1. Dublin
County Council (now sub-divided into several independent local authorities)
applied in 1992 to Kildare County Council for planning permission relating to
the creation of a huge municipal dump for baled waste of sixty-four hectares at
Arthurstown, County Kildare which is 1.6 km from the village of Kill. If it
comes into being, it will be by far the largest municipal dump in Ireland and
will receive approximately five million tonnes of municipal refuse from the
city and county of Dublin over a ten year period. Some idea of the size of the
proposed project is derived from the fact that heavy vehicle movements to and
from the site are likely to be in the order of one every three minutes for six
days each week for not less than ten years from commencement. The lands
comprise a former Roadstone sand and gravel quarry and an adjacent smaller
quarry or dump formerly owned by Mr T Gavin. The site originally comprised a
large hill which was excavated over many years together with other adjoining
lands. Roadstone which worked fifty-two hectares estimate that six to seven
million tonnes of sand and gravel were extracted from 1947 until they ceased
operations in 1980 when their quarry was worked out. Sand and gravel in the
Arthurstown area are classified as a Zone 3 acquifer and ground water is
extracted for use in farms and residential properties in the area. Lands in the
vicinity of the site comprise agricultural holdings and there are two stud
farms on its border. Gavin's land was used for some time as an unauthorised
dump for toxic waste which remains a source of contamination of some ground
water. The Roadstone lands were the subject of a previous planning permission
for a thirty-two acre baled waste landfill, granted by An Bord Pleanala in 1986
to Rent-a-Bin (Tullamore) Limited. However no development has taken place and
the permission expired in 1991.
The
application by Dublin County Council and an Environmental Impact Statement
(EIS) relating to the proposed dump were lodged with Kildare County Council in
July, 1992. Ultimately, the latter authority refused planning permission on 29
July, 1993 for twenty-nine stated reasons. The proposed developer brought an
appeal to An Bord Pleanala (the Board) dated 27 August, 1993. An oral hearing
was directed by the latter and was conducted by Mr Padraig Thornton, a senior
planning inspector, on behalf of the Board. There was a lengthy hearing of
twenty days from 18 January to 16 February, 1994. Sixty-eight witnesses gave
evidence. Mr Thornton's report is dated 1 July, 1994. He recommended the Board
to refuse permission for the proposed dump. However, it decided not to accept
his advice and granted planning permission on 29 July, 1994, subject to
twenty-six conditions. The applicant, on his own account and on behalf of Kill
Residents Group, issued and served on all concerned a motion for judicial
review dated 27 September 1994 together with a statement grounding the
application and his verifying affidavit, all of that date. It is not in dispute
that these documents were duly served within the statutory limitation period of
two months from the date when planning permission was granted by the Board.
However, further affidavits were filed and served in support of the applicant's
motion, ie two were sworn by Ms Suzanne O'Sullivan, a consultant
hydrogeologist, dated 7 December, 1994 and 24 June, 1995 respectively, together
with a supplementary affidavit sworn by the applicant dated 8 December, 1994.
It is submitted on behalf of the Board, inter alia, that the latter affidavits
have introduced new grounds in support of the applicant's motion which were not
referred to in the documentation served on his behalf within the statutory time
limit and which could not reasonably be inferred or implied from any of the
documentation originally filed in support of the motion.
The
application for liberty to proceed for judicial review was made to Carroll J.
She reserved her decision and delivered a formal judgment on 24 January, 1995.
The learned judge has referred in her judgment to the relevant statutory
provisions relating to an application for judicial review of a decision of the
Board and I do not propose to set out all of them again herein.
Carroll
J summarised the judicial function in adjudicating on such an application as
follows:-
"What
I have to consider is whether any of the grounds advanced by the appellant are
substantial grounds for contending that the Board's decision was invalid. In
order for a ground to be substantial it must be reasonable, it must be
arguable, it must be weighty. It must not be trivial or tenuous. However, I am
not concerned with trying to ascertain what the eventual result would be. I
believe I should go no further than satisfy myself that the grounds are
'substantial' . . . I draw a distinction between the grounds and the various
arguments put forward in support of those grounds. I do not think I should
evaluate each argument and say whether I consider it is sound or not. If I
consider a ground as such, to be substantial, I do not also have to say that
the applicant is confined in his arguments at the next stage to those which I
believe may have some merit."
The
grounds on which the applicant sought relief were stated by Carroll J to be:-
"(a)
The EIS accompanying the application for planning permission is defective and
fails to comply with the statutory requirements.
(b)
The newspaper advertisement as published and on foot of which Dublin County
Council advertised its intention to make application for planning permission,
is defective and fails to comply with the statutory requirements.
(c)
[This ground was not pursued.]
(d)
The purported decision of the respondent under reference PL09.091910 Planning
Register No 92/942 insofar as it purports to impose conditions inter alia
conditions No 3, 13, 17, 18, 20 and 22 (9 and 19 having been dropped) and which
are directed to be matters for agreement as between Dublin County Council, the
applicant for planning permission and Kildare County Council as the planning
authority are such as constitute an abdication of responsibility of the
respondent, [in] consequence of which no valid or proper determination has been
made by the respondent on foot of the Appeal and such decision as purports to
have issued is null and void and of no effect.
(e)
The respondent failed to determine all matters essential to the proper planning
and development of the area and has abdicated such further responsibility as a
consequence of which there has been no true or proper determination on foot of
the application.
