High Court grants leave to challenge planning permission on Waste Management Act interpretation grounds.

[2006] IEHC 15

THE HIGH COURT

COMMERCIAL

[2005 No. 291 J.R./2005 No. 52 COM]

IN THE MATTER OF THE LOCAL GOVERNMENT (PLANNING AND DEVELOPMENT) ACTS 1963–95

BETWEEN

ARKLOW HOLIDAYS LIMITED

APPLICANT

AND

AN BORD PLEANALA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

WICKLOW COUNTY COUNCIL, ARKLOW URBAN DISTRICT COUNCIL, SEABANK AND DISTRICT RESIDENTS ASSOCIATION,

ARKLOW ACTION GROUP, WICKLOW PLANNING ALLIANCE, AN TAISCE, ARKLOW CARAVAN PARK RESIDENTS ASSOCIATION,

COAST WATCH EUROPE, P.J. HYNES AND BRENDAN HYNES

NOTICE PARTIES

Judgment of Mr. Justice Clarke delivered the 18th January, 2006.

1. Introduction

1.1 In these proceedings the applicant Arklow Holidays Limited (“Arklow”) seeks leave to challenge a decision of the first named

respondent, An Bord Pleanála (“The Board”) granting planning permission to the second named notice party, Arklow Urban District

Council (“the Urban District Council”) for the development of a waste water treatment works together with associated sewers, roads

and an outfall pipe at Seabank, Arklow, Co. Wicklow. The second and third named respondents, Ireland and the Attorney General

(“the State”) are joined by virtue of the fact that certain questions relating to whether Ireland has properly transposed relevant EU

directives into domestic law arise in the course of these proceedings. The first named notice party, Wicklow County Council, (“the

County Council”) is made a notice party by virtue of the fact that the development sought to be carried out by the Urban District

Council is, in large measure, outside the functional area of the Urban District Council and is within the functional area of the County

Council. The County Council is, therefore, the planning authority to whom the original application for planning permission was made.

The remaining notice parties were put on notice by virtue of the fact that they had an involvement in the planning process now

sought to be challenged. However none of those parties have taken an active part in the application before me.

2. Background

2.1 Arklow is the occupier of lands adjoining the site of the proposed development and owns and operates a large mobile home park

which attracts approximately 1,300 visitors annually. It would appear that those visitors used the lands, including those comprised in

the proposed development and the beach and dunes through which it is proposed to construct the outfall pipe in relation to the

proposed development, for recreational activities.

2.2 On the 13th July, 1999 planning permission was granted by the County Council as the relevant planning authority in application

reference no: 23/99. Arklow challenged that original grant of planning permission (“the first challenge”). Neither the Urban District

Council (as developer) nor the County Council (as the planning authority) resisted the leave application in the first challenge. However

by virtue of the existence of that challenge the appeal which had been lodged by Arklow to the grant of the planning permission to

the Board was delayed. It would appear that there were protracted disputes between the parties regarding discovery in respect of

the first challenge. As a result the matter did not come on for hearing until 2003 and was the subject of separate judgments of

Murphy J. on respectively 15th May, 2003 (in respect of the substantive leave application) and 15th October, 2003 (in respect of an

Appeal Certificate).

2.3 It will be necessary to return to the first proceedings to some extent later in the course of this judgment. However at this stage

it is sufficient to note that the proceedings were unsuccessful and, for the reasons set out in the second judgment referred to above,

Murphy J. declined to certify any issues as being suitable, in accordance with the provisions of the Planning Acts, as a basis for an

appeal to the Supreme Court. The first challenge therefore terminated with that final determination by Murphy J. on 15th October,

2003.

2.4 The appeal on the merits to the Board followed. That appeal was unsuccessful in substance in that the Board confirmed the

decision of the County Council to grant planning permission although certain additional or different conditions were imposed by the

Board. Certain of those conditions arise in the context of these proceedings and it will be necessary to refer in more detail to them

later in the course of this judgment.

3. Substantial Grounds

3.1 Arklow’s current leave application is made pursuant to s. 50 of the Planning and Development Act 2000 (“the 2000 Act”). Under

this section Arklow must establish that it has substantial grounds for contending that the decision of the Board is invalid in order that

it may be granted leave to challenge that decision.

3.2 The criterion of “substantial grounds” was originally imposed by s. 82(3B) of the Local Government (Planning and Development)

Act 1963 as amended by s. 19 of the Local Government (Planning and Development) Act 1992. The test has been the subject of

significant judicial interpretation and may now be said to be well settled.

3.3 In McNamara v. An Bord Pleanála [1995] 2 ILRM 125 Carroll J. held that “substantial grounds” in the context of s. 82(3B) has the

following meaning:-

“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be

trivial or tenuous. However I am not concerned in trying to ascertain what the eventual result would be. I believe I should

go no further than satisfying myself that the grounds are “substantial”. A ground that does not stand any change of being

sustained (for example where the point has been decided in another case) could not be said to be substantial. I draw a

distinction between the grounds and the arguments put forward in support of those grounds. I do not think I should

evaluate each argument and say whether I consider it sound or not. If I consider a ground, as such, to be substantial, I

do not also have to say that the applicant is confined in this argument at the next stage to those which I believe may

have some merit”.

3.4 That interpretation has been followed in this court on a number of occasions, for example in Drogheda Port Company v. Louth

County Council (Unreported, High Court, Morris P. 11th April, 1997); Hynes v. An Bord Pleanála (Unreported, High Court, Laffoy J. 10th

December, 1997); and Blessington and District Community Council v. Wicklow County Council (High Court, Unreported, Kelly J. 19th

July, 1996).

3.5 Of perhaps even greater importance is the fact that the Supreme Court, in the Illegal Immigrants (Trafficking) Bill 1999 (2000) 2

I.R. 360, endorsed the McNamara test as the appropriate test applicable to the regime then under consideration that is to say the

largely identical statutory regime in respect of challenges in the immigration sphere.

3.6 The test set out in McNamara is, therefore, well established as the appropriate basis for a consideration of whether there are

substantial grounds in any statutory regime where the Oireachtas has determined that such grounds require to be established before

leave to challenge can be given. There can be little doubt, as McKechnie J. pointed out in Kenny v. An Bord Pleanála (No. 1) [2001] 1

I.R. 565, that the threshold of “substantial grounds” was intended to result in a different and higher threshold than that normally

applicable to an application for judicial review under the Rules of the Superior Courts. As McKechnie J. pointed out certain of the

phraseology in the McNamara test would, in any event, apply in any leave application even at the lower or ordinary threshold. As he,

correctly in my view, pointed out perhaps the greatest guidance as to the distinction between the test applicable in “substantial

grounds” cases as opposed to ordinary cases can be gleaned from the word “weighty”.

