Objective bias found in ruling by An Bord Pleanála

Objective bias found in ruling by An Bord Pleanála

Usk and District Residents Association Ltd -v- An Bord Pleanála Ors

High Court

Judgment was given on July 8th, 2009 by Mr Justice John MacMenamin.

Judgment

A decision of An Bord Pleanála to grant planning permission for an engineered landfill would give rise to a reasonable apprehension that there had not been an impartial decision-making process, was “irrational” and in excess of the board’s jurisdiction, and should be quashed

Background

The “legal war of attrition” in this case included an initial refusal of planning permission by Kildare County Council and a successful appeal to An Bord Pleanála in July 2006, although the board’s inspector had recommended against granting the permission; a 2004 High Court decision from Mr Justice John Quirke that the owners of much of the land intended for the landfill at Usk, Co Kildare, should restore it as far as possible to agricultural use; and a judgment by Mr Justice Peter Kelly in March 2007 quashing the decision of An Bord Pleanála granting planning permission for the development of the landfill. He remitted it back to the board for reconsideration.

On July 30th, 2008, An Bord Pleanála again granted permission to Greenstar for the development and operation of an engineered residential landfill, intended to receive annually 200,000 tonnes of waste.

The waste facility was intended to cover 19.3 hectares, with the footprint of the landfill itself 12.5 hectares.

The residents’ association sought an order quashing the decision on a number of grounds, including a claim of objective bias or want of fair procedures; a failure to address the non- implementation of a previous order of the court that remediation works be carried out prior to the institution of the development; a failure to address relevant environmental considerations and an allegation that the board unlawfully failed to comply with the EC environmental directive.

The 2004 High Court order on the restoration of the land was never implemented and the expert specified in the order has not yet been appointed.

In his 2007 judgment Mr Justice Kelly said that he would confine himself to facts and findings necessary to support an order of certiorari .

In his judgment, he said he was making a number of recommendations that would minimise the risk of further judicial review.

These recommendations included that, when the matter was remitted to the board, it be considered only by board members who had not heard the previous appeal.

He strongly recommended that the oral hearing be reopened and that it be conducted by members who had not been involved in the previous appeal.

In fact, what occurred was that four of the board members, who had participated in the 2006 decision, considered and unanimously granted the 2008 application to the board.

This led to the applicants seeking the quashing of the decision on the grounds of perceived bias.

Mr Justice MacMenamin said: “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.”

He outlined the sequence of events leading to the second decision.

These included the fact that the inspector again recommended refusal of planning permission.

The chairman of the board wrote a memorandum on the hearing, in which he said that there was “established practice” that the chairman and deputy chairman be involved in the decision, adding: “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 therefore agreed that a meeting be convened of all available board members, including those who had participated in the previous decision.

Mr Justice MacMenamin drew attention to the curricula vitae of five members of the board excluded from the ultimate decision.

“They do not demonstrate any want of qualification on the part of the five members not so involved,” he said. “To the contrary, I think they demonstrate a high level of expertise in the planning and environmental area.”

There was no statutory rationale or objective justification for specific categories of decision- making being dealt with by any particular board members, he said.

In fact there were alternative board members available to hear the case, he said, yet four of the board members who had made the decision in 2006 chose or were assigned to make it again in 2008. “The logic of the board’s reasoning here is unfathomable.”

The board denied that the planning permission granted in 2008 was identical to that granted in 2006.

Mr Justice MacMenamin compared the two and concluded: “An objective observer would have little difficulty in seeing the symbiotic relationship between the two. I am constrained to conclude that the 2006 was used as a template for that made in 2008,” he said.

Decision

Mr Justice MacMenamin said there were 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 the reasonable objective observer would apprehend that there had not been an impartial decision-making process,” he said.

He also said that it was unclear how the entire waste facility permission was to be reconcilable with the 2004 order that the site should be restored, as far as possible, to agricultural use.

For these reasons, he considered that the residents were entitled to judicial review of the board’s decision.

He also considered other issues, including environmental mitigation measures, changes in the proposed landfill liner and complying with an EU directive.

He said that in relation to the directive, the board asked itself the wrong question in identifying its jurisdiction. “It misdirected itself as to its powers and duties. This led to irrationality.”

That authority and duty of the court was formulated to give effect to the consequences of the finding under EC law, that is, to annul the decision.

He granted an order of certiorari quashing the board’s decision on these grounds also.

The full judgment is on www.courts.ie

Paul O’Higgins SC and Oisín Collins BL, instructed by Donal Reilly Collins, for the applicants; Nuala Butler SC and Niamh Hyland BL, instructed by Barry Doyle and Co, for the respondents.

Irish Times

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