Madam, – We refer to the case of Usk and District Residents Ltd v An Bord Pleanála and others, concerning the quashing of a grant of planning permission for a landfill at Usk in Co Kildare, (Law Matters, October 26th), and to the articles in your paper following the Oireachtas Committee hearing on the October 28th concerning an Bord Pleanála.
On the July 8th, 2009 Judge McMenamin issued a judgment on the procedures followed by An Board Pleanála, and determined that they were severely flawed, due, among other reasons, to objective bias, and based on the evidence, a failure to take legal advice.
The chairperson of An Bord Pleanála does not accept that there was bias or that there was a failure to take legal advice and stated quite plainly, before the Oireachtas Committee on October 28th, that the judge was wrong.
The judgment is an unappealed High Court judgment, and is a binding ruling on An Bord Pleanála. In the event that there is a fresh application for permission for this development, our objections will be based, among other things, on the judgment of Judge McMenamin.
We are very concerned at our prospect of a fair hearing, or meaningful participation in the planning process, where the chairman of the board has clearly indicated that he does not accept the content of this judgment. – Yours, etc,
PAT HIGGINS,
Chairperson,
Usk and District Residents
Association Ltd,
Usk, Co Kildare.
Irish Times
www.buckplanning.ie
Showing posts with label usk decision. Show all posts
Showing posts with label usk decision. Show all posts
Thursday, 12 November 2009
Friday, 30 October 2009
Courts body takes issue with John O'Connor
THE COURTS Service has taken issue with chairman of An Bord Pleanála John O’Connor’s suggestion that a High Court judge “made a wrong assumption” in a recent case.
A statement from the Courts Service referred to remarks made by Mr O’Connor at a meeting of the Oireachtas environment committee on Wednesday.
The comments related to the case of Usk and District Residents’ Association Ltd versus An Bord Pleanála. Judgment was given on July 8th by Mr Justice John MacMenamin.
“It was suggested that the trial judge made a ‘wrong assumption’ as to whether the board had received legal advice prior to making the decision found to be unlawful because it was objectively biased,” the Courts Service statement said.
“The remarks attributed to the chairman might be interpreted as meaning the judgment had been based on incorrect facts or inferences from the evidence. This is not so.” In the case referred to, the judge concluded that 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. The board’s decision was irrational and in excess of its jurisdiction, and should be quashed, he ruled.
At the Oireachtas committee, which was discussing the An Bord Pleanála annual report, Fine Gael Senator Paudie Coffey told Mr O’Connor the judgment stated “there is no evidence the board moved to obtain legal advice at all prior to embarking on the course of action”.
Mr Coffey said it was clear from the judgment “that there was a problem with regard to the board” and Mr O’Connor responded: “It’s not clear. The judge made a wrong assumption.” The Courts Service statement said the case was heard on affidavit evidence and the court may act only on evidence.
“Had the board wished to put in evidence any matter it considered of assistance to its case, or relevant to its decision it was entirely free to do so. There was no such material before the court – a fact which was accepted at the hearing.” The Courts Service said a comment from an An Bord Pleanála spokesman could lead to misinterpretation.
“The spokesman said the judge had no evidence on ‘the appeal file’ that it had taken legal advice prior to the unlawful decision. In fact there was no evidence in the entire proceedings that the board had either taken legal advice or had referred to it prior to its decision.”
Irish Times
www.buckplanning.ie
A statement from the Courts Service referred to remarks made by Mr O’Connor at a meeting of the Oireachtas environment committee on Wednesday.
The comments related to the case of Usk and District Residents’ Association Ltd versus An Bord Pleanála. Judgment was given on July 8th by Mr Justice John MacMenamin.
“It was suggested that the trial judge made a ‘wrong assumption’ as to whether the board had received legal advice prior to making the decision found to be unlawful because it was objectively biased,” the Courts Service statement said.
“The remarks attributed to the chairman might be interpreted as meaning the judgment had been based on incorrect facts or inferences from the evidence. This is not so.” In the case referred to, the judge concluded that 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. The board’s decision was irrational and in excess of its jurisdiction, and should be quashed, he ruled.
At the Oireachtas committee, which was discussing the An Bord Pleanála annual report, Fine Gael Senator Paudie Coffey told Mr O’Connor the judgment stated “there is no evidence the board moved to obtain legal advice at all prior to embarking on the course of action”.
