High Court quashes planning permission for landfill due to failure to address prior court order and environmental directives.

Neutral Citation Number: [2009] IEHC 346

THE HIGH COURT

COMMERCIAL

2008 1071 JR

BETWEEN/

USK AND DISTRICT RESIDENTS ASSOCIATION LTD

APPLICANT

AND

AN BORD PLEANÁLA,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

KILDARE COUNTY COUNCIL

NOTICE PARTY

AND

GREENSTAR RECYCLING HOLDINGS LTD

NOTICE PARTY

Judgment of Mr. Justice John MacMenamin dated 8th day of July, 2009.

1. On 30th July, 2008, the first named respondent (“the Board”) granted planning permission to the second named notice

party (“Greenstar”) for the development and operation of an engineered residential landfill at Usk, Co. Kildare. This facility

is intended over a period of ten years to accept annually some 200,000 tonnes of non-hazardous, non-reducible waste.

The applicants (“the residents”) seek an order of judicial review by way of certiorari quashing the Board’s decision.

2. In all, the decision contains 25 conditions. These relate broadly, to the manner of construction of the cells; the

designation of areas for the deposit of waste material; landscaping; restoration; wildlife; and environmental and

archaeological considerations. The conditions also deal with ultimate capping of the various cells or cavities of the landfill

once filled with waste.

3. The judgment which follows considers a number of issues relating to the impugned decision, which are arranged in the

sequential parts as follows:-

I. a claim of objective bias or want of fair procedures made by the residents;

II. an alleged failure by the Board to address the non-implementation of a previous order of this Court under s. 160

of the Planning Acts in Usk Residents Ltd. v. Kilsaran Concrete Ltd. No. 59 MCA, (High Court, Quirke J., 1st

December 2004) (“the Kilsaran order”), which directed remediation works to be carried out prior to the institution of

the development;

III. a further alleged failure by the Board to address itself to relevant environmental considerations which should by

law have been contained in the permission;

IV. a procedural issue with regard to a change in stance taken by Ireland and the Attorney General as regards the

permission; and

V. an allegation that the Board unlawfully failed to comply with the European Community Environmental Directives

applicable to the development.

Background

4. The residents’ legal war of attrition against this development has a long history. Insofar as material, they brought

claims against the site’s owners, Kilsaran Concrete Ltd. under s. 160 of the Planning and Development Act 2000 (“the

Kilsaran proceedings”). They initiated a separate judicial review claim against the Environmental Protection Agency. An

earlier set of judicial review proceedings brought against the Board culminated in a judgment of Kelly J. on 14th March,

2007 (“the 2007 High Court judgment”). There, he quashed an earlier decision granting permission, made on 26th July,

2006, but remitted that issue back to the Board for reconsideration. That prior decision and the terms of the 2007 High

Court order made thereon are material to this present application.

The proposed development

5. The entire waste facility in question is intended to cover a total of 19.3 hectares, while the footprint of the landfill

itself is to be approximately 12.5 hectares.

6. The project is designed to proceed in phases. Greenstar intend to construct specially prepared large cavities on the

site, a former quarry, to be numbered from one, (northwest), through to six (southwest). These are to be filled with

waste clockwise in numerical sequence, then temporarily capped. There is to be a specially devised lining system for

these cavities or cells. Provision is made for leachate collection and management, landfill gas collection and treatment,

and ancillary facilities. The developer is required to install a surface water management system prior to the

commencement of any other construction work at the facility. According to the application and permission, it is intended

that, at the end of this ten-year period, the facility will be restored to agricultural and ecological use.

General outline of the application and other legal proceedings brought by the residents

7. Greenstar lodged its original application for planning on 10th December, 2001. On 8th June, 2004, the Environmental

Protection Authority (“E.P.A.”) issued a waste licence intended to govern the operation of the landfill. The residents’ legal

challenge to this ultimately failed. But on 30th September, 2004, the planning authority, Kildare County Council, refused

permission for the development. This decision was appealed to the Board. On 27th October, 2004, the Board received first

and third party appeals from Greenstar and the residents respectively. Meanwhile, the Usk residents initiated proceedings

under s. 160 of the Planning and Development Act 2000, against Kilsaran Concrete Ltd., then, and even now, the actual

owners of the quarry. Quirke J. made the “Kilsaran order” on 1st December 2004.

8. Pursuant to s. 160 of the Planning and Development Act 2000, he directed the restoration of the quarry, and restrained

any further unauthorised development of the site. Kilsaran was ordered, to restore the lands insofar as practicable to a

condition suitable for agricultural use – the appropriate condition to be determined by an expert to be appointed. This was

to take due account of safety factors and best environmental practice, as the facility was close to the Usk marshes, a

proposed Natural Heritage Area (p.N.H.A.). These restoration works were to be carried out under the supervision and

direction of the expert appointed pursuant to the order. Remarkably, this order has not been implemented despite the fact

it was made five and a half years ago. The expert has not even yet been appointed. The lands the subject matter of that

2004 court order comprise a significant portion of the lands affected by the intended development.

9. I turn now to the first of the five issues which require determination, the allegation of objective bias.

I. The objective bias issue

10. A full consideration of the bias allegation makes it necessary to outline a further and more detailed chronology of

events. On foot of the appeal against Kildare County Council’s refusal of permission, the Board’s planning inspector held an

oral hearing, which took place between 26th and 29th April, 2005. On 19th July, 2005 the inspector furnished her report

consequent on that hearing. This recommended refusal of permission for four reasons, which are not at present material.

On 24th July, 2006 the Board declined to follow the recommended refusal, and instead decided to grant permission,

subject to a range of conditions. On 22nd September, 2006, the residents brought judicial review proceedings challenging

the lawfulness of the Board’s proceedings. These were transferred into the Commercial List of the High Court. Prior to the

hearing of that application, the Board’s solicitors indicated by letter dated 23rd January, 2007 that it was conceding the

residents’ entitlement both to leave and to substantive judicial review.

11. In the concession letter two primary reasons were given for the Board’s decision to concede relief. First was the

absence of satisfactory records leading to the decision to grant the permission. Second was the fact that for a period of

time, the planning files to be maintained by the Board in this matter were, contrary to law, unavailable to the public. The

Board’s solicitors described both issues as “unusual circumstances”. The concession letter contained an outline as to how

this situation had arisen.

12. Those judicial review proceedings were heard by Kelly J., on 26th February, 2007. In the light of the concession the

main question before him was the form the remedy should take. Two affidavits were sworn on behalf of the Board, one by

its chairman Mr. John O’Connor, the second by Mr. Brian Swift, a Board member whose conduct in a number of procedural

aspects was criticised by the residents. These affidavits were largely confined to the circumstances surrounding the two

reasons just identified.

13. In fairness to the Board, its solicitor’s letter went to some lengths to explain why these irregularities had occurred.

However there was no further affidavit evidence before that court to address additional allegations by the residents

regarding what they said were yet further procedural irregularities by Mr. Swift and a Board official. These related to a

series of other alleged failures to follow appropriate procedure in processing the Greenstar application; an apparent

absence of explanation as to why these had occurred; documents, Board memoranda and decisions placed out of

chronological date sequence on the planning file; and failure to account for the manner in which various recitals and

conditions had been devised and communicated between Board members and officials. Had the matter then proceeded to

full hearing, these points would have undoubtedly required a full answer in appropriate form. I emphasise that these were

allegations only; they were not the subject of a court finding or order.

14. I do not consider that these matters are “res judicata” for the purpose of these proceedings. They form part of the

factual background for Kelly J.’s decision; and that decision is now the starting point for this aspect of the current judicial

review application. What was submitted on behalf of the Board on that occasion, is relevant to the orders,

recommendations and observations made in 2007 in relation to the manner in which the Board should subsequently

conduct its procedure on remittal. What the Board actually did afterwards must be assessed by reference to the

submissions made and the subsequent judgment.

The 2007 High Court judgment and hearing on the form and extent of the remedy

15. In the judgment Kelly J. observed that, whilst the applicants had raised other grounds which might arguably have

provided an additional basis for granting certiorari, it was not in the interest of anybody that the public time of the court,

or the expensive time of the litigants and their advisers, be expended on such exercise. He considered that judicial

restraint dictated that the court should confine itself to facts and findings necessary to support an order of certiorari,

and should not go further.

16. He recalled that he had granted permission to the applicants to amend their statement of ground to comprise a

further claim, relating to a further unusual circumstance in which the permission had been granted. In addition to the two

reasons given earlier, the Board also accepted that some of its members involved in the decision making panel, had no

recollection of any draft conditions being considered at a Board meeting prior to the impugned decision. Other panel

members, including Mr. Swift and the chairman, said they did recollect such a discussion. For these reasons the judge

permitted an amendment of the residents’ grounds so as to include a further plea that the Board had failed adequately to

record its decision approving the conditions attached to its decision of 24th July, 2006.

17. The judgment considered legal authorities relating to the discretion of the High Court to remit an impugned decision

for reconsideration. It concluded that the matter should be remitted. The judge observed that the applicants had no

complaint as to the way in which the matter had been dealt with up to a specific date, viz. 3rd August, 2005, the date

upon which the Board’s inspector decided to send to Greenstar what is known as a “section 10 request” for further

information. The residents were concerned as to the circumstances in which this request was issued, and the way in

which Greenstar’s reply was processed after that identified date. They raised serious objection to further steps by which

the Board then processed the application. But the judge thought that it would be unjust not to remit the case for further

consideration. He observed:-

“… to refuse to remit would be disproportionate to the rights and entitlements of Greenstar, having regard to the

limited complaints made and even more limited basis upon which certiorari is being granted.”

He added:-

“Apart from the great expense and inconvenience which would be caused by sending the project back to the

drawing board, it would also lead to an inevitable and disproportionate delay in having the matter finally decided. I

am firmly of the view that this is an appropriate case in which the court ought to make an order remitting the

matter to the Board. However in doing so, I propose to make a number of recommendations which ought to

address the applicant’s complaints, real or perceived.”

18. He continued:-

“The applicant contends that it has no faith in the impartiality or objectivity of the Board in respect of the

development. At various stages in its affidavit evidence it has described the Board as having dealt with the matter

in a peculiar, extraordinary, extremely odd or incredible way.

I make no adjudication whatsoever on these allegations since they are not germane to what I have to decide.

Even if there is a basis for this lack of faith in the Board, the plain fact is that it is the only body authorised to

adjudicate on planning appeals. Consequently, even if I refuse to remit the matter and the planning process had to

begin all over again, inevitably it would be the Board that will have to decide on the development. Consequently,

any loss of faith that the applicant has is something about which nothing can be done since the Board is the sole

body appointed by the legislature to make ultimate decisions on planning applications.”

19. But he inserted this rider:-

“That said, however, I propose to make a number of recommendations which, without in any way accepting the

validity of any of the complaints made by the applicant, will minimise the risk of further judicial review.”

(emphasis added).

The judge referred to the Board’s statutory power to reopen an inspector’s hearing. He added then:-

“It is not open to me to direct the reopening of the oral hearing. Indeed to do so would be quite an improper

trespass by me upon the discretion vested in the Board. That said, I ought to record that counsel on behalf of the

Board indicated that in his view this would be an entirely proper way for the Board to approach the matter. He

furthermore assured me that the Board would, of course, be inclined to follow any legal advice proffered to

it in this regard.” (emphasis added).

The judge expressed his recommendation thus:-

“With a view to minimising the risk of further judicial review, it would be prudent and correct for the Board to

exercise this discretion and to reopen the oral hearing. That would provide a forum for all of the parties to place

up-to-date information before the Inspector and also to agitate any other questions considered appropriate.”

20. He then made this important recommendation:-

“Counsel informs me that the Board consists of ten members. Only five have had any involvement with this

application. Again, I would think it prudent that henceforth the matter remitted to the Board ought to be

dealt with as considered only by or from amongst the other five members of the Board. This suggestion is

not to be taken as in any way an acceptance by me of the criticisms which have been made in the affidavits

on the part of the applicant. There may or may not be substance in them. It is not necessary for me to

adjudicate upon them. The suggestion that I make is to ensure that a risk of further judicial review is

minimised.” (emphasis added.)

This was a reference to the further issue which had been raised by the residents to which the Board had not filed replying

affidavits. I reiterate that it is unnecessary for the residents’ case that I adjudicate on these issues. I have not been

asked to do so.

21. The court order made on foot of the judgment, recited that the court “strongly recommended” that an oral hearing be

re-opened. It reiterated the recommendation that, on remittal, the issue should be dealt with by members of the Board

who had not had a previous involvement in the case. In fact this did not occur, and four of the Board members who

participated in the unanimous 2006 decision, then as part of a six person panel, considered and unanimously granted the

2008 application impugned in these proceedings. I turn first to the legal principles generally applicable.

Legal principles applicable to objective bias

22. Objective bias is to be distinguished from subjective bias. To establish the former, it must be shown that there existed

some factor, extraneous to the decision-making process, which could give rise to a reasonable apprehension that the

decision-maker might have been biased. An overt or declared bias is an example of this. This comes under the heading of

pre-judgment. O’Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419 was an illustration of this concept.

23. The test Finlay C.J. applied there was whether members of that hospital board had gone so far as to express prior

views on the issue before them in a very definite fashion, or if there had been an exercise of a judgment of the merits (as

opposed to mere form) of the contested questions of fact which would go to determine the issue. As identified in O’Neill,

“pre-judgment bias” is the expression of a view on the actual facts or merits of a decision, rather than on the correctness

of a procedure or approbation of the actions of a person to whom a decision was delegated. It is an objective test (see

Fennelly J. in O’Callaghan v. Mahon [2008] 2 I.R. 514.)

24. In an impugned decision of this type, the defence of “necessity” sometimes arises. But it is not a dominant doctrine.

This plea was considered by Murphy J. in O’Neill v. Irish Hereford Breed Society Ltd. [1992] 1 I.R. 431. He observed that

pre-judgment bias could not be tolerated on the basis of necessity in circumstances where it appeared that an alternative

panel of a decision-making body (the Council of that Society) could have been established for the particular purpose of

making a disciplinary decision. This alternative panel could have been composed of persons other than the members of

another committee, known as the “editing committee”, in the Society which had already engaged in a preliminary

judgment of a matter then going before the entire Council. He observed at p. 628 of the report:-

“Even allowing that the editing committee was carrying out a different function from that of the council it seems

to me inescapable that those members of the editing committee who attended the meeting on 4th May, 1989, had

pre-judged at least some of the crucial facts which fell to be decided by the council on 11th July, 1989, and had

committed themselves to a view as to the consequences which should flow from their decision. On the face of it

this constitutes bias consisting of pre-judgment. It was not argued that such bias would have to be tolerated on

the basis of the doctrine of necessity. It does not seem that such an argument could be made as it would appear

that a quorum could have been established for the purposes of rule 13 of the rules of the defendant even in the

absence of the members of the council who had sat on the editing committee. On this basis it seems to me that

the plaintiff’s case must succeed.”

25. The nature of this objective test is perhaps best summarised in the statement of principle made by Denham J. at p.

441 in Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412, referred to by Fennelly J. in O’Callaghan v. Mahon [2008] 2

I.R. at 514, p. 668 as being “decisive”. In Bula (No. 6) Denham J. said:-

“It is well established that the test to be applied is objective, it is whether a reasonable person in the

circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an

impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke

the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.”

26. In Mahon, Fennelly J. (for the majority of the Supreme Court) approved the test in O’Neill, insofar as it was one of a

hypothetical observer neither oversensitive nor careless of his own position. This was properly comprehended in the

notion of “the reasonable observer”. He pointed out that it was necessary that a person who apprehends there is a risk of

bias invoke its existence where it is apprehended. He emphasised the objective nature of the test. It is not based on the

apprehension, even reasonable apprehension of a party. It is the test that ought to be applied to the evidence in this

case.

27. But one significant factor in this objective assessment must be what occurred in the 2007 judicial review, and the

clear views of the judge who dealt with that earlier application. He considered the affidavits and submissions made by

counsel for the residents and the Board; and thereafter made orders and recommendations to the Board as to how they

should conduct their procedure. Clearly this new process on remittal was to be one of substance and not mere form. The

recommendations were intended inter alia to avoid any perception of unfairness.

28. I do not say that the failure to follow judicial advice is ipso facto proof of objective bias. It is here but one aspect

connected to the objective reasonableness of the well-informed observer. But the objective views of a judge in giving

judgment would be difficult to ignore. The judgment was not appealed. The Board received formal notification of it on 17th

April, 2007. What next occurred fell into three stages a) preliminary procedure; b) the renewed inspector’s hearing; and c)

the Board’s reconsideration and grant.

a) The Board’s procedure on remittal

29. On 10th May, 2007, Mr. Michael Donlon, a senior executive officer of the Board and a deponent in these proceedings,

sent a memorandum to a number of officials. He noted that it had been decided to re-open the Inspector’s oral hearing.

The memorandum stated that Ms. Mary Cuneen, the inspector who had handled the file earlier would continue in this role,

including conducting the re-opened hearing. He recorded that all documentation dating from 10th April, 2006, (including

the Board’s directions up to 21st August, 2006) had been removed from the appeal file and placed in a “legal file”. He said

that, on completion of all procedures in respect of the appeal file, the file of documents to go to the relevant Board

members, should be sent first to the legal section prior to being sent to that deciding panel for final determination or

direction. He wrote:-

“This is to give further consideration to the judge’s recommendation in respect to which Board members may

decide the appeal file.”

30. In fact, the Board does not have a legal section per se, but rather a number of officials who deal with legal procedural

issues. One should not conclude that this particular part of the memorandum implies that the Board was either seeking or

obtaining legal advice. Indeed, remarkably, there is no evidence that the Board moved to obtain legal advice at all prior to

embarking on the course of action now to be described.

