High Court of Ireland Decisions

1. The Notice Party, Roche Ireland Limited are a subsidiary of the well known multi national pharmaceutical group F Hoffman La Roche of Basel Switzerland. It bought Syntex Ireland Limited which, since 1975, had been manufacturing pharmaceutical products and their intermediates in a factory near Clarecastle, 5 km south of Ennis, County Clare. As a result of the coming into operation of the Environmental Protection Agency Act, 1992 and in particular the Environmental Protection Agency (Licensing) Regulations, 1994 (S.I. No. 85 of 1994) the company was obliged to apply for an Integrated Pollution Control Licence under Part IV of the Act. This was on the basis that the company was carrying on an activity to which Part IV of the Act applied, namely the activity listed at 5.6 of the First Schedule to the Act, i.e. "the manufacture of pesticides, pharmaceutical or veterinary products and their intermediates.

2. The Notice Party and it s predecessors have operated a pharmaceutical manufacturing plant at Clarecastle, Co. Clare since 1975. An IPC Licence was granted to the Notice Party by the Respondent on the 11th October, 1995 containing interim air emission limits which under the terms of this licence will expire on the 1st December, 1997 and after which the Notice Party will be required to meet new BATNEEC (Best Available Technology Not Entailing Excessive Cost) emission standards. On the 31st October, 1995 the Notice Party applied for a revision of this licence under Section 88(2) of the Environmental Protection Agency Act, 1992 (the Act of 1992) which would allow for the operation of a hazardous waste incinerator on its premises at its premises at Clarecastle, Co. Clare. The purpose of this proposal was to reduce atmospheric emissions of volatile organic substance by the Notice Party by 95%. The proposal would entail an increase of less than 1% in the background dioxin levels.

3. The Notice Party submitted an Application, an Environmental Impact Statement and such additional information as was required by the Respondent. The Respondent received a large number of objections from various third parties comprising mainly local residents and farmers and fishermen working in the Clarecastle area. A proposed determination granting a revised licence to the Notice Party subject to thirteen conditions was issued by the Respondent on the 9th May, 1996 in accordance with Section 85(2) of the Act of 1992. The Respondent received a number of objections to the proposed licence both from the Notice Party (being the applicant for the licence) objecting to the conditions imposed and from third parties objecting to grant of the licence per se. The Applicant in these proceedings was one such objector under the umbrella organisation Clare Alliance Against Incineration (CAAI). In accordance with procedure, the Respondent circulated the written objections received from each objector to all other parties and allowed submissions in writing to be made by all parties on those objections (see Exhibit "B" of the Affidavit of Kieran O'Brien dated 7th May, 1977).

4. The Respondent then convened an oral hearing under Section 86 of the Act of 1992 and Kieran O'Brien was appointed a Chairman to conduct the oral hearing. The hearing was held at Ennis, commenced on the 25th September, 1996 and lasted for four days. Four objectors attended the hearing including the Notice Party and CAAI of which the Applicant was a member. Three of the parties had legal representation and evidence was heard from twenty-five witnesses including the Applicant. The Chairman furnished a report of the hearing to the Respondent.

5. At a meeting of the board of the Respondent on the 12th December, 1996 it was decided to grant the revised licence to the Notice Party subject to certain modifications of the draft conditions and the said licence was granted by way of decision dated the 17th December, 1996.

6. On the 14th February, 1997 the Applicant applied by Motion ex parte before Morris J. for leave to apply by way of an Application for Judicial Review for:-

7. Upon Motion of Counsel for the Applicant made under the Court on the 1st and 2nd days of May, 1997 pursuant to Notice of Motion dated the 30th day of April, 1997 in the presence of Counsel for the Respondent and Counsel for the third Notice Party seeking an Order amending the statement dated the 14th day of February, 1997 it was ordered by Order dated the 6th May, 1997 by Kelly J. that the Motion should stand refused.