Mr Coffey said it was clear from the judgment “that there was a problem with regard to the board” and Mr O’Connor responded: “It’s not clear. The judge made a wrong assumption.” The Courts Service statement said the case was heard on affidavit evidence and the court may act only on evidence.
“Had the board wished to put in evidence any matter it considered of assistance to its case, or relevant to its decision it was entirely free to do so. There was no such material before the court – a fact which was accepted at the hearing.” The Courts Service said a comment from an An Bord Pleanála spokesman could lead to misinterpretation.
“The spokesman said the judge had no evidence on ‘the appeal file’ that it had taken legal advice prior to the unlawful decision. In fact there was no evidence in the entire proceedings that the board had either taken legal advice or had referred to it prior to its decision.”
Irish Times
www.buckplanning.ie
Thursday, 29 October 2009
Johnn O'Connor says judge made 'wrong assumption'
THE CHAIRMAN of An Bord Pleanála, John O’Connor, has suggested to an Oireachtas committee that a High Court judge “made a wrong assumption” in a recent case.
Fine Gael Senator Paudie Coffey, a member of the Oireachtas environment committee, quoted Mr Justice John MacMenamin’s remarks in the case of Usk and District Residents’ Association Ltd versus An Bord Pleanála.
The judge concluded that a decision by 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. The board’s decision was irrational and in excess of its jurisdiction, and should be quashed, he ruled.
Senator Coffey said: “The judgment at the end of July stated, and I quote: ‘Remarkably, there is no evidence that the board moved to obtain legal advice at all prior to embarking on the course of action . . . ’
“So it’s clear from that judgment that there was a problem with regard to the board.”
Mr O’Connor said: “It’s not clear. The judge made a wrong assumption.”
Mr Coffey asked Mr O’Connor if he was saying the judge was wrong and Mr O’Connor replied: “He made a wrong assumption.”
A spokesman for An Bord Pleanála later said that although the judge had no evidence on the appeal file that the board had taken legal advice, the board had in fact obtained advice. He said the board had already indicated to the court that it would not be appealing the judgment.
On a separate issue, the committee heard the outstanding amount for An Bord Pleanála’s recoverable legal costs at the end of the financial year 2008 was more than €3.3 million.
Mr O’Connor said the figure of €3,319,416 represented an accumulated outstanding total of costs owed to the board and not written off going back to 1999.
Mr O’Connor said the board was facing a very challenging financial environment in 2009 and 2010, “and costs are being pared to the bone in every part of the organisation”.
Committee member James Bannon of Fine Gael said planning decisions taken in many towns and villages had resulted in very serious social problems.
“Some estates have become slums because of bad planning decisions. I pity some people forced to raise families in such estates,” Mr Bannon said.
Irish Times
www.buckplanning.ie
Fine Gael Senator Paudie Coffey, a member of the Oireachtas environment committee, quoted Mr Justice John MacMenamin’s remarks in the case of Usk and District Residents’ Association Ltd versus An Bord Pleanála.
The judge concluded that a decision by 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. The board’s decision was irrational and in excess of its jurisdiction, and should be quashed, he ruled.
Senator Coffey said: “The judgment at the end of July stated, and I quote: ‘Remarkably, there is no evidence that the board moved to obtain legal advice at all prior to embarking on the course of action . . . ’
“So it’s clear from that judgment that there was a problem with regard to the board.”
Mr O’Connor said: “It’s not clear. The judge made a wrong assumption.”
Mr Coffey asked Mr O’Connor if he was saying the judge was wrong and Mr O’Connor replied: “He made a wrong assumption.”
A spokesman for An Bord Pleanála later said that although the judge had no evidence on the appeal file that the board had taken legal advice, the board had in fact obtained advice. He said the board had already indicated to the court that it would not be appealing the judgment.
On a separate issue, the committee heard the outstanding amount for An Bord Pleanála’s recoverable legal costs at the end of the financial year 2008 was more than €3.3 million.
Mr O’Connor said the figure of €3,319,416 represented an accumulated outstanding total of costs owed to the board and not written off going back to 1999.
Mr O’Connor said the board was facing a very challenging financial environment in 2009 and 2010, “and costs are being pared to the bone in every part of the organisation”.
Committee member James Bannon of Fine Gael said planning decisions taken in many towns and villages had resulted in very serious social problems.
“Some estates have become slums because of bad planning decisions. I pity some people forced to raise families in such estates,” Mr Bannon said.
Irish Times
www.buckplanning.ie
Tuesday, 27 October 2009
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
www.buckplanning.ie
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
www.buckplanning.ie
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