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Judicial review under way and will continue into next week.

March 24, 2019 by CHASE

cropped-high-court
CHASE’s legal challenge to the planning permission decision by An Bord Pleanála for an incinerator in Cork Harbour opened in the High Court in Dublin on Tuesday 19 March before Mr Justice David Barniville.   Judge Barniville is in charge of the Strategic Infrastructure Development list of cases at the High Court.

The case is scheduled to continue throughout next week and finish on Friday afternoon, 29 March.   The two week hearing is an exceptional length of time given by the Court to the hearing.

  • Maurice Collins Senior Counsel for CHASE took the Court through the legal grounds for the challenge, beginning his presentation on Tuesday morning and closing shortly after 4.00on Friday, 22nd March.
  • Counsel for An Bord Pleanála and for Indaver will respond on Tuesday, Wednesday and Thursday next.
  • David Holland Senior Counsel for CHASE will then reply on and wrap up the CHASE case on Friday 29th March.

Members and supporters of CHASE have been in attendance at Court No 5 in the Four Courts on each day of the hearing.

The case resumes in the High Court at 11 0’clock on Tuesday.

When the case ends next Friday March 29, it is likely that Mr Justice Barniville will need a period to consider his decision. It is therefore probable that his judgement will not be delivered for some time.

The following is an outline of the grounds as presented to the court at the hearing:

> Objective Bias
The Deputy Chairperson of An Bord Pleanála at the time of the decision to grant permission to Indaver was made (May 2018) had previously worked for a consultancy firm, RPS, before joining the Board in 2007. In 2004 in his work with RPS he prepared written submissions to Cork County Council on behalf of Indaver recommending that the local authority change its waste management plan to incorporate incineration of municipal waste by Indaver at Ringaskiddy.

The Deputy Chair was a participant in the Board’s decision to give planning permission to Indaver on this occasion. Counsel for Chase submitted to the Court that the Deputy Chair should not have taken part.   Mr Collins emphasised the importance the Courts attach to maintaining public confidence in decision making processes generally. He pointed to the high standards the Courts expect of themselves and other public bodies with decision making powers.   He also made it clear that this ground of challenge was not in any sense a personal criticism of the Deputy Chair but rather a legal failure on the part of the Board.

Objective bias arises in circumstances where an independent observer knowing the relevant facts, might think that a decision making process would be unfair. In this way it is different from actual bias or what is legally called ‘subjective’ bias which only arises where the decision maker is shown to be actually biased. Unlike subjective bias, objective bias is not a criticism of the integrity of the decision maker.  The process must look to an independent observer like a fair process form beginning to end. The well known rule that justice must not only be done, it must be seen to be done must be respected.

> False evidence.
Indaver’s planning application included information and predictions about dioxin emissions from the incinerator and their likely impacts on humans and the environment. Under cross examination at the oral hearing by physiologist Dr Gordon Reid and by solicitor Joe Noonan for Chase, Indaver’s consultant acknowledged that incorrect data sets had been given to the Board. In his first Report to the Board, the Inspector said issues arose about the veracity of the data and he noted that it was admitted by the applicant, that some data used in the EIS did not relate to the Ringaskiddy site, but was from another site (Nobber, Co Meath). The Inspector recommended refusal because of this deficiency in the EIS.

The Board invited Indaver to explain the ‘discrepancies’. Indaver then submitted new data sets and amended figures.   Dr Reid critiqued the Indaver response which he found unsatisfactory. As a result the Board gave Indaver a further opportunity to deal with the issue. When Indaver did so, the Board declined to allow any further from the public including Dr Reid.

Counsel for Chase submitted to the Court that this was legally impermissible conduct by the Board as it amounted to a failure to analyse or investigate facts as required by the EIA and Habitats Directive.