8. Notwithstanding that this refusal was under appeal to the Supreme Court the Applicant elected to proceed with the subject matter of the Order of the 14th February, 1997 when this matter came before me.

9. The Respondent herein filed its Statement of Opposition on the 9th May, 1997 opposing the Application for Judicial Review on the following grounds:-

10. The Notice Party filed its statement of opposition on the 6th May, 1997 in which it denies the Applicant's entitlement to the relief sought and contains a full and detailed traverse of the Applicant's claims.

11. The Applicant seeks by way of relief a declaration that the Respondent's decision is unreasonable in law [Ground d(ii)] on the ground that the decision is unreasonable and not factually sustainable having regard to the evidence [Ground e(i)]. This represents a general allegation of unreasonableness on the part of the Respondent and the allegation is not particularised or instanced either in the Statement Grounding the Application nor in the Grounding Affidavit.

12. It is a settled principle of administrative law and of judicial review that a decision is not unreasonable (and consequently invalid) merely because the Court reviewing the decision does not agree with the conclusion reached or would have reached a different conclusion on the same evidence. Instead, the decision impugned must be such that no reasonable decision-making body could have reached it on that evidence. This principle was set out in The State (Keegan) -v- Stardust Compensation Tribunal (1986) IR 642 by Henchy J. at p.658):-

13. This principle has been expressly approved in a number of subsequent cases including O'Keeffe -v- An Bord Pleanala (1993) 1 IR 39, Finlay C.J. at p.71:-

14. Further, it is well established that the applicant in an application for judicial review bears the onus of proving that the decision in question was unreasonable having regard to the material upon which it was reached (see P & F. Sharpe Ltd. -v- Dublin City & County Manager (1989) IR 701.

15. It is clear from all of the documentation which was before the Respondent when it reached its decision and which is before this Honourable Court that the Respondent did have sufficient evidence before it upon which the conclusion reached could be reasonably based. Such a conclusion reached by the Respondent on evidence before it is not open to review unless the Applicant can show that the decision is manifestly unreasonable or arbitrary. The Applicant bears this onus and there is nothing in the case as pleaded by the Applicant to suggest that the Respondent rejected or disregarded fundamental reason or common-sense.

16. Finally, it is not open to the Applicant in the context of these proceedings by way of judicial review to seek to re-litigate the factual issues which have already been considered and determined by the Respondent. In this regard, the Respondent will be taking objection to much of the material contained in the Affidavits of Dr. Charles Vyvyan Howard dated 7th June, 1997 and Dr. Paul Alexander Johnston dated 9th June, 1997.

17. The Applicant pleads that the Respondent took irrelevant considerations into account in reaching its decision because the grounds for the proposed incinerator submitted by the Notice Party were not finalised [Ground e(iii)] and also that this was in breach of the audi alteram partem rule in that the Applicant was not given the opportunity to make representations based on the actual design of the incinerator [Ground e(iv)].

18. The Respondent submits that the Applicant's argument is misconceived. The material factor the subject of any IPC licence granted by the Respondent is the level of emissions permitted from the proposed incinerator and whether such emissions would cause significant environmental pollution. In other words, the issue being determined by the Respondent was not the detailed design of the proposed incinerator but its operational effects. The design of an incinerator is subject to a number of factors, primarily the standards to be achieved in relation to emissions, and the design cannot be finalised until those standards have been set by way of IPC licence and the operational requirements of the incinerator are known. Therefore, the decision to grant the licence before the design of the incinerator had been finalised was not only premature, but on the contrary, to require finalised plans to be furnished before the decision could be made would be to pre-judge the emission standards to be imposed by any IPC licence to be granted before the objectors had had a chance to be heard in respect of such standards.

19. Further, the schematic drawings and plans submitted by the Notice Party (see exhibit "f" of the Affidavit of Patrick Nolan dated 8th May, 1997) were sufficient to allow the Respondent determine that the proposed emission standards could be met and the Applicant did have the opportunity to comment on these plans during the course of the oral hearing.