(f)
The respondent acted ultra vires in reaching a conclusion that no reasonable
planning authority applying appropriate standards of reason and common sense
and having due regard for proper planning and development considerations [would
reach] and insofar as the respondent has reached the decision to grant
permission under reference No PL09.091910, the respondent has acted contrary to
the weight of the evidence as adduced and such decision is manifestly
unreasonable and without justification. (This ground is limited to the
conditions relating to traffic only).
(g)
The respondent, in purporting to refer conditions 3, 7, 13, 17, 18, 20 and 22
(9 and 19 having been dropped) for agreement as between the planning authority,
Kildare County Council, and the applicant for planning permission. Dublin
County Council, without the involvement of the respondent or an independent
body nominated by the respondent has wrongfully delegated its powers in
consequence of which the purported decision under reference No PL09.091910 is
ultra vires the powers of the respondent."
Carroll
J considered the arguments advanced on behalf of the applicant in support of
his case that the grounds relied upon by him are of sufficient substance and
weight to entitle him to an order giving liberty to proceed with his
application for judicial review. The learned judge also reviewed relevant
authorities and decided to grant leave to the applicant to proceed for judicial
review on grounds (a), (b), (d), (e), (f) and (g) with the deletion of the
reference to conditions 9 and 19 in grounds (d) and (g) and the confinement of
ground (f) to the conditions relating to traffic. As to the objection taken on
behalf of the Board and the developer to the introduction of alleged grounds
not contained in or reasonably implied from the documentation served on behalf
of the applicant within the statutory time limit; Carroll J concluded that that
matter ought to be left over for decision at the substantive hearing.
THE
ISSUES
1(a)
The effect of the statutory time limited.
(b)
Were additional grounds introduced by Ms O'Sullivan in her affidavits and/or by
the applicant in his supplementary affidavit which were not stated in or
reasonably derived or inferred from the documentation filed on behalf of the
applicant within time?
The
conditions imposed by the Board in its planning permission which were
challenged by the applicant in the documentation served within the statutory
time limit are conditions 3, 7, 9, 13, 17, 18, 19, 20 and 22 -- see paragraph
3(2) of the statement grounding the application for judicial review.
(Conditions 9 and 19 were not proceeded with and were excluded by Carroll J).
As already stated, it is submitted on behalf of the Board that further grounds
are raised in Ms O'Sullivan's affidavits and in the supplementary affidavit
sworn by the applicant -- all of which came into being long after the statutory
time limit had expired. In Ms O'Sullivan affidavit of 7 December, 1994, she
introduced a criticism of condition 10 attached to the Board's permission. She
contended that it entailed the removal of approximately four million tonnes of
sand and gravel which would deepen and enlarge the capacity of the proposed
dump and would interfere with the acquifer which serves a number of third party
properties in the vicinity of the site. She averred that this was not referred
to in the original EIS and that a supplementary statement in that regard should
have been furnished for consideration by the Board and interested parties
before any such condition was introduced. In his supplementary affidavit the
applicant dealt with that point and also a different aspect of the same
problem. He attacked condition 22 on the basis that the Board had not taken
into account substantial additional traffic movements relating to extra user
which he submitted would be generated by the mandatory removal from the site of
circa four million tonnes of sand and gravel pursuant to condition 10.
The
applicant also introduced in his supplemental affidavit a criticism not
previously made that condition 23 did not specifically specify that the sum of
£800,000 to be paid by the developer to Kildare County Council should be
spent on improving the Arthurstown/Turf Bog Lane road which in all probability
would be the only service route for the dump; nor did it specify that such
improvements were to be made as a condition precedent to the opening of the
dump.
There
is no doubt that the foregoing points raise substantial grounds touching upon
the validity of the planning permission for the dump. However, it is not open
to the court to consider them if the Board is correct in its submission that
they were not notified to it and all other parties within the statutory time
limit.
It
is provided by Section 82(3B) of the Local Government (Planning and
Development) Act, 1963 (as amended by Section 90(3) of the Local Government
(Planning and Development) Act, 1992) that an application for leave to apply
for judicial review under Order 84 of the RSC regarding a decision of the Board
on an appeal shall "be made within the period of two months commencing on the
date on which the decision is given" (see Section 82(3B)(a)(i) of The Local
Government Planning and Development Act 1963). It is provided that any such
application shall be made "by motion on notice (grounded in the manner
specified in [Order 84] in respect of an ex parte motion for leave)". The
relevant rule in the RSC is Order 84 Rule 20(2) under which the applicant's
motion shall be grounded on a notice containing certain specified information
which includes "the relief sought and the grounds upon which it is sought". It
is also provided that there shall be an affidavit verifying the facts relied on.
The
foregoing provisions were considered by the Supreme Court in Enterprises
Limited v An Bord Pleanala and Others [1994] 2 ILRM 1. The judgment of Finlay
CJ contains the following analysis of the statutory provisions:-
"The
general scheme of the sub-section now inserted by the Local Government
(Planning and Development) Act of 1992 is very firmly and strictly to confine
the possibility of judicial review in challenging or impugning a planning
decision either by a planning authority or by An Bord Pleanala. The time limit
which has already been mentioned is indicated as being a very short time limit
and it is an absolute prohibition against proceeding outside it with no
discretion vested in the court to extend the time . . .
