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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Hickey v. An Bord Pleanala [2004] IEHC 226 (10 June 2004)
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Cite as: [2004] IEHC 226
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[2004] IEHC 226
Record No. 2002/862JR
Between:
Applicant
Respondent
GALEN CHEMICALS (DUBLIN) LTD, LOUTH COUNTY COUNCIL, MARTIN LYNCH, FRIENDS OF THE IRISH ENVIROMENT, LOUTH IFA, NUALA HALPENNY, PATRICK AND MARTIN HICKEY AND LOUTH GREEN PARTY
Notice Parties
THE ENVIRONMENTAL PROTECTION AGENCY
Notice Party
MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT, AS FOLLOWS, ON THE 10TH DAY OF JUNE 2004
MR. JUSTICE SMYTH:
The Applicant seeks judicial review of a decision of the Respondent (the Board), dated 18th November 2002, granting planning permission to the first-named Notice Party (Galen) for development comprising the construction of industrial buildings, including pharmaceutical manufacturing facilities, ancillary offices and staff facilities, boiler plant accommodation and related works at Ardee, County Louth. The Applicant resides in the immediate vicinity of the proposed development and she and her family carry on a market gardening and farming business in the area.
The Applicant did not appeal the notification of an intention to grant planning permission by the second- named Respondent (LCC) on 8th November 2001. However, a number of appeals were taken against that decision, including an appeal from two sons of the Applicant. The Applicant became an observer to the appeal before the Board by reason of having responded to the notice published by the Board of receipt of the Environmental Impact Statement (EIS) in respect of the proposed development. The Applicant, having participated in the appeal, albeit as an observer, no issue was taken by the Board of the Applicant's locus standi to seek to issue these judicial review proceedings. However, the Board has put in issue the Applicant's locus standi to challenge the validity of the decision challenged on the basis of the time allowed to respond to a notice pursuant to Section 9 of the Local Government (Planning & Development) Act 1992, in circumstances where the Applicant did in fact respond to the notice served upon her within the time permitted.
There are, therefore, two issues raised by these proceedings requiring determination:-
1. The Applicant asserts that the proposed development was such as to require an Integrated Pollution Control Licence (IPC Licence) to be granted by the Environmental Protection Agency (the Agency) pursuant to the Environmental Protection Agency Act 1992. Based on this assertion, the Applicant asserted that the public notices were inadequate as they did not advert to the supposed requirement for an IPC Licence and that the Board erred in its consideration of the appeal in considering the risk of environmental pollution from the activity to be carried on in the proposed development contrary to the provisions of Section 98(1) of the Environmental Protection Agency Act 1992.
2. The Applicant contends that the time allowed by the Board for response to a notice served under Section 9 of the Local Government (Planning & Development) Act 1992 requesting further submissions or observations from the Applicant was inadequate.
THE LAW AND LEGAL SUBMISSIONS
(I) Section 98 of the Environmental Protection Agency Act 1992 Mr. C. Fitzgerald SC, for the Applicant, submitted that the proposed development is for purposes of an activity which falls within paragraph (5) of the First Schedule to the Environmental Protection Agency Act 1992, and, consequently, requires an IPC Licence. Argument was advanced as to how the nature and extent of the intended development was described in the documentation; eg, tableting facility, pharmaceutical manufacturing facility, tableting facility and female health care facility. It is clear from the evidence (eg, paragraph (7) of the affidavit of Shane Herlihy sworn on 28th February 2003, and filed on behalf of Galen, that at least five months before LCC made its decision the Applicant had decided not to change the nature and extent of the notified development but "to change the type of products" that would be produced in the proposed facility. The description of the development is accurately recorded at paragraph 2, page 4 of the report of the Inspector of the Board. In law, context is all and the purpose of public notices are to convey to the public and interested parties, in particular, the nature and extent of the development, it is not intended to be an exhaustive description of the facility proposed. Even in the instant case (indeed, as in all in others a sense of proportion is to be applied) where the reference to the use of solvents is disclosed to the Agency, the volume is well below the level that might have concerned the Agency that an IPC Licence was required.