20. The Applicant claims that the Chairman could not report adequately to the Respondent due to the lack of administrative assistance during the oral hearing [Ground e(vi)]. The Applicant complains that the Inspector both heard and considered the evidence whilst taking notes of the evidence for the purposes of preparing his report. The Respondent refers to paragraph 11 of the Affidavit of Kieran O'Brien, dated 7th May, 1997, wherein it can be seen that the difficulties complained of by the Applicant are more apparent than real. The Respondent would draw a comparison between the position of the Chairman in the conduct of an oral hearing and the position of a Judge of this Honourable Court when hearing any lengthy or complex action and would suggest that the Chairman is in a more advantageous position given the limited range of subject matter with which he was dealing, the fact that he had some expertise in the area and the fact that he had received and read detailed written objections submitted by all parties before the hearing commenced. The Respondent submits that the alleged lack of administrative assistance did not in any way hinder the Chairman in the exercise of his statutory functions.

21. The Applicant alleges that the report of the Chairman was not sufficiently detailed and it did not provide sufficiently accurate evidence of what had transpired at the oral hearing [see Ground e(viii)]. However, the only specific allegation made in support of this ground is to be found at paragraph 53 of the Affidavit of Dr. Charles Vyvyan Howard dated 7th June, 1997 to the effect that a suggestion of his that the background level of dioxins be measured by analysing breast milk is not referred to in the report of the oral hearing. Whilst there is no specific reference to breast milk in the report of the oral hearing, it is clear from the account of the evidence given by Dr. Howard that the tenor of his evidence was that he was of the view that the baseline levels of dioxins in the population and in the food chain needed to be measured before the IPC licence should be granted. This is further apparent from the account of the final submission made by Pamela Walls on behalf of CAAI on whose behalf Dr. Howard had been called as a witness.

22. The Respondent submits that the report of the Chairman in these circumstances is analogous to the report of a planning inspector on an oral hearing in a planning appeal. It is well established that such report is not required to be a full verbatim transcript of all of the evidence that was given at the oral hearing provided it fairly and accurately represents the evidence that was given and the submissions made:-

23. The Respondent submits that the Chairman's report was a fair and accurate report of the evidence given at the oral hearing. The Respondent further notes that all written objections submitted by all of the parties to the hearing were furnished in full to the Respondent for consideration before the decision was made.

24. The Respondent submits that there is no substance to this allegation and refers the Court to the Report of the Chairman. By any standards this report is detailed containing a summary of the written objections and submissions received by the Respondent from the parties before the oral hearing (the full text was furnished to the Respondent before the decision was made); an account of the evidence given by each witness before the oral hearing, a detailed assessment of the evidence under headings reflective of the issues raised by the parties to the oral hearing; a summary of the main findings of the Chairman and his recommendations.

25. The Applicant pleads that the Respondent failed to give reasons for the decision to grant the licence [Ground e(v)] and that such failure constitutes a breach of her constitutional right of access to the Courts as it impedes her in taking judicial review proceedings within the two-month period prescribed by Section 85(8) of the Act of 1992 [Ground e(ix)].

26. By way of preliminary point, the Respondent notes that while the Applicant alleges that no reasons were furnished by the Respondent for its decision to grant the Notice Party an IPC licence, the Applicant, having been furnished with a copy of the said decision did not make any enquiry or request of the Respondent that reasons, or further reasons, be furnished.

27. The Respondent submits that its decision was reasoned in accordance with legal requirements and that the reasons for the decision are to be found in the terms and conditions of the licence itself, the Assessment and Recommendations contained in the Chairman's Report and the Summary Information for the Proposed Revision to the Licence dated 26th April, 1996. All of these documents are public documents and have either been furnished to the Applicant (through the CAAI) or are available to the Applicant for inspection on the public file maintained by the Respondent. It is well accepted in terms of administrative law that if provisional reasons for a decision are furnished and that if the final decision is in accordance with the earlier indications, then it is clear that if the reasons which motivated the decision-making authority are the same then it is unnecessary to set out the same reasons at length at different stages of the decision-making process. In the premise, the Respondent submits that the Applicant was furnished with reasons for its decisions and consequently she was not impeded in exercising her constitutional right of access to the Courts. The Respondent notes that the Applicant did institute these proceedings within the time limit set by Section 86(8).

