An Bord Pleanála may reconsider planning application for Cork incinerator, judge rules

High Court hears €160m project in harbour will not have to restart from scratch

A High Court judge has ruled that An Bord Pleanála may reconsider a planning application for a €160 million incinerator in Cork harbour from a particular stage in the process, with the effect it will not have to restart from scratch.

Mr Justice David Barnville had last March upheld a local environmental group's challenge to the permission granted by the board in 2018 to Indaver Ireland for the incinerator at Ringaskiddy, but he had deferred a ruling on what precise orders to make arising from the judgment.

The judge had found in favour of Cork Harbour Alliance for a Safe Environment (Chase) on two grounds. He ruled the board's majority five/two permission was tainted by objective bias because Conall Boland, then deputy chairperson of the board, had previously worked for a firm of consulting engineers engaged by Indaver to make submissions for reviews of waste management plans advanced by Cork County Council and Cork City Council.

The judge was satisfied that the work done by Mr Boland in 2004 had a “clear, rational and cogent” connection with Indaver’s 2016 application – its third – for permission for the incinerator and also noted Mr Boland was the presenting member of the board in respect of its consideration of the planning application. Those factors gave rise to a reasonable apprehension of objective bias, he held.

The second ground concerned the board’s jurisdiction to consider an application for permission for a Strategic Infrastructure Development (SID) by an applicant who is not the same person as had engaged in pre-planning consultation with the board.

The judge ruled the applicant for SID permission must be the same 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. He found Indaver’s Belgian arm was the “prospective applicant” but the 2016 planning application was made by Indaver’s Irish arm.

Following that judgment, he heard submissions on what orders should be made as a result of his findings.

The main area of dispute between the sides was whether the permission should be quashed simpliciter, with no order for remittal, as Chase sought or should be quashed with an order for remittal.

In a further judgment on Friday, the judge said he would quash the permission with an order for remittal of the planning application to the board, to be considered in line with the findings in his main judgment.

He was not satisfied the objections by Chase to remittal were well founded, he said.

He did not accept that Chase’s complaints that public confidence in the integrity of the planning process would be undermined if a remittal was made were either reasonable or correct.

He said the appropriate point in the planning process to which the remittal should be made was the point in time immediately before the decision, made on behalf of the board by its then deputy chairperson, Mr Boland, on October 23rd, 2017, not to afford Chase and others the opportunity of responding to further information and submissions received form Indaver earlier in October 2017.

The consequence of the remittal to that point in time is that the supplemental report of the board’s inspector dated March 7th, 2018 should not be considered by the board when it is considering the remitted application, for reasons that Chase and others had not had the opportunity of communicating on the further information and submissions provided by Indaver in early October 2017.

While concluding it was not necessary or appropriate for the court to direct the board to exercise various powers allocated to it under Strategic Housing Provisions or any other powers, he recommended the board give proper consideration to exercising some or all of those powers. A failure to do so may have adverse legal consequences for it, he said.

He said the board may amend the name of the applicant for permission to reflect the name of the originally intended applicant, namely Indaver NV trading as Indaver Ireland. Chase was not prejudiced by such an order, he added. He accepted Indaver’s explanation the reason why the application was made in the name of Indaver Ireland Ltd, not in the name of Indaver NV, was as a result of a clerical error which Indaver had pointed out prior to an oral hearing of the board on its application.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times