31. It will be noted that Kelly J. recommended that all documents which had been created after 3rd August, 2005 should

be removed from the file. By court order he directed that all records and entries relating to the decision of 26th July, 2006

should be quashed without further order.

32. By way of further background, the Environmental Protection Agency waste licence issued on 8th June, 2004, was

amended on 17th September, 2007. This “technical amendment” included a proposal for a different composition,

formulation and construction of the landfill liner. This liner might best be seen as a multi-layered “sandwich” of vital

materials designed to insulate each of the six cells or cavities from the other and from the environment. The technical

aspects of the liner’s construction and composition are considered later.

b) The resumed oral hearing

33. The inspector’s resumed oral hearing was scheduled for 23rd October, 2007. The residents became aware only then of

the proposal for a different landfill liner. The Board had been apprised of this issue earlier. Counsel for the residents

applied for an adjournment in order to take instructions on the point and in order to be in a position to place questions to

the expert witnesses. He complained as to the “precipitous” manner in which Greenstar had introduced this new element

into the hearing.

34. The hearing ultimately took place on 8th and 9th November, 2007. A number of expert witnesses were called and

cross-examined on issues which were identified in a schedule devised by the inspector. On 18th January, 2008, a water

expert, retained by the Board, Mr. Gerard Keohane, furnished a report. There he recommended that certain monitoring of

water conditions to be part of any permission.

35. On 2nd May, 2008, a letter went from a Board official, Ms. Muiriosa Cassells, to Greenstar’s planning consultants,

Ciaran O’Malley & Co. This correspondence reflects an issue which arose in correspondence on more than one occasion,

that is Greenstar’s concerns about the delay in the decision, the likelihood of other landfill closures, and the possibility of

a shortfall in waste management capacity. Ms. Cassells pointed out that the oral hearing had been postponed twice; and

that there was a backlog of cases deferred due to a high workload resulting from an unprecedented intake of appeals in

recent years. She wrote that the Board regretted the delay dealing with the appeal and that it was dedicating priority

status to this case and others that it had found necessary to defer. She indicated that it was anticipated that a decision

would be made by the Board within a short period of receiving the Inspector’s report which was due to be completed

shortly. She acknowledged that this was a strategic infrastructure issue.

36. Clearly the Board was under time pressure to make a decision. This impression becomes stronger the further one

analyses subsequent events. This letter was one of a number to the same effect.

37. Within a fortnight, on 12th May, 2008 the Inspector issued her report. She again recommended refusal of planning

permission. She gave two reasons. The first related to visual impact; the second to the requirements for site restoration

as set out in the Kilsaran order, which directed that remediation work be carried out on the site. The inspector felt the

range and effect of this order was unspecific. It would have to be determined by the expert as yet not appointed. Its

effect could not be predicted therefore. For this reason she considered the potential outcome of the 2004 court order as

being so uncertain as to render premature the application for the development. She wrote that there was no certainty in

relation to what she termed the “baseline conditions” as outlined in the environmental impact survey upon which the

proposed development was predicated. The remediation works had not been determined by the expert arbitrator - the

nature of the arbitrator’s directions were, she wrote, unknown and unknowable.

c) The Board’s consideration

38. On 17th June, 2008, Mr. John O’Connor, the Chairperson of the Board, wrote in a memorandum:-

“I discussed the above appeal with the deputy chairperson on 17th June, 2008, in the light of the

recommendation of Mr. Justice Kelly that the case be considered by a board comprised of different

members from who participated in the quashed decision. Having regard to the facts

that -

(a) the project in question is a major and significant infrastructural development which would, in accordance with

established practice within the Board, be decided at a board meeting involving the chairperson and deputy

chairperson, and,

(b) the exclusion of the five members who took the quashed decision would seriously weaken the level of

experience and expertise that will be brought to bear on determination of the case at board level;

It was agreed that the most appropriate course would be to convene a meeting of all available board

members, (i.e. those who participated previously and those who did not, to decide the appeal).” (emphasis

added).

39. In contrast to the 2007 judicial review proceeding, neither the chairman, nor any other member of the Board, has

sworn an affidavit herein. Each of the affidavits were sworn by Board officials. No notices to cross-examine were served

in these proceedings.

40. There are four observations to be made here. First, clearly, the Board decided to ignore Kelly J.’s recommendation as

to the composition of the deciding panel. The recommendation was intended to avoid the perception of bias. Second, the

chairman and deputy chairman maintained that there was an “established practice” that they, specifically, should be

involved in significant infrastructural development decisions. The necessary consequence of this was, apparently, that

one, or both of them, should be involved in this decision notwithstanding the recommendations from the High Court. The

rationale for this stance is not clear. Third, there is the surprising contention that the exclusion of the five members who

took the quashed decision would “weaken the level of experience and expertise” available to the Board.

41. One of the exhibits admitted in this case is a letter sent by Ciarán Cuffe, T.D., to the Minister for the Environment,

John Gormley, T.D., seeking the Curriculum Vitae of five members who were excluded from the ultimate decision. These

were exhibited in these proceedings. They do not demonstrate any want of qualification on the part of the five members

not so involved. To the contrary, I think they demonstrate a high level of expertise in the planning and environment area.

42. Of course, this is not to cast any reflection on the experience of the chairman and deputy chairman. The Board

records show that one or both of them did in fact deal with this type of application. The outcomes varied. The chairman,

prior to his appointment, was an Assistant Secretary in charge of planning and development in the Department of the

Environment and Local Government. The deputy chairperson was previously a senior Executive Engineer in the Planning

Department of Meath County Council. Clearly, then, both were eminently qualified in every way to deal with this issue.

The Board decisions ranged from approval to refusal. But this is not the point. In fact there was no statutory rationale or

objective justification for specific categories of decision being dealt with by any particular Board members. This is a

matter of some importance in the light of one aspect of the defence relied on by the Board, that is to say, that its

members were required, in the performance of a legal duty to deal with the remitted application.

43. The fourth point is that as of 17th June, 2008, the chairperson and deputy chairperson in fact envisaged that all

Board members would decide the appeal. This was to include both those members who had participated previously in the

decision and those who had not. This course was not in accordance with any of the 2007 court advices or observations

either. As pointed out earlier, there is no evidence that the Board had taken legal advice. One might have thought

especial care might have been taken in the circumstances. A statutory body entrusted with decision-making of some

national importance which takes it upon itself to ignore the spirit (if not the letter of an order) of the High Court as to

how it should proceed in a remittal, surely bears an additional onus to ensure that what it does is fair, in order to avoid

the perception of prejudgment in appearance and reality and in accordance with law.

The 2007 recommendations as to the Board’s future procedure on remittal

44. A number of the exchanges between senior counsel acting for the Board in 2007 and Kelly J. are material. These were

recorded in typed attendances made by one of the residents’ solicitors at that hearing. The Board did not dispute their

content. In fact these notes were referred to by Counsel for both applicants and respondents in the course of

submissions here.

45. In 2007 it was necessary to deal with the “cut-off date”, beyond which point the applicants considered that they had

been treated unfairly. The judge referred to the documents and memoranda created by the Board after that date.

Paraphrasing submissions from counsel for the residents, he made an observation, in graphic terms, in reference to those

documents created after 3rd August, 2005:-

“They should throw all of them into a bonfire as they have a poor recollection of what happened before then.”

He was referring here to the situation, where as it had emerged, some Board members said that they had little or no

recollection of discussing the conditions on the earlier permission. It was asserted by others that the Board met and

discussed conditions on 20th June, 2006 but there were no minutes or record of such meeting.

46. These circumstances ultimately led the judge to make the order that:-

“In lieu of directing that an order of certiorari do issue, it is ordered that the aforesaid decision dated the 24th

day of July, 2006, and all records and entries relating thereto be quashed without further order.” (emphasis

added).

47. The residents incurred significant experts’ costs in the first oral inspectors hearing. In the renewed hearing,

conducted by the inspector on foot of Kelly J.’s order, the residents incurred further significant costs, which expenses are

said to have come to a fraction of their total legal costs. The residents assert that when they embarked on the second

oral hearing, they did so on the understanding that the advice, recommendations and orders of the High Court would be

followed; that the matter would be heard by members of the Board who had not previously dealt with the matter, and

that the matter would be considered afresh. They acted on the understanding that documents and records on file,

including the final decision, would not be made available to the newly constituted Board. All of these, they contend, were

necessary in order to ensure a fair hearing and to remove any perception of partiality.

48. They say now that if they had been aware that the same members of the Board who had considered the matter were

again the decision-makers, they would have had recourse to the courts; they add that if they had been aware that the

former planning permission would be used as a template for the permission now impugned, they would not have

participated in the second oral hearing at all.

Issues arising from the general principles identified

49. Derived from the authorities, a number of questions then arise. These include:-

(i) To what extent did the Board actually follow the advice in the judgment and order?

(ii) Did some or all of the same Board members who made the 2006 decision make the 2008 decision?

(iii) Did the impugned decision relate to the same issues?

(iv) Was the 2008 decision effectively the same decision made by some or all of the same persons who made the

2006 decision?

(v) Was the 2008 decision a purely “formal” one, or did it involve a consideration of the merits and demerits of the

proposal and a furnishing of a reasoned determination?

(vi) Was there a legal or objective rationale for the Board’s procedure?

(vii) If there was apparent objective bias can the Board avail of a defence of legal duty?

The panel members who considered the decisions

50. The clear, uncontroverted evidence discloses that the members of the Board, who considered the appeal in 2006,

were (i) the Chairperson, Mr. John O’Connor, (ii) Deputy Chairperson, Mr. B. Hunt, and Board members, (iii) Mr. B. Swift,

(iv) Mr. K. Kent and (v) Ms. M. Bryan. One might have thought all these Board members might have felt precluded from

dealing with the 2008 decision upon remittal in the light of the observations in and intent of the 2007 judgment. The

Board did not instruct its counsel to make any submission then of “necessity” or “legal duty”, still less any “established

practice” in relation to specific members of the Board having a particular expertise, experience, or responsibility. In fact,

the judge specifically noted that there were ten members of the Board. The Board did not instruct its counsel to make

any legal point about qualifications, or the Board’s practice in relation to strategic infrastructure projects.

51. As matters evolved, the full Board did not in fact consider the 2008 application. It was decided to compose a Board

panel of six members. But these were not all members who had been envisaged as coming to the matter ‘afresh’. In fact,

four out of the six selected had participated in and made the first, 2006, decision. The members of the Board on 24th

July, 2008, who considered this second determination, were the (i) Chairperson, Mr. John O’Connor, (ii) the Deputy

Chairperson, Mr. Brian Hunt, (iii) Mr. K. Kent, (iv) Ms. M. Bryan, (all of whom participated in the 2006 decision); and two

additional members who had not, Ms. M. Byrne and Mr. T. O’Connor. The decision was unanimous.

52. Mr. Donlon avers that a different Board member, Ms. M. Byrne, was assigned to be the “presenting member”, that is a

member charged with putting before the Board the circumstances and relevant facts relating to the application. He also

deposed that Mr. Swift, the presenting member on the first occasion the appeal came before the Board and whose

procedure had been put in question previously was “not available” for the 2008 decision.

Circumstances of duty?

53. A person who is subject to a disqualification or preclusion in law may be required to decide a matter if there is no

other competent tribunal or if it cannot be formed without that person. In such circumstances the doctrine of necessity is

applied in order to prevent a failure in decision-making.

54. If it is possible to constitute a different panel or tribunal unaffected by interests of bias no difficulty arises. By way of

extreme illustration a case is reported as having come before the Supreme Court of Texas involving an organisation called

the “Woodmen of the World” of which all the judges of the court were members. Hence the entire court was deemed to

be disqualified from presiding over a case involving that group. In order to meet the situation, the governor of Texas

appointed a special court composed of three women (Johnson v. Darr 144 Tex. 516 272 S.W. 1098 [1925]) (see Richard

E. Flamm ‘Judicial Disqualification’ 2nd Ed., (Banks & Jordan Law Publishing Co., 2007 202 N 33 p. 581)).

55. The Board’s minutes do not record whether the panel read, or were referred to the Chairman’s memorandum of 17th

June, 2008. They do not say whether the panel members were shown Kelly J’s judgment or order, or whether, as a panel

they considered the question of objective bias.

56. In fact there were alternative Board members available. It is said one member of the Board who was not assigned

might have faced a potential conflict of interest in the light of previous consultancy work. But there is no indication that

he was asked to engage in this decision, still less that he recused himself.

57. A further Board member, Ms. Mary McMahon, was apparently available on the day of the decision, 22nd July, 2008 and

signed directions in other decisions. In 2007 the court was told that, for a decision of this nature, the quorum was three

Board members. There is no evidence before me that a different but quorate panel of the ten member Board could not

have been brought together to consider this issue afresh.

58. Mr. Christopher Clarke, a Board official and a deponent here, outlined the extent of Ms. McMahon’s previous

involvement in the 2006 decision, which apparently led her to recuse herself from the 2008 consideration. He averred:-

“I understand she had attended the oral hearing which preceded the first decision and that she did so in a personal

capacity prior to her appointment as a Board member in order to refresh her knowledge of oral hearing

procedures. Accordingly, having a prior knowledge of the case before she became a Board member, it was

entirely appropriate that she should not participate in the determination of the appeal.”

I find this basis for recusal irreconcilable with the position adopted by the four Board members who, once having made the

decision in 2006, chose or were assigned to make it again in 2008. If this cautionary precept had been appropriate for Ms.

McMahon, surely a fortiori it was applicable to the four members just identified? The logic of the Board’s reasoning here is

unfathomable.

Documentation from the 2006 consideration before the Board?

59. The Board minutes record that it considered the Inspector’s report of 12th May, 2008, as well as all other relevant

documentation, including the inspector’s previous report of 9th June, 2006, and all the documents on the file from the

receipt of the appeal on 27th October, 2004. Prima facie one can understand the residents concerns with this averment.

What precisely these records were is unclear. One would have expected that every step would have been taken to

ensure that there had been full compliance with the spirit and letter of Kelly J.’s order. If it transpired that the

“documents” included all documents or memoranda made by the Board after 3rd August, 2005 such would undoubtedly

have been a serious breach of the intent of the 2007 judgment.

60. It is necessary here to deal with another aspect of Mr. Clarke’s affidavit on behalf of the Board, where he actually

referred in specific terms to the recommendation as to who should (or should not) consider the renewed decision. There

was therefore, no room for misunderstanding or misapprehension. The Board as a statutory body, as well as its chairman

and his deputy, fully understood the nature of the recommendation which had been made by the judge in 2007. It chose

not to follow it.

61. Mr. Clarke next deposed that there was no order requiring that all documents, records and entries relating to the first

decision be quashed as alleged in an affidavit sworn on behalf of the residents by a Mr. Patrick Higgins. He expressed

himself in this way:-

“In any case there was no recommendation in the judgment or order that the documentation in question should be

removed.”

This was true in the strictest sense, but the material after 3rd August 2005, had certainly been the subject of a judicial

observation which albeit paraphrasing counsel’s submission would not be easily forgotten; that it be “placed on a bonfire”.

But Mr. Clarke then deposes that:-

“The Board did not, at any stage, have before it, or have regard to the conditions attached to the First Decision

in deciding the appeal.” (emphasis added).

But this carefully phrased statement did not apply to the inspector. Mr. Clarke says the inspector again recommended

refusal, and had therefore not included any ‘draft conditions’ on the Board members’ file. This does not answer the

question as to what, precisely, the Board members did have before them, what they were told, or what individual

members of the Board knew of their own knowledge. They have not sworn affidavits.

62. However, per contra the approach taken in Beaumont, I do not think this is a situation where I should make

inferences or resolve ambiguity in favour of the residents. The evidence is so unclear that I do not feel it would be just to

the Board to draw such an adverse inference. The testimony on the point is equivocal, but insufficient to be probative.

What actually occurred is now outlined.

Board meetings in July 2008

63. The Board’s direction of 22nd July 2008, notes that it had decided unanimously to grant permission and gave its

reasons for so doing. It referred the file back to the inspector to draft appropriate conditions which were to be put before

a further meeting for approval. On this Mr. Clarke avers:-

“The inspector was of course familiar with the conditions which she had drafted previously and she may have referred

back to them.” (emphasis added).

In the midst of a great deal of other hearsay evidence, one might have thought this would not have been a difficult point

to check with the inspector. She could have been a deponent. Mr. Clarke deposed that many conditions are applicable to

most waste facilities and are relatively standardised. He said that at a further meeting on 24th July 2008, the conditions

as drafted by the inspector came back to the Board. In its direction of the same date the Board added one condition,

deleted two draft conditions and made certain minor amendments to others.

64. I think that here, the Board seeks to make a distinction between the first meeting of 22nd July, 2008, where the

members apparently did not have before them the conditions relating to the first 2006 decision, and the meeting of 24th

July, 2008 which actually considered the draft conditions, by then drafted by the inspector who may have referred back

to “the 2006 decision”. An affidavit by the inspector again could have dealt conclusively with what happened, one way or

the other. So too could affidavits from Board members.

Recommended conditions considered and rejected

65. In 2008 one reason for the inspector’s recommended refusal was by reason of the undue proximity of dwellings to the

landfill. Mr. Donlon deposes the Board fully considered this point in its direction of 22nd July, 2008. He states that in

deciding not to accept the inspector’s recommendation to refuse permission, the Board had regard to the waste licence

granted by the EPA which included conditions requiring a minimum distance of 100 metres between the landfill footprint

and the dwelling house, other than for inert waste. This approach is considered in Section III of this judgment.

66. He states that the inspector provided draft conditions to the Board to give effect to these concerns. The majority of

these, he says, were accepted by the Board, save those in relation to the monitoring of water as recommended by the

inspector. In relation to the implications of the development, and, in particular, the proposed use of a “Bentonite” liner for

the Usk marshes, he said the Board took the view that these were matters governed by the EPA licence. (Bentonite is a

substance used as a sealant which rapidly expands to fifteen times its volume on contact with water.) This issue arises in

Section V of the judgment.