28. The Applicant asserts that the Respondent did not form an independent decision separate from the recommendations of the Chairman of the oral hearing [Ground e(vi)]. the Respondent notes that the onus of proving this assertion lies on the Applicant. The Respondent is not obliged to or precluded from following the recommendation of the Chairman of an oral hearing in the context of a decision to grant or refuse an IPC licence. The mere fact that the Respondent in this case did, in fact, follow the recommendations of the Chairman does not establish that no independent consideration was given to the application. The Respondent submits that there was no abrogation of its duties under the Act of 1992 and that its decision was reached on the basis of a consideration of all of the material before the Respondent including the recommendations of the Chairman at the oral hearing, but that its decision was not directed by such recommendations.

29. The Applicant pleads that the Respondent's purported failure to reason its decision by reference to statutory criteria renders the decision ultra vires or, alternatively constitutes an error on the face of the record of the decision [Ground e(v)]. The Applicant does not point out which specific statutory criteria to which she refers but the Respondent presumes that the plea relates to the matters set out at Sections 83(2) and (3) of the Act of 1992. The Respondent refers to paragraph 4 to 15 inclusive of the Affidavit of Patrick Nolan dated 8th May, 1997 wherein it is set out how each of the relevant matters referred to at Sections 82(2) and (3) is specifically dealt with by the Respondent by way of condition attached to the licence. Therefore, any argument by the Applicant that these matters were not considered by the Respondent is unsustainable as is any consequent argument that the decision is ultra vires for failure to consider the statutory requirements.

30. The Respondent accepts that the precise statutory section was not recited at each relevant condition in the licence. The Respondent submits that it is not under any legal obligation to include such recitals in the licence and that its failure to do so is not an error of law such as to constitute an error on the face of the record. Further, the Respondent submits that if it ought to have included such recitals in the licence, its failure to do so is an error within jurisdiction and is not amenable to judicial review by this Honourable Court.

31. McGuinness J. said in Maigueside Communications -v- Independent Radio & Television Commission & Anor. (H.C. 18th July, 1997, unreported) at p.30 of the transcript, quoting O'Hanlon J. in Rajah -v- The College of Surgeons (1994) 1 I.R. 384 at 388:-

32. This last point was cited with approval by Laffoy J. in O'Reilly -v- O'Sullivan , Unreported, 25th July, 1996.

33. This is quite a different matter from furnishing a full engineering specification.

34. The Applicant argued its case taking the aforesaid grounds in the following order:

35. The Applicant's submission referred to the relevant legislature framework, the Environmental Protection Agency Act, 1992 ("the Act") and the Regulations made thereunder, the functions of the Environmental Protection Agency ("the Agency"), the statutory scheme for licensing applications, the nature of such licences as may be issued by the Agency and the construction of "the Act" with the Waste Management Act, 1995.

36. Reliance was placed on the extended powers given to the Agency by virtue of Regulations made under Sections 100 and 101 of "the Act" whereby it had its powers extended so as to in general assume the powers of local authorities and sanitary authorities under the Local Government (Water Pollution) Acts, 1977 to 1990 and under the Air Pollution Act, 1987 so that, in some instances, the statutory functions under the relevant Acts are shared by the local authority and the Agency or in some cases are exclusively vested in the Agency. This is provided for under the Environmental Protection Agency (Extension of Powers) Order, 1994 (S.I. 206 of 1994). Thus for the purposes of the functions specified in Article 4 and Article 10 of those regulations, they have been conferred on the Agency and may not be exercised by the local authority, save with the consent of the Agency under Article 16. Local authorities are also precluded from initiating summary prosecutions under Section 13 of the Air Pollution Act, 1987 in relation to an activity in respect of which a licence or revised licence under Part IV of the 1992 Act is in force. Similarly it is not entitled to enforce compliance with the conditions of such a licence under Section 28 of the 1987 Act.