3.7 However there is another important aspect of the process which applies in those cases where substantial grounds are required by

statute. Applications for leave in such cases are, invariably, required to be on notice to other relevant parties. It is, therefore, the

case that the court on the hearing of the leave application in such cases has the benefit of argument and, in some cases, evidence,

not only from the applicant but also from those who might wish to resist the application.

3.8 While the parties did not differ as to the test to be applied – it was agreed on all sides that the McNamara test as approved by

the Supreme Court in Illegal Immigrants (Trafficking) Bill was the test – there was what might euphemistically be described as a

difference in emphasis as to the extent to which it is necessary for the court to analyse in considerable detail the evidence and

arguments put forward on both sides at such a leave application. Counsel for Arklow drew attention to the comments of Carroll J. in

McNamara to which I have referred and which make it clear that, while the court is required to be satisfied that each ground

advanced is a substantial ground, the court is not required to deal in detail with each argument put forward in respect of each ground

and to comment in detail on each such argument. Counsel for the Board drew attention to the detailed analysis of the argument

conducted by McKechnie J. in Kenny as suggesting that there should, perhaps, be a more rigorous analysis of the case than might be

suggested from the interpretation on McNamara urged on behalf of Arklow.

3.9 It seems to me, however, that any distinction between the approach of Carroll J. in McNamara and McKechnie J. in Kenny is more

apparent than real. The realities of a contested leave application are that the court will necessarily have before it argument on behalf

of those resisting the leave and in many cases additional evidence put before the court by those parties. It is frequently the case

that an argument which sounds superficially attractive on first presentation may become insubstantial (and thus not sufficient to

allow leave on that ground) when it is critically analysed with the benefit of argument by an opposing party. Furthermore opposing

parties may draw attention to other relevant aspects of the factual situation which may place all of the facts in context and which

may lead to a conclusion that certain grounds are insubstantial. In that way the very process of conducting a contested leave

application may lead to certain grounds, as it were, “falling away”.

3.10 Nonetheless, notwithstanding such process, there will always be cases where some, or indeed all, of the grounds advanced

remain ones upon which substantial argument can be advanced on either side. There is, in my view, no basis to be found in any of the

authorities for suggesting that the court should attempt to weigh the strength of such competing arguments. The process envisaged

is that, with the assistance of argument from all sides, the court has to form a judgment as to whether notwithstanding the points

raised by those opposing leave there remains substantial or weighty arguments in favour of the challenge.

3.11 Where the arguments relate to legal issues only, it is appropriate to note that McKechnie J. in Kenny indicated that “whilst

obviously I should not attempt to resolve conflicts of fact or express any concluded view on complex questions of law or indeed

anticipate the long term results, nonetheless within existing limitations I should, I feel, make some evaluation of the factual matrix and

should, where with certainty I can form some view of the appropriate statutory provisions and the relevant and material case law”.

Thus where, even after having had the benefit of argument on both sides, the court remains of the view that there are substantial or

weighty arguments either way, the court should not express any view on the relative strengths of those arguments. Rather leave

should be granted and it is for the court dealing with the substantive application to weigh the strengths of the relevant arguments.

3.12 I should not leave this point without commenting that the current practice in relation to leave applications in planning matters

points to a potential duplication in the work of courts which are required to hear such applications.

3.13 There can be little doubt but that the statutory requirement that leave can only be granted after an application on notice, and

where a higher standard has been established, was introduced as a means of attempting to streamline challenges to planning

permissions. Thus, it was hoped, insubstantial cases would be disposed of in early course. While that end has, in part, been achieved,

the fact is that leave applications have now come to take on a life of their own. It is interesting to note that it is common practice

for respondents and notice parties in planning leave applications to file detailed replying affidavits even though it is rare for the

respondent Minister or respondent statutory bodies charged with making decisions in the immigration sphere to file any replying

affidavits in the almost identical process that applies to such cases. There may, of course, be good reasons for the filing of affidavits

in some cases. However the reality is that leave applications have now turned into substantial hearings themselves. On the initial date

the hearing has to be adjourned from time to time to allow for the filing of further affidavits. Furthermore, in many cases, the leave

application takes, as here, a number of days at hearing and thus requires to wait for a suitable place in the court list. Where leave is

granted, whether on some or all grounds, a second substantive hearing then follows.

3.14 It is difficult to avoid the conclusion that, at least in a not insignificant number of cases, the process leads to a longer rather

than a shorter challenge period. A particularly significant aspect of the current process was identified and commented on by Kelly J. in

Mulholland v. An Bord Pleanála (Unreported, High Court, Kelly J, 4th October, 2005). In many challenges to planning permissions a

significant number (and in some cases all) of the grounds put forward are either wholly or substantially legal grounds. This is hardly

surprising given the judicial review jurisprudence. However it is frequently the case that the judge dealing with the leave application

will have had the benefit of as full an argument in relation to such legal grounds as any judge hearing a substantive application would

have. In relation to the case before him in Mulholland Kelly J. commented as follows:-

“Many of the detailed criticisms which have been made in respect of the reasons given and the adequacy of the EIS really

have their genesis in this difference of approach. More than this I need not and indeed ought not to say. It is regrettable

that having had detailed argument made to me of the type and depth that will be reproduced at the full hearing I am

precluded from deciding the case. But such is the scheme of the Act”.

I can only endorse the view there expressed.

3.15 In summary it seems to me, therefore, that I should apply the McNamara test. I should engage in an analysis of the arguments

put forward on behalf of Arklow in respect of each of the grounds advanced taking into account the arguments put forward by those

opposed to leave. I should do so, however, solely for the purposes of determining whether the ground advanced (as opposed to each

and every argument that may have been mentioned in the course of the hearing) is one in respect of which I am satisfied there can

be said to be a substantial or weighty basis. In respect of any ground where I am so satisfied I should refrain from passing any

comment on the strength or weakness of the ground, that being properly a matter for the judge who would (if leave is granted)

ultimately have to determine the substantive case.