67. The Board in its direction of 24th July, 2008, stated that it had decided to omit certain of the inspector’s

recommended conditions, as it considered that these matters were addressed in the conditions attached to the EPA

licence. These dealt with surface water and ground water management, respectively. Mr. Donlon states the Board omitted

the inspector’s other recommended conditions for that reason. These directions also form part of the residents’ case as

outlined later in Sections III and V of the judgment.

68. On 24th July, 2008, the Board panel considered the file. It approved the inspector’s draft conditions, subject to

amendments which were noted in manuscript on a copy of her draft Schedule. These were attached to the direction. The

Board panel added a condition, set out in the direction, in relation to the origin of the waste to be accepted and the

records required in relation to the waste received.

The same substantive permission?

69. The Board denies that the planning permission of 30th July was granted in identical form to that previously granted. It

claims that there were “material differences” between the two permissions, although it accepts the conclusion was

substantially the same as that of 2006. Mr. Donlon states that this is not surprising given that both decisions were

positive decisions granting planning permission for the same landfill development, and the conditions in respect of each

were drafted by the same inspector. Both he and Mr. Clarke say that by their nature, landfill developments will tend to

require similar matters to be regulated by condition, and therefore, the conditions attaching to any such development, if

permitted, would tend to be in similar terms. One must then consider in detail the Board’s decision in order to determine

whether these distinctions establish any demonstrable difference.

Analysis of the permission

70. Such an analysis starts with the obvious: what was before the Board in 2008 was undoubtedly the same general issue

as arose in 2006. The same application had, after all, been remitted by the court in 2007. The two determinations are

respectively of ten and eleven pages. The 2008 decision is amended to refer more specifically to s. 54(3) of the Waste

Management Act 1996 (as originally enacted). There is a reference in the second condition to the proximity principle, an

issue dealt with in 2008, but not 2006. Condition 5 in the 2008 decision contains an amendment by the addition of certain

words referring to the role of the Environmental Protection Agency. The phraseology in the preponderance of the twenty

five conditions, is absolutely identical to that in the 2006 decision. In others, it is so similar as to make no difference.

There are occasional very small stylistic distinctions, such as the addition of commas, or the substitution of letters or

Roman numerals, in indenting sub-paragraphs which themselves are in the same sequence.

71. An objective observer would have little difficulty in seeing the symbiotic relationship between the two. The proposition

that they are truly distinct and different further stretches credibility when one observes that the general sequence of

conditions is the same. Of course there are some distinguishing features. There is one entirely new condition. But it is

impossible to credit that the same overall phraseology over eleven closely printed A4 pages could be coincidental. The

residents rely strongly on all these similarities. They say the matter speaks for itself. This proposition might have been

countered by affidavit. There was no such evidence. The case is to be decided by reasonable inference based on the

balance of probabilities and on the weight of the admissible evidence. Applying that standard, I am constrained to

conclude that the 2006 decision was used as a template for that made in 2008.

72. The objective evidence demonstrates too, that the decision made by the Board was one of substance. It was not a

mere matter of procedure or form. It was on the same application, ultimately returned to the Board for its approval. Four

members of the panel who considered the matter in 2006 were the same as those in 2008. The decision to deploy those

four members appears to have been a conscious one. It is true that the Board had to consider some additional material

arising from the inspector’s report of 2007. But this material related largely to technical amendments to the waste licence.

It did not change the nature or identity of the permission.

73. In summary, there were therefore very substantial departures from the 2007 judgment, the very object of which was

to avoid the appearance of bias on remittal. These departures, and what has been described, taken together, allow only

for the conclusion, that a reasonable objective observer, would apprehend that there had not been an impartial decision

making process.

No opportunity to invoke bias

74. The residents were never made aware of the composition of the panel of the Board. They were never placed in a

position where they could invoke bias or raise any objection. Had the Board obtained the expert legal advice which was

available to it in defence of both of these review hearings one could venture to suggest none of this would have

occurred. But as to the merits of the case, I regret I must find the attempted explanations and rationalisations by the

Board officials deeply unconvincing. In my judgment objective bias arose by reason of the matters identified. An objective

observer could only conclude that four of the six panel members had substantively determined the issue previously. Thus

having regard to all the outlined circumstances they had prejudged the issue. But can the procedures which were adopted

be nonetheless legally justified?

The Board’s defence of legal duty

75. The defence advanced by the Board essentially relies on the assertion of legal duty. But this defence is, in fact, a

sub-species of the principle of necessity. It may be a defence to objective bias. It can arise in two ways: first if the

person who makes the decision is biased but cannot effectively be replaced, e.g. if a quorum cannot be formed without

him; and second, where an administrative structure makes it inevitable that there is an appearance of bias. But do any of

these considerations arise in the instant case? It has not been shown that they do. The quorum was three members.

There was no objective legal reason why the chairman or deputy chairman, or for that matter, any of the other persons

who made the first decision, could not have been replaced. The Board’s administrative structure did not make it inevitable

that there might even be an appearance of bias. The judicial recommendations of 2007 were specifically framed with this

in mind. It is clear that a quorate panel of the Board could have been assembled, and considered the matter de novo, but

this was not done. If there had been a difficulty in this the parties might have been informed to ascertain their position.

The Board never raised the point before. There is ample authority as to how, in applying or avoiding the doctrine of

necessity a decision making body may remove that part of it which is “infected” with bias, for example by the recusal of

those members of a committee who have made a prior determination which might bear on an impugned decision. But these

four panel members did not do so or take any steps to avoid the difficulty.

76. An interesting issue may arise in another case as to whether or not the doctrine of necessity is now possible to assert

in the face of a “right” to an independent impartial tribunal under article 6(1) of the European Convention on Human

Rights. I will express no view on this point.

The legal authorities relied on by the Board

77. The Board relied on further legal authorities in defence of the allegation of objective bias. These are D.D v. Gibbons &

Anor. [2006] 3 I.R. 17; Coughlan v. Patwell [1993] 1 I.R. 31 and from British Columbia, Bennett & Ors. v. The

Superintendent of Brokers & the British Columbia Securities Commission [1994] CAN. L II 912 (BCCA), 1994, 30 Admin.

Law Review, (2nd) 283.

78. D.D was a case where the applicant objected to a district judge hearing an application for a full care order in respect

of a child, the applicant’s daughter, where that judge had granted an interim emergency care order, and where he had

previously simply varied the applicant’s access to her son by way of a previous order. On the second day of hearing the

applicant requested that the judge recuse himself.

79. In the High Court on review, Quirke J. observed that district judges frequently heard and determined interim

applications where they must later make final determinations. He found that the respondents’ making of the interim order

unfavourable to the interests of the applicant would not cause an objective or informed person in the position of that

party to apprehend that the judge who had made that order would not bring an impartial mind to bear on the final

determination on a similar issue between the parties.

80. None of this is analogous to the instant case. What is at stake here is not a relationship, but a near identity of what

was considered and decided. The same fundamental issue had been determined before by four of the six decision-makers.

There was no “legal duty” such as might arise with a District Judge assigned to an area, being constrained to hear a case

on remittal. The applicant in D.D was late in making the application and relied on the point only on the second date of the

hearing when she could reasonably have raised that point at the outset. Such an opportunity never arose here at all.

81. Coughlan was a case where the applicant appeared in the district court before the respondent district judge on foot

of summonses. He alleged that the particulars on the summons regarding his identity had been wrongfully obtained in

deliberate and conscious breach of his constitutional rights. The district judge refused him an opportunity to argue the

legality of the summons and duly convicted him. The conviction was quashed. However the matter was remitted back to

the district judge, who convicted the applicant in circumstances where that judge’s previous orders were null and void.

This remittal was to consider the case in accordance with law and the constitutional rights of the applicant. The judge on

remittal was undoubtedly engaged in the performance of a legal duty to hear the case in accordance with law. He was

assigned to do so. He had made no decision of substance in the sense that would give rise to prejudgment. The issue of

objective bias does not appear to have been considered in any significant way in that authority.

82. I do not consider Bennett can be considered either a persuasive authority or a true objective bias case by reference

to the Irish authorities. The Bennetts were insurance brokers who allegedly had engaged in improper dealings of shares.

Shares had been dealt with by the Bennetts on the basis of insider information provided to them by another. The

Securities Commission had heard little of the evidence in relation to the complaint.

83. A number of preliminary proceedings had however been brought by the applicants. One of those involved the

disqualification of one of the three Commissioners of the British Columbia Securities Commission.

84. After a delay of eighteen months a panel of the commissioners assembled itself. The applicant asked that the new

four-person panel then assembled disqualify two of its members, these being the remaining two members of the original

panel. It was contended that these commissioners would be “biased” by reason of having participated in deciding

preliminary applications unsuccessfully made by the applicants to the original panel which the applicants wished to renew

before the reconstituted panel. A further reason why the two commissioners’ impartiality was impugned was that they

might appear to be “tainted” through association with the partiality apprehended on the part of the three disqualified

commissioners. The two commissioners challenged had also taken part in those preliminary determinations. The situation

therefore was that two of the remaining commissioners might be asked to reconsider procedural issues which they had

already decided in a preliminary way. Taylor J. considered the circumstances where judges and members of statutory

tribunals are required from time to time to reconsider the previous decisions with impartiality. He said:-

“Other things apart, it is, of course, reasonable to apprehend that a decision-maker presented for a second time

with the same question on the same evidence and argument, will be likely to decide that question in the same

way.

But does this have anything to do with bias?”

The judge answered the question in this way:-

“The answer surely must be that if the decision maker has decided the matter properly in the first place, that is

to say free from extraneous or other improper influence…and in light of the previous decision of this court there

can now be no suggestion here to the contrary… then the fact that the second decision turns out to be the same

as the first will show no more than that the decision maker continues to take the same view, as before, of the law

and evidence. That surely has nothing to do with bias. There may well be an apprehension of consistency of

judgment when the same matter is raised for the second time before a judicial or quasi judicial decision maker,

and the party against whose interest the first decision went will understandably prefer for that reason that the

matter be considered the second time.

But surely it is impossible that a reasonable apprehension of consistency in judgment on the part of a decision

maker in dealing with the same matter a second time can be equated with reasonable apprehension of bias. The

first is an apprehension that the decision maker will again see the law and evidence in the same way as on a

previous occasion; the second is an apprehension that the decision maker will ignore law or evidence and decide

instead on the basis of extrinsic and improper considerations.”

85. I would make the following observations on these judicial views. The prior decisions in Bennett were preliminary not

determinative. The allegation of “taint by association” was by any standards, unconvincing. The position which arose was

directly one of legal duty giving rise to necessity in the real sense. Furthermore I do not consider that the test in Bennett

is in accordance with Irish law on objective bias as outlined earlier. Taylor J. said that the situation of the commissioners

seemed analogous to a judge presiding at a second trial after the first had been concluded at an early stage by a

declaration of mistrial having nothing to do with the judge’s conduct. But that is nothing like the situation here.

86. The position the Board found itself in was that it had appeared before the High Court, its decision having been

impugned. It raised no objection to the suggestion that the matter should go back to be considered by a different panel.

There was no duty upon any particular member of the Board to deal with the issue. To the contrary, there was a

recommendation from an unimpeachably objective source that they should not. Yet, nonetheless, four of the six first

decision-makers participated in the second decision.

87. Bennett is in my view to be seen as an extreme case of legal duty. It is certainly not cited in the text books as being

the leading authority in Canada on objective bias (see Committee for Justice and Liberty v. National Energy Board [1978]

1 S.C.R. 369 at 394-395). Indeed, none of the cases cited in De Smith’s Judicial Review (6th ed.) as being Canadian

authorities on the issue of objective bias are even referred to in Bennett, perhaps demonstrating the risks of what has

been termed “judicial cosmopolitanism”. Bennett’s reliance on duty did not address the question of whether a decision

could have been made by an alternate panel. The case was not cited in O’Callaghan v. Mahon [2008] 2 I.R. 514, in which

a number of Canadian Supreme Court authorities were referred to.

88. More fundamentally, were there any doubt on the question, it is quite clear that as a matter of Irish law a finding of

objective bias can be made even against a judge in the performance of his or her legal and constitutional duty qua judge

(Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408). The “taint” there was not personal prejudgment, but the

perception of it by dint of the judge’s membership of a council which had expressed views on a sensitive social and moral

issue. The circumstances there were far more remote than in the instant case, yet the Supreme Court held the judge

should have recused herself so that there would be no appearance of bias. As explained earlier it is not dominant doctrine

and can never supplant a reasonable fear of bias properly based on evidence and reasonable inference.

89. For the reasons outlined, the evidence establishes objective bias on the part of four out of the six decision-makers by

way of prejudgment of the same issue. It has not been justified by way of legal defence. I must therefore find that the

residents are entitled to have the decision quashed on this ground. Without prejudice to this conclusion, I further consider

other issues as they arise in Parts II, III and V below.

II The section 160 challenge

90. As a second aspect of their claim, the residents assert that the Board failed to have any adequate regard to the

Kilsaran order made by the High Court, by Quirke J. under s. 160 of the Planning and Development Act 2000. The broad

terms of that order have been identified earlier. Its effect was to direct the full restoration of the site to a condition

suitable for an agricultural after use. The Board found in its 2008 decision that this was “a legal matter”. By implication

therefore it held this not a planning consideration within its remit. Given the terms of the 2004 order, the issue arises as

to the adequacy of the reasons the Board gave for its decision not to accept the inspector’s observation that the

application was premature. Was the determination that this was a “legal matter” an adequate reason?

91. The High Court order in the Kilsaran proceedings provided that an expert was to be appointed to prepare a restoration

scheme to be implemented by that company. No terms of reference were fixed other than that the lands comprising the

site of the proposed development were to be restored to a condition where they would be suitable for agriculture after

use. It is very easy to envisage that compliance with the order in an old quarry could involve quite radical remediation.

Even now, in 2009, no scheme has yet been prepared, still less implemented for this purpose. Before the inspector,

Greenstar accepted the order was not negotiable and would need to be fully implemented before development of the site

could commence. The Board concluded on this point:-

“With regard to the Inspector’s recommended second reason for refusal (prematurity in advance of compliance

associated with High Court order in relation to restoration), the Board considered that this is a legal matter. This

conclusion was a repetition of the conclusion reached in 2006 on the same point.”

92. This point received quite extensive consideration in both the inspector’s reports. In 2006, she specifically recited the

terms of the Kilsaran order. She observed that the lands the subject matter of that court order formed a significant

portion of the appeal site area. In 2008 she wrote that the terms of the order and its potential consequences:-

“…. go (to) the very heart of the proposed development in that:

(a) Precedence must be given to site restoration in advance of any development works taking place there;

(b) The development, therefore, proposed in the current application can only be effected by either removal of

those restoration materials from site or the retention of them on site for use in the proposed developments (i.e.

provision of the 1 metre clay liner);

(c) If the restoration material is to be removed from the site, I consider that planning permission would first be

required for such works;

(d) In the event that planning permission were granted for removal of restoration material there is not any

certainty that the exact baseline conditions described in the EIS and associated supplementary information would

ultimately obtain;

(e) If the restoration materials were to remain on site for use in landfill construction there would potentially be

significant variations to the baseline conditions described in the current EIS, and associated supplementary

information;

(f) Furthermore, in the event of restoration materials on site not being suitable for use in landfill construction, the

developer has suggested that the 3 metre deep layer of subsoil and the 1 metre deep compacted soil liner could

be replaced by bentonite enhanced sand (BES); if this were to be the case, then in the case of the 1 metre clay

liner this again would result in a variation to the predicted traffic impacts given that the BES would require to be

imported onto the site.”

93. The inspector fairly noted that at the renewed oral hearing, Greenstar were asked to evaluate the impacts of post-

EIS quarrying on the availability of material reserves on the site. They stated that Kilsaran had removed material which

was proposed for use with the “bentonite” in the landfill liner construction, but that there were other ways of providing

for the landfill liner by bringing material onto the site. The inspector observed that even prior to there being any

restoration works; post-EIS quarrying might have undermined the balance of available materials on the site, with ultimate

repercussions for potential traffic impacts. The original EIS dates as far back as 2001. In an observation which mirrors the

inspectors, the Board considered that the works associated with the provision of the three metre deep subsoil layer

(required under s. 3.13.1 of the EPA licence) was not a matter for consideration by it despite its traffic impacts, as it was

a requirement attached to the waste license which post-dated the EIS and planning application. The important issue of

the mandatory interaction between the Board and the Agency is considered in Section V. of the judgment.

94. In 2006, the inspector wrote that Greenstar had submitted to her then; (i) that the development to which the

application related was the proposal to develop an engineered landfill at Usk Quarry; (ii) that the subject matter and the

Kilsaran order were entirely different, and (iii) that in those circumstances the provisions of the Kilsaran order was not

material and outside the Board’s jurisdiction.

95. The inspector observed that she was unable to concur with any of this, that restoration of a significant portion of the

appeal site to a condition suitable for agricultural use, “placed a constraint on the proposed development of the overall

site as a landfill facility as described in the EIS”. She referred to the fact that planning permission might be required to

remove the restoration materials off site to attain the baseline conditions described in the EIS. Alternatively, should the

developer choose to retain the restoration materials on site for use in the landfill construction, she considered that this

would require substantive reworking of the EIS or the provision of a new EIS to reflect significant changes likely in the

baseline conditions.

96. On this basis she concluded that the proposed development was premature in advance of the implementation of the

Kilsaran High Court order and a subsequent demonstration by the developer that the development as described in the EIS

could be carried out by reference to the baseline conditions and associated impacts described therein.