37. In general, therefore, subject to the provisions of the Act of 1992, responsibility for the granting and enforcement of licences has been concentrated in the hands of the Agency under the 1992 Act, and by virtue of the Extension of Powers Order under the other relevant Acts referred to and subject to the provisions of those Acts.

38. Section 83(5) of "the Act" provides that where a licence or revised licence is required under Part IV of the Act in respect of an activity, a licence under, inter alia, the Air Pollution Act, 1987 and/or the Local Government (Water Pollution) Acts, 1977 to 1990 shall not be granted. Additionally existing licences under those Acts shall cease to have effect in relation to such activity by virtue of reference was made to the effect of a licence granted and the duty of the Agency in relation to its duty to actively protect public health.

39. As to the rights affected by the grant of a licence reliance was placed upon the decisions in Ryan -v- Attorney General , (1965) IR 294, 365 at 313; The State (C) -v- Frawley , (1976) I.R. 365 at 372; In Re. A Ward of Court (Withholding Medical Treatment) No. 2 , (1996) 2 I.R. at 79 and The People (D.P.P.) -v- J.T. , (198) 3 Frewen 141 at 158. In this case, the Applicant claims that it is impossible to determine whether or not the level of dioxin which will be ingested by the Applicant, or people in the locality, is dangerous or harmless. Such a conclusion may only be reached when a decision maker knows from scientific data what pre-existing levels of dioxin effects the local population. It is impossible to avoid ambient dioxins.

40. The grounds advanced by the Applicant are as follows:-

41. The grounds upon which a decision may be challenged as being unreasonable in law or lacking in rationality have been fully considered by the Courts in the cases of The State (Keegan) -v- The Stardust Compensation Tribunal , [1986] I.R. 642, O'Keeffe -v- An Bord Pleanala , [1993] 1 I.R. 39 and Carrigaline Community T.V. & Ors. -v- The Minister for Communications , [1997] 1 I.L.R.M. 241, Radio Limerick One Limited -v- I.R.T.C. , [1997] 2 I.L.R.M. 1 which will be relied upon by the Applicant. The Court will be asked to review the procedure by which the applications were processed the material before the Agency and the way in which the Agency ultimately came to a decision which is impugned in these proceedings. The Court will not, in any sense, be asked to adjudicate upon the merits of the issues raised but will obviously be required to consider what material was before the Inspector and before the Agency and in particular, whether the Agency ultimately could have been satisfied of the matters referred to in Section 83(3)(a) to (f) and in particular whether any reasonable responsible Environmental Protection Agency properly construing its powers, functions and duties under the Act and the Regulations, could reasonably have come to the decision that they were satisfied that in particular the emissions from the activity would not cause significant environmental pollution and that the best available technology not entailing excessive costs would be used to prevent or eliminate or, where that is not practicable, to limit, abate or reduce an emission from the activity. The Court is invited to conclude, having reviewed the material that was before the Agency, that there was in fact no relevant material upon which such satisfaction could reasonably have been based by any EPA Agency acting reasonably and responsibility in the proper exercise of their powers, functions and duties.

42. The following were amongst the matters relied upon by the Applicant to establish such unreasonableness in law:-

43. The Applicant contended (inter alia) that all or any of the above mentioned matters demonstrate plainly that the decision of the Agency is unreasonable to its statutory obligations.

44. Here the operation sought to be licensed is under paragraph 11 of the First Schedule, "the incineration of hazardous waste". The carrying on of such an activity or the development and operation of such an activity is and can only be carried out by means of an incinerator. The incinerator is the sine qua non for the incineration without which it cannot take place.