> Unsuitability of Site.
Indaver bought the site in 2000 when Irish ISPAT the previous owner collapsed. They applied to Cork County Council for planning permission in 2001 and were refused. They appealed to An Bord Pleanála. A 13 day oral hearing took place in October 2003 after which Senior Board Inspector Philip Jones recommended refusal on fourteen grounds. One of these grounds was the complete unsuitability of the site. The Board allowed Indaver’s appeal and granted permission.   This decision was immediately challenged by way of judicial review on behalf of Chase in the High Court. By the time the case came on for trial the five year planning permission was due to expire so it was unnecessary to hold a hearing.

Indaver applied again in 2008 this time directly to the Board bypassing Cork County Council using new laws favouring strategic infrastructure development.

After another lengthy oral hearing, Senior Inspector Yucel-Finn recommended refusal. One of her main grounds was the unsuitability of the site. The Board refused permission.   Indaver launched a High Court challenge against the refusal. They were opposed by the Board and by Chase.   Two days before the case was listed for hearing, Indaver said they were withdrawing the challenge. In view of their conduct the High Court found that they had abused the process of the Court and directed them to pay a contribution towards costs incurred by the Board and by the Chase.

Senior Inspector Daly conducted the 2016 oral hearing into the present application. Having heard all the evidence over 17 days, he reported that the site was completely unsuitable.   He set out his reasons in his first Report.   The Board declined to accept Mr Daly’s finding that the site was unsuitable.   They declared that it was suitable.   They gave no reasons for forming this opinion or for disagreeing with Mr Daly’s detailed analysis.

On Friday, Counsel for Chase took the Court carefully through this history including the relevant sections of the three Inspectors’ reports.   Mr Collins submitted to the Court that the Board’s failure to give reasons amounted to a serious legal error under Irish and European law.

> Breach of EU LAW.
Solicitors for Chase had analysed the Board’s papers and records prior to the commencement of the legal challenge. They had found records indicating that the Board had made its decision to give planning permission before it had carried out the necessary environmental impact assessment and Habitats Directive assessment of the project.   Under EU law those two important assessments must be completed before a decision is made on a planning application.   It is important to understand environmental impacts before coming to a planning decision.   Similarly it is necessary to know about impacts on protected habitats and species in advance of giving planning permission.

Mr Collins submitted that this was a breach of EU law and that the decision of the Board was therefore unlawful.

> AMONG Other issues raised on behalf of Chase were the way in which the Board dealt with contradictions concerning the identity of the company seeking permission; expert evidence on health impacts; geology, coastal erosion; flood risk; emission control weaknesses and limitations of emission monitoring technology.

 

 

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Filed Under: An Bord Pleanala, High Court, News

Oral Hearing 2016 headlines

  • Serious dioxin figure irregularities exposed as Hearing comes to close
  • No measuring of nanoparticles – not practical, Indaver tell hearing
  • Indaver facility will carry strategic implications for the State – Indaver offer to shut down for Department when needed
  • Indaver to abandon fire fighting after just 2 hours
  • Final Submissions today, questions next week
  • Indaver selective quotation omits that incinerators likely to cause premature deaths
  • 13 year old Cobh student calls for baseline health study for Harbour
  • “There is no risk assessment” – says top Epidemiologist Anthony Staines
  • No safe level of exposure to tiny particulates, says toxico pathologist
  • Royal flush as all TD’s unite to protect the new era for Cork Harbour
  • Ringaskiddy incinerator live plume plot launched
  • Statement from Department of Defence
  • Human Health needs the same standard as protected species: CHASE Opening Statement
  • Indaver experts confirm: High Tide is now inside the site boundary. No separate Health Impact Assessment
  • Packed hearing opens at Carrigaline Court Hotel
  • Full CHASE Submission to An Bord Pleanala

TIMELINE Donate - GO FUND ME


Live animation of today's plume. (With thanks to Plume Plotter)

TIMELINE

20 years of key dates from when the first planning application was lodged with Cork County Council in November 2001.  VIEW TIMELINE.

ABOUT CHASE

CHASE is an alliance of groups campaigning since 2001 to stop the construction of a large 240,000 tonne commercial incinerator in Cork Harbour. The third application from Indaver Ireland was lodged … Read More...

Video Gallery

Softday – As I Roved Out One Morning from Sirius Arts Centre on Vimeo.