From
these provisions, it is clear that the intention of the legislature was greatly
to confine the opportunity of persons to impugn by way of judicial review
decisions made by the planning authorities and in particular one must assume
that it was intended that a person who has obtained a planning permission
should at a very short interval after the date of such decision in the absence
of a judicial review be entirely legally protected against subsequent challenge
to the decision that was made and therefore presumably left in a position to
act with safety upon the basis of that decision . . .
In
the case of a motion on notice which is what is provided for in this
sub-section, I am quite satisfied that it could not be said to have been made
under any circumstances until notice of it had been given to the parties
concerned. Such a construction of the phrase 'application made by motion on
notice' seems to me entirely consistent with the plain objects of this
sub-section and with its other provisions. The vital and important thing is
that within the very sharply limited time scale the parties concerned, and it
would seem to me very particularly the person who had received the decision
permitting him to develop, must be made aware of the challenge which it is
sought to bring by way of judicial review to the validity of that decision."
It
is argued on behalf of the Board that one can only be aware of the challenge
which it is sought to bring within the two month time limit if the challenge or
challenges in question are notified to the relevant parties within that period.
It was further submitted that the applicant cannot expand the grounds of
challenge beyond the statutory time limit; that this is the logical consequence
of the KSK decision and has been expressly so held in a subsequent judgment by
Murphy J in Keane v An Bord Pleanala and the Commissioners of Irish Lights
delivered ex-tempore on 4 October, 1995. Murphy J held:-
"It
seems to me that the application cannot be allowed or admitted. In the first
place, the legislation requires that an application for judicial review of what
might loosely be termed planning matters must be brought within two months.
This is an extraordinarily brief time limit within which to bring the
proceeding but to permit an amendment at a later stage, however well founded
the new ground might appear to be, seems to me to be impermissible. I think
counsel for the applicants might concede that this is so although in certain
circumstances might challenge the constitutionality of such a provision. But
accept the argument made on behalf of the respondent that to add any new
grounds after the two month time period is impermissible."
Neither
of the foregoing challenges were made in the applicant's "within time"
documentation. His argument that he is not precluded from relying on the points
made by Ms O'Sullivan and by him out of time as to conditions 10, 22 and 23 is
twofold. First, he relies on ground (e) in the Grounds of Objection served
within time to cover the matters raised in the affidavits sworn and served
after the time limit had expired and to a lesser extent on grounds (a) and (f).
They are as follows:-
"(e)
The respondent failed to determine all matters essential to the proper planning
and development of the area and has abdicated such further responsibility as a
consequence of which there has been no true or proper determination on foot of
the application."
"(a)
The EIS . . . is defective and fails to comply with the statutory requirements."
"(f)
. . . the respondent acted contrary to the weight of the evidence as adduced
and such decision [to grant permission for the dump] is manifestly unreasonable
and without justification." [This ground was limited by Carroll J to conditions
relating to the traffic only.]
Secondly,
the applicant interprets the judgment of the Supreme Court in KSK as going no
further than requiring that the beneficiary of a planning permission shall know
within a short and strict time limit whether or not a legal challenge is being
made to the proposed development. He contends that the Supreme Court did not
lay down, nor is it contained in Section 82(3A) of the 1963 Planning Act as
amended, that once the challenge has been initiated and communicated to all
concerned within the required time limit, that the ordinary principles of
processing the application do not apply. It was submitted that Section 82(3A)
is concerned with ensuring that a legal challenge is initiated and communicated
within a particular time and in a particular manner. It is not concerned with
limiting the grounds of that challenge except only to require that they be
substantial, and that additional grounds of challenge not previously notified
may be introduced after the expiration of the statutory time limit, provided
that the judicial review proceedings challenging the planning permission
granted by the Board was duly initiated and served within time.
I
do not think that these submissions are well-founded. Order 84, rule 20(2)
requires that the Applicant must specify "the relief sought and the grounds on
which it is sought". In conjunction with the statutory requirements regarding
the time limit already referred to, this clearly means not only that he must
initiate proceedings and specify the relief claimed within the two month time
limit, but when so doing, he must also specify the grounds on which relief is
sought. In short, the developer was entitled to know within the required period
that its planning permission was being challenged and also the specific grounds
on which the challenge was based. Ground (e) is a broad, general "catch-all"
plea which tells the developer little or nothing as to the actual nature and
basis for the challenge and what it should do to meet the case which will be
presented against it on judicial review. Ground (a) is also too wide and ought
to have specified in what respects the EIS was alleged to be defective and/or
failed to comply with statutory requirements. The applicant is not entitled to
rely on a general complaint about the EIS as an umbrella to justify subsequent
specific allegations not notified as grounds within time. As to ground (f);
this raises a fundamental argument that the Board's decision in granting
permission was irrational and therefore void. However, the allegation of
irrationality as formulated in ground (f), which is confined to traffic only,
is in general terms and lacks specifics. In my view it does not comply with the
statutory requirements as to notification of grounds of objection within time.
The nature of the irrationality alleged ought to have been specified in the
grounds of objection submitted by the applicant within the two month limitation
period. As he did not do so, he cannot rely on that ground either to sustain
grounds subsequently introduced out of time. In my opinion, the grounds of
objection should also have drawn the developer's attention specifically to the
alleged absence of an EIS in support of condition 10; alleged failure to
consider the enlarged capacity of the dump occasioned by compliance with that
provision; the effect on neighbouring property of removing the acquifer and the
alleged effect of substantial additional traffic in consequence of that
condition and also the absence of an EIS in that regard. At the judicial review
hearing these matters formed the basis for far-reaching submissions made on
behalf of the applicant of which the developer had no warning within time. The
challenge to condition 23 and condition 22 (as to volume of traffic) was even
more far-reaching as it involved a contention that it amounted to irrational
crucial decisions by the Board (within the concept of the Stardust and O'Keeffe
judgments of the Supreme Court) (State (Keegan) v Stardust Victims Compensation
Tribunal [1986] IR 642 O'Keefe v An Bord Pleanala [1992] ILRM 237) the alleged
effect of which was to render the purported planning permission null and void.