97. In her 2008 report, the inspector referred back to what she had said in 2006. She reiterated that the reason which

she had given was still applicable, as even updated information provided by the third party appellants at the reconvened

hearing stated that the arbitrator had still not made any recommendations with regard to site restoration.

98. Mr. Michael Donlon, in his affidavit on behalf of the Board simply states that:-

“The Board took a different view, noting that it considered this as a legal matter” and by implication not a planning

matter.

99. No other rationale for this view is given, in what can only be seen as an issue of fundamental importance. The

inspector was undoubtedly correct: the issue went to the very heart of the development. One can only comment that the

omission to give any additional reason is deeply surprising. What did this mean in terms of compliance with the 2004 court

order? It was totally unclear. The inspector’s views were plainly expressed. The compliance point may have had a legal

aspect; but to dismiss the order in its effect as purely “a legal matter” was surely wrong. Even if it is not wrong, it

involves a doubtful use of the term “legal”. The inspector’s reasons for recommending refusal were plainly based on

substantive planning considerations. Even if the Board had legitimately taken a different view, surely it was necessary to

give adequate reasons for that view in so fundamental a matter.

The duty to give adequate reasons

100. In Mulholland v. An Bord Pleanála (No. 2) [2006] 1 I.R. 453; [2006] 1 I.L.R.M. 287, Kelly J. summarised the test to be

applied to assess whether a statement of reasons and (in that case) of considerations was adequate as follows:-

“[The statement…] must therefore be sufficient to:

(1) give an applicant such information as may be necessary and appropriate for him to consider whether he has a

reasonable chance of succeeding in appealing or judicially reviewing the decision,

(2) arm himself for such hearing or review,

(3) know if the decision maker has directed his mind adequately to the issues which it has considered or is obliged

to consider, and

(4) enable the courts to renew the decision.”

101. In Weston v. An Bord Pleanála & Ors (Unreported, High Court, MacMenamin J., 14th March, 2008) as well as citing

Mulholland, I referred to the speech of Lord Browne of Eaton-Under-Heywood in South Bucks District Council & Anor v.

Porter (No.2) [2004] 1 W.L.R., in the context of the obligation to provide reasons for a condition. He observed:-

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to

understand why the matter was decided as it was and what conclusions were reached on the ‘principal important

controversial issues’ disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the

degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning

must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by

misunderstanding some relevant policy or some other important matter, or by failing to reach a rational decision

on relevant grounds. But such adverse influence will not readily be drawn.” (Emphasis added)

102. Here it is necessary to reiterate that the application made on 10th December, 2001, predates the coming into effect

of the Planning and Development Act of 2000. It falls to be determined under the Local Government and Development Act

1963. While the provisions of s. 34(10) of the Act of 2000 do not govern this application, therefore, the respondent was

nonetheless under a duty to give adequate reasons in respect of its decision (see Mulholland, and Weston; also Talbot v.

An Bord Pleanála (Supreme Court, 23rd July, 2007) and O’Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750). O’Donoghue

was a decision made under the Act of 1963. Murphy J. observed that what was required was not a “discursive judgment”.

But it must be sufficient to make clear what the decision-maker had in mind and to allow a review court to consider its

validity.

103. The inspector clearly indicated that the environmental baseline of the site would be altered by the restoration works.

There was surely much force in this observation. Sheer common sense would dictate that this would present a real

problem in respect of the proposed development. No restoration had taken place. There was no description of the

proposed restoration of the site. Thus it would be impossible to assess the environmental impacts of the proposed

development. The consequence of this would be to give rise to real uncertainty and to create a problem environmentally.

It is not necessary for this Court to conclude whether these views were definitive but to ignore them required

justification.

104. The 2004 court order remained in force. But in fact, in one sense there were in 2008 no “legal issues” awaiting

resolution. The permission speaks to the present and the future. The High Court order made by Quirke J. was “not

negotiable”. It was not suggested at any stage by any party that this order might be vacated, could be ignored or that it

was not going to be brought into effect. Given this “precedence” as acknowledged by the inspector, there were no legal

matters remaining but rather a definite environmental and planning consequence arising from the restoration of the site,

by reason of necessary compliance with the court order.

105. It was unclear too whether the restoration project, when finalised by the independent expert appointed by the court

would require the importation on site of large quantities of material, whether simply bentonite itself or “BES” (bentonite

enhanced soil) to give effect to the restoration. It was unclear whether material would have to be removed from the

quarry in order to give effect to the restoration proposals. Thus the entire face of the site as described in the planning

process might be subject to irrevocable alteration by restoration work. The implications and environmental impacts of this

restoration work were unclear and remain so.

106. Prima facie there would appear to be irreconcilable inconsistency between any full and timely compliance with the

terms of the 2004 court order on the one hand, and works on site for the development which might involve the production

and processing of Bentonite Enhanced Soil, necessary for landfill liner in the waste facility. It is unclear as to how this

work could be sequenced. It is unclear how the entire waste facility permission was to be reconcilable with the section

160 order. It is hard to ignore the possibility that the s. 160 order might be put in a position subservient to the

progression of the development in accordance with the permission. Even if it was a “legal matter” the Board had a duty to

address it by giving reasons for its decision.

107. In fact I do not think that this issue was “a legal matter” (even accepting this odd terminology). It was essentially a

purely planning matter which arose from a legal decision of the High Court. To reconfigure the issue to avoid planning

consequences was in my view, a failure on the part of the Board to address itself to the necessity to give adequate

reasons. Adequate reasons were particularly required here in the light of the planning effect of any compliance with the

court order made five-and-a-half years ago.

108. For these reasons I consider the residents are entitled to judicial review on this ground. Without prejudice to this

conclusion I now turn to further issues raised.

III. Failure to impose conditions with regard to environmental mitigation measures – noise, dust and fine

particulate matter

109. Part III deals with relevant matters allegedly ignored in the permission. The two matters in question relate to the

environmental impact first, of noise, dust and fine particulate matter on the air, and secondly, of water from the facility

on surrounding groundwater including at the Usk marshes, a potential Natural Heritage Area (pNHA). The issues which

arise may be considered partly as “free standing” points on which the residents seek relief. But, as already explained in

Part II, the self-denying ordinance which the Board imposed on itself here, is a harbinger of a recurrent theme in this

judgment, that is whether the Board and the E.P.A. interacted in their deliberations so as to ensure that there was a full

environmental assessment and therefore lawful planning consent in compliance with the Environmental Impact Directives.

The first issue, that of noise, dust and fine particulate matter, is sufficiently clear to be considered on its own terms. But

it cannot be divorced from the detailed consideration of the EIA Directive in Part V herein. The second aspect, that of

risks to water in the Usk marshes is more conveniently dealt with in Part V of this judgment. As will be seen, I do not

consider the evidence on the latter issue to be sufficiently clear in itself as to warrant judicial review. The evidence is not

such as to show that a fundamentally relevant matter had been ignored in the permission on that question.

110. At the reconvened hearing which took place in October/November 2007, the Board’s inspector heard evidence in

relation to noise and dust mitigation measures which were to be employed by the developer in the construction of the

landfill liner. The production or use of Bentonite Enhanced Soil would undoubtedly create noise, dust or fine particulate

matter on site to varying degrees. Whatever the extent of this, the matter was of real environmental importance in the

construction process of the landfill liner, described in more detail in Section V of the judgment. This testimony was further

augmented in cross-examination of the Greenstar experts at the 2007 hearing. This evidence appeared to have satisfied

the inspector that the environmental impact survey (E.I.S.) had been adequately updated which in turn informed her

recommendation. These issues were particularly important not only for the residents collectively but also in particular for

the Corrigan family, on the question of dust and fine particulate matter.

111. The Corrigans live 31.5 metres from the landfill footprint. It is not by any standards a substantial distance. A number

of the members of the family have severe respiratory health concerns. Mr. Joe Corrigan has one functioning lung. The

Corrigan children are asthmatic. Sharon Corrigan, a daughter, is a permanent carer for her mother who has chronic

respiratory disease requiring the use of bottled oxygen. She resides daily in the Corrigan house and nightly in her own

house, some 150 metres from the proposed site. She is a member of the applicant company. They and the residents

generally clearly had a substantial interest in the issue of this development. I consider that a member of the Corrigan

family as a member of the applicant company is entitled to assert this aspect of their interest through the applicant

company. One of the points considered at the inspector’s report in October/November, 2007 was in relation to the

mitigation measures concerning the dust effect to be employed by the developer in the construction of the landfill liner. It

was plainly a matter of great significance to any member of this family as the nearest neighbours to the site. It

undoubtedly constitutes a legitimate, indeed a “substantial interest”, and is sufficient to satisfy any locus standi test.

112. The second schedule to the permission granted by the Board in 2008 contained conditions. It made reference to

certain dates upon which information had been received from the Board. The permission required that the development

should be carried out in conformity with the particulars received on those specific dates. But surprisingly, those identified

did not include the date of the reconvened oral hearing in November, 2007, where the particular issue of noise and dust

aspects of the B.E.S. production was discussed exhaustively. The explanation for this was that the Board felt that this

was a matter for the Environmental Protection Agency, in the performance of the latter’s statutory role to prevent

environmental pollution from the “activity” that is, the operation of the facility.

113. The residents submit that the Board failed to address itself to this material consideration and that consequently the

decision itself was thereby made without jurisdiction.

114. Where a decision-maker fails to have regard to a relevant consideration in a reviewed decision such error may be one

which will go to jurisdiction. It may thus render the decision “irrational” in that sense.

115. By way of illustration, in White v. Dublin City Council [2004] 1 I.R. 536, in the Supreme Court, Fennelly J. considered

a planning inspector’s failure to require a notice party in a development to advertise important modified plans as

“irrational” in that it did not take into account the likelihood that members of the public might wish to object. The judge

observed of this failure:-

“This was no doubt an understandable oversight on the part of a person exercising an expert planning function.

Nonetheless I am satisfied given the very particular circumstances of this case that he did not give proper

consideration to the radical effect of the required modification (to an amended application). In that sense it was

unreasonable and irrational.”

116. However the gravity of the alleged want of jurisdiction must be measured by reference to its planning context. It

must be seen in the light of clear cogent evidence which establishes irrationality in the particular sense used in White. It

is not to be seen as a surrogate merits-based review. The function of the court is to ensure legality is observed, not to

place itself in the position of the decision-maker.

117. One of the criteria in White, now applied here, is the effect of the omission on the rights of persons who are affected

by the impugned decision. In that case, the inspector’s failure was an omission to advert to the rights of one neighbour to

object to the modification of a planning permission which were significant enough to require the publication of a new

public notice directing attention to modified plans. Here the Corrigans, particularly and the residents generally, were

affected by the Board’s failure to address itself appropriately to its own jurisdictional remit and to ensure that highly

relevant planning matters such as noise and dust were the subject of conditions in the permission granted.

118. In her 2008 report, the inspector said:-

“The proposed development as set out in the EIS and associated and updated supplementary plans, drawings and

documentation will be premature in advance of identification of compliance work associated with that order and

subsequent uncertainty that the baseline conditions as described in the EIS and upon which the impacts of the

proposed development have been predicated can still be obtained. The proposed development would therefore be

contrary to the proper planning and sustainable development of the area…”

119. But the Board in its decision stated:-

“In deciding not to accept the inspector’s recommendation to refuse permission the Board had particular regard to

national policy, the waste licence granted by the Environmental Protection Agency, which includes conditions

requiring a minimum distance of 100 metres between the landfill footprint and any dwelling house (other than

for inert waste) and the location of the site close to the national road system. The Board considered that the

impacts on nearby houses referred to by the inspector in her first recommended reason for refusal were

adequately addressed in the Environmental Impact Statement and in the developer’s submissions to the

reconvened oral hearing in October/November, 2007. The Board noted the separation distances together with

intervening topography and vegetation, the proposed phasing of the development and the planting of a hedgerow

and belt of deciduous trees around the perimeter of the site. The Board also considered the temporary nature of

the proposal and accepted that the restoration scheme will integrate the completed site into the surrounding

landscape.” (emphasis added).

Thus it entirely omitted to impose any such conditions whatsoever in the permission. It concluded these had been

“addressed” in the waste licence by the Environmental Protection Agency. It is no answer to say that the conditions in

the waste licence applied equally as much to the activity of operating the facility as to the construction phase. While

conditions as to noise and dust were dealt with in the licence they were not dealt with as planning matters by the Board

as construction issues requiring to be properly conditioned by the Board. I regret the contention that as a matter of

practicality noise and dust emanations from the construction process could not be separately monitored from those from

the activity. Construction and activity need not always, or even often, coincide in time. The environmental affects could

be monitored separately.

120. It is quite clear the Board actually sought to consider the issue of dust and noise mitigation measures. The question

was highly material. It informed both the inspector’s considerations and those outlined by the Board in its decision.

However, unfortunately, none of the quoted section of the Board’s decision, all of which is obviously highly material, was

reflected in, or is the subject of any condition imposed on the development. The consequence therefore was serious, as

the issue could not be the subject matter of any planning undertaking, or any legal duty enforceable by the planning

authority, or any other party.

121. It was clearly inadequate for the Board merely to state that it had “considered” the impacts on nearby houses

referred to by the inspector, or for it to have concluded that these were adequately addressed in the environmental

impact statement, or the EPA in its waste licence, or in the developer’s submissions to the reconvened oral hearing in

October/November, 2007. This all begs the question, why were these issues which appeared in the conditions of the EPA

licence not made planning conditions in the permission? The point is directly addressed in Part V of the judgment.

122. The new landfill liner proposals proposed by the developer included the use of bentonite enhanced soil. BES

preparation on site had the potential to give rise to significant noise, dust and fine particulate matter in the vicinity of the

dump in the local environment and the Corrigan house in particular. These would not be limited to a temporary period in

time as the evidence disclosed; what was intended is a phased development over a period of years with each cell being

constructed in accordance with need. Thus it was envisaged that the certain “construction” phases involving the cells

would in fact take place over a period of years, not months. It was misleading too for the Board to use the word

“temporary” in the final two lines of the quotation earlier insofar as it might be interpreted that it would merely have a

short term effect on the commencement of the development.

123. These issues are of course of particular importance to the Corrigans but also had a more general bearing to the other

residents, and to the planning authorities. That these were “relevant” and “material” considerations to jurisdiction is

inescapable. They were inextricably linked to the Board’s duty to ensure compliance with the Environmental Impact

Directive so as to ensure there was a lawful planning context.

124. They were sufficiently important for the Board in its decision to advert to the Waste Licence granted by the EPA

including noise monitoring and the conditions requiring a minimum distance of 100 metres between the landfill footprint and

any dwelling house other than for inert waste and the location of the site close to the national road system. It hardly

does justice to the development to state that what was being considered here was “temporary”, the term used by the

Board in the grant of permission, given that the lifetime of the development is a period of ten years. I consider the

absence of the imposition of any such conditions demonstrates the Board acted “irrationally” in this particular

circumstance as it failed to direct itself to a relevant planning consideration, on matters which had a high likelihood of

affecting the outcome of the determination, and which, as a matter of law went to jurisdiction identified in White. While

these points may have been considered by the EPA, they were also matters which fell within the statutory remit of the

Board. As “environmental pollution matters” explained and defined later, they may have been apparently within the EPA

remit. But they also were highly relevant environmental planning matters which required the Board to impose conditions for

enforcement. I consider the Board failed to have regard to this material consideration. I will grant judicial review on these

grounds as well as those in Parts I, II and V herein.

125. The further claim relating to the Board’s alleged omission to accept recommendations as to monitoring water levels in

the Usk marshes can only be fully understood against the background of the duties of the Board and the Agency under

the E.I.A. Directive and is considered in Part V of this judgment. As I have indicated the evidence on this issue was by no

means as clear. I do not consider the residents have satisfied the White test that the Board’s conduct here constituted a

failure such as would go to jurisdiction.

IV Whether the State, though joined as a defendant, may seek subsequently to impugn the Board’s decision?

126. The State was joined as a respondent to the proceedings in order to address certain aspects of the relief sought by

the residents. One of these was the alleged failure adequately to transpose or implement Directive 97/11/EC Directive

85/337/EEC as amended by Directive 97/11/EC (“the EIA Directive”). (The version of the Directive at issue in this case is

the text prior to further amendment by Directive 2003/35/EC.) This particular ground for relief against the State was one

of a substantial number withdrawn by the residents at the opening of the case. On the second day of the hearing, in

seeking to ascertain whether each of the parties was necessary to the proceedings, I asked counsel for the Attorney

General and the State to indicate whether he required to remain in the case in these circumstances.

127. Mr. Garrett Simons S.C. indicated that while joined as a defendant, the State would now be supporting the residents

in respect of one relief still sought by the them, namely for “a declaration by way of judicial review that the decision of

the first named respondent (i.e. the Board) to grant planning permission was made contrary to the requirements of

Directive 85/337/EEC on the Environmental Impact Assessment of certain public and private developments.” Counsel

indicated that in view of this alleged failure by the Board it was now the State’s contention that the planning decision

was invalid. The Board had received no intimation of this change in position in advance. I consider this was unfortunate.

It certainly had the consequence of significantly prolonging the hearing.

128. Counsel for the State subsequently provided “an issue paper”. This outlined the State’s proposal to make submissions

as to the Board’s alleged misinterpretation of s. 54(3) of the Waste Management Act 1996, (“W.M.A.1996”) and its

misunderstanding of the division of functions between it and the Environmental Protection Agency. The State claimed

that, as a result of this misunderstanding the Board, did not approve or condition any aspect of the development where

the activity would cause “environmental pollution”. (The full terms of s.54 (3) W.M.A. 1996 are set out at para. 204 of

the judgment). The intent behind this part of the W.M.A. 1996 was to identify functional areas which were to fall within

the remit of the EPA, and from which the Board was to be precluded from acting, being essentially matters relating to the

risk of “environmental pollution” from the “activity”. These issues, at one level, certainly fell within the remit of the EPA.

