High Court Judge David Barniville has held in favour of CHASE and against the Board of Bord Pleanala in respect of the May 2018 grant of planning to Indaver to build an incinerator in Ringaskiddy, Co Cork. (March 19, 2021)
Judge Barniville, who is head of the Strategic Infrastructure Development list of cases at the High Court, found that the Board had erred legally on two important legal grounds as follows:
Objective Bias Ground
The first is the ‘objective bias’ ground and the judge concluded that the Board’s decision was “affected by objective bias by reason of the prior involvement of one of its members”, Conall Boland, the then deputy chairperson of the Board, in work which he did in 2004 when employed by a firm of consultants who were engaged by Indaver to make submissions to Cork County Council and Cork City Council on reviews to those Councils’ waste management plans.
Judge Barniville was satisfied that the work done by the relevant member of the Board had a “clear, rational and cogent connection” with Indaver’s application to the Board for permission for the development of the waste-to-energy facility at Ringaskiddy.
“Prospective applicant”/jurisdiction ground
The second ground relates to the mismatch between the Indaver entity that sought permission to apply for SID status, and the Indaver entity that then formally applied for SID planning permission.
The judge accepted the CHASE argument that this was not permissible under the relevant legislation and concluded that the correct interpretation of those provisions requires that the person who applies for permission for a SID must be the same entity as the person who is referred to in the statutory provisions as the “prospective applicant”, being the person who has engaged in the required pre-application consultation procedure with the Board.
CHASE Chairperson, Mary O’Leary, welcoming the decision said “This is a huge community win. CHASE and the community of Cork Harbour are delighted with the decision and are grateful to Judge Barniville for hearing this case and reaching this conclusion.
Although the judge still has to make final orders which will determine what happens to this application, this is an enormous day in our 20 year campaign to stop the construction of this incinerator and one that vindicates the effort and the enormous cost on the part of all involved.”
The judge will make final orders in the case after the sides have considered the judgment and has adjourned the matter for mention to April 13.
CHASE will be seeking to have the application quashed.
UPDATE FROM 13 APRIL
No Appeal to Supreme Court
– Bord Pleanala will not appeal the High Court judgement of 19 March.
– This means that the judgement of 19 March, that Bord Pleanala had legally erred on 2 grounds in granting planning. will stand.
– CHASE requested a simple quashing of the application.
– Indaver requested the application be remitted back for reconsideration to An Bord Pleanala.
– An Bord Pleanala requested more time to consider which option they favour.
Judge David Barniville adjourned the case for 2 weeks to give Bord Pleanala time to consider its position and listed the case for mention for 27 April, at which stage he will set a schedule for further hearing as required.
Judicial Review Case Outline: http://chasecorkharbour.com/judicial-review-under-way-and-will-continue-into-next-week/
Bord Pleanala, Decision Granted: May 2018 http://chasecorkharbour.com/permission-has-been-granted/
(Image credit: kieranlynam – Flickr, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=7506105)