The grounds of objection ought to have specifically referred to condition 23
and the allegations that the Board had failed to provide that the required
payment of £800,000 by the developer to Kildare County Council was for the
improvement of the Arthurstown/Turf Bog road and that such works should be
completed as a condition precedent to the opening of the dump.
The
applicant's interpretation of the judgment of the Supreme Court in KSK is
contrary to the dictum of Finlay CJ where he stated that:
"the
vital and important thing is that within the very sharply limited time scale,
the parties concerned . . . very particularly the person who had received the
decision . . . must be made aware of the challenge which it is sought to bring
by way of judicial review . . ."
This
clearly implies that the obligation on the applicant includes not merely
informing the developer within time that his planning permission is being
challenged, but also within the requisite time scale making him aware of the
specific grounds for the proposed challenge so that he may know the case he has
to meet. The applicant is not precluded from introducing evidence after
expiration of the two month limitation period in further support or
amplification of the grounds of objection he relies on; provided that such
grounds are specified in his original documentation which has been served on
all relevant parties within time. It should be emphasised however, that the
applicant's statutory obligation regarding appropriate notice to the developer
within time, extends only to his grounds for challenging the planning
permission. Apart from service of an affidavit verifying such grounds, he has
no obligation to furnish any other information within the limitation period as
to evidence or arguments in support of the case he proposes to make on judicial
review.
In
my opinion, the Board's submission is well founded that the applicant's grounds
of objection relating to conditions 10, 22 (insofar as it relates to additional
traffic allegedly generated by condition 10) and 23 were first introduced out
of time and cannot reasonably be inferred from the applicant's "within time"
documentation. It follows that these grounds cannot be relied on in support of
his application for judicial review.
(c)
Other grounds which the respondent alleges are out of time.
In
addition to grounds relating to conditions 10, 22 and 23 to which I have
referred, the respondent also contests the right of the applicant to proceed
with his challenge to conditions 11, 12 and 14 in the planning permission on
the basis that, as in the other cases, the applicant did not specify the
grounds for his attack on these conditions in his "within time" documentation.
They are as follows:-
Condition
11: "The ground water level beneath the landfill area shall be maintained below
the base level of the clay soil layer of the lining system by the provision of
a perimeter drainage system incorporating trenches and field drains. The
facilities for regulating the ground water level shall be maintained on a
permanent basis after cessation of landfilling operation and the rehabilitation
of the lands.
Reason:
to reduce the risk of water pollution."
Condition
12: "A drainage system shall be installed above the liner at the base of the
waste. Leachate shall be collected from the cells and piped to a leachate
storage lagoon. The leachate shall be transported from the storage lagoon in
sealed tankers and shall be discharged to the public sewage system as proposed.
The level of leachate (head) in the waste containment cells shall not exceed
one meter above the lowest level of the flexible membrane liner. The maximum
head referred to shall be permanently maintained after closure of the landfill.
In the event of leachate being re-circulated through the waste, it shall be
re-circulated only beneath the surface of the waste through an infiltration
system.
Reason:
to reduce the risk of water pollution and to protect the amenities of the area."
Condition
14: "The remediation of 'Gavin's Dump' (including the proposed capping) shall
be completed prior to the completion of Phase 1 of the landfill development.
The proposed "cut-off wall" containment shall be founded on low permeability
competent bedrock below the weathered surface. The 'cut-off wall' shall consist
of high density polyethylene (HDPE) sheathing and/or bentonite-cement slurry
which shall have a maximum hydraulic conductivity of 1 x 10 to the power of
minus 9 meters per second. The 'cut-off wall' shall also incorporate an inner
layer of granular material in order to facilitate gas venting. Landfilling of
baled waste shall not be carried out above the area enclosed by the 'cut-off
wall'.
Reason:
to protect the water resources in the area."
None
of the foregoing conditions were referred to specifically in the applicant's
original documentation and it appears that, again, he is obliged to rely on the
"catch-all" ground (e). For the reasons already stated, I am compelled to hold
that the applicant's challenges to conditions 11, 12 and 14 also cannot be
relied upon as notification of them was out of time.
I
should add that if each of these grounds of objection (ie as to conditions 11,
12 and 14) had been made by the applicant within the prescribed time limit, I
would not have been disposed to accept his case on any of them. In the premises
it is unnecessary to review the arguments which have been advanced on his
behalf in that regard. Suffice it to say that I regard the contrary case
submitted on behalf of the Board in its written submissions as being
well-founded.
2
Alleged unlawful delegation of responsibility by the Board to the Planning
Authority and the Developer.