But was this an exclusive jurisdiction? This general point had not been raised before by Kelly J. at all. In fact, the semi-

submerged issue of s. 54(3) jurisdiction surfaced in the Board’s considerations only after the renewed inspector’s oral

hearing in 2008. It was briefly referred to on occasion in the inspector’s 2006 report. It will be recollected, that evidence

was heard from Greenstar’s experts about the new nature of the landfill liner at the renewed inspector’s hearing in 2007.

This in turn led to consideration of the Board’s jurisdiction, or lack of it, in very stark terms.

Changes in proposed landfill liner

129. Before ruling on the procedural issue, is necessary first to specifically describe the extent of the change in the

landfill liner between 2004 and 2007, in order to understand the State’s revised stance.

a) The EPA 2004 stipulation as to the landfill liner in the original waste licence

130. The original EPA waste licence envisaged that the landfill lining for all waste deposition areas should comprise as a

minimum (i) a subsoil layer of at least 3 metres deep with a hydraulic conductivity of less than or equal to 1 x 10ֿ7 m/s;

and (ii) formation levels of landfill base as shown by an illustration in the Environmental Impact Statement, in any event to

be higher than the water table. Where inert waste or materials were to be placed outside the non-hazardous liner, in

addition to the landfill base requirements referred to above, it was to comprise, at minimum, side walls consisting of a

mineral layer of a minimum thickness of 1 metre with a stipulated level of hydraulic conductivity. Where non-hazardous

waste was to be placed, in addition to the landfill base requirements referred to above, the liner was to comprise a

composite liner consisting of a one-metre layer of compacted soil with a hydraulic conductivity of a stipulated level

overlain by a 2mm thick high density polyethylene (HDPE) layer as well as geo-textile protection layer placed over that

layer. The licence stipulated a 500mm thick drainage layer placed over the geo-textile layer with an identified level of

hydraulic conductivity of pre-washed uncrushed granular rounded stone (16 – 32mm grain size), incorporating leachate

collection drains or an equivalent to be agreed with the Agency. The sidewalls were to be designed and constructed to

achieve an equivalent protection. These were substantially changed by the technical amendment to the licence granted

by the E.P.A in 2007.

The revised landfill liner provided for by the EPA 2007 technical amendment

131. The technical amendment to the Waste Licence of 17th September, 2007, introduced different and amending

conditions. The landfill base for all waste deposition areas was to comprise as a minimum: (a) leak detection under a

drainage layer and either natural or synthetic draining to a sump; and (b) formation levels of landfill placed higher than the

water table.

132. Where inert waste or materials were to be placed outside the non-hazardous liner, including the landfill base

requirement, it was now as a minimum to comprise of:-

A Bentonite Enchanced Soil (BES) layer of a minimum thickness of 0.5 metres and of a stipulated hydraulic

conductivity with sidewalls to be designed and constructed to achieve an equivalent protection.

I emphasise these three words as they identify clearly the boundary line beyond which the Board concluded it had no

legal role, that is, any question relating to environmental pollution said to arise from the activity in question.

Where non-hazardous waste was to be placed the landfill liner in addition to the landfill base requirements referred to

above was now to comprise: -

(a) a composite liner consisting of 0.5m layer of BES with an identified hydraulic conductivity overlain by a thick

high density polyethylene (HDPE) layer or equivalent approved by the Agency.

(b) a geo-textile protection layer of proven protection performance placed over the HDPE layer; a 500mm thick

drainage layer placed over the geo-textile layer with a minimum level of hydraulic conductivity of pre-washed,

uncrushed granular rounded stone (16-32mm grain size incorporating leachate collection drains (or equivalent to be

agreed with the Agency) and the sidewalls were to be designed and constructed to achieve an equivalent

protection. The detailed design of the liner was to be in accordance with the Agency’s Landfill Manual.

133. The amended licence further provided that a comprehensive “construction quality control/construction quality

assurance” protocol for all containment engineering works was to be submitted to it for approval as part of the specified

engineering works. But clearly all these requirements also were connected to construction of the liner by way of contrast

to the day to day operation of the facility.

134. From the emphasised words above, it will be seen that the E.P.A. technical amendment comprised matters

appertaining to the technical and material composition of the liner. But it also involved points relating to what might

ordinarily be seen as the construction of that liner, but seen from the functional standpoint of the Agency, that is the

reduction of risk from “environmental pollution”. This task was entrusted to the EPA itself, originally set up by the

Environmental Protection Agency Act 1992.

Submissions on the legal role of the State in this case

135. The State wished to contend the Board had failed lawfully to direct itself in relation to relevant construction and

development considerations which should have fallen to it (as opposed to the EPA) to consider. It asserted that such

omission had legal and jurisdictional consequences by reason of a consequent failure by the Board to comply with the

Directive 2003/35/EEC, the Public Participation Directive.

136. This judicial review took the form of telescoped proceedings by direction of the High Court. They therefore comprised

an application for leave, and if that threshold was met, thereafter an issue for substantive judicial review. The original

pleadings filed by the State as respondents were; (a) a statement of intended opposition, and (b) an affidavit of Mr.

Ronan Mulhall. In both, the State had made it clear that it was opposing the residents’ case on transposition and

application of the Directive. The State pleaded that, where the ground relied on by the residents related to the decision

of the Board no response was required from the State. But it had further pleaded that:-

“For the avoidance of doubt no admission by the second and third named respondents is made in relation to any of

the matters pleaded as against the Board.”

Thus the State placed the onus on the residents to demonstrate the Board’s want of jurisdiction. In seeking to now

impugn the decision, therefore, the State was moving from a position generally supportive of the Board to one of outright

opposition.

137. In response to this, counsel for the Board, Ms. Nuala Butler S.C., indicated that the State was effectively seeking to

adopt the role of a “co-applicant”. In these new circumstances she objected that the State had no legal standing to

intervene on the issues between the residents and the Board, and that once the reliefs claimed against it had been

withdrawn, it was no longer properly a party to the proceedings. The Board asserted that the State had not participated

in any substantive way in the planning process; it was therefore in the same position as any other potential applicant

insofar as challenges to decisions of the Board were concerned. If the State had wished to challenge the Board’s decision

it should have done so within the specified time periods and demonstrated compliance with the locus standi criteria in

planning matters.

138. The Board observed that as the legislation at issue preceded the Planning and Development Act 2000 (as amended),

it appeared likely that there were at most only a handful of cases still being decided under this previous legislation. It did

not understand there to be any legitimate public interest in having the interpretation of this legislation clarified, nor in

having the question as to the existence of any lacunae in the legislation ventilated.

139. This novel situation necessitated further written and oral submissions. I indicated that I would consider these locus

standi points, that I would issue rulings immediately thereafter, and furnish my reasons in this judgment. I ruled in favour

of the State – but directed that it should henceforth proceed in the case as a notice party, and not as respondent. That

which follows is my reasoning.

Ruling on the locus standi of the Attorney General and the State

140. At the outset I consider that the State was properly joined as respondent to the proceedings. The residents

originally sought relief alleging failure in the transposition of various EC Directives including the Environmental Impact

Assessment Directive. By virtue of Article 10 EC and Article 249 EC the State is the entity ultimately responsible for any

failure in the transposition of any EC Directive. While the residents had withdrawn a range of pleas against the State,

they now limited the extent of their claim to the proposition that the Board’s interpretation and application of the EIA

Directive remained a “live issue”. The residents did not serve a notice of discontinuance on the State. Thus the State

remained a party to the proceedings.

141. I emphasise that because of what occurred, no transposition issue remained in contention in the case. The residents

withdrew that plea. Therefore I expressly refrain from expressing any view on the question.

142. In its decision, the Board decided that it was precluded from assessing any potential “environmental pollution” impact

arising from the construction of the landfill liner because of s. 54(3) of the W.M.A. 1996. The issue for this court to

address became therefore one between the residents and the State who now both had made common cause, against the

Board, an emanation of the State, on two rival interpretations of the then s. 54(3) of the W.M.A. 1996, one of a number

of measures enacted by the legislature to implement the EIA Directive.

143. Greenstar’s planning application was brought pursuant to s. 26(1) of the Local Government (Planning and

Development) Act 1963. In dealing with such application the planning authority (or the Board on appeal) is restricted to

considering the proper planning and development of the area of the authority (including the preservation and improvement

of the amenities thereof) with regard being had to the provisions of the development plan, any special amenity area order

relating to the said area and other matters referred to.

144. It is clear that s. 54(3) of the unamended W.M.A. 1996 assigned the task of considering the risk of environmental

pollution from an activity to the Environmental Protection Agency.

145. The issue of the respective roles of the Board and the Agency arose in a relatively recent decision of the Supreme

Court, Martin v. An Bord Pleanála [2007] 2 I.L.R.M 401. There the court considered and analysed the respective roles of

both statutory bodies in the context of planning consent and the requirement under EC law to ensure that there shall be

no lacuna in the respective statutorily defined roles of either body.

146. A further contention by the State was that the Board’s determination was invalid because it had failed properly to

apply or implement Directive 2003/35/EC (The Public Participation Directive), and that, despite having sought additional

information in relation to the landfill liner for the purposes of the renewed inspector’s hearing from Greenstar, it had

erroneously concluded that assessment of this material was outside its jurisdiction.

147. I was further informed that there was currently pending before the Court of Justice a case in which similar alleged

lacunae and lack of co-ordination between the Board and the Agency had been raised by the European Commission in a

complaint against Ireland. (Commission v. Ireland E.I.A. Directive – dual assessment, lodged 4th February, 2009.) From

the State’s submission, I infer the Commission alleges non compliance with Articles 2 and 4 of the E.I.A. Directives as

amended. As yet no information other than a summary of the pleadings is available.

148. Counsel for the State said the basis of its reconfigured role arose from its duty under EC law to ensure that both

transposition, and application of the Directives was effected in a clear and precise manner; and by reason of a concern

that, in failing to apply the principles outlined in Martin, the Board’s interpretation could lead to potential confusion and

uncertainty in the law.

149. In determining this issue I also had regard to the following circumstances. The State was already joined in the

proceedings as a party, albeit qua respondent. This was not a situation where a court was being asked at a late stage to

join a new party to an already extant judicial review. The position was rather that the State, already a party, wished to

put forward a new case, albeit at variance from that which it had originally espoused. While it had been cast, in the role

of a respondent, should such ascription of role necessarily precludes it from subsequently adopting a stance opposed to

that of the Board? A further weight in the balance was whether in the terms of O. 84 of the Rules of the Superior Courts’

the State had a “legitimate interest” in continuing to make submissions on the jurisdiction issue, whether or not it had

locus standi as understood in planning law.

The role of the Attorney General in protection of the public interest

150. In general the Attorney General has a role in protecting the public interest. This role was described in the High Court

(Kennedy C.J.) in Moore & Ors. v. The Attorney General [1930] 1 I.R. 471:-

“Also he has the authority to assert the rights of the public by action in the courts.”

151. In TDI Metro Ltd. v. Delap (No. 1) [2002] 4 I.R. 337 at p. 344 Denham J. observed that, as well as the Attorney’s

authority to assert the rights of the public by action, this “action” may also be by way of reaction, qua notice party.

152. In the same judgment she referred to Prof. James Casey’s work The Irish Law Officers at p. 148 where he stated:-

“The Attorney General’s role as intervener in civil proceedings is not confined to the situations covered by O. 60.

There is authority for the proposition that he may intervene whenever some aspect of the public interest comes

into play.”

The judge continued:-

“Reference was made by counsel to in Re Solicitors Act 1954 [1960] I.R. 239 where Maguire C.J. stated at p. 255:-

‘Even though the Attorney General need not attend, the Court welcomes his help when as here an issue

of considerable public importance is raised.’”

She added:-

“The court was asked to consider another instance where the Attorney General intervened in the case. In Brady v.

Cavan County Council [1999] 4 I.R. 99 Keane J. (as he then was) stated at p. 102:

‘…the Attorney General who intervened in the proceedings and was heard by this Court because, as it

was submitted on his behalf, issues of general public concern were raised.’”(emphasis added).

She concluded:-

“If there is a doubt as to the public interest as submitted by the Attorney General, the court in exercising its

discretion should lean towards the application of the Attorney General enabling him or her to be joined in the

proceedings.”

153. My conclusion was that, in the words in O. 84 of the Rules of the Superior Courts, the Attorney and the State had

such a legitimate interest in pursuance of the points identified, as being of general public concern. That interest derived

from the Attorney’s position as guardian of the public interest, and by reason that the issues raised a question of public

policy in which the Executive had a legitimate view and a desire to be heard thereon. This arose in particular because of

the obligation of the State (and this Court) to observe and implement the precepts of EC law in its considerations. Any

issue of some other statutory locus standi derived simply from the planning statutes, was to my mind, subservient to

these overarching considerations.

154. By way of illustration, TDI was a case where the Attorney sought actually to be joined as a party even at the appeal

stage, clearly a much more extreme situation than here. Even then the Supreme Court was prepared to exercise its

discretion so as to countenance such intervention, as the issue was one of public concern, whether a County Council had

a statutory power to prosecute indictable offences. While, as TDI points out, the Attorney is not entitled, to intervene as

of right, a court has discretion to allow a party to be joined therein if it is necessary in the interests of justice, and where

there is no specific rule of law excluding the addition of the parties at that stage of the proceedings.

155. The State had already been joined in these proceedings. There could be no question here of having to join or add a

party therefore. Instead I formed the view that the position was analogous to a defendant in civil proceedings making a

case adverse to the interests of another defendant, albeit in the absence of any procedure in the rules regarding judicial

review procedure, for the service of a notice of indemnity or contribution. A respondent and notice party frequently found

themselves in adversarial positions in judicial review matters. Applying these considerations, I ruled that the appropriate

course should be that the Attorney General and the State should instead be joined as a notice party rather than as

respondent, having tendered certain undertakings in relation to any cost issues, and that those submissions should then

precede those of counsel for the Board.

156. This ruling, on these facts, is not to say that there may not now exist a far wider entitlement for the Attorney to

participate in proceedings if there has been a serious breach by a public authority of its obligation to comply with the

requirements of an EC Directive. Such an entitlement could well again be based on Article 10 EC and Article 249 EC, and

the undoubted fact that the State is the entity ultimately responsible for any failure in the transposition or application of

an EC Directive. A serious breach by a public authority of obligations under a Directive may expose the State to the risk

of infringement proceedings under Article 226 EC and also to possible fines. As the judgment of the European Court of

Justice in case C-215/06 Commission v. Ireland demonstrates, infringement proceedings may be based on a breach in

respect of even one single development project.

157. It is not difficult to envisage circumstances therefore where the State would have a legitimate interest, now

significantly broader and deeper than hitherto, in being heard on the question of the interpretation or application of a

Directive. Such an entitlement will of course carry with it a fiduciary dimension, to ensure that insofar as practicable, the

court is fully and objectively apprised of all relevant considerations to the issue raised.

158. I now turn to the last substantive question outstanding, as it arises within the procedural framework thus set.

Part V. Compliance with EU Directives

159. The residents originally sought a declaration in this case that the Board’s decision not to assess the environmental

impact of the new liner and to grant planning permission was made contrary to the requirements of the EIA Directive.

This, it was submitted, requires the authority or authorities so charged to interact so as to give effect to the Directive’s

aims. They sought to move beyond the provisions of national law, and to rely directly on the provisions of the Directive

itself. However, they now argue otherwise, on the basis that national legislation had correctly implemented the Directive,

but it had not been properly applied by the Board which ignored the “construction” aspects of the landfill liner. By virtue

of its annual intake in excess of the threshold of 25,000 tonnes annually, it is not in dispute that the landfill development

required an environmental impact assessment by virtue of its listing at para. 11(b) of Part II of the First Schedule of the

ECC Environmental Impact Assessment Regulations, 1999.

The terms of the original EPA licence

160. The EPA waste licence of 8th June, 2004, (“the licence”) included very detailed new conditions in relation to the

composition of the liner. To recapitulate, the “technical amendment” to this was made at the request of the developer on

17th September, 2007. The bentonite liner was to be substituted for a clay liner. This liner was to be made by mixing

bentonite with sand and gravel in a ratio of 1:10, producing what is termed a “BES liner” (bentonite enhanced soil). The

developer made amendments to the EIS in respect of the change of liner. These were presented to the reconvened

inspector’s oral hearing in October/November 2007, where the residents’ counsel cross-examined on this material.

161. The inspector considered the operation of the BES liner in detail in her report. She issued a s.10 notice for further

information on the issue. But she concluded that issues of air quality and noise pollution impacts derived from preparation

of the BES liner (albeit on site) were matters within the exclusive competence of the EPA under s. 54(3) of the Waste

Management Act 1996, and that the Board was thereby entirely precluded from assessing any potential environmental

pollution impacts arsing from the construction of that liner.

162. She considered that, as a planning issue, the replacement liner was not a material alteration to the proposed

development under the planning code, in that it did not impact on the site location, the type or quantities of waste

proposed for disposal, or the construction and operational life of the landfill. She observed that in relation to the visual

impacts there would be unlikely to be any view of the mobile batching plant proposed for production of BES on site from

outside the site boundary.

The Board’s decision

163. The Board referred in its decision to the granting of the licence by the EPA, including the technical amendment. In

giving its reasons not to accept the inspector’s recommendations for refusal of permission it referred to the waste licence.

It accepted the inspector’s identification of its jurisdiction vis-à-vis the EPA.

164. Counsel for the residents and for the State both now contended that the EPA’s statutory function was to license the

“activity” being carried out at the proposed development. It was not therefore concerned with the construction of the

facility or any other environmental planning impacts. In particular both counsel pointed to the apparent incongruity in the

inspector’s s. 10 request which referred to the construction impacts of the proposed liner; the fact that the reconvened

oral hearing was primarily concerned with that matter; and, by contrast, the Board’s failure to carry out any assessment

of this material in the context of the overall planning consent.