45. This was the subject matter of objection, submission and replies thereto by Syntex and in relation to which evidence was called at the oral hearing and which the Court will have to consider. The Inspector however concluded that he did not consider it necessary to have the design details before the grant of a licence. The Agency in purporting to grant the licence or the revised licence, or combination of same, appears to have adopted this view in that they have made it a condition of the licence at condition 5.7 that the design details be submitted to the Agency no later than 6 months prior to use. (This had in fact been the subject matter of an objection by Roche Ireland Limited itself to the terms of the proposed licence). It is submitted that the Court should find in favour of grounds (iii) and (iv) and (vi) as raised by the Applicant where it is alleged:-

46. The Chairman, K. O'Brien, summing up admits that no final design details have been submitted but that condition 5.9 of the proposed determination indicates that such final designs have to be submitted 12 months in advance of its operation.

47. Mr. Justice Blayney in Boland advanced a test on the legality of conditions in planning permissions in the following terms:-

48. The Applicant submits that this test (endorsed by the Chief Justice in the same case) is not satisfied in condition 5.7 of the licence. It is apparent that there are no precise instructions in the condition and the details of the design to be submitted are not even subject to approval by the EPA. The condition merely requires the Notice Party to submit the design details. Thus a member of the public could have reasonable grounds for objecting to the design details yet the condition does not impose any approval requirement on the design details to be submitted. In this way the Applicant and other members of the public are shut out from their objector's rights under the statute.

49. In the Boland case the conditions that were objected to included:-

50. Note that the details here are to be agreed with the planning authority.

51. The next condition in Boland was a redesign of the exit from the disembarkation standing area and revised proposal for off road heavy good vehicles, vehicle embarkation queue etc. The condition went on to recite that:-

52. The next condition which was objected to in Boland was condition six..... "the pavement treatment of the proposed pedestrian link to the Dart Station. Detailed drawings showing proposals to achieve the above shall be submitted to and agreed with the planning authority within three months of the date of the Order.

53. Mr. Justice Blayney examined these conditions and his first holding in relation thereto was that the works being the subject matter of the conditions were peripheral to the principal planning application at issue.

54. To permit the design details to be furnished subsequent to the grant of the licence is an abdication of its statutory responsibility to licence the activity as required by Sections 82, 83 and 88 in that it is an abdication of its function not to have required the submission of the design plans (as it originally did require), not to have allowed them to be the subject matter for consideration by objectors, potential objectors or by the Inspector at the oral hearing or by the Agency thereafter and in breach of the intended statutory procedures. The Agency, even in the abdication of their function did not purport to reserve to themselves the function of agreeing to the final design details. The Applicant further relied upon Keleghan & Ors. -v- Corby and Dublin Corporation , [1977] 111 I.L.T.R. 144, Houlihan -v- An Bord Pleanala & Anor ., (unreported judgment of the High Court, Murphy J., 4th October, 1993) and Boland -v- An Bord Pleanala , decision of the Supreme Court, 21st March, 1996.

55. With respect to (i), the Agency is obliged by "the Act" to form its own decision concerning the grant or refusal of a licence. It may, of course, have regard to the report made by the Inspector but it must form its own independent assessment of the application.

56. With respect to (ii), as indicated, the face of the licence does not reveal the reasons for the grant of the licence. With respect to (iii) this confuses two distinct statutory processes. With respect to (iv) this would mean (1) abdicating its function and (2) attempting to infer it even where these documents do not themselves give reasons.

57. Paragraph 23 of the Statement of Opposition admits that:-

58. Thus the Chairman's reasons for any recommended decision cannot be imputed to the Agency. (See also Section 25(6)(b) of the Act).