The
gravamen of the applicant's case in this regard is that the Board has failed to
exercise and has abandoned its decision-making obligation regarding certain
specific matters which the applicant contends are of major importance in the
overall plan for the proposed development which must be decided by the Board
and may not be delegated to anyone else. The Board has left it to the developer
and Kildare County Council as the planning authority to agree upon the details
relating to such matters. The applicant submits that the Board's statutory
powers of delegation do not extend to major decision-making in areas such as
those in question, in consequence of which the introduction by the Board of the
conditions providing for delegation of decision-making to the planning
authority in such matters in collaboration with the developer, being ultra
vires the Board's power, vitiates the planning permission which it has
purported to grant. It is also argued that a consequence of such unlawful
delegation of authority was that the applicant and other interested parties
were excluded from the decision-making process and had no opportunity of being
heard before such decisions were made. The Board's conditions which are
challenged on the ground of unlawful delegation of authority are Nos 3, 7, 13,
17, 18, 20 and 22.
It
is not in dispute that the Board has statutory power to delegate matters for
decision by the planning authority in consultation with the developer -- see
the Local Government (Planning and Development) Act, 1963, Section 26(1) and
(2), and Section 14(4) of the amending Act of 1976. The question is what are
the parameters of that power and its limitations in the circumstances of the
particular case. There can be little doubt that in regard to a major
development of a novel specialised nature such as that under review which, if
allowed, will be evolving for at least ten years, it is impractical for the
Board to concern itself directly in every aspect of the proposed development
and it is reasonable to provide that certain details, which are not fundamental
to the project per se, shall be delegated to the planning authority for
ultimate decision as they arise. In Houlihan v An Bord Pleanala & Another,
(unreported, 4 October, 1993), Murphy J in the High Court summarised the
problem as follows:-
".
. . Undoubtedly some degree of flexibility must be left to any developer who is
hoping to engage in a complex enterprise. The issue then is whether the nature
or quantity of the matters left undefined is such as to render the permission
granted invalid. In my view -- and as I understand it neither party would
disagree -- the extent to which flexibility or uncertainty is permissible in a
planning permission is largely a matter of degree . . ."
In
reviewing the exercise by the Board of its delegatory power, the court must
decide whether or not in the circumstances of the given case, it has crossed
the boundary between authorised delegation of responsibility to the planning
authority and an unlawful delegation of or failure to exercise its powers as to
the regulation of the proposed development in a major respect. If that line is
crossed by the Board in a matter of substance, the effect is to render its
planning permission invalid.
The
delegation by the Board to a local authority of decision-making as to the
regulation of traffic in connection with a major ro-ro development in Dun
Laoghaire harbour was the subject-matter of judicial review by Keane J in the
High Court in Boland v An Bord Pleanala, Respondent, and the Minister for the
Marine and Others. Notice Parties, (judgment delivered on 20 December, 1994,
unreported). He decided that the traffic conditions challenged by the applicant
constituted a lawful delegation of responsibility by the Board. However, as the
case raised an issue (regarding the parameters of the Board's power to delegate
decision-making to a planning authority) which involved a point of law of
exceptional public importance, Keane J referred the matter to the Supreme Court
pursuant to Section 82 of the Local Government (Planning and Development) Act,
1963 as amended by Section 19(3) of the 1992 Act. The matter came before
Hamilton CJ; Blayney and Barrington JJ. Reserved judgments were delivered on 21
March, 1996 (unreported).
In
course of his judgment the Chief Justice reviewed the existing law, including
the judgments of Murphy J, in Houlihan and Keane J, in Boland. He accepted the
principles which they had laid down and he summarised the position of the Board
as to the imposition of certain types of condition relating to planning
permission, including factors which the Board is entitled to take into account
in deciding whether or not any particular matter may be left over for
subsequent agreement between the developer and the planning authority. The
following passage commences at page 34 of the judgment of the Chief Justice
following upon reiteration of the statements of principle made by Murphy J and
Keane J in Houlihan and Boland respectively:-
"Accepting,
as I do, these statements the position of the Board would appear to be as
follows:-
1.
The Board is entitled to grant a permission subject to conditions.
2.
The Board is entitled, in certain circumstances, to impose a condition on the
grant of a planning permission in regard to a contribution or other matter and
to provide that such contribution or other matter be agreed between the
planning authority and the person to whom the permission or approval is granted.
3.
Whether or not the imposition of such a provision in a condition imposed by the
Board is an abdication of the decision-making powers of the Board depends upon
the nature of the 'other matter' which is to be the subject matter of agreement
between the developer and the planning authority.
4.
The 'matter' which is permitted to be the subject matter of agreement between
the developer and the planning authority must be resolved having regard to the
nature and the circumstances of each particular application and development.
5.
In imposing a condition, that a matter be left to be agreed between the
developer and the planning authority, the Board is entitled to have regard to:
(a)
the desirability of leaving to a developer who is hoping to engage in a complex
enterprise a certain limited degree of flexibility having regard to the nature
of the enterprise;
(b)
the desirability of leaving technical matters or matters of detail to be agreed
between the developer and the planning authority, particularly when such
matters or such details are within the responsibility of the planning authority
and may require re-design in the light of practical experience;
(c)
the impracticability of imposing detailed conditions having regard to the
nature of the development;
(d)
the functions and responsibilities of the planning authority;
(e)
whether the matters essentially are concerned with off-site problems and do not
affect the subject lands.
(f)
whether the enforcement of such conditions require monitoring or supervision.
6.
In imposing conditions of this nature, the Board is obliged to set forth the
purpose of such details, the overall objective to be achieved by the matters
which have been left for such agreement; to state clearly the reasons therefor
and to lay down criteria by which the developer and the planning authority can
reach agreement."