4. The Grounds Advanced

4.1 While a large number of grounds appear in the statement filed on behalf of the applicant they were conveniently grouped by

counsel for Arklow into six areas. This involved the abandonment of some grounds. I did not understand Arklow to pursue any of the

grounds set out in the statement beyond those which I will now set out. I would therefore propose dealing with each of those six

matters. In summary the grounds are as follows:-

1. That there was an improper abdication by the Board of its role under the Planning Acts in accordance with domestic

law, or alternatively no proper assessment by the Board under EU law, in relation to the manner in which the Board

determined that the outfall pipe from the plant to the sea was to be situated.

2. That the Waste Management Act 1996 applies to the plant and that, therefore, it was wrong of the Board to have

regard, as it is said it did, to environmental questions, those matters being properly ones for the Environmental Protection

Agency (“EPA”).

3. That the Board failed to carry out a proper environmental impact assessment (“EIA”) in relation to the whole of the

project.

4. As an alternative to point 2 it is said that if the Waste Management Act, 1996 does not apply to the circumstances of

this case then Ireland has failed to properly transpose council directive 75/442/EC (as amended by council directive

91/156/EC).

5. That the Urban District Council did not have a sufficient interest in the property which was the subject of the planning

application to entitle them to make the application.

6. That the grant of planning permission is invalid by virtue of the fact that part of the works encompassed within the

project are to be carried out on the foreshore in respect of which, it is said, the Board has no jurisdiction. It is contended

that works on the foreshore are within the exclusive jurisdiction of the relevant Minister, that is the Minister for the

Marine.

4.2 Before going on to consider each of those grounds I should also note that those opposed (and in particular in this context the

Urban District Council), place reliance on a contention that Arklow are precluded from raising most of the grounds now sought to be

relied upon by virtue of the fact that those grounds, it is said, could have been, but were not, raised in the first challenge mounted

by Arklow to the grant of planning permission by the County Council.

4.3 I propose to deal initially with the each of the grounds on its own merits. In so doing I will deal with such grounds in the order in

which they appear above save that I will leave grounds 2 and 4 (which I will deal with together) until last. I will then turn to a

consideration of whether any of those grounds can properly be said to be excluded on the basis of the argument to which I have just

referred. I now turn to the first ground.

5. Improper Abdication

5.1 Under this ground Arklow complains that the manner in which the Board dealt with the grant of permission in respect of the outfall

pipe, which would lead from the waste treatment plant itself to the sea, amounts either to an improper abdication of its role as a

matter of Irish law or shows a failure to conduct the process required in accordance with EU Law. Issues were raised before the Board

as to the adequacy of the manner in which the original proposal dealt with that outfall pipe. In that regard it would appear that the

Board was, at least in part, persuaded by the arguments put forward by Arklow (including the evidence placed before the Board by

experts engaged by Arklow). As a result the Board imposed condition 9 in the following terms:-

“A full bedrock survey along the proposed alignment of the outfall pipe shall be submitted to the planning authority prior to

the commencement of development. The survey shall indicate the nature, extent and depth of the bedrock overburden

along the alignment. The proposed tunnel section of the outfall pipe shall be driven completely into the bedrock under the

sea bank sand dunes to the immediate east of the appeal site and the tunnel shall remain within the bedrock to a point

ten meters beyond the high watermark (i.e. the seaward side of the high watermark). Details of the revised longitudinal

sectional of the outfall shall be submitted to the planning authority for agreement prior to the commencement of

development on site.

Reason: to ensure that the proposed outfall pipe does not damage the integrity of the sand dunes.”

5.2 A second condition also arises for consideration under this heading. At condition 13 the Board imposed the following

requirements:-

“The developer shall facilitate the planning authority in the archaeological appraisal of the site and in preserving and

recording or otherwise protecting archaeological materials or features which may exist within the site. In this regard the

developer shall:-

(a) Notify the planning authority in writing at least four weeks prior to the commencement of any site operation

(including hydrological and geotechnical investigations) relating to the proposed development, and

(b) Employ a suitably qualified archaeologist prior to the commencement of development.

The archaeologist shall assess the site and monitor all site development works. The assessment shall address the following

issues:-

i. The nature and location of archaeological material on the site, and

ii. The impact of the proposed development on such archaeological material.

Prior to the commencement of development, a report containing the results of the assessment shall be submitted to the

planning authority. Arising from this assessment, the developers shall agree with the planning authority details regarding

any further archaeological requirements (including, if necessary, archaeological excavation) prior to commencement of

construction works.

Reason: in order to conserve any potential archaeological heritage of the site and to secure the preservation of any

remains which may exist on the site.”

5.3 In respect of both of the above conditions Arklow contends, in the first leg of its argument under this ground, that the Board has

been guilty of an impermissible abdication of its obligation to determine the issues by the manner in which questions were referred

back to the County Council, as planning authority, for the purposes of finalising the details of the issues raised.

5.4 The principles applicable are to be found in Boland v. An Bord Pleanála [1996] 3 I.R. 435. In that case the Supreme Court was

asked, upon an appeal certified to be on a point of law of exception of public importance, to determine the principles applicable to the

imposition of such conditions. Hamilton C.J. (at p. 466-467) said the following:-

“1. The Board is entitled to grant permission subject to conditions.

2. The Board is entitled in certain circumstances to impose a condition on the grant of planning permission in regard to a

contribution or other matter and to provide that such contribution or other matter be agreed between the planning

authority and the person to whom the permission or approval is granted.

3. Whether or not the imposition of such a provision in a condition imposed by the Board is an abdication of the decision

making powers of the Board depends on the nature of the “other matter” which is to be the subject matter of the

agreement between the developer and the planning authority.

4. The “matter” which is permitted to be the subject matter of agreement between the developer and the planning

authority must be resolved having regard to the nature and circumstances of each particular application and the

development.

5. In imposing a condition a matter left to be agreed between the developer and the planning authority the Board is

entitled to have regard to:-

(a) The desirability of leaving a developer who is hoping to engage in a complex enterprise a certain limited degree

of flexibility having regard to the nature of the enterprise;

(b) The desirability of leaving technical matters of detail to be agreed between the developer and the planning

authority particularly when such matters or such details are within the responsibility of the planning authority and

may require redesign in the light of practical experience;

(c) The impracticability of imposing detailed conditions having regard to the nature of the development;

(d) The functions and responsibilities of the planning authority;

(e) Whether the matters essentially are concerned with offsite problems which do not affect the subject lands; and

(f) Whether the enforcement of such conditions requires monitoring or supervision.

