Friday 1 August 2008

Cases against incinerator ordered to proceed

THE SUPREME Court has rejected a bid by local residents to further adjourn their two legal challenges to the proposed hazardous waste incinerator at Ringaskiddy, Co Cork.

The residents wanted the adjournments pending the outcome of a legal action against Ireland in the European Court of Justice (ECJ) by the European Commission based on its view that Ireland failed to transpose properly into Irish law an EC directive relating to the environmental impact assessment of public and private projects, including incinerators.

Among the grounds on which the residents are challenging the proposed €75 million development is that the same EC directive was not properly transposed. The Supreme Court had in another case ruled the directive was properly transposed.

The High Court last May refused to adjourn the residents' cases. The five-judge Supreme Court yesterday dismissed their appeal against that refusal.

The Chief Justice, Mr Justice John Murray, said the residents had failed to establish a substantial risk of conflict between decisions of the Irish courts and the ECJ if the cases went ahead before the ECJ hearing.

The European Commission had announced in October 2007 it was bringing its case against Ireland but no proceedings had yet got under way, he noted.

While the commission appeared in its reasoned opinions to raise the same issues as the residents concerning non-transposition of the directive, the Supreme Court had not seen those opinions or the State's response and did not know the basis on which the ECJ proceedings would be brought, he said.

While the court accepted the commission would probably proceed with its case, it did not know when and there was also a possibility the case might not proceed, he added. It was "somewhat remarkable" the case had not started by now. As of now it was impossible for the Supreme Court to have a considered view about the issues relating to Irish law and the directive.

The Supreme Court also had to take into account that the residents' cases were initiated in 2005 and it was in the interests of the administration of justice, at national and community level, that they were heard and decided with reasonable expedition, he said.

The cases concerned the rights not just of the residents but also An Bord Pleanála, the State and Indaver Ireland.

Mr Justice Murray further noted the residents had raised other issues in their cases outside the directive and said their cases might be determined on those other issues. The residents' claim that they would be deprived of a remedy if their cases proceeded and the ECJ subsequently ruled against Ireland in the EC case, was "speculative". In all the circumstances, the court would not adjourn the cases, he said.

In refusing the adjournments in the High Court, Mr Justice Patrick McCarthy accepted arguments by the State that the High Court was bound at this stage by a Supreme Court decision last year rejecting a challenge by Eric Martin to the development of an incinerator in Co Meath.

In the Martin case, the Supreme Court dismissed claims that the EIA directive was not properly transposed and also refused Mr Martin's request to refer to the ECJ the issue of whether the directive was properly transposed.

The adjournments were sought for a judicial review challenge by several local people to the incinerator development against An Bord Pleanála and the State following the board's decision in January 2004 granting permission to Indaver Ireland to construct the development.

In the second case, the Ringaskiddy and District Residents Association want leave from the court to challenge the Environmental Protection Agency's decision to grant a waste licence for the incinerator.

The Irish Times

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