Blayney
J in his judgment agreed with the foregoing criteria laid down by the Chief
Justice but added a further criterion which was accepted by the Chief Justice.
It is as follows:-
7.
"Could any member of the public have reasonable grounds for objecting to the
work to be carried out pursuant to the condition, having regard to the precise
nature of the instructions in regard to it laid down by the Board, and having
regard to the fact that the details of the work have to be agreed by the
planning authority?"
The
foregoing criteria laid down by Hamilton CJ and Blayney J in Boland comprise
the parameters within which the Board may lawfully provide by way of condition
attaching to a planning permission that a specified matter may be left over for
subsequent agreement between the developer and the planning authority.
Reviewing the applicant's challenges to conditions 3, 7, 13, 17, 18, 20 and 22
in the light of these requirements, the following emerges:-
Condition
3:
In
essence this condition prohibits the deposit of waste within 30 meters of
certain defined reference points and the developer is obliged to submit to the
planning authority for agreement revised plans dealing with such matters as the
required set-back and plans for landscaping and ground contouring in the buffer
zone land. This condition deals with peripheral details which are not
fundamental to the development per se. It seems to me that it is clearly within
the criterion laid down by Hamilton CJ at 5(b) at pp 35-6 of his judgment in
Boland. It is also of interest that the first condition imposed by the Board in
Houlihan's case required revision of the lay out plan to accommodate the
re-siting of the northern boundary of the property in question. That condition,
among others, was challenged. It was upheld by Murphy J, who stated:-
"I
should say, however, that I do not doubt their right [ie the Board's right] to
delegate to the planning authority power to agree with the developer the
revisions of the lay out which would be consequent upon the re-siting of the
boundary."
That
particular condition is similar in nature to condition 3. It is clearly one
where delegation of authority by the Board is permissible.
Condition
7:
"Details
of a bird and vermin control scheme shall be submitted to and agreed with the
planning authority prior to any waste being deposited on the site. The scheme
shall be implemented on an on-going basis during the operational phase of the
development and for as long as is agreed with the planning authority after the
closure of the land filling facility".
This
condition is within the ambit of 5(b) and (f) at page 36 in the judgment of the
Chief Justice in Boland. A scheme for the control of birds and vermin would
require monitoring by the local authority and this appears to be envisaged in
Condition 7. It is also a technical provision involving a peripheral detail
which is suitable to be agreed between the developer and the planning authority.
Conditions
10, 11 and 12:
As
already held, the challenges to these conditions are all out of time.
Condition
13:
"Details
of the area and size of the cells to be constructed in each phase of the land
filling operation shall be submitted to and agreed with the planning authority
prior to any cell being constructed in that phase. The details to be submitted
shall include detailed calculations of the water balance and projected maximum
leachate production arising from a two and five day design rainfall during each
phase having regard, inter alia, to the size of the cells. The leachate storage
lagoon shall have a minimum capacity of 2,500 cubic meters and additional
storage capacity shall be provided if required by the planning authority
subsequent to the submission of the detailed calculations referred to above.
Provision shall be made for the aeration of the leachate storage lagoon.
Details of aeration facilities shall be agreed with the planning authority or,
in default of agreement shall be as determined by An Bord Pleanala."
The
proposed plan for the dump envisages that it shall be divided into a series of
cells to be constructed in each phase of the development as it evolves. The
area and size of the cells are to be agreed with the planning authority.
Specific technical requirements are laid down in the condition as to what the
details to be submitted by the developer shall cover. It seems to me that this
accords with 5(a), (b) and (c) in the criteria laid down by the Chief Justice
in Boland. The details in question do not affect the overall size or extent of
the project and are within what Keane J called the "ring fence" of the overall
development. In my opinion they are in the nature of technical details which
may properly be left for agreement between the developer and the planning
authority.
Condition
14:
The
challenge to this provision is also out of time.
Condition
17:
"The
surface water drainage system shall be revised to cater for a minimum return
period of ten years rather than five years as proposed. Revised plans
indicating compliance with this requirement shall be submitted to and agreed
with the planning authority prior to works being commenced on the proposed
development or, in default of agreement shall be as determined by An Bord
Pleanala."
This
condition imposes a more stringent requirement than that proposed by the
developer. It entails the re-design of the surface water drainage system to
provide for "a minimum return period often years rather than five years as
proposed". The obligation on the developer created by this condition to submit
a revised plan to the local authority is a detail arising out of the change
made by the Board in stipulating a period of ten rather than five years as
originally intended. This is also within the ambit of 5(b) at page 36 in the
judgment of the Chief Justice in Boland. It will be observed that the condition
contains a provision for the matter to be decided by the Board in default of
agreement as envisaged in the Local Government Planning and Development
(Amendment) Act 1976 at Section 14(4).
The
applicant also raises an alternative challenge to this condition, ie, that the
amended period of ten years is itself inadequate having regard to the level of
sand and gravel extraction. However, it is not contended that the Board in
devising and imposing Condition 17, acted unfairly or irrationally. The
applicant's criticism goes to the merits of the Board's decision and as such is
not reviewable by the court.
Condition
18:
"The
surface water drainage system shall discharge to the Hartwell River (by pumping
if necessary) at a rate to be agreed with the planning authority following the
submission of revised surface water proposals incorporating the requirement set
out in Condition No 17 and providing for the provision of detention storage
(ponds or lagoons). The detention storage facility shall be designed to control
the quantity and quality of the surface water to be discharged and it shall be
indicated on the revised plans to be submitted for the agreement of the
planning authority in accordance with Condition No 17."