6. In imposing conditions of this nature the Board is obliged to set forth the purpose of such details, the overall objective

to be achieved by the matters which have been left for such agreement, to state clearly the reasons therefore and to lay

down criteria by which the developer and the planning authority can reach agreement.”

5.5 It would also appear that the court adopted one further condition which is to be found in the judgment of Blayney J. at p. 472

(with whom Hamilton C.J. agreed) when he proposed a further condition to the effect that:-

“Could any member of the public have reasonable grounds for objecting to the work to be carried out pursuant to the

condition having regard to the precise nature of the instructions in regard to it laid down by the Board and having regard

to the fact that the details of the work have to be agreed by the planning authority.”

5.6 In essence, therefore, the question which arises in this case is as to whether the two impugned conditions (that is to say

condition 9 and condition 13) are in breach of what might may be called the Boland criteria. At this stage the question which I have

to determine is as to whether there are substantial grounds for the argument that either or both of the relevant conditions are in

breach of the Boland criteria.

5.7 Boland also needs to read in conjunction with the earlier decision of Murphy J. in this court in Holohan v. An Bord Pleanála

(Unreported, High Court, Murphy J., 4th October, 1993). In Holohan a condition concerning the route of an outfall pipe was found to

be unlawful in circumstances where the local authority was left at large as to the route that would be followed.

5.8 I have also had regard to the careful analysis of the authorities on this issue carried out by McKechnie J. in Kenny v. An Bord

Pleanála (No. 1) [2001] 1 I.R. 565 and to the further authorities referred to therein.

5.9 Having considered the evidence concerning the debate which took place between the parties to the appeal before the Board and

the manner in which the Board considered and determined the issues which arise under this heading, I have come to the conclusion

that the conditions sought to be impugned are consistent with the Boland test. As was pointed out by counsel for the Board,

condition 9 sets out precise parameters in relation to the manner in which the outfall pipe is to be constructed. It is required to be

drilled through the rock for the duration of the sand dunes to ensure that the pipe does not damage the integrity of those dunes. The

condition, in my view, sets out precise parameters in relation to that requirement and provides that the precise route in terms of the

depth of the pipe is only to be determined by agreement between the Urban District Council, as developer, and the County Council, as

planning authority, after an appropriate survey.

5.10 It may well be that Arklow does not agree with the views expressed by the Board’s inspector to the effect that he was satisfied

that such an exercise could lead to an appropriate outfall pipe which would adequately safeguard the dunes involved. However it is

clear that the Board came to that view. There are not, in my view, substantial grounds for arguing that it was not open to the Board

to so conclude. Furthermore it should be noted that if it proves impossible to construct a suitable pipe which is entirely drilled through

the rock it will, in substance, be impossible to rely on the planning permission as it currently stands. In addition it seems to me that

an interested party would be entitled to challenge an agreement reached on foot of such a condition between a developer and a

planning authority on the grounds that the agreement did not comply with the criteria specified in the condition imposed by the Board.

Development can only, therefore, take place in circumstances where it proves possible for the developer and the planning authority to

reach an agreement which is within those criteria. If that should not prove possible then it would be necessary for the developer to

make application for a revised planning permission which would, in turn, confer all appropriate rights of objection on Arklow.

5.11 It seems to me, therefore, that the criteria set out for the agreement to be reached between the Urban District Council and the

County Council are sufficiently precise to meet the Boland test and there do not seem to me to be substantial grounds to the

contrary.

5.12 I have come to a similar view in relation to condition 13. Conditions of this type are quite common in planning permissions

granted by the Board. They do, in my view, provide an appropriate mechanism for ascertaining whether there may be any

archaeological material present and for dealing with any such materials as might be found to be present. It is clear from the Boland

criteria that an important aspect of the assessment of the latitude given by a condition which provides for further agreement is an

assessment of the importance of the issue to which the condition relates in the overall context of the development. It was in that

context that the Supreme Court came to the view that a condition providing for subsequent agreement in relation to a significant

number of matters relating to traffic management arising out of the redevelopment of Dun Laoghaire Port was permissible having

regard to the Boland criteria. In a case where there is no obvious pre-existing or anticipated significant archaeological difficulties, a

condition of the type set out in condition 13 seems to me to meet that criteria. A different situation might well arise in circumstances

where it was clear, or at least established to be probable, that there would be significant archaeological material which needed to be

provided for in the course of the development under consideration.

5.13 In those circumstances I am not satisfied that there are substantial grounds for arguing that condition 13 breaches the Boland

principles.

5.14 Finally, before leaving this aspect of the case, I should advert to the additional argument made under this heading on behalf of

Arklow which stems from the fact that under section 145 of the Local Government Act 2001 the manager of the County Council is also

the manager of the Urban District Council. In those circumstances it is contended that the Board has left the matter for agreement

between two bodies who have the same manager. It should be made clear that it was not argued on behalf of Arklow that the fact

that the same manager held office in both the entity which is, in the context of this case, the developer and also the planning

authority, was, in itself, a matter that gave rise to any difficulty. It was, however, contended that, in the context of the additional

criteria specified by Blayney J. in Boland, the alleged conflict of interest gave rise to a situation where a member of the public could

have reasonable grounds for objecting to the work to be carried out “having regard to the precise nature of the instructions in regard

to it laid down by the Board and having regard to the fact that the details of the work have to be agreed by the planning authority”.

5.15 I am not satisfied that there are substantial grounds for this proposition. It is well settled that the same entity may, in

substance, carry out different roles under different statutory regimes. This is particularly so within the realm of local government

where a local authority is frequently given different roles as, for example, planning authority, sanitary authority and the like. The

underlying assumption, as applies in respect of all legislation, must be that an authority will properly carry out its functions under

legislation. In the circumstances it must be assumed that the County Council, as planning authority, will comply with its obligations in

respect of agreement under conditions 9 and 13 and will only enter into appropriate agreements under both of those conditions in

circumstances where it is proper for it so to do. As I indicated above, if it could be established that an agreement had been reached

which was outside the parameters laid down by the Board, then same would be open to challenge by any party legitimately

interested.

5.16 In all those circumstances it does not appear to me that Arklow has established substantial grounds under this heading.

5.17 The second leg of Arklow’s argument under this heading was that the same facts and the same conditions disclose a situation

where there has not been an adequate assessment of the environmental impacts of the project necessary to satisfy the requirements

of Directive 85/337. In Wells v. Secretary of State for Transport the Court of Justice determined, in the context of Council Directive

85/337/EEC, that, in consent procedures comprising several stages, the assessment by the competent authorities of the Member

State concerned required by that directive must, in principle, be carried out as soon as it is possible to identify and assess all the

effects which the project may have on the environment.