59. In the light of the statutory functions of the Agency under Section 52 and the prohibition on it granting the licence under Section 83(3) until it is satisfied of the matters specified therein, it must state its reasons in the context of the actual licensing process which has gone on. In other words it must specifically address itself to the concerns which have been raised in the objections, both written and oral, to the proposed licence. Obviously it need not do so in an exhaustive way or indeed even in a particularly detailed way, but it must do so, it is submitted, in at least a general way, both in relation to the specific statutory requirements at Section 83(3)(a) to (f) and in particular as to the concerns raised which briefly show how and why it came to be satisfied that notwithstanding those concerns and the evidence presented in relation thereto, that the proposed activity would not cause significant environmental pollution and that the best available technology not entailing excessive costs be used. See Bolton Metropolitan District -v- Secretary State for Environment (H.L.) , 29th May, 1994 Times L.R. A failure to do so is a clear breach of the statutory provision which can only have been intended to make the process of licensing concentrated as it is in the EPA's hands alone, one which is clear, transparent, accountable and accessible and susceptible of judicial review.

60. Most of the authorities in relation to the requirement to give reasons concerning the question as to whether and in what circumstances a duty arises for a local authority, a Tribunal, a Minister or other decision making body to give reasons for its decisions and must obviously be considered in that light.

61. In this instance it cannot be said that the Applicant is aware of the reasons for the rejection of her case.

62. The Chief Justice went on to say that the onus of establishing all that material is on the Applicant for judicial review. The Applicant submits that there was no relevant material before the EPA upon which it could have concluded that it was satisfied that Section 83(3)(a) had been met. In other words, there was no material available to the EPA demonstrating that the proposed level of dioxin emissions would not cause significant environmental pollution having regard to the definition of environmental pollution at Section 4 of the Act. In fact, the only evidence before the Board on the effects of dioxin emissions was overwhelmingly negative (cf. evidence of Dr. Howard summarised in the Inspector's report of the oral hearing and Dr. Howard's affidavit herein). In the same vein the unavailability of the incinerator's design means that there was no material before the Agency upon which it would be concluded that the Notice Party could use the best available technology not entailing excessive cost.

63. In O'Keeffe the Chief Justice states that the requirement to give reasons in decisions of An Bord Pleanala comes from the provisions of Section 26(8) of the Local Government (Planning and Development) Act, 1963 and from Article 48 of the Local Government (Planning and Development) Regulations, 1977 where the Board must state or accompany notification of its decision by a statement of the reasons for the decision including the reason for the imposition of conditions.

64. In the instant case unlike the decision in O'Keeffe, supra, no reason, adequate or inadequate, is given for the decision although the conditions are accompanied by the statement of reasons for those conditions. The combination of decision, reason for decision, conditions, and reason for conditions held to be sufficient in O'Keeffe is absent in the instant case.

65. Rule 17(1) of the Town and Country Planning (Enquiries Procedures) Rules, 1988 required the Secretary of State to notify the reasons of any decision taken. A developer had sought planning permission to demolish listed buildings and was refused by the planning authority. On appeal to the Secretary of State an Inspector was appointed to hold an enquiry. The Inspector recommended that permission for demolition of the listed building be given. The Secretary of State accepted the recommendation and singled out the landmark point in the Inspector's reasons and stated that he was in agreement with them. The Court of Appeal held that the Secretary of State's failure to comply with the requirement in rule 17(1) of the 1988 rules to notify the reasons for his decision invalidated any such decision. The House of Lords reversed the Court of Appeal holding that when the Secretary of State singled out the landmark points in the Inspector's reasoning, he had adequately demonstrated his substantial acceptance of the essential elements of the Inspector's judgment, in those circumstances the reasoning of the Inspector supplemented the Secretary of State's conclusions. See also Re. Payceart Mills Arbitration , [1963] 1 AER 612 at 616.

66. The Applicant relies on the foregoing as establishing that the decision does not state the reasons; the decision cannot properly be inferred from other earlier statutory steps in the procedure for the processing of a licence application; and that the granting of a licence is subject to compliance with the requirement to give reasons. It therefore follows in the absence of reasons being given in the decision that the decision is invalid.

67. In addition to the aforesaid all of the Affidavits (and accompanying exhibits together with the Act and Regulations) were fully opened to the Court.