165. In the context of E.U. law and the W.M.A. 1996, the jurisdictional issues are whether the Board unlawfully failed to

have adequate regard to the environmental impacts associated with the construction of the landfill liner; whether it was

in fact precluded by s.54(3) W.M.A. 1996 from assessing any potential environmental pollution impact; whether it was

precluded from assessing potential environmental impact, other than pollution, from the construction of the liner; and the

consequence of such findings in light of the Public Participation Directive.

Interpretation of s. 54(3) of the Waste Management Act 1996

166. It is necessary to consider first, the nature of the process in which this Court must engage in the interpretation of a

statutory provision such as s.54 (3) of the Act of 1996. Were these questions simply and solely ones of fact, the Board

might enjoy a wide margin of discretion.

167. But the Board itself determined the range of its jurisdiction. It refrained from an assessment of the environmental

impact of the construction of the landfill liner. This is a point which goes to the heart of the alleged “non-exercise” of

jurisdiction. The question is not what the Agency did, but what the Board failed to do – that is whether it omitted to

address itself to a relevant issue, with the result that it failed lawfully to exercise its jurisdiction. What the Agency did is

therefore secondary, unless the Agency had an exclusive jurisdiction, not vested in the Board at all. These are issues of

law. They go to the essence of jurisdiction. The issue of statutory interpretation is a matter for the High Court.

168. Maher v. An Bord Pleanála [1999] 2 I.L.R.M. 198 is a helpful authority. There the matter at issue was also the

interpretation of the EC (EIA) Regulations 1989. That case concerned the interpretation of the term “sow” and a sow’s

progeny, for the purpose of calculating the relevant development threshold.

169. Kelly J. ruled that the interpretation of the Regulation was a question of law and not one within the planning

expertise of An Bord Pleanála. He observed:-

“In my view the question of the proper interpretation of the Regulation is a matter of law which must be decided

upon in this application. The previous approach of (An Bord Pleanála) is not directly relevant nor shall I take it into

account in considering the question.”

170. The interpretation of s. 54(3) of the Act of 1996 is equally a question of law. It is not a matter in which An Bord

Pleanála can properly maintain it enjoys a particular expertise, or in respect of which legal deference should be shown. It

is not open to the Board here or elsewhere to configure an issue of law as one of fact or vice versa, and thereby, by a

process of interpretive metamorphosis render the issue solely a matter for it, and not the court. The questions which

must be considered are whether or not the Board through its inspector asked itself the right jurisdictional questions from

the outset, and whether it lawfully and within jurisdiction considered the provisions of s. 54(3) and the definition of

“environmental pollution”. Did it therefore act irrationally in the sense identified in White v. Dublin City Council (discussed

earlier in this judgment) by asking itself the wrong question, and misdirect itself as to its jurisdiction?

The derivation of the jurisdiction difficulty

171. An analysis of the material here demonstrates that much of the difficulty derives from confusing definitions of

“construction”, “operation” and “activity” which stretched back as far as the original Environmental Impact Statement in

2001. The difficulty identified did not stop with the EIS. It ran like a seismic faultline, manifesting itself in a number of

ways through the entire planning process. It is to be found in the waste licence granted by the EPA in 2004. It emerged

next in the Board’s grant of planning permission in 2006. It obtrudes more clearly in the technical amendment to the waste

licence granted by the EPA in 2007. It is manifest in stark form in the inspector’s report of April 2008. It reaches critical

point in the Board’s permission.

172. There is little to be gained from unnecessarily detailed references to any of the documents to which I have just

referred. It is sufficient now, based on such documentation, to sketch the overall context in which this process of elision

between “activity”, “operation” and “construction” took place.

Definition of “operational stage” in the EIS

173. The 2001 Environmental Impact Statement contained a description of what it called the “operational stage” of the

facility, which included aspects of development likely to cause a visual impact. But the phases said to be part of that

operational stage included “excavation and levelling of the site”; “construction of landfill cells”; “waste deposition”;

“overall phasing of cells and operations within the site”; vehicle movements on the site (i.e. waste collection, vehicles,

compactor, loading, shovel and dump truck); and vehicle movements to and from site.

174. Even at that point therefore construction and operation were treated as overlapping to such an extent that the EIS

authors saw them all as part of the one “operation” process.

Definition of activity by the EPA in the 2004 waste licence

175. The same difficulty is reflected in the 2004 waste licence. There, the EPA licensed “activities” pursuant to s. 40(1)

of the Act of 1996. As will be explained later the licence contained categories of “activity” which were also identified in

the Third Schedule of that Act. In this licence the same “activities” identified included: class 1 – “deposit of waste on, in

or under land (including landfill); the activity to be limited to the deposit of onto land in the area”; class 4 – “surface

impoundment, including placement of liquid or sludge discards into pits, ponds or lagoons”; and class 5 – “specially

engineered landfill including placement into lined discreet cells which are capped and isolated from one another and the

environment”. The following quotation about such “class 5 activity” – again from the waste licence – epitomised the

problem:

“This is the principal activity (sic). This activity is limited to the construction of the landfill in distinct phases

consisting of specially engineered lined cells, the deposit of non-hazardous, commercial, industrial and residual

municipal waste into these lined cells and the collection of leachate and landfill gas…”

Construction and activity are therefore seen as part of the one process.

176. The EPA in granting the licence therefore, designated as one of the activities licensed not only the placement of

waste into the cells, but also the phased construction of the landfill consisting of specially engineered lined cells. This

definition, reflecting category 5 of the third schedule of the Act of 1996 is of particular importance in the light of the

reliance placed upon it by the Board in justifying its interpretation of construction as being part of the activity, thus

beyond its jurisdiction and an issue only for the EPA.

The inspector’s 2006 report

177. The same jurisdictional confusion emerges in the inspector’s report of 2006. In the course of that report she dealt

with the potential impacts of this proposed development on the nearby Usk marshes, a proposed Natural Heritage Area

(p.N.H.A.). She referred to the residents’ submission to the effect that de-watering during construction, deterioration in

water quality and from the impacts of dust, landfill gas and noise all had potential to disrupt the ecological balance of that

p.N.H.A. She commented:-

“Given that section 54(3) of the 1996 Waste Management Act as originally enacted applies to the current case, the

only impacts which the Board may consider in respect of impacts generated by the proposed development on the

pNHA are those emissions resulting from construction of ancillary on-site facilities (those exclude construction of

the landfill itself), destruction of or significant interference with habitats and flora and fauna as a result of any

construction works on site, and finally impacts on surface and ground water flow and supply.”

The Board’s 2006 decision

178. The Board’s decision in 2006 did not specifically refer to the difficulty which was identified by its inspector. It

contained no special reference to s. 54(3) of the Waste Management Act 1996. However it did allude to the Waste

Management Plan and the grant of the EPA licence to which reference was made in the 2008 permission as explained

earlier. But interestingly, the 2006 permission did on occasion refer specifically in the conditions, to “the construction

phase of the proposed development”. These references are in relation to concerns to prevent risk to surface or

subsurface waters from spillage of oil, fuel or chemicals, and also in dealing with conditions relating to temporary

settlement ponds to accommodate discharges of site surface water run off during that “construction phase” of the

proposed development. The reason given for these ponds was “to prevent surface water pollution during the construction

phase of the proposed development”. The phraseology of this condition is significant in light of the questions which arose

in 2008 as to where the “construction phase” began or ended. What appeared obvious in 2006 was far from obvious in

2008. By then construction and activity had merged in the Board’s approach so as to preclude the Board from

environmental assessment.

179. Similarly in the context of conditions with regard to noise these were said in 2006 to be imposed:-

“to protect the amenities of property in the vicinity of the site during the construction phase of the

development.”

This particular point is dealt with in more detail below, with reference to the 2008 permission.

Definitions contained in the EPA 2007 technical amendment to the waste licence

180. I have outlined how the “technical amendment” to the waste licence in 2007 comprised largely of a new

identification of the composition of the landfill lining. This consisted of a BES layer of minimum thickness and hydraulic

conductivity. The amendment provided:-

“A comprehensive Construction Quality Control/Construction Quality Assurance protocol for all containment

engineering works shall be provided to the Agency for approval as part of the Specified Engineering Works

(condition 3.2). The BES layer may not be covered by the HDPE liner until fully certified to the satisfaction of the

Agency.”

These are clearly broad parameters, which overlapped into the question of the liner construction as well as its

composition. But how precisely, the amendment would environmentally impact on the development was not assessed in,

or in the process of granting, the new licence.

The inspector’s report 2008

181. The problem of jurisdictional demarcation became most evident in the inspector’s report furnished in April 2008. It

loomed large in her discussion of a number of alternative proposals put forward by the developer only in the course of the

renewed oral hearing in considering to how BES would either be manufactured on site or brought thereon. One apparently

hypothetical part of this proposal was to grind or mill fine gravel particulates on site and mix them with crystalline silica in

an undefined manner. Crystalline silica may be carcinogenic and may have particularly harmful health qualities which, she

considered, would raise an unacceptable risk to the community on public health grounds. This suggested aspect of the

proposal was apparently mooted only for illustration purposes. In fairness it was not pursued by the developer.

182. An alternative proposed was that bentonite would be mixed with sand on the site but that this sand would not be of

the very fine quality described just above.

183. In her 2008 report the inspector was clearly deeply concerned in relation to the question of noise and dust. Among

her concerns were that large quantities of bentonite might have to be imported on site by truck, thereby multiplying by

many times traffic count and noise, and that the production of BES would require what are called material screeners as

well as “some short term crushing” process. However the developers earlier noise impact prediction had been based on

the use of material screeners only without any crusher noise and therefore, she thought, seriously underestimated the

noise emissions resulting from BES manufacture now envisaged. She also noted that noise from milling or mixing processes

in the production of BES had not been taken into account, nor had the tonal or impulsive qualities of noise emissions. She

observed that, as the EPA licence did not permit such noise emissions, it was vital that the Board attached such a

condition to construction works. She added that the Board should consider imposing a condition requiring continuous noise

monitoring while construction works were carried out at the site as the EPA licence only required such monitoring for 30

minutes per quarter when the site was “operational”. That term was significant – these works would not be complete in

the first few months of the ten year life of the development.

184. A further issue raised by the residents at the renewed oral hearing was the contention that it was impossible to

assess part of the environmental impact of the development in the absence of any knowledge as to the filter efficiency

which was to be used in the production of BES on the site. This was of particular importance having regard to the close

proximity of the site to a number of residents.

185. The developer responded to these concerns by stating (i) that the proposed batching of the BES would be carried

out within an enclosed facility, (ii) that the material proposed for use in batching would contain a certain amount of

moisture which would inhibit the spread of dust. Quite clearly these issues were of substantial environmental significance.

But the inspector concluded:-

“I consider that the developers submission to the reconvened oral hearing, in conjunction with the responses

solicited from the developer during cross-examination in regard to dust emissions, update the original EIS in a

satisfactory manner and fulfil the requirements of the EIS Directive as set out in national legislation. I consider,

however, that:

- as the construction of the landfill liner is intrinsically linked to the operation of the landfill;

- as the composition of the liner falls within the remit of the EPA;

- and that the current application for the proposed development was received in advance of the commencement

of the 2000 Act;

- the Board is precluded from assessing any potential environmental pollution impact arising from the construction

of the landfill liner.”

With regard to noise impact she commented:-

“Again as the construction of the landfill liner is intrinsically bound up with this operation, I consider that the Board

is precluded from assessing the potential environmental pollution aspects of these impacts other than by way of

satisfying itself that the developer has perfected the environmental impact statement in regard to noise impacts

by identifying same, assessing same and proposing appropriate mitigating measures.”

186. Clearly such an approach, were it lawful, would have created a lacuna as regards the environmental assessment, as

distinct from mere consideration of the effect of the new landfill liner. The inspector said she considered the EIS had been

perfected by noting that the main noise source from the batching plant would be the generator which would move around

the site in accordance with the construction sequence of the liners. She observed that the batching plant would not

come closer than between 150 – 200 metres of the Corrigan household. She said that the noise from the plant had been

included in the overall noise predictions for the site and that mitigation would be provided in the form of noise barriers. Her

view was that the noise prediction assessment assumed a worse case scenario, namely, that all plant would be working

during the operational phase of the development at a distance of approximately 80 metres from the nearest noise

sensitive receptor, namely, the Corrigan household. She wrote that the developer acknowledged that during the

“construction” phase of the development the plant was likely to be located 40 metres from the nearest noise sensitive

receptor, i.e. the Corrigan household, but it had correctly noted that higher noise levels were tolerated during what she

termed the “construction” phase of any development over limited periods of time. She said that the developer also

acknowledged that while it was unlikely that the gravel used for mixing with bentonite to produce the BES there would be

concentrated in their entirety in close proximity to the Corrigan household, this was not impossible.

187. It will be seen that all these observations would take place in what the inspector phrased as the “construction”

phase of the development. But of course this construction phase is to be distinguished from that which might take place

simply at the commencement of the development in view of the phased nature of the work at the facility.

She then concluded:-

“However as I have noted in regard to dust emissions and impacts, the noise emissions and impacts associated

with the construction of the landfill liner are by virtue of the fact that the liner’s construction is bound up

intrinsically with the operation of the landfill, not subject for assessment by the Board other than a regard to the

clarification and perfection of the environmental impact statement which I consider has been done satisfactorily in

the current case.”

188. It is surely significant that the inspector here again referred to the “construction” of the landfill liner, albeit in the

context of being bound up “intrinsically” with the operation of the landfill. It will also be recollected that, however

categorised, the construction involved was not of one, but six, phased cells over the ten-year life of the facility. I will be

finding in this judgment that this was an issue which required complete assessment for the purposes of a development

consent, in compliance with the Directive.

189. But the inspector held that the developer had in fact complied with the 1989 EC (Environmental Impact Assessment)

Regulations. She considered that the proposed development complied with the requirements in respect of the construction

and operation of the proposed landfill. She considered the presentations provided at the reconvened hearing clarified more

precisely the likely significant effects of the development on the environment.

190. She herself specifically raised the issue of what she regarded as the possibility of a “legislative lacuna” between the

EPA licensing system and the planning process, and the implications of such lacuna for the proposed bentonite liner. She

also actually drew the attention of the Board to the case of Martin v. An Bord Pleanála [2007] 2 I.L.R.M. 401 to which

reference will be made in greater detail.

However she limited herself to stating with regard to Martin:-

“…that case centred on the extent to which the division of responsibility between the Board and EPA adequately

gives effect to the requirements of Council Directive 85/337/EC; the judgment in that case confirmed that EIA

must be carried out before consent is given, that the Directive provides for more than one body to be involved in

the consent process and that the combination of assessments carried out by an Bord Pleanála and the EPA

combined meet the requirements of the Directive.”

191. Martin deals with broader and more fundamental themes than that simple description. Unfortunately, the inspector

did not address herself to the situation which might arise if the assessments carried out by the Board and the EPA did not

totally combine, or in the words of the Directive “interact” so that interwoven, they could be the basis of a planning

consent under the national legislation and the Directive. She simply concluded that the judgment confirmed that any

division of powers between the EPA and An Bord Pleanála prior to the commencement of the 2000 Act did not result in a

lacuna which could undermine or invalidate a development consent where such consent consisted of the decision of An

Bord Pleanála and EPA together. But saying this did not make it so, especially in the circumstance where the EPA had

licensed and the Board allegedly had no role in this form of potential environmental pollution.

192. She stated that the Board was required to assess the proposed development under the legislative provisions which

obtained prior to the commencement of the 2000 Act. But the amended bentonite liner had been permitted only under

legislation enacted even later than 2000, in fact by s. 38 of the Protection of the Environment Act 2003, discussed later

herein. This ostensibly permitted amendment by a statutory process enacted in 2003 which post-dated even the 2000

PDA. But by contrast, she stated that it was appropriate that the proposed landfill development at Usk be assessed by

the Board under the pre-2000 Act legislative provisions. It is difficult to reconcile these two findings, one as to the

inapplicability of the Act of 2000, the other as to the applicability of a procedure enacted three years later.

The Board’s 2008 decision

193. The Board refrained from imposing any conditions in relation to matters which it considered fell within the remit of the

E.P.A. To recapitulate, it recited in the First Schedule to the permission:-

“…having regard to national policy relating to waste, the Waste Management Plan for Co. Kildare 2005-2010, the

proximity of the site to the national road system, the granting of a licence by the Environmental Protection Agency

(licence register No. W0161-01) and the technical amendment A thereto(and the provisions of s. 54(3) of the

Waste Management Act 1996 (as originally enacted), it is considered that, subject to the conditions set out in the

Second Schedule, the proposed development would be acceptable in terms of its impact on the amenities of the

area and of property in the vicinity, would not be prejudicial to public health, would be acceptable in terms of

traffic, safety and convenience and would be in accordance with the proper planning and development of the area.

In deciding not to accept the inspector’s recommendation to refuse permission the Board had particular regard to

national policy, the waste licence granted by the environmental protection agency which includes conditions

requiring a minimum distance of 100 metres between the landfill footprint and any dwelling house (other than for

inert waste) and the location of the site close to the national road system. The Board considered that the impacts

on nearby houses referred to by the inspector in her first recommended reason for refusal were adequately

addressed in the environmental impact statement and in the developer’s submission to the reconvened oral

hearing in October/November 2007. The Board noted the separation distances together with the intervening

topography and vegetation, the proposed phasing of the development and the planting of a hedgerow and a belt of

deciduous trees around the perimeter of the site. The Board also considered the temporary nature of the proposal

and accepted that the restoration scheme will integrate the completed site into the surrounding landscape….”