However the court went on to determine that:-

“The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State

under the principle of procedural autonomy of the Member States provided that they are not less favourable then those

governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or

excessively difficult the exercise of rights conferred by the community legal order (principle of effectiveness)”.

It is clear from the context of the judgment that the possibility of a consent being revoked is a material matter to be considered.

5.18 In those circumstances it is important to note that, insofar as any matters are left over for agreement as a result of the

imposition of conditions such as those contained in condition 9 and condition 13, there remains a variety of ways in which the

development consent concerned may not become practically operative. Clearly such conditions impose a requirement that the

agreement of the planning authority is a pre-requisite to the commencement of development. Therefore, while there is a sense in

which the developer has secured a planning consent, there is also a sense in which it is a conditional consent in that it is conditional

upon an appropriate agreement being reached. Furthermore, as I have indicated above, it is open to any party to challenge an

agreement reached on the basis that it does not conform with the criteria specified in the decision of the Board. It is thus open to

revocation in practice in the event that an impermissible agreement is reached. Finally it may be that, as a result of the further

enquiries carried out in accordance with such a condition, it may prove impossible to develop in accordance with the consent already

granted. In that sense also the consent must be taken to be conditional.

5.19 In all the circumstances it does not seem to me, therefore, that there is any breach of the directive, as interpreted by the Court

of Justice in Wells, where the Board imposes a condition which complies with the Boland principles. In those circumstances any

interested member of the public will have had the opportunity to engage in the process and to influence the criteria which the Board

specifies. Clearly if those criteria are impermissibly wide, so as not to meet the Boland test, then it might well be arguable that the

public was excluded from appropriate consultation, as required by the directive, in relation to the final determination of the matters

subject to the condition. Where, as I am satisfied is the case here, the Board has imposed sufficiently detailed criteria as a result of a

process involving public engagement, I am not satisfied that there is any breach of the requirements to carry out the necessary

assessment under the directive.

6. Assessment of whole of project

6.1 This ground was sometimes referred to in the course of the hearing, and in the papers before the Board, as the “project splitting”

ground. However it was accepted by counsel for Arklow that that term was somewhat inaccurate. The term project splitting is more

properly applied to allegations raised by objectors who contend that a developer has divided a single overall project into two or more

separate (and by definition smaller) projects so that each of the subdivisions fall below thresholds set out in both European and

domestic legislation over which a higher levels of environmental assessment are required. There is an established jurisprudence for

determining whether project splitting in that sense has occurred. However no such allegation is made in this case. What is, however,

said, is that the environmental impact statement (“EIS”) submitted by the Urban District Council in support of its application for

planning permission omitted from its considerations any potential impact on the environment of all aspects of the project other than

those directly connected with the wastewater treatment plant itself.

6.2 It is, of course, necessary to note that there is a distinction between the EIS (which is a document prepared by the developer

and submitted to the planning authority) and the environmental impact assessment (“EIA”) which is the process required, as a matter

of EU law, of the competent authority (in this case the planning authority) prior to the grant of development consent. It is clear that,

as a matter of EU law, it is open to the competent authority to supplement any information submitted on behalf of the developer with

its own enquiries. In that context the focus under this ground must be on the manner in which the Board assessed the environmental

impact of the project as a whole and in particular the manner in which it assessed the environmental impact of those aspect of the

project which were not specifically dealt with in the EIS.

6.3 At paragraph 13.2.5 of the Inspector’s report he said the following:-

“Project Splitting

It is argued that the proposed development is split into a number of separate parts mainly

(a) that part of the development which is located within the administrative area of Arklow UDC i.e. the pumping

station and rising mains;

(b) that part of the rising main that is located within the jurisdiction of Wicklow County Council but is located

outside the site demarcated for the proposed treatment works;

(c) the proposed treatment works within the confines of the site boundary; and

(d) the outfall pipe which runs under the beach area and into the Irish sea

It is suggested therefore that an EIS should have been prepared for the totality of the development and not just the

development which takes place within the application site outlined in red.

My comments in relation to the above arguments are as follows.

The EIS directive and SI 349 of 1989 are not clear as to what constitutes the totality of the project in question. The

regulation state that an EIS must be compiled in the case of:

Waste water treatment plant with a capacity greater than 10,000 p.e.”

6.4 Having noted that the EIS adequately assesses that part of the development which, in the view of the inspector, was critical in

terms of the significant likely impact, that is the actual waste water treatment plant, the inspector went on to note that by virtue of

the fact that the rising mains and pumping stations were not located in environmentally sensitive areas that they were unlikely to

have a significant environmental impact and therefore did not consider that the Board should require a new EIS.

6.5 It is therefore clear that the Inspector, and by inference the Board, would appear to have taken the view that it was

unnecessary to conduct any further assessment of the environmental impact of those aspects of the project which were outside the

waste water treatment plant itself. The question which I must answer at this stage is as to whether that fact provides substantial

grounds for challenging the decision of the Board.

6.6 In Kenny v. An Bord Pleanála (No. 1) [2001] I.R. 567 a challenge to the adequacy of an EIS was dismissed by McKechnie J. as not

constituting a substantial ground. In so doing he stated as follows (at p .578):-

“Once the statutory requirements have been satisfied I should not concern myself with the qualitative nature of the EIS

or the debate on it had before the Inspector. These are not matters of concern to this court. The planning authority and

An Bord Pleanála as these bodies must under the regulations were satisfied as to the EIS with the Inspector and the

Board also being satisfied with the evidence, both documentary and oral, produced at the oral hearing”.

6.7 However it seems to me that the issue in this case is somewhat different. Here the question is not as to whether the EIS dealt

adequately or properly (in the qualitative sense) with the issues required to be addressed. Here the question is as to whether there

was, in any real or sufficient sense, a proper assessment of those aspects of the project which were outside the wastewater

treatment plant itself.