68. As will be seen from the grounds upon which leave to seek Judicial Review was applied for on the part of the Applicant, of the one part, and the Grounds of Opposition filed by the Respondent and Notice Party, of the other part, it will be apparent that virtually every conceivable challenge that could be made to an administrative decision was in fact made by the Applicant. This, notwithstanding her later application in May of 1997 to enlarge those grounds.

69. When the case came to trial the issues were reduced to 3 matters of contest, irrationality, relevant and irrelevant considerations in regard to the incinerator design, and the alleged insufficiency of reason.

70. Having regard to the matters I have already adverted to, it seems to me that the case law in relation to the first issue, from the decision in Keegan through to the Carrigaline case, overwhelmingly favours the Respondent and Notice Party.

71. The Notice Party concluded by pointing to the National Survey of Ireland as being a reasonable and proper basis for assessment. This, I consider, reasonable taking the entirety of the evidence into account.

72. Secondly, the Notice Party say that the duty of the Agency is to guard the environment to the intent that it shall regulate the emission of pollutants into the atmosphere. The Act does not preclude the granting of a licence. On the contrary, it establishes a scheme for doing precisely that. This duty is distinct from any suggestion that the function of the Agency is to approve and/or guarantee the design and construction of a chemical facility such as the incinerator in question. It is for the licensee to ensure that the facility is designed and constructed to the highest quality. I am satisfied that the Chairman had before him sufficient evidence to determine that the incinerator proposal to be constructed by a world leader in that field would fulfil the function of constituting emissions in accordance with the Agency's conditions in that regard.

73. Turning to the third part of the Applicant's case I accept , as submitted by Counsel for the Notice Party, that the onus has not been discharged. The Agency in setting emission limits for this incinerator applied the standards as required under EU Directive

74. I accept that the Chairman had substantial documents disclosing the nature and design of the incinerator, that no expert was called by the objectors to challenge the sufficiency of the design. Further, the Agency with its competence was satisfied with the detail. Under the statutory power the Agency licences activities and not items of construction or machines.

75. In its concluding submissions the Notice party claimed:-

76. The Respondent, in its concluding submissions, adopted the foregoing. In addition it claimed that Dr. Holland's evidence could not be interpreted as grounding an allegation of irrationality.

77. In relation to the second ground of complaint, the Agency relied upon the "soil study" and the "cows milk study" as demonstrating that there was a sufficiency of evidence as to dioxin content.

78. Finally, in respect of the incinerator, it is submitted that there was no environmental value in having the final design available.

79. The Applicant's closing submissions sought to restate the danger to public health and to extensively rebut the closing arguments of Counsel for both the Respondent and Notice Party.

80. Having heard the arguments of the parties beginning on the 20th January, 1998 up to and including the 29th January, 1998 and having considered the pleadings and Exhibits annexed thereto I have come to the following view of the case. I consider that there was ample evidence and material documents before the Agency so as to make the decision in question. I am satisfied that it was entitled to accept Professor Rappe as being an expert well qualified to deal with the issues of dioxin emissions and their impact on human health.

81. I accept that it was within the competence of the Agency to decide that it had the results of appropriate investigations to enable it to arrive at a proper decision and further that it was also within its competence to decide that no further investigation was necessary in order to make its decision.

82. I also accept that it was within the competence of the Agency to determine that it had sufficient evidence of the proposed incinerator without requiring final details thereof.

83. Likewise, I accept that the Agency did give reasons for the issue of the licences and that the basis for their reasons are readily ascertainable from the decision and conditions annexed thereto.

84. I accept the submissions of the Respondent and Notice Party and the case law relied on by both in respect of the grounds advanced by the Applicant.

85. In regard to those findings I accept that there was a proper rational basis for the decision which is sought to be impugned and having regard to the Agency's specialised competence in those matters and for the foregoing reasons, I conclude that the Applicant has failed to discharge the onus cast on her in respect of the grounds advanced on her behalf.

86. In these circumstances I refuse the relief sought.