Prev 1 of 1 Next
  • A Community Fighting

    A Community Fighting

    This short film marks the 20 year campaign sparked by the news that a Belgian waste company, Indaver had arrived armed with plans to build a large hazardous waste incinerator at the end of a then undeveloped cul-de-sac in Ringaskiddy, the industrial heartland of Cork.

    As news percolated around Cork Harbour, concern and opposition, evident from the outset, consolidated, galvanised and continued to go from strength to strength over the course of the years that saw a community stuck in a battle that they didn’t invite.

    The campaign, at the time of publication, is still ongoing and can be followed online at www.chasecorkharbour.com
  • Dr Paul Connett, Jeremy Irons, Prof Vyvyan Howard - Burning our waste must be abandoned

    Dr Paul Connett, Jeremy Irons, Prof Vyvyan Howard - Burning our waste must be abandoned

    Dr Paul Connett, Actor & Environmentalist Jeremy Irons and Prof Vyvyan Howard outline why burning our waste is a bad idea that needs to be abandoned.

    We’ve been fighting the same fight in Cork Harbour for over 19 years now and as yet another Government talks about formation we appeal to our politicians to make sure that this burning issue is given a place in current discussions.

    Burning our waste is a bad deal for communities and the environment everywhere.

    (Thanks to Steve Slade and Byron West from SkyTec Ireland for filming and to Zoe Fitzpatrick for filming and editing this video)
  • It's a Cork Problem!

    It's a Cork Problem!

    Pure Cork Sailor, Eddie English talks about what is so special about Cork Harbour and Hendrick Verwey highlights how the Pure Cork strategic branding initiative from Cork City & Cork County Council promotes Cork as a maritime haven, with Cork Harbour as 'king pin' to this initiative. With thanks to Matt Sullivan Self Shooting Producer/Director for producing this video for CHASE.
  • Cross women

    Cross women

    The People of Cross Haven stand united against the proposed incinerator being built in Cork Harbour.
  • The Crosshaven Resistance 3

    The Crosshaven Resistance 3

  • May 8  No 4

    May 8 No 4

    Tide
  • May 8 no 3

    May 8 no 3

    Tide
  • May 8 Tide

    May 8 Tide

    Clear coastal erosion
  • Indaver site 8 May 2016

    Indaver site 8 May 2016

    'Beach'
  • CIT Student Union President speaking in Incinerator Protest

    CIT Student Union President speaking in Incinerator Protest

    CIT Student Union President Shane Falvey speaking on behalf of members of NMCI student body, at rally in Ringaskiddy 3 March 2016, to protest Indavers Plans to build a 240,000 municipal and industrial waste incinerator just 20m from the College gates
Prev 1 of 1 Next

ORAL HEARING 2016 NEWS

  • Serious dioxin figure irregularities exposed as Hearing comes to close
  • No measuring of nanoparticles – not practical, Indaver tell hearing
  • Indaver facility will carry strategic implications for the State – Indaver offer to shut down for Department when needed
  • Indaver to abandon fire fighting after just 2 hours
  • Final Submissions today, questions next week
  • Indaver selective quotation omits that incinerators likely to cause premature deaths
  • 13 year old Cobh student calls for baseline health study for Harbour
  • “There is no risk assessment” – says top Epidemiologist Anthony Staines
  • No safe level of exposure to tiny particulates, says toxico pathologist
  • Royal flush as all TD’s unite to protect the new era for Cork Harbour
  • Ringaskiddy incinerator live plume plot launched
  • Statement from Department of Defence
  • Human Health needs the same standard as protected species: CHASE Opening Statement
  • Indaver experts confirm: High Tide is now inside the site boundary. No separate Health Impact Assessment
  • Packed hearing opens at Carrigaline Court Hotel
  • Full CHASE Submission to An Bord Pleanala

ORAL HEARING DIARY, from Catriona Reid

A day by day account of the oral hearing experience from Catriona Reid, who was 16 years old at the time and has since published an account in book form. READ DIARY

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