This
condition is intimately bound up with Condition 17 and they should be read
together. It appears that both are subject to the default provision in the
latter condition. Plans for the revised surface water drainage system provided
for in Condition 17 are required to deal with, inter alia, the rate of
discharge of the water and the provision of detention storage ponds or lagoons.
The Board has specifically reserved to itself the power to decide these matters
in default of agreement between the developer and the planning authority. I am
satisfied that Condition 18 also deals with technical matters which the Board
is entitled to delegate to the planning authority. It was also argued on behalf
of the applicant that Conditions 17 and 18 do not deal adequately with the risk
of water contamination from Gavin's dump. This criticism also goes to the
merits of the planning decision and as such is not reviewable by the Court.
Condition
20:
"A
detailed monitoring scheme incorporating sampling and testing from a minimum of
12 additional ground water boreholes and additional monitoring points for gas
analysis shall be submitted to the planning authority for agreement. Monitoring
shall be carried out in accordance with the agreed scheme at a frequency to be
agreed with the planning authority. The results of the monitoring shall be
submitted to the planning authority on an agreed regular timescale. The
monitoring shall continue for a minimum period of 30 years following the
closure of the landfill facility."
This
provision is a technical requirement which entails, inter alia, long term
monitoring. The Board does not have facilities for discharging that role. The
obvious body to do so is the local authority. It is also reasonable that the
latter should have the function of approving the proposed scheme which is a
matter of technical detail subsidiary to the development per se. It is clearly
within 5(b) in the criteria laid down by the Chief Justice at 34 of his
judgment in Boland.
Condition
22:
"Heavy
commercial vehicular traffic travelling to and from the landfill facility shall
not use the existing roads through Kill village or turn right at the junction
of Turf Bog Lane and the N7. An agreement shall be entered into between the
developer and Kildare County Council to regulate the route to be used by
traffic associated with the development. This agreement shall be entered into
prior to any work being carried out on the proposed development."
This
condition prohibits heavy waste transport vehicles from travelling to and from
the dump via Kill village and from turning right at the junction of Turf Bog
Lane and the N7, a dual carriageway from Dublin to the South, when returning to
the city. These provisions are challenged on two grounds. First, that the Board
has no power to regulate traffic on public roads. Secondly, that the proposed
agreement between Kildare County Council and the developer regulating the route
to be used by the dump traffic is an unlawful delegation of the Board's
obligations.
As
to the first point: I accept that the Board has no power to regulate the
generality of traffic using the public highway for a particular purpose (eg all
motor vehicles travelling on public roads to or from a local authority refuse
dump). However, that is not what the Board has sought to do in the instant
case. Its planning permission excludes direct dumping of waste at the site by
the public. Only the developer and its agents may do so. The Board is not
seeking to impose route restrictions on the public at large in relation to the
dump, but only restrictions on the developer and its agents as to routes which
heavy vehicles must avoid or adopt in connection with user of the dump. In my
view, this is within the powers of the Board. The requirements which it has
specified in Condition 22 appear to be eminently sensible. It is proper for the
Board to protect the small village of Kill from a flow of heavy vehicles every
three minutes, six days a week for ten years. Likewise, it is probable that
very serious interference with the main arterial highway from the city of
Dublin to the South would ensue if heavy vehicles returning to the city from
the dump were permitted to turn right at the junction in question. This would
hold up traffic on both sides of the dual carriageway. The alternative route
entails a substantial detour of several miles to a roundabout near Naas. It is
submitted on behalf of the applicant that in practice at least some lorry
drivers will ignore the latter stipulation and will turn right for Dublin at
the Turf Bog Lane intersection with the N7. If that happens and on complaint
from Kildare County Council the developer does not remedy the situation, the
planning authority has adequate statutory powers under Section 27 of the Local
Government (Planning & Development) Act 1976 to restrain breach of the
traffic condition imposed by the Board. If the developer failed to comply with
a court order under Section 27, the entire project could be put in jeopardy. I
apprehend that Dublin County Council and its agents will be at all times
concerned to ensure due compliance with the traffic regulations comprised in
Condition 22.
The
applicant's second argument as to improper delegation of responsibility by the
Board. As already stated, the latter has no statutory function in the matter of
regulating the public at large as to traffic on public roads relating to use of
the dump, but it may regulate the developers' heavy vehicle traffic in that
regard. However, the most appropriate course for the Board is to delegate its
function to Kildare County Council, as the traffic authority concerned, and
provide that it shall regulate the route to be taken by the developers' heavy
vehicles serving the dump. Such regulation was specifically contemplated by
5(e) in the criteria laid down by the Chief Justice in Boland which relate to
off site problems. In my opinion both arguments advanced on behalf of the
applicant in attacking Condition 22 are unfounded. It is not ultra vires the
powers of the Board as it does not interfere with the rights of the public at
large as to user of the roads in question.
Notwithstanding
that the applicant's challenge to Condition 23 (being out of time) cannot be
entertained by the Court, it is appropriate to add that in my view conditions
22 and 23 should be read as one. A reasonable interpretation of their combined
effect is that an agreement shall be entered into between the developer and
Kildare County Council to regulate the route to be used by heavy vehicles
associated with the intended dump and that agreement shall be a condition
precedent to the performance of any work relating to the proposed development.