6.8 It may well have been within the competence of the Board to take the view that the potential environmental impacts of those

aspects of the project outside the wastewater treatment plant itself were much less significant than those from the plant. It may well

also have been within the competence of the Board to take the view that the impacts that might be associated with those aspects

outside the wastewater treatment plant itself were not, of themselves, significant. However what is required to be assessed is the

totality of the impact of the project taken as a whole. It is, therefore, at least arguable sufficient for the purposes of leave, that

aspects of a project which might not have impacts which would be significant in themselves might, when taken on a cumulative basis,

and when added to the impacts of other aspects of the same project, give rise to an overall view that the environmental impacts

taken as a whole were such as should lead to a refusal of development consent or, indeed, the imposition of more stringent

conditions. On that basis I am satisfied that there are arguable grounds, sufficient for the purposes of leave, for the proposition that

the process engaged in by the Board in assessing the environmental impact of this project taken as a whole was flawed by reason of

the failure to adequately identify the impact of those aspects of the project excluded from the EIS and in particular, notwithstanding

the finding that the environmental impact of those aspects taken by themselves might not be significant, to consider the cumulative

effect of all impacts.

7. Sufficient Interest

7.1 Under this ground Arklow contends that the Urban District Council did not have a sufficient interest in the property the subject

matter of the application for planning permission. There does not appear to be any dispute about the factual position. As has been

pointed out earlier the project consisted of a number of elements including the pumping station and rising main which would bring

waste water to the treatment plant, the treatment plant itself, and the outfall from treatment plant through the dunes and foreshore

into the sea. The question of the entitlement of the Board to deal with the foreshore arises under the next ground. Insofar as the

remainder of the project is concerned it would appear that the lands upon which the waste water treatment plant itself was to be

constructed were the subject of a compulsory purchase order which had, at the relevant time, reached the stage where the

compulsory purchase order had been confirmed and a notice to treat served. The remainder of the project (with the exclusion of the

foreshore) consisted of certain works within the administrative jurisdiction of the Urban District Council, certain other works in relation

to the rising main which are within the functional area of the County Council and the outfall pipe as far as the high water mark which

was also within the functional area of the County Council. It would appear that no compulsory purchase process had been

commenced in respect of any of those works.

7.2 This issue arose as part of the process before the Board. In that context the Inspector commented as follows:-

“I consider that Arklow Town Council are entitled to carry out works within its own administrative jurisdiction under Part X

procedures. Works in relation to the rising main from Porters Bridge to the site along the sea road could, in my opinion be

carried out under compulsory acquisition procedures, as set out in s. 213 of the Planning and Development Act 2000. I am

of the opinion that the same procedures could be used in acquiring any land necessary for the construction of the outfall

pipe as far as the high water table. The construction of the outfall pipe beyond the high water table is the subject of a

foreshore licence from the Department of the Marine and therefore is not under the remit of An Bord Pleanála.

Finally reference is made to the small parcel of land to the south of the site, which is to used as a temporary working

area. This appears not to be in the ownership of the planning authority. If these lands could not be made available to the

planning authority by way of CPO procedures there is nothing to suggest that another temporary working area could not

be made available within the confines of the site”.

7.3 The current state of the law in relation to issues such as this is to be found in the judgments of the Supreme Court in Frascatti

Estates Limited v. Walker [1975] I.R. 177 and Keane v. An Bord Pleanála [1998] 2 ILRM 241.

In an often quoted passage from Frascatti Henchy J. (speaking for the court) said the following:-

“I consider that an application for development permission, to be valid, must be made either by or with the approval of a

person who is able to assert sufficient legal estate or interest to enable him to carry out the proposed development, or so

much of the proposed development as relates to the property in question”.

7.4 The matter was re-visited by the Supreme Court in Keane. Having analysed the judgment of Henchy J. in Frascatti Keane J. went

on to say the following:-

“It may be that the “ratio” is to be found in the first paragraph of this passage and that the second paragraph, to the

extent that it suggests that an application for planning permission can only be made by or with the consent of a person

entitled to a legal estate or interest sufficient to enable him to carry out the proposed development should properly be

regarded as “obiter”. One could readily envisage circumstances in which an application could be made by some other

person who could not possibly be described as either “unnecessary” or “vexatious”. In the context of the present case,

however, it is sufficient to say that the principle apparently laid down in Frascatti Estates Limited v. Walker must be

strictly confined to cases in which the application is not made by or with the approval of a person who has a legal estate

or interest in the relevant property sufficient to enable him to carry out the proposed development”.

7.5 It is therefore fair to state that the Supreme Court has, in Keane, cast doubt on whether the statements in Frascatti to the

effect that an applicant for planning permission must have an interest in the land or the permission of someone who has such an

interest represents the law without qualification.

7.6 However it is clear that much of the passage from Keane to which I have referred is itself obiter in that, on the facts then before

the Supreme Court, that court was satisfied that even the full rigours of Frascatti would not avail the applicant. The position

therefore remains that the precise extent of the exclusion is one which requires a definitive decision. It may, on the one hand, be

that, as was suggested in Keane, the true position is one which requires the court to exclude only cases where the applicant for

planning permission is engaged in a vexatious or spoiling exercise. It may, on the other hand, be that the clear wording of the

judgment in Frascatti will prevail. Between those two poles there are a number of intermediate positions which might also find favour.

For example on the facts of this case it might be arguable that a party such as the Urban District Council who has the benefit of a

confirmed compulsory purchase order and who has served a notice to treat (and who has thus put themselves in a position where

they are entitled, as a matter of law, with certainty to acquire the lands concerned) might be regarded as having a sufficient interest

for the purposes of Frascatti but that the same Urban District Council might not be regarded as having such an interest in respect of

those other portions of the project where no compulsory purchase order process was in being and where the entitlements remained

contingent on the successful conclusion of such a process.

7.7 In the light of the clear wording of Frascatti it seems to me that I could not conclude that there are not substantial grounds

under this aspect of the case. I should not leave this ground without commenting that it seems to me that this issue is one of those

where a relatively net, though important, point of law arises upon which it might well be the case that a judge hearing a leave

application on notice and having had full argument on both sides is in as good a position to determine the issue as a judge at a

substantive hearing. However as was pointed out by Kelly J. in Mulholland I am notwithstanding those circumstances precluded from

deciding the case. “Such is the scheme of the Act”.

7.8 A further argument is raised by Arklow which stems from much of the same factual matrix as the “sufficient interest” ground but is

based on the fact that the site of the purposed development, as delineated on the map required to be lodged as part of the planning

process, was confined to the site of the wastewater treatment plant itself and did not extend to those areas where the additional

works were to be carried out.

The purpose of the requirement for a map, with the site of the proposed development delineated on it, is clearly to draw the attention

of the public to the location of the proposed works. If the site is incorrectly marked, in a material respect, the public might be misled

and, thus, not involve themselves in a process which they would have been interested in had the site been correctly described.

