Residents’ “legal war of attrition” successfully overturns planning permission for a second time

Many developers focus on answering objectors when trying to ‘win’ a planning permission. They are surprised to learn that one of the key roles in any planning application is to guard against An Bord Pleanála falling, or being led, into error. The tale of Usk Landfill is a salutary lesson.

Greenstar successfully obtained planning permission twice for Usk Landfill and it was successfully taken away twice. The first time that the residents issued court proceedings to challenge the first permission, An Bord Pleanála admitted that the permission could be quashed because the Board (a) had not maintained satisfactory records leading to the decision; and (b) had not properly maintained the public planning file, which was not fully available to the public for certain periods, contrary to law. On the basis of this admission, Mr. Justice Kelly in the High Court sent the application back to the Board to make a fresh decision, suggesting that it would be “prudent” that different members of the Board should be involved in the new decision to avoid any suggestion of bias.

A second oral hearing was held. Once again the Board, going against its Inspector’s recommendation, granted permission (the “2008 permission”). Some of the same Board members were involved in the 2008 decision.

The Usk site is somewhat unusual in that it includes a quarry which was operated by Kilsaran Concrete Ltd, and which is the subject of a High Court site restoration order since 2004. Mr. Justice MacMenamin found many aspects of this case remarkable, including the fact that no restoration had yet taken place, although Greenstar accepted that the site had to be restored to a pristine condition before the landfill construction and operation could begin.

The residents took up arms again and challenged the 2008 permission, also suing the State for allegedly failing to implement certain EU Directives. The main grounds for challenge were: (1) bias because, contrary to the previous High Court recommendations, the same Board members were involved; (2) the EIS did not provide a description of the proposed restoration of the site but the Board should have taken account of the impact of the restoration order; and (3) the Board should have but failed to impose conditions regarding mitigation for noise and dust, and to address risks to water on the Usk marshes.  

Half-way through the Commercial Court hearing before Mr. Justice MacMenamin, the State, which had been defending the attack by the objectors, changed its position to one of challenging the 2008 permission. The State argued that the Board should not have left the assessment of environmental impacts of the new landfill liner to the EPA in the waste licence.

The reasons why the second planning permission was overturned

The Board lost on almost every issue, as follows:

Bias: The Court found that there was an objective bias on the part of four of the six decision makers, as they had participated in making the 2006 decision. An objective observer could only conclude that there had not been an impartial decision process. The fact that “there was a recommendation from an unimpeachably objective source that they should not” involve the same people in the new decision was referred to.

Failure to consider restoration order: On the failure of the Board to consider the impact of the 2004 restoration order, the Court found the Board’s attempt to reconfigure this issue to being a “legal matter”, and not a planning consideration, was incorrect. The environmental baseline line would be altered after the restoration works and this should have been considered because “Sheer common sense would dictate that this would present a real problem in respect of the proposed development” .

No conditions on noise and dust: Mr. Justice MacMenamin also found that the Board acted “irrationally” in the failure to impose any conditions in the 2008 permission on noise and dust, specifically in respect of the impact on nearby houses. The Board had merely included in the 2008 permission that these issues had been “addressed” in the EPA waste licence. The Court held that whilst this was correct, these were also highly relevant planning issues which the Board should have dealt with from a construction point of view.

Failure to consider matters where there was ‘overlap’ with EPA’s competence: As to compliance with the EU directives, the question asked of the Court was not what the Board had done, but what it had failed to do. The issue was whether the Board had ignored the ‘construction’ aspect of the landfill liner in granting its permission. The Board argued that issues of air quality and noise pollution impacts derived from preparation of the liner were matters within the exclusive competence of the EPA and that the Board were precluded from assessing any potential environmental pollution impacts arising from the construction of the liner. The Court held this interpretation was incorrect as issues as to environmental pollution derived from the construction of the facility fell to the Board, as opposed to environmental pollution generated by the activity which were to be dealt with by the EPA. The landfill liner question was a construction issue, which the Board failed to deal with and it was not dealt with otherwise. The Court found that 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…” The Board misdirected itself as to its powers and duties which led to it acting irrationality.

In light of these failings by the Board, Mr. Justice MacMenamin quashed the planning permission granted by the Board in July 2008.

Conclusions  

Usk Landfill highlights that applicants need to exercise vigilance to ensure that the Board correctly deals with issues that are a breeding ground for judicial review in order to avoid unwelcome delays and costs. In the last 18 months three of our clients have faced judicial review for apparent or alleged (and in one case, admitted) errors by the Board. Usk also provides very good guidance on the separation of duties between the Board and the EPA and it will be interesting to see how this guidance becomes reflected in practice. In the words of Mr. Justice Mac Menamin: “a process of complementarity between the two bodies [is] required. In a sense, the Board was required to ‘go the extra mile’ to ensure that this was met.”