High Court again overturns permission for Kildare landfill

Thu, Jul 9, 2009, 01:00

A HIGH COURT judge has overturned a second grant of planning permission by An Bord Pleanála for a landfill development in Co Kildare after ruling that the board displayed “objective bias” in how it granted that permission and that its attempted explanations were “deeply unconvincing”.

Mr Justice John MacMenamin’s decision overturning the board’s July 2008 permission for the proposed landfill at Usk comes two years after Mr Justice Peter Kelly, in overturning the 2006 permission for the landfill in light of admitted defects by the board, made several recommendations about how the board should reconsider the matter.

In upholding the challenge by Usk and District Residents Association Ltd to the 2008 permission, Mr Justice MacMenamin was strongly critical of the board’s failure to adhere to those recommendations, describing as “unfathomable” the reasoning for its decision.

It was “remarkable” that the board, a statutory body entrusted with decision-making of national importance, when taking upon itself to ignore the spirit if not the letter of a High Court order, appeared not to have taken special care to ensure what it did was fair, the judge said.

He concluded the 2006 decision was used as “a template” for the 2008 decision and also noted most of the board members involved in the 2006 decision, including board chairman John O’Connor, had also made the 2008 decision, contrary to Mr Justice Kelly’s recommendations.

The decision to deploy four of the same persons involved in the 2006 decision appeared “a conscious one”, he added.

The chairman and deputy chairman maintained there was an established practice they specifically should be involved in decisions on significant infrastructural projects, meaning they would be involved despite the High Court recommendations, but the rationale for their stance “was not clear”.

There was also “the surprising conclusion” that the exclusion of the five members who took the quashed decision of 2006 would “weaken the level of expertise and experience available to the board”. However, the five board members not involved in the 2006 decision appeared to have a high level of expertise in the relevant areas.

While the chairman and deputy chairman also had significant planning experience, that was not the point and there was “no objective justification” for specific categories of decision being dealt with by particular board members.

The judge ruled there were “very substantial departures” by the board from the 2007 High Court judgment, although the very object of that judgment was to avoid the appearance of bias when the matter was reconsidered by the board.

Such departures led to the conclusion a reasonable objective observer would conclude the decision-making process was not impartial, he ruled. An objective observer could only conclude four of the six board members who unanimously granted permission in 2008 had substantively determined the issues previously and nor could the procedures adopted be legally justified.

The judge described as “totally unclear” the board’s reasons for disagreeing with its own inspector’s twice-made recommendation to refuse permission. The inspector recommended refusal based on substantive planning considerations related to lack of clarity about restoration works at the site, works which were required by court order.

The board had simply stated it took “a different view” and considered this “a legal matter”.