194. The net effect of this was that the Board effectively recused itself from making or considering any assessment in

relation to a matter which plainly had an environmental pollution impact.

195. Both the Board and the inspector appear to have accepted at face value this jurisdictional demarcation. They appear

to have considered it was imposed upon them by the EPA waste licence and the technical amendment. They did not

sufficiently address the legal consequence of the fact that, by virtue of the manner in which the procedure had operated,

the environmental pollution effect of the new proposed landfill liner had not been, and would not be fully assessed. It is

difficult to avoid the conclusion that the Board and the inspector were seeking to “paper over the cracks” which had

emerged in the assessment procedure. The question therefore arises as to how the Board should have approved the

demarcation of roles, even if it considered it had been pre-empted by the E.P.A.’s stipulations so far as they were set out

in the waste licence and its technical amendment. It is necessary to address whether the Board and its officials were

correct in their approach to distinguishing between construction issues and “environmental pollution issues” as defined in

s. 5(1) of the Waste Management Act 1996. There “environmental pollution” is defined as meaning:-

“… in relation to waste, the holding transport recovery or disposal of waste in a manner which would to a

significant extent endanger human health or harm the environment and in particular –

(a) create a risk to waters, the atmosphere, land, soil, plants or animals

(b) create a nuisance through noise, odours or litter, or

(c) adversely affect the countryside or places of special interest….”

Before presenting my reasoning and conclusions on the EIA issues, I wish, for the sake of further context, to turn to the

question of Board’s alleged omission to accept recommendations as to monitoring water levels on the Usk marshes, as

briefly alluded to in Part III of this judgment.

Monitoring water levels in the Usk marshes

196. The residents assert the Board unlawfully failed to accept certain conditions recommended by the inspector

governing the monitoring of the groundwater levels and their potential impact on the Usk marshes.

197. It is said that conditions with regard to flow and recharge as distinct from the chemical composition of the

groundwater should have been included in the Board’s conditions. It was undisputed that there was evidence before the

Board of a hydraulic link between the site and the nearby pNHAS. However the EPAs conditions as to ground and surface

water, did not solely relate to the chemistry of the water. The EPA imposed conditions relating to surface water

management, groundwater and monitoring conditions and frequencies. These conditions deal with water levels and not

simply its composition. The inspector recommended the imposition of similar requirements but this recommendation was

not followed. These recommended conditions also related to water levels in the catchment area. It would be incorrect

therefore to conclude that the omission by the Board of such conditions would be in any degree as fundamental as the

omission with regard to noise, dust and fine particulate material.

198. On behalf of the residents, a hydrological consultant, Mr. Cecil Shine expressed the view that the EPA waste licence

conditions were not orientated at, and did not achieve the same result as, those suggested by the inspector. But this is

not conclusive. The inspector was concerned that as a result of hydraulic linkage between the proposed development and

the Usk marshes (a proposed Natural Heritage Area) that the construction of the landfill site might affect groundwater

flows and recharge in the marsh area. Accordingly she recommended as part of the commencement of development that

monitoring be commenced in respect of the water levels in that area. But can it be said conclusively that the question

had not been addressed?

199. The EPA waste licence was not mainly concerned with the laying of the landfill liner and implications therefrom. Its

focus was as to the possibility of water pollution from the operation of the landfill facility. Thus putting the matter at its

simplest the EPA was concerned with water quality from the operation while the inspector’s recommended condition was

concerned with water quantity and flow from the installation of the liner.

200. It would appear that the inspector, Ms. Mary Cuneen and the consultant hydrologist, Mr. Ger Keohane, took the view

that these conditions were not fully dealt with in the waste licence. But this is quite different from concluding that such

omission could go to jurisdiction. The evidence simply does not go far enough on this issue to give rise to a basis for

judicial review. I specifically refrain from saying that such an issue could not give rise to review – it could, if only the

evidence was clear on the point. The Board nevertheless determined that the EPA waste licence was sufficient in this

regard and decided on the deletion of these recommended conditions. All of this is indicative of the same problem – the

role demarcation between the Board and the EPA. It may therefore, at best, be seen as further corroborative evidence on

the alleged disjoined effect of the demarcation line as it ran throughout the permission process. But the evidence is

insufficient to demonstrate a want of jurisdiction. Mr. Keohane observed:-

“In general though I feel that the impacts on water supply to the marshes will not be significant and the provision

of monitoring conditions will cover any lingering doubts.”

This is not a starting point for judicial review.

I now turn to the issues of interpretation and application of national law in the light of the Directives. The interpretation

of ‘old law’ is necessarily a somewhat demoralising an arid exercise.

General principles of interpretation

201. First I turn to a number of general principles of interpretation. Clearly the provisions of national implementing

legislation must be interpreted in the light of the purposes and objectives of the EC Directives in particular the EIA

Directive. A national court is required, when applying provisions of domestic law adopted for the purposes of transposing

obligations laid down by a Directive, to consider the whole body of rules of national law. It must interpret them, as far as

possible, in the light of the wording and purpose of the relevant Directive in order to achieve an outcome consistent with

the objective pursued by the Directive itself (see case C 397/01 Pfeiffer and others v. Deutches Rote Kreuz [2004] ECR I-

8835).

202. The courts have adopted a harmonised approach to the interpretation of the EIA Directive on a number of occasions

(Maher v. An Bord Pleanála [1999] 2 I.L.R.M. 198; O’Connell v. Environmental Protection Agency [2003] 1 I.R. 530).

The object of the Directive and its application in national law

203. What then is the objective of the EIA Directive? As was pointed out in the Commission v. Germany (case C 431/92

[1995] ECR 1-2189):-

“Article 2 of the Directive lays down an unequivocal obligation, incumbent on the competent authority in each

Member State for the approval of projects, to make certain projects subject to an assessment of their effects on

the environment.”

Article 2 of Directive 85/337/EEC as amended by Council Directive 97/11/EC provides:

“(1) Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to

have significant effects on the environment by virtue, inter alia of their nature, size or location are made subject

to a requirement for development consent and an assessment with regard to their effects. These projects

are defined in article 4.

(2) The environmental impact assessment may be integrated into the existing procedures for consent to projects

in the Member States, or, failing this, into other procedures or into procedures to be established to comply with

the aims of this Directive.” (emphasis added).

In the implementation of the clear terms of the Directive therefore, the obligation of the State is unequivocal. All

measures must be adopted to ensure there is a fully compliant environmental assessment as the basis for development

consent.

204. To an extent, the actual conduct of the hearing by the inspector was consistent with national legislation. To a

point, the consideration of the environmental impacts accorded also with the objectives of the EIA Directive as amended.

However this must be seen in the context of the State’s submission that there was a deficiency of such seriousness in

the procedure and conduct of the Board as to go to jurisdiction. This is said to be the failure of the inspector and the

Board to carry out an environmental impact assessment as opposed to mere consideration of the new dimensions of the

project which included the landfill liner in accordance with the applicable requirements of EC law. It is said this arose

because of the mistaken perception held by the inspector and the Board that they were precluded from so doing by virtue

of s. 54(3) of the 1996 Act.

Section 54(3) of the W.M.A.1996 provides:-

“… (3) Notwithstanding section 26 of the Act of 1963 or any other provision of the Local Government (Planning and

Development) Acts, 1963 to 1993, where a waste licence has been granted or is or will be required in relation to

an activity, a planning authority or An Bord Pleanála shall not, in respect of any development comprising or for the

purposes of the activity—

(a) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that

the development would cause environmental pollution, or

(b) decide to grant such permission subject to conditions which are for the purposes of prevention,

limitation, elimination, abatement or reduction of environmental pollution from the activity,

and accordingly—

(i) a planning authority in dealing with an application for a permission or for an approval for any such development shall

not consider any matters relating to the risk of environmental pollution from the activity;

(ii) (ii) An Bord Pleanála shall not consider any appeal made to it against a decision of a planning authority in respect of

such an application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal,

or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the

activity.”

205. A proper consideration of the point must of course acknowledge that the process which the Board was undertaking

here was not one conducted by virtue of the Planning and Development Act 2000, which introduced a new section, 54(3)

(A), which provided that when a waste licence is or might be required, the Board despite the existence of that waste

licence, may, if it thinks the development “unacceptable” on environmental grounds request the Agency to make

observations in relation to the development, and any EIS submitted. The Board may then make its decision on the appeal.

206. The key test in the 2000 Act is whether the Board considers the development “unacceptable”. The current position

in Irish law therefore might allow for consideration of a broader range of issues on an interactive basis between the Board

and the Agency. The test now applicable specifically relates to “emissions” from the “operation” of the activity in

question.

207. However it is necessary to guard against an interpretation of the original 1996 legislation solely through the prism of

the amendments which have now somewhat clarified the position. The question is whether these changes amounted to a

substantive amendment, or whether they were merely a clarification.

208. The Board in turn strongly relies on the positive jurisdiction invested in the Agency on the grant of a licence as

provided for in s. 40(4) of the Waste Management Act 1996. It says the issue fell to be determined by the Agency alone,

and not by the Board. Section 40(4) provides:-

“(4) The Agency shall not grant a waste licence unless it is satisfied that—

(b) the activity concerned, carried on in accordance with such conditions as may be attached to the licence, will

not cause environmental pollution,

(c) the best available technology not entailing excessive costs will be used to prevent or eliminate or, where that

is not practicable, to limit, abate or reduce an emission from the activity concerned…”

209. Pursuant to section 40(1)(A) of the Act of 1996 the Agency was empowered to grant to the applicant a waste

licence subject to or without conditions or to refuse to grant the applicant such a licence. To this end, by virtue of s.

40(2) of the Waste Management Act 1996 the Agency was mandated to:-

“(a) carry out or cause to be carried out such investigations as it deems necessary or as may otherwise be

prescribed for the purposes of such consideration or review,

(b) have regard to—

(i) …

(ii) (I) any environmental impact statement in respect of proposed development comprising or for the

purposes of the waste activity concerned, which is submitted to the Agency under and in accordance

with a requirement of, or made pursuant to, regulations under section 45…”

As well as:-

“(II) any submissions or observations made to the Agency in relation to the environmental impact

statement,

(III) such supplementary information (if any) relating to such statement as may have been furnished to

the Agency by the applicant or licence holder under and in accordance with a requirement of, or made

pursuant to, regulations under section 45…”

210. The Board says that the Agency exercised this statutory jurisdiction in the case of the new landfill liner. Thus it was

ipso facto precluded from dealing with the matter as it related to “an environmental pollution activity” issue, which was a

matter solely for the Agency.

211. Did the national legislation, to be interpreted in the light of the objects of the Directive, in fact grant an exclusive

jurisdiction to the Agency, or were there circumstances in which the exercise of function by the Board and the Agency

might in fact, and should, on occasion, overlap? Duplication of course would only occur if the Board and the Agency

carried out the same statutory function on the same issue from the same statutory environmental perspective. An

“overlap” by contrast would arise if the Board and the Agency in the fulfilment of their respective roles were to impose

conditions on the same general issues in the performance of their respective statutory functions.

212. The respective assignment of roles between the Board and the Agency was effected by article 6 of the European

Communities (Environmental Impact Assessment) Amendment Regulations 1994. Those roles are summarised in O’Connell v.

Environmental Protection Agency [2003] 1 I.R. 530 at p. 547 in the judgment of Fennelly J. O’Connell was a case involving

a sub-threshold development. As is pointed out there the Directives permit the environmental impact assessment to be

carried out or to be conducted by one or more authorities (see O’Connell at p. 541). But the EPA does not have an

independent or free standing role to call for the submission of an EIS. Thus although there is an obligation on the EPA in

certain instances to carry out an EIA it cannot commence this process itself, and can only carry out an EIA where the

application before it had been preceded by a planning permission.

Specific interpretative principles applicable in the case of ambiguity

213. It is necessary then also to recollect further specific principles of interpretation which are to be applied. As Fennelly

J. pointed out in O’Connell v. Environmental Protection Agency [2003] 1 I.R. 530 at p. 553:-

“Irish law implementing Directives should be interpreted in the light of the objectives imposed on the State by the

provisions of the Directives with a view to giving effect to community law. However it is a matter for the Member

State to decide how that result is to be achieved. When applying national law, whether adopted before or after the

Directive, the national court called upon to interpret the law must do so, so far as possible, in the light of the

wording and purpose of the Directive so as to achieve the result which it has in view… It is more natural to

interpret an existing provision of the law, even in the event of ambiguity, so as to make that meaning conform to

community law than to insert a provision into a particular national law so as to give it a meaning it does not

naturally bear.”

214. As will be seen, any issue of interpretation here does not necessitate the insertion of words into national legislation.

However if necessary any ambiguity is to be resolved purposively to ensure that the objects of the Directive are

achieved. That object then, is to ensure that fully compliant assessments are carried out on projects of this nature. The

legislation must be interpreted and applied also so as to give effect to the “unequivocal” obligation. I turn first to the

provisions of national legislation which were relied on in the course of argument.

215. The Board heavily relied on s. 4(3) of the Waste Management Act. This defines “disposal in relation to waste” as

including:-

“any of the activities specified in the Third Schedule and ‘waste disposal’ shall be construed accordingly.”

One might be forgiven for observing this is at least a semi-circular definition, in what has been referred to, more than

once, as the “maze” of enactments in this area.

216. Thirteen categories of activity are identified in the Third Schedule to the Waste Management Act 1996. They range

from treatment, bio-degradation, impoundment, placement into ponds, biological and chemical treatment, storage, release

into the sea bed, blending, re-packaging and storage. As will be seen therefore they are all self evidently activities

engaged in as a method of treating waste. They are the activities carried out to or on waste. The mirror image of the

categories of activity identified in the waste licence is self-evident.

Some of these Third Schedule activities are identified as being inter alia:-

“(1) deposit on, in or under land …”

This was subsequently amended so as to now read:-

“(1) deposit on, in or under land (including landfill)” (article 6(a) EC amendment of Waste Management Act

Regulations 1998 S.I. 166/1998).

The Third Schedule also contains category 5:-

“(5) specially engineered landfill including placement into lined discreet cells which are capped and isolated

from one another and the environment.” (emphasis added).

The word “landfill” is of particular relevance – in particular whether it is, in effect a participle intended to mean “landfilling”

in its broader sense, or whether it is, in Mr. Simons’ phrase, a “verbal noun”. In support of the latter contention, I note

that the French text of relevant part of the Directive (viz. Annexe IIA, para. D5, on which the above-quoted Irish

provision is based) refers to ‘mise en decharge specialement amenagee …’.

217. The Board relies on the broad interpretation. It submits that the waste disposal “activity” which is identified in the

Third Schedule involves by reference to category 5, the “engineering” of “specially engineered landfill”. Thus, it is said

this would include construction of the liner. In turn the Board contends that this waste disposal activity is to be equated

with the definition of “environmental pollution” included as s. 5(1) of the Waste Management Act 1996 viz.:-

“…the holding, transport, recovery or disposal of waste….”

Then the Board says the issue of the engineering of the specially engineered landfill properly falls into the province of the

EPA and could not be dealt with at all by the Board.

218. First, even applying national or common law principles of interpretation it is questionable why one category in the

entire Schedule, among all the activities described which are to be done to waste would, exceptionally, here, involve

what would appear to be preparatory construction work to the cells. A more natural interpretation of the waste disposal

activity in question is to interpret the term “specially engineered landfill including placement into lined discreet cells…”

conjunctively and inclusively as being an activity which is carried out to waste. The waste is therefore “landfilled” or

“placed” into lined discreet cells. I consider that this is a more natural interpretation of the term by reference to the other

categories identified in the same provision.

219. Secondly, it must be emphasised that what is in question here are “waste disposal activities”. They are not simply

“disposal activities”.

220. It is therefore helpful to refer to the definition of “waste” contained in s. 4(1) of the Waste Management Act 1996.

It is defined there as being any substance belonging to sixteen categories of things outlined in the First Schedule to the

Act of 1996. These include:-

“…products, materials, substances and residues…”

But the definition goes further. The products, etc. are defined in the section as being inter alia things which the owner

“discards” or is “required to discard”. It is surely an artificial and strained interpretation of the words to suggest that

“specially engineered landfill…” as interpreted by the Board involves this essentially “construction” phase of the landfill,

when it is specifically identified in the third schedule as being a “waste disposal activity”. The landfill liner is not

“discarded” by any person. Nor is it a thing which a person is “required to discard”. Therefore it is not “waste”. (See

Commune de Mesquer v. Total France S.A. [2008] E.C.R. 4501, para. 38). If it is not waste by definition it cannot come

within the category of being a “waste disposal activity”. All the other activities contained in the schedule are all activities

which are done to the waste itself. These include “incineration” to which more detailed reference is made in Martin. The

term “waste” must be interpreted purposively too, having regard to aims of the Waste Framework Directive. The landfill

liner is not “waste” in the sense of being discarded. To the contrary it is intended to be deployed usefully.

221. Thirdly, even if there were an ambiguity, and I do not think there is, I consider that such ambiguity must be

interpreted purposively in the manner outlined in O’Connell so as to give effect to the object of the Directive. An

interpretation which would allow for a lacuna or the absence of an assessment of a development or any part thereof

which has a significant environmental impact would not be an interpretation giving effect to those objects.

222. Finally, I think there is common sense to the interpretation. The first construction of the landfill liner in the first cell

takes place before there is any waste being disposed of at all. Could it then be said that there is a “waste disposal

activity” in that cell before there is any waste at all? I think not. A similar observation applies to the construction of each

successive cell. The activity relates to the previous cell which is being landfilled.

223. In my view, the Third schedule to the Act, and in particular category 5 should be given a narrow and conjunctive

interpretation which is harmonious with and sympathetic to the objective of the Directive, that is the “unequivocal”

obligation on the competent authority to assess environmental effects.

