A High Court judge hopes to rule soon whether to permit An Bord Pleanála to reconsider its permission decision for a €160 million incinerator in Cork harbour or to simply quash its permission for the development, meaning the entire planning process has to restart.
Mr Justice David Barniville heard final submissions today on what orders should be made as a result of his judgment last March upholding a local environmental group challenge to the board's 2018 permission for the incinerator at Ringaskiddy.
The judge had found in favour of Cork Harbour Alliance for a Safe Environment (Chase) on two grounds. He ruled the board’s majority five/two permission was tainted by objective bias because Conall Boland, then deputy chairperson of the board, had previously worked for a firm of consulting engineers engaged by Indaver to make submissions for reviews of waste management plans advanced by Cork County Council and Cork City Council.
The judge was satisfied the work done by Mr Boland in 2004 had a “clear, rational and cogent” connection with Indaver’s 2016 application - its third - for permission for the incinerator and also noted Mr Boland was the presenting member of the board in respect of its consideration of the planning application. Those factors gave rise to a reasonable apprehension of objective bias, he held.
Jurisdiction
The second ground concerned the board’s jurisdiction to consider an application for permission for a Strategic Infrastructure Development (SID) by an applicant who is not the same person as had engaged in pre-planning consultation with the Board.
The judge ruled the applicant for SID permission must be the same person referred to in the relevant provisions as the “prospective applicant” - the person who engaged in the required pre-application consultation procedure with the board. He found Indaver's Belgian arm was the "prospective applicant" but the 2016 planning application was made by Indaver's Irish arm.
Following that judgment, he heard submissions on what orders should be made as a result of his findings.
Having heard final submissions on Friday, he reserved his ruling over whether the matter should be remitted to the board. If he decides in favour of remittal, he will also decide at what point of the planning process the board’s reconsideration should start.
He noted a recent High Court judgment in which Mr Justice Alexander Owens had raised the possibility of adjourning, as an alternative to quashing the board’s permission for a Dublin 4 apartment development, a judicial review challenge over that permission to allow the board address an error identified by the judge in its permission.
Relatively quick decision
Mr Justice Barniville said he would have to carefully consider that judgment and whether it has any significance in relation to his own ruling on the order to be made in the incinerator case.
He hoped to give his decision relatively quickly, he added.
Chase has argued the incinerator permission should be simply quashed. It says that is necessary because the board has not shown any insight into how the court’s findings affect public appreciation of its decision-making.
Indaver Ireland, which has been seeking since 2001 to build the incinerator, and the board, both oppose Chase’s application. They want orders that would see the board reconsider the planning application at a particular stage and in line with the court’s March judgment.
