strategic Infrastructure Development Provisions of the Planning and Development Act 2000, allowing for permission to be granted directly by the board for developments designated strategic ones.
In his judgment, the judge noted the breadth of this legal challenge was “formidable” and required the court to decide significant issues of administrative law and of Irish and EU planning and environmental law.
He had found for CHASE on two issues, including the “most significant” issue raised in the case.
That issue was that the board’s decision was tainted by objective bias by reason of the prior involvement of one of its members - Conall Boland, then deputy chairperson of the board - in work which he did in 2004 when employed by a firm of consultants, RPS MCOS Consulting Engineers, engaged by Indaver to make submissions to Cork County Council and Cork City Council on reviews to those councils waste management plans.
The judge was satisfied the work done by Mr Boland had a “clear, rational and cogent” connection with Indaver’s 2016 application to the board for permission for the development of the waste to energy facility at Ringaskiddy.
Mr Boland was also the presenting member of the board in respect of the board’s consideration of the planning application at issue, the judge said.
He noted CHASE had made clear it was not alleging actual bias against either Mr Boland or the board but was making a case for objective bias which was denied by the board and Mr Boland.
Having considered the evidence and the law, the judge was satisfied CHASE has established a reasonable objective observer would have a reasonable apprehension the board might not be capable of considering and determining Indaver’s 2016 planning application in an unbiased and impartial manner by virtue of the prior professional association of Mr Boland in the preparation of the 2004 submissions for Indaver.
“The ultimate touchstone is that justice must not only be done but must manifestly be seen to be done, he said. “It is essential that public confidence in the integrity of the board’s procedures is maintained”. A refusal to grant relief on this ground would, in the court’s view, “undermine that critical public confidence”.
The second issue in which he found in favour of the group concerned interpretation of certain SID provisions of the 2000 Act.
That concerned the board’s jurisdiction to consider and determine an application for permission for a SID where the application was not made by the person who had engaged in the pre-planning consultation procedures with the Board.
The judge concluded that the person who applies for permission for a SID must be the same entity as the person referred to in the relevant provisions as the “prospective applicant” - the person who engaged in the required pre-application consultation procedure with the board.
CHASE had argued that Indaver's Belgian arm was the "prospective applicant" which participated in pe-application consultation with the board, with the effect the board did not have jurisdiction to determine the 2016 planning application made by Indaver's Irish arm.
The judge has left over for future consideration, if necessary, the consideration of what, if any, relief should be granted to the CHASE arising from his decision on that ground.
He found against CHASE on all its other grounds of challenge.
After the judgment was delivered, David Holland SC, for CHASE, said his side would be seeking that the board’s permission should be quashed by the court.
The judge said he would “need a lot of persuasion” to conclude he should quash the permission without returning the matter to the board for reconsideration.
He said he hoped to have final orders determined quickly after hearing submissions on those orders.
He adjourned the matter for mention to April 13th.