However it seems to me that, in order to have standing to raise such an argument, an applicant for judicial review would need to

satisfy the court that it had been misled. Arklow were clearly not misled as they were fully aware of the extent of the proposal and

fully participated in the planning process. I am not satisfied, therefore, that there are substantial grounds for arguing that Arklow has

standing to advance any argument under this head.

8. Foreshore

8.1 It would appear that the last 10 metres of the proposed outfall pipe run beneath the foreshore. In those circumstances Arklow

argues that the Board has no jurisdiction to impose a condition relating to that part of the development. It is suggested that the

competent authority in respect of applications relating to developments on the foreshore is the Minister for the Marine (“the

Minister”). The procedures in respect of developments on the foreshore would appear to be governed by ss. 2 and 3 of the Foreshore

Act 1933 as amended. Those sections (as amended by the European Communities (Environmental Impact Assessment) Regulations

1989) provide that when an application is made to the Minister under the Foreshore Act for a foreshore licence which is for a class of

project which requires an EIA, then such EIA is carried out in conjunction with the appropriate application for a lease or licence

pursuant to the Foreshore Act.

8.2 In the course of the hearing attention was drawn to s. 225 of the Planning and Development Act 2000 which makes express

provision for the grant of planning permission in respect of development on the foreshore which is, for the purposes of that section,

treated as being within the functional area of the adjoining planning authority. However in the course of the hearing it was accepted

on behalf of the opposing parties that s. 225 was not in force at the material time for the purposes of these proceedings. Therefore it

seems clear that, as a matter of law, the grant of permission in respect of development to be carried out on the foreshore requires

the permission of the Minister for the Marine rather than the planning authority.

8.3 In those circumstances it is necessary to consider whether it may be said that a planning permission which imposes conditions in

respect of the foreshore is invalid. Furthermore it is necessary to consider the fact that Arklow’s submissions to the Board on the

planning appeal sought to eliminate any environmental damage which might be caused by the outfall pipe from the proposed

development. In those circumstances it is argued that Arklow lacks standing to contest the Board’s jurisdiction. It is clear that no

works can be carried out on the foreshore without going through all of the necessary process established under the Foreshore Act.

That does not, however, mean that the Board is restricted in considering the effect on the foreshore in the grant of its planning

consent. Indeed for the very reasons advanced on behalf of Arklow in respect of ground 3 above, it is necessary, as a matter of EU

law, that an overall assessment of the project as a whole is carried out by some person or body.

8.4 If the planning acts and the foreshore acts were construed in a manner that required entirely separate considerations to be given

by the planning authority (and on appeal by the Board) to those aspects of a project which was on land and by the Minister in

respect of those aspects of the project which were on the foreshore then there would be no single overall assessment of all of the

environmental impacts of the project as a whole. Such a construction of the relevant legislation would be inconsistent with EU law. In

those circumstances, and in accordance with the established jurisprudence of the courts in this jurisdiction and the EU, such an

interpretation should only be placed on the legislation in circumstances where it was not possible to construe the relevant provisions

in a manner consistent with EU law. There is nothing in the planning acts which, in my view, expressly excludes the entitlement of An

Bord Pleanála to take into account the environmental impact on the foreshore of any project which is under consideration and to

impose, where it thinks it appropriate so to do, conditions designed to protect the foreshore. In the circumstances I am not satisfied

that Arklow has made out substantial grounds under this heading.

9. Waste Management

9.1 I now return to the two grounds concerning the respective domestic and EU legislation in relation to waste management. At its

simplest the contention of Arklow can be put in this way. It is said that while there are separate domestic regulatory regimes in

relation to wastewater on the one hand and the management of waste generally on the other hand it is contended that certain

aspects of wastewater treatment (including dealing with sludge) come within the ambit of the regime applicable to waste

management generally. On that basis it is suggested that a waste licence is required and, as a consequence, and by reason of s.

54(1) of the Waste Management Act 1996, that the Board is precluded from granting a permission subject to conditions which are for

the purposes of “prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity “and that the

Board is further precluded from considering” any appeal submission or observation which relates to the risk of environmental pollution.”

It is clear that this issue arose before the Board and that the Board was satisfied that the provisions of the Waste Management Act

requiring a waste licence did not apply to the project. The Board therefore proceeded to consider the matter on that basis. It is

contended by Arklow that the Board was wrong in so doing.

9.2 As an alternative Arklow argues that, if a proper construction of the Waste Management Act 1996 leads to the conclusion that

projects such as the one under consideration do not require a waste management licence, then, it is said, the State has failed to

properly transpose Council Directive 75/442/ EEC (as amended by Council Directive 91/156/EEC) into Irish law.

9.3 Before considering the questions of construction of both domestic and European legislation which arise under this heading it seems

to me necessary to address the way in which the transposition issue should be dealt with in a leave application such as this. Counsel

for the state drew attention to the now established jurisprudence to the effect that a court should only go on to consider whether

there has been a failure to transpose in circumstances where such a determination is necessary for the purposes of resolving the

litigation. In that regard similar principles have evolved in respect of transposition challenges as had already been determined in

respect of challenges to Irish legislation on the grounds of inconsistency with the provisions of the Constitution. On that basis it was

suggested that the transposition issue should only be dealt with in the event that it became necessary so to do. I fully accept the

principles applicable.

9.4 However it seems to me that a somewhat different position pertains on a leave application. As pointed out by counsel for Arklow,

the only issues which can be dealt with at a substantive hearing subsequent to leave being granted are those in respect of which

leave has been given. If, therefore, there are circumstances in which a transposition issue might arise at a substantive hearing and if

there are substantial grounds in favour of the argument on transposition then leave should be granted to preserve the position that

the transposition can be dealt with if, in the light of the views which the judge hearing the substantive case takes on other issues, it

becomes necessary so to do.

9.5 However there is another aspect of the interaction between the construction issue and the transposition issue that needs to be

dealt with at this leave stage. As pointed out above it is well established that this court should, where possible, construe Irish

legislation in a manner which is consistent with EU law. Therefore if it is necessary to construe the waste management legislation in a

particular manner so as to bring same into conformity with the directives then such a construction should be placed upon the Irish

legislation if it is at all possible so to do. That brings into relief the interaction of the construction and transposition issues with the

principles applicable to the grant of leave on substantial grounds.