Secondly, the developer shall pay to Kildare County Council £800,000 (up
dated as to inflation) as "a contribution towards expenditure on roadworks
which are required to facilitate the proposed development". These conditions
clearly envisage that Kildare County Council shall decide upon the appropriate
route for heavy traffic serving the proposed dump and shall receive from the
developer a specific financial contribution towards the cost of necessary road
building or improvement. In short, it is a matter for Kildare County Council to
decide the route and to build it (if a new road is preferred) or up-grade an
existing route to serve the purpose, having been put in funds by the developer
so to do. I do not accept the argument advanced on behalf of the applicant that
such a scheme is unreal or irrational in the O'Keeffe/Stardust sense because
the Board did not indicate more specific details and strict time limits. In my
view, it was proper that it should be left to Kildare County Council, as the
road authority in question, to decide finally whether there should be a new
road serving the dump as originalLy proposed or an up-grading of the
Arthurstown/Turf Bog lane route which in the end appears to have been the
preferred option. Although Kildare County Council opposed the creation of the
Arthurstown dump, there is no evidence to suggest that, the Board having
granted planning permission, the local authority would act unreasonably or drag
its feet as to the implementation of the foregoing pre-conditions relating to
service routes. Conduct of that sort, if it arose, could well lead to judicial
review proceedings which would be likely to ensure a realistic implementation
of these conditions within a fair and reasonable time scale.
There
is one other general point which has been raised on behalf of the applicant as
to the delegation of authority by the Board and to which I have already made
brief reference. It is submitted that the effect of delegating authority is to
prevent or inhibit the applicant and other interested parties from contributing
to decision-making in regard to delegated matter. I do not think that that is
so. There is no reason to believe that Kildare County Council, as the planning
authority concerned, will not co-operate with the applicant or any other
interested party in the matter of submissions they may wish to make on
functions delegated to the planning authority by the Board and, if asked, will
inform them of developments in that regard before decisions are taken. In
short, delegation of authority by the Board to the planning authority within
the confines of the criteria laid down by the Supreme Court in Boland does not
shut out interested parties from contributing to the decision-making process.
The
Advertisement
It
was published in the Irish Press and is as follows:-
"Co
Kildare. Dublin County Council intends to apply for planning permission for the
development of a sanitary landfill for baled municipal waste including
ancillary building (137 meters square) on a site of 64 hectares at Arthurstown
and Hartwell Lower, Kill, Co Kildare with a new access on to Arthurstown Road.
The application will provide for phasing, for landscaping and for the
restoration of the site. Proposals will be made to deal with the existing
situation arising from the former landfill operations on part of the site. The
application will be accompanied by an Environmental Impact Statement."
Ground
(b) relates to the advertisement in support of the developers application for
planning permission which, it is submitted, "is defective and fails to comply
with the statutory requirements". This general contention is amplified in
paragraphs 56 to 59 of the applicant's affidavit of 27 September, 1994. Four
specific points are made therein, but they were not relied on at the judicial
review hearing. A different argument was advanced then ie, that the Local
Government (Planning and Development) Regulations, 1977, Article 15(c)
specifies that the advertisement shall state "the nature and extent of the
development". It was submitted that the extent of the development was misstated
in two respects:-
(i)
It was not stated that the Arthurstown Road/Turf Bog Lane route probably would
be the only one to serve the dump during all or most of its life and was not
merely a short-term expedient.
(ii)
There was no reference to an effect on the acquifer beneath the dump.
The
Board's primary argument in response was that these grounds were new and were
not based on or reasonably inferred from the case made by the applicant within
time. It is evident from the relevant documentation that that is so. It
follows, therefore, that the applicant's case as to the adequacy of the
advertisement fails, as the grounds on which it is based were not notified to
the Board within the statutory time limit.
It
was also argued on behalf of the Board that the advertisement did adequately
state "the nature and extent of the development" as required by Article 15(c).
As will be seen from the advertisement, it does refer to "a new access on to
Arthurstown Road" thus implying that that road would be used. The development
plans and the EIS referred to in the advertisement, which were available to
interested parties, indicated that a proposed new distributor road was (at that
time) the preferred option, but that the Arthurstown Road route would be used
for an undetermined time pending the building of the new road. The EIS
contained a full evaluation of both alternate routes. I accepted the Board's
submission that the advertisement adequately alerted the public to the
possibility that the Arthurstown Road route would be used.
The
second point made on behalf of the applicant that there was no reference to the
effect of the development on the underlying acquifer introduces an element
which in my opinion goes far beyond a description of "the nature and extent of
the development" as required by Article 15(c).
Finally,
on this topic, it is pertinent to point out that the relief which the applicant
seeks (an order of certiorari quashing the Board's planning permission) is a
discretionary remedy. Even if the advertisement was defective as alleged and
the grounds for criticising it had been notified within time, I would not be
prepared to strike down the Board's planning permission by reason only of the
alleged defects in the advertisement. There was a very full appeal hearing
conducted by Mr Thornton at which the points in question were fully debated. I
am not aware of anyone who contends that he/she was misled by the advertisement
or was inhibited from making his/her case at the appeal on that account.
Having
considered all of the grounds of criticism argued on behalf of the applicant, I
am not satisfied that a sufficient case has been made out to vitiate the
planning permission granted by the Board for the developers' proposed refuse
dump at Arthurstown and I refuse the application.