224. I turn now to decided authority which I think reinforces this necessary interpretation.

Martin v. An Bord Pleanála

225. It will be recollected that the inspector stated that this legal authority to which she referred the Board in her report

centred on the extent to which the division of responsibility between the Board and the EPA adequately gave effect to

the requirements of the Environmental Impact Directive. The inspector stated that the combination of assessments

carried out by the Board and the EPA met the requirements of that Directive. I have already commented on the

questionable validity of this conclusion based on those facts alone.

226. However, I think that her summary presented only part of what was decided by the Supreme Court in Martin. It

omitted a particularly significant issue so far as the deliberations of the Board were concerned.

227. Martin identified a number of highly relevant points in the context of the Directive. First, that an EIA must be carried

out prior to the grant of a development consent, which consent may be granted by an authority or authorities. Second,

such consent may be encompassed by the decisions of the two authorities (the Board and the EPA taken together).

Third, in accordance with the Directive, the jurisdiction of the Board and the EPA can be exercised at different points in

time. But fourth, an essential requirement is that, in the words of the Directive itself, the two authorities must “interact”

to produce a comprehensive assessment of the environmental features of the development.

228. Having considered the terms of s. 54(3) of the Act of 1996, Murray C.J. proceeded to deal with the jurisdictional

limitation between the two bodies. He pointed out at p. 406 of the judgment:-

“…the underlying rationale for such a limitation on the functions of the Board is that as regards developments or

projects which are required to obtain a waste licence from the Environmental Protection Agency (hereafter the

‘EPA’) the risk of ‘environmental pollution from the activity’ is a matter to be assessed by that Agency when

deciding whether to grant such a licence. This division of responsibility for environmental assessment has, as its

purpose, the avoiding of duplicating of functions by the Board and the EPA in the case of such development or

projects. It means that in such a case the Board carries out an EIA for the purposes of the construction element

of the project and the EPA carries out an EIA in respect of the activity that will be carried out in the operation of

the plant to be constructed.”

229. In Martin the development in question was an incinerator waste management facility. It involved a range of

structures housing all the requirements necessary for this activity including furnace, turbine buildings and stack. In order

to proceed with the construction and operation of the facility the applicant was required by national law to obtain

planning permission consent in the first instance from the planning authority, and, in the event of an appeal, from the

Board. As in this case, it was required to obtain a waste licence from the Environmental Protection Agency pursuant to

the provisions of the Waste Management Act 1996. Here also both the planning permission and the waste licence were

necessary for the development. This was so that there should be a coherent planning consent based on an assessment

derived from the assessment processes carried out by the agencies.

230. Here, as in Martin the Board carried out an EIA before it granted planning permission subject to certain conditions.

This was consistent with article 2(1) of the Directive which required that Member States should adopt all measures

necessary to ensure that before planning consent was given projects likely to have significant effects on the environment

were subjected to the requirements for development consent and an assessment with regard to their effects.

231. In Martin no issue was taken with the substance of the EIA carried out by the Board within the ambit of its statutory

competence. However the assessment conducted by the Board did include matters which affected environmental pollution

arising from the construction of the relevant plant. The critical issue is that the Supreme Court pointed out clearly that

environmental pollution arising from the construction of the plant was an issue which fell within the remit of An Bord

Pleanála. Murray C.J. pointed out that the limitation on the Board was that it was simply precluded from considering any

matter relating to “the risk of environmental pollution from the activity” as opposed to construction, that is to say the

EPA was to deal with activity arising from the operation of the waste management facility once it had been constructed.

This reflected the terms of s. 54(3) of the Act of 1996 which precluded the Board from approving, refusing or

conditioning:-

“…any development comprising or for the purposes of the activity…”

identified in a waste licence.

Application of Martin

232. By virtue of the concessions which have been made by the residents at the outset of this case, this court is

procedurally precluded from any further consideration of the transposition of any of the applicable Directives in this case

whether they be the EIA Directives or the landfill Directives. The point which this court is called upon to decide is as to

the application of the Directive by the Board and no other issue.

233. As a matter of precedent in national law this Court is constrained to follow the jurisdictional principles which have

been identified in Martin v. An Bord Pleanála. It is quite clear that the demarcation line identified there is between

environmental pollution derived from the construction of facility (which fell to be dealt with by the Board) as opposed to

environmental pollution generated by the activity of the facility to be dealt with by the Agency.

234. I consider it follows that a question of environmental pollution caused by construction of the facility fell to be dealt

with by the Board. The landfill liner question was a construction issue. The Board failed to deal with it. It was not dealt

with otherwise. Consequently the Board was in breach of its duties under the EIA Directive. It is not the function of this

court to make any more general comment on the nature or degree of interaction between the Board and Agency derived

from the then applicable national law, now amended. The findings must be confined to this case.

235. The logical consequence of this is that the Board should not have been over- respectful of the perceived statutory

remit of the EPA as exercised in the waste licence. Undoubtedly the Agency did deal with “engineering” aspects of the

development. They have been outlined earlier, are contained in the waste licence and in the technical amendment. But

this did not absolve the Board from its duty of interpretation and application of the Act in the light of the Directive, even

if there might, on this occasion, have been an apparent overlap of function. This was a phased development, a concept

by no means unknown in planning law.

236. Put simply, I conclude the Board exercised a misconceived self-denying ordinance, and drew its own jurisdictional line

in the wrong place; that it should have dealt with environmental pollution caused by the construction works; but instead

created a boundary fence to its own jurisdiction to accommodate what it mistakenly saw as a territorial incursion by the

Environmental Protection Agency. As a matter of law, I think the Board could not be precluded from assessing the

environmental impacts of the landfill liner. The contrary was true. This was an issue relating to environmental pollution

which might be caused by the construction of the facility, not its activity. To adopt any other approach or to conflate

“construction” with “operation” or “activity” would do violence to the line of demarcation identified in Martin. To adopt an

interpretation of the national legislation so as to give effect to the Board’s own definition of its role would be to defeat

the objects of the Directive. It would mean that part, at least, of the development had not been preceeded by an EIA

and would thereby be rendered unlawful. (See Commission v. Ireland [2008] E.C.R. 1, “Derrybrien Wind Farm case”

C215/06.) Neither course of action is justified in law.

237. It is unnecessary, for the purposes of this judgment, to consider in further detail what the Board suggests may have

been the “problematic” nature of the power only conferred upon the EPA under s. 42 B (1)(c) of the Waste Management

Act 1996, as inserted by s. 38 of the Protection of the Environment Act 2003, to amend the licence. Even assuming the

so-called “technical amendment” to have been lawfully made, I do not consider s. 41 (2)(a)(v) of the Waste Management

Act 1996, solely, or exclusively, empowered only the EPA to condition the construction of the landfill liner. The Board

relied on that provision of the 1996 Act which states:-

“2. Without prejudice to the generality of section 40 (1)(a), conditions attaching to a waste licence granted under

this power -

(a) shall as appropriate . . . .

(v) specify requirements of a technical nature to be complied with for the purpose of controlling emissions arising

from, or which are the result of an activity concerned including -

(i) requirements relating to the design, construction, provision, operation and maintenance of the

facility concerned or any plant thereof.”

To interpret this provision so as to confer exclusive jurisdiction upon the EPA again has the effect of creating a legislative

lacuna. It had the consequence that the Board either would have no role in relation to matters such as design or

construction, or alternatively, such role as is left to it by the EPA. Potentially, such an interpretation might give rise to a

difficulty because the EPA is not empowered to obtain an EIS itself, but, rather, must carry out an assessment on the

basis of an EIS report which is obtained by the Board. To give effect to the objectives of the Directive, it seems to me

the Act had to be interpreted in a manner which might occasionally have given rise to an apparent overlap, but not

duplication in roles between the Board and the Agency. But it could not permit of any lacuna. Such a position would give

rise to a situation where there would be no assessment of the environmental impact of the landfill liner as it was put

before the inspector and the Board and therefore non-compliance with the objective of the Directive as to development

consent. This would defeat the duties of the State as outlined in the Directive itself and the legal authorities identified

earlier.

238. Making sense of the Irish legislation through the prism of Martin means that at a minimum, a process of

complementarity between the two bodies was required. In a sense, the Board was required to ‘go the extra mile’ to ensure

that this was met. In saying this, I appreciate that the Board and indeed the inspector had a most awkward task of

navigating through Irish law, as it then was.

239. This is not a situation where a mere deficiency in an EIA might be remedied, a position envisaged by McMahon J. in

Klohn v. An Bord Pleanála [2008] I.E.H.C., or in Edwards v. Environment Agency [2008] U.K.H.L. 22.

240. The Board was undoubtedly entitled to remit the updating of the EIA to the oral hearing. It permitted extensive

submissions and cross-examination in respect of the updated information. The jurisdictional deficiency, however, was to

fail to assess the environmental pollution which might be caused by the construction process necessary to install the

landfill liner. This deficiency goes to jurisdiction.

The public participation directive

241. There follows a further logical consequence from the failure of either the Agency or the Board to carry out a

complete lawful Environmental Impact Assessment. This arises from the fact that, insofar as an Environmental Impact

Assessment was necessary, such a process whenever carried out would be predicated upon public participation, in

particular the right of the public to participate in the EIA process.

242. Directive 2003/35/EC (the Public Participation Directive) significantly amends Council Directive 85/337/EEC, (the EIA

Directive). Thus by virtue of article 4 of the latter instrument there are outlined provisions for information provided by the

Environmental Impact Assessment and Public Consultation, full details of which are outlined in that article of the Public

Participation Directive. The intent is to give the public early and effective opportunities to participate in environmental

decision making procedures as defined in the Directive. Article 8 of the 2003 Public Participation Directive includes as one

of the matters to be dealt with in Annex of the EIA Directive:-

“any change to or extension of projects listed in this Annex where such a change or extension in itself meets the

thresholds if any, set out in this Annex.” (emphasis added).

This was a change to the project. It is not in dispute that this landfill site is encompassed in the Annex. The omission

here is a serious one. The Commission v. Ireland [2006] ECR 1-10787 clearly demonstrates that there exists a right of

public participation. The renewed inspector’s hearing allowed for public participation, but there was thereupon no

environmental assessment. Thus there has been non-compliance with this Directive also. (See the judgment of the Court

of Justice in case C66/06 Commission v. Ireland (20th November, 2008) which is of particular relevance as it specifically

dealt with such failure.)

243. I should add Annex II of the Public Participation Directive identifies the list of projects subject to the minimum

requirements of the Directive: these include subcategory 13: “any change or extension … to projects already authorised

and in the process of being executed which may have significant adverse effects on the environment”. I am holding that

this provision is triggered here.

Does this want of jurisdiction give rise to judicial review?

244. It is necessary then to consider whether or not these deficiencies constitute good grounds for relief by way of

judicial review. It is clear that the error here goes to jurisdiction. The Board failed to address itself to the right question.

Section 54(3) properly interpreted should have been the basis of the Board’s jurisdiction to ensure compliance with the

Directive.

245. By virtue of article 10 of the Treaty the court is required to give effect to EC Law, and, here, to give effect to the

EIA Directive. See Martin, and R. (Wells) v. Secretary of State for Transport (Case C-201/02 ).

246. In this context Wells is of particular assistance in that it relates to the consequence of non-compliance with a

Directive requirement.

247. The case concerned an old planning permission for mining in a quarry. It was necessary to apply to the relevant

planning authority for the possibility of the imposition of fresh conditions. The question which arose was whether in the

context of these additional fresh conditions a further EIA was necessary or if it could be argued it was a “pipeline

project”, in other words, one where the original consent of the old planning permission predated the coming into force of

the Directive. Therefore it might be thought that the exercise in terms of any new conditions was simply “filling in” detail

in relation to a valid consent and therefore not necessitating an EIA. It is therefore in some ways analogous to the case

in suit.

248. The European Court of Justice concluded otherwise. It stated that if what was in question was more than the simply

“filling in of details” there was a requirement for a fresh EIA. At para. 64, page 67 of the Report the Court observed:-

“As to that submission, it is clear from settled case-law that under the principle of cooperation in good faith laid

down in article 10EC, the Member States are required to nullify the unlawful consequences of a breach of

Community law.”

I think the true effect of this observation cannot be subsumed by any question of “substantial compliance” or judicial

discretion in the jurisprudence of a national court.

Having referred to Frankovich v. Republic of Italy (Case C-6/90) [1991] E.C.R. the court observed:-

“Such an obligation is owed, within the sphere of its competence, by every organ of the Member State

concerned.”

Thus the obligation to nullify is owed by this Court. In this case, the fact that the switch to a BES liner might have been

more beneficial to the long-term does not obviate the duty of this Court to ensure the correct process was followed in

relation to its construction.

249. The situation in this case was not one where there was a failure to observe “some procedural steps which were

clearly superfluous” in the words of Lord Hoffman in Berkeley v. Secretary of State for Environment [2000] U.K. H.C. 36.

There can be no EIA where there has been no assessment. The consideration of the issues by the inspector lacked that

ultimate sine qua non. It was Hamlet without the prince.

250. In R. (Wells) v. Secretary of State for Transport (Case C-201/02) [2004] 1 C.M.L.R. 31, the Court of Justice referred

to The Commission v. Germany (Case C-431/92 ) [1995] E.C.R. I-2189. It observed then:-

“65. Thus it is for the competent authorities of a Member State to take, within the sphere of their competence, all

the general or particular measures necessary to ensure that projects are examined in order to determine whether

they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an

impact assessment.”

Having referred to the Dutch Kraaijefveld case and the WWF case the court observed:-

“… such particular measures include, subject to the limits laid down by the principle or procedural autonomy of the

Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment

of the environmental effects of the project in question.

66. The Member State is, likewise required to make good any harm caused by the failure to carry out an

environmental impact assessment.

67. The detailed procedural rules applicable 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 than 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).”

251. Thus, discretionary considerations as to whether an assessment would have made a significant difference do not

come into the equation. The EIA, a prerequisite to development consent, simply did not cover the entire development.

This legal issue goes fundamentally to jurisdiction. In failing to address itself to a relevant legal consideration, and in

asking itself incorrect legal questions, the Board manifestly erred in excess of its jurisdiction. The decision was for these

reasons “irrational” in the White sense.

Further comment

252. Judicial review this granted might also arguably be seen from a different perspective which could lead to the same

outcome. The following observations are made obiter dictum.

253. In S.I.A.C. Construction Ltd. v. Mayo County Council [2002] 3 I.R. 148, a public procurement case, Fennelly J. was

at pains to emphasise that within its jurisdiction, the courts would show great deference to planning authorities and to An

Bord Pleanála which have a wide range of discretion. The courts, of course, must not substitute their assessment of the

facts for those of the authority concerned. However, if the relevant decision-maker starts off on the wrong point, or, if

(as in the present case), a decision-maker erroneously concludes that construction impacts were not a matter for it, then

there has been no lawful assessment. There has therefore been a failure lawfully to exercise jurisdiction, now one of the

limbs of the national judicial review tests.

254. In its original formulation the O’Keeffe test might perhaps have been inadequate to address the remedy required. But

the law has evolved. Considerations which might have seemed appropriate even three or four years ago must be seen in

the light of the evolution of national law and Directive requirements, as cited to the courts.

The extent of evolution in the standard of review may be demonstrated by more recent case law. In S.I.A.C. Fennelly J.

pointed out:-

“… [the] common threads that run through any system of review of administrative decisions especially where the

primary decision function is administrative or governmental. The function of the courts is to guarantee legality

though that notion itself has a number of elements, some procedural and some substantive.”

255. S.I.A.C. was, as stated above, a public procurement case. But more recent High Court authorities have pointed out

that the original O’Keeffe test may require reconsideration in the light of article 10(a) of the EIA Directive as now

amended (see Klohn v. An Bord Pleanála [2008] McMahon J. I.E.H.C. 111).

256. Clarke J. in Sweetman v. An Bord Pleanála No. 1 [2007] I.E.H.C. 153 observed that, now, Irish Judicial review law

goes “a long way towards (and indeed may well meet) the requirement for review required by the Public Participation

Directive”. (See also the opinion of Advocate General Kokott in Commission v. Ireland Article 10A, EIA Directive Case C

427/07 which inter alia addresses the specific issue of the scope of national judicial review procedure necessary in order

to permit challenge to the substantive or procedural legality of decisions.)

257. It appears difficult to discern a procedural or substantive difference between the test applied by Fennelly J. in

S.I.A.C. albeit in that context, and the standard of review referred to in article 10(a) of the Directive, that of

“substantive or procedural legality”. Clearly this stops short of any question of an appeal on the merits. (See decision of

Cooke J. in Cairde Chill An Disirt Teoranta v. An Bord Pleanála and Others [2009] I.E.H.C. 76 for a discussion of the effect

of Article 10A). In the case of this waste facility, the manifest error was a matter of law going to jurisdiction. Any further

issue such as the identification of an alternative standard of review such as “anxious scrutiny” does not therefore arise

here. The point is one of clear law.

Remedy

But the foregoing is as I have indicated an observation made obiter. Whatever route is adopted the court is required, in

the words of Wells to “nullify the unlawful consequences of a breach of community law”. The procedure for such

annulment is by way of judicial review quashing the decision of the Board in accordance with White principles.

258. Put in classic judicial review terms the Board asked itself the wrong question in identifying its jurisdiction (White v.

Dublin City Council [2004] 1 I.R. 545). It misdirected itself as to its powers and duties. This led to irrationality. The true

question was: “What are the Board’s duties so as to give effect to the objects of the Directive?”

259. The authority and duty of the courts is therefore derived by the application of national judicial review principles but

formulated so as to give effect to the consequences of the finding under E.C. law, that is to annul the decision.

260. For the reasons outlined, therefore, I consider that judicial review by way of certiorari should be granted on these

grounds also.

Conclusion

261. I will hear counsel on the form and extent of the remedy in the light of the respective findings in Parts I, II, IV and V

of this judgment.