9.6 If there are substantial grounds for arguing that the waste management legislation can be construed in the manner contended for

by Arklow then it is difficult to see how the transposition issue could arise. Even if the contentions put forward on behalf of Arklow as

to the proper construction of EU law are correct, then the transposition issue could only arise if it were impossible to construe the

waste management legislation in a manner consistent with the directives. Therefore in order for there to be substantial grounds for

arguing that there has been a failure of proper transposition it would be necessary for Arklow to satisfy me that there were

substantial grounds for believing that there was no construction that could properly be placed on the Waste Management Act 1996

consistent with Arklow’s contention as to the proper meaning of the directives. If that was the case then it would be difficult to see

how there could, at the same time, be substantial grounds for believing that the waste management legislation had to be construed in

the way for which Arklow contends.

9.7 For those reasons it seems to me that there cannot, in principle, be substantial grounds for both of the propositions. If the

argument in favour of Arklow’s construction for the waste management legislation is sufficiently strong to afford substantial grounds

for the proposition that the legislation should be construed as Arklow suggests then it is difficult to envisage circumstances where the

legislation could not, if necessary, be construed in that fashion in circumstances where the court was required so to do so as to bring

the legislation into conformity with EU law.

9.8 In that context I now approach the question of the proper construction of the waste management legislation. I have come to the

view that there are substantial grounds for Arklow’s contention as to the proper construction of the waste management legislation.

For the reasons set out above I do not feel that I should, in those circumstances, do more than set out in brief outline my reason for

so concluding given that it will be for the judge having carriage of the substantive issues in this case to determine the proper

construction.

9.9 It is clear on the evidence currently before the court that EPA (which is, of course, the agency charged with dealing with waste

management), took the view that the project did require a waste management licence. That fact is not, of course, decisive. The EPA

could be wrong. However having considered the basis upon which the EPA came to that conclusion, as set out in relevant

correspondence, I have come to the view that it would not be possible to describe the contention as tenuous or insubstantial. In

those circumstances I am satisfied that substantial grounds exist for Arklow’s contention that a waste management licence was

required as a matter of domestic law.

9.10 The point at issue stems, substantially, from the proper interpretation of s. 3 of the Waste Management Act 1996. In material

part that section provides:-

“This Act shall not apply to:

(b) sewage and sewage effluent (other than sludge from a facility for the treatment of sewage);

(c) the treatment of effluent or the discharge thereof to waters other than the treatment of effluent at, or its

discharge from, a facility for the holding recovery or disposal of waste;”

Arklow argues that the proviso to s. 3(1)(b) applies in this case because the proposed development consists of a waste water

disposal system which has, as a necessary consequence, the requirement to dispose of sludge created as part of the treatment

process. Arklow further argues that the EIS submitted envisages that sludge from the plant would be disposed of to a landfill and that

this disposal activity would, therefore, require a waste licence under the provisions of the Act. In response it is argued that the EIS

envisages that sludge will be removed from the site by the County Council and that the treatment of sludge by way of lime

stabilisation is only envisaged on site. Therefore it is suggested that any landfill capping as a result of the creation of sludge which is

necessitated by the process will be carried out at another site. In those circumstances the argument of those opposing the

application is that it is the other site (that is the site upon which land capping by sludge will occur) that requires to be subject to the

waste licensing requirements. This issue therefore turns on whether the Urban District Council may be said to be undertaking the

recovery of waste at a facility (to use the terminology of s. 39 of the 1996 Act) which, in the context of the description of the

process referred to above, might be said to be the wastewater treatment plant rather than any other location. For the reasons

indicated above it is not possible, at this stage, to regard the arguments advanced by Arklow on this complex question of

interpretation as insubstantial.

9.11 I have also considered whether that interpretation does, of itself, even if established to be correct, necessarily lead to the

planning permission granted being invalid. On one view it may be open to consider that even if the Board was wrong in the view which

it took as to the necessity for a waste management licence same would not necessarily invalidate a planning permission given. If the

project does require a waste management licence then nothing which the Board decided alters that fact. The project would still

require a waste management licence. However having regard to the clear imperative set out in s. 54 of the Waste Management Act,

1996 which purports to prevent the Board from giving any consideration to such environmental matters in cases which are properly

within the remit of the EPA, it seems to me that there are substantial grounds for arguing that a planning permission which results

from a consideration by the planning authority, or the Board on appeal, of environmental issues, which the relevant authorities are

precluded from taking into account under that section, may be invalid.

9.12 In all those circumstances it seems to me that leave should be granted on the ground advanced in respect of the proper

interpretation of the Waste Management Act, 1996.

9.13 In the light of that view and for the reasons set out at para 9.7 above it does not seem to me that there are substantial

grounds on the transposition issue.

10. Grounds that could have been argued

10.1 As indicated earlier in the course of this judgment reliance was placed in opposition to the grant of leave on the fact that many

of the grounds now sought to be relied upon are, it is said, grounds which could also have been relied upon when Arklow challenged

the original grant of planning permission by the County Council. In particular counsel for the Urban District Council places reliance on

the established jurisprudence of the courts (see for example AA v. Medical Council [2003] 4 I.R. 302) to the effect that a party is

precluded from raising in subsequent litigation not only issues which have already been raised and deposed of in previous litigation but

also issues which could have and should have been raised in such litigation.

10.2 However the precise application of such principles in the field of public law challenges to the validity of decisions (and in

particular decisions made in what can and often is a two part process) remains, in my view, open to argument. There can be little

doubt but that, to a significant extent, the three issues upon which I am satisfied substantial grounds have been made out would

have been available to Arklow at the stage of their original challenge to the grant of permission by the County Council.

10.3 The fact that the EIS did not extend to the entirety of the project applied equally at that stage. It is possible that there may be

some distinction between the additional consideration given by the County Council to the assessment of the environmental impact of

those aspects of the project not encompassed within the EIS in comparison compared with the consideration given by the Board to

the same matters. However there would appear to be a significant overlap. The issues concerning the sufficiency of the interest of

the Urban District Council in the lands and the proper interpretation of the Waste Management Act, 1996 would appear to apply

equally to the earlier application. In those circumstances it seems to me that it will be necessary for Arklow to establish that a

distinction can and should be made between the types of cases in which the principles to which I have referred were established and

public law challenges of the type with which the court is concerned in this case. However in the absence of any clear authority as to

the proper approach which the court should take in a challenge of this type, where a contention is made that the applicant is

precluded from raising the issue because he could have raised the same issue in a previous challenge to another aspect of the same

process, I am not prepared, at this stage, to hold that Arklow has not established substantial grounds.