It is clear from the evidence that in April/May 2001 the Agency had appreciated and identified the distinction between formulation and manufacturing (or, in the words of Galen, secondary pharmaceutical manufacturing and primary pharmaceutical manufacturing) and that the Agency wrote to LCC on 30th July 2001, as follows:-
"Re: Permission for construction of industrial building incl. pharmaceutical manu-facturing facilities and ancillary offices and staff facilities, boiler
plant acc, security lodge, access and internal distributor roads and site works, Currabeg, Ardee.
Dear Ms. O'Sullivan,
I am to acknowledge receipt by the Agency on 30th July 2001 of your documentation in relation to the above mentioned planning
application.
The Agency has assessed and determined that Galen Holdings plc do not require to obtain an Integrated Pollution Control (IPC) Licence in accordance with the First Schedule to the Environmental Protection Agency Act 1992 for their proposed facility at Ardee, County Louth.
Therefore, we have no comment or observations to make on the enclosed Environmental Impact Statement.
Yours sincerely,
Noleen Roche
Licensing and Control."
Subsequent to the lodgement of an appeal to the decision of the LCC, this letter would have been available or available on inspection to the Applicant. In my judgment, given that the Agency is the expert body entrusted with the responsibility under the Environmental Protection Agency Act for IPC Licensing, Galen and LCC were entitled to accept its determination, as expressed in the letter of 30th July 2001, that an IPC Licence was not required and to proceed with the planning application on that basis. The concerns of the Applicant (and perhaps others) that she "believed that the development required to be the subject of an IPC Licence from the Agency, and that to the extent that it failed to deal with this issue, the entirety of the application was fundamentally invalid and void" are expressly recorded at p.17 of the Inspector's Report. This is not a case where a decision was made without the knowledge of the Applicant's concerns. In the affidavit of the Applicant, the possibility that the process or processes intended to be carried on may come or might fall under two of the sub-classes set out in paragraph 5 of the First Schedule to the Environmental Protection Agency Act or that it might fall under paragraph 12.2. There was no scientific evidence put before the court by the Applicant to show that an IPC Licence is required.
The legislative entitlement to determine when and where an IPC Licence is necessary and upon what terms it should issue has been conferred on the Agency by Part IV of the Environmental Protection Agency Act 1992. The Board does not have any jurisdiction to determine whether an activity to be carried out in a proposed development which is the subject of a planning application also requires an IPC Licence. In such circumstances, Ms. N. Butler, SC, for the Board, submitted the requirements (as contended for by the Applicant) for the planning notice to indicate that the development is for the purposes of an activity in relation to which license is required pursuant to Regulation 15(2) of the Local Government (Planning & Development) Regulations 1994 did not arise. In my judgment, the submission of the Respondent is to be preferred as correct -- the position could be quite the reverse in a situation where the Agency determined that an IPC Licence was necessary, but that is not this case.
The Applicant contends that even where the Agency determines that an IPC Licence is not required, the matter relating to the risk of environmental pollution remains a proper matter for consideration in the planning process and that there is no statutory or other reason why the Board should be precluded from taking such matters into account, assuming that they are relevant to the proposed development. This submission has to be considered in the context of Section 98(1) of the Environmental Protection Agency Act 1992, which provides as follows:
"98 (1) Notwithstanding Section 26 of the Act of 1963, or any other provision of the Local Government (Planning & Development) Acts 1963 to 1991, where a licence or revised licence under this Part has been granted or will be required in relation to an activity, a planning authority or An Bord Pleanala shall not, in respect of any development comprising or for the purposes of the activity:
(a) decide to refuse a permission or an approval under Part IV of the Act of 1963 for the reason that the development would cause environmental pollution, or
(b) decide to grant such permission subject to conditions which are for the purposes of the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity,
and accordingly:-
(i) a planning authority in dealing with an application for permission or an appeal for any such development shall not consider any matters relating to the risk
of environmental pollution from the activity;
(ii)An Bord Pleanala shall not consider any appeal made to it against a decision of a planning authority in respect of such an application, or any submissions or observations made to it in relation to any such appeal, so far as the appeal, or the submissions or observations, as the case may be, relates or relate to the risk of environmental pollution from the activity."
The restriction on the Board considering the risk of environmental pollution arising from an activity to be carried on in a proposed development is limited to those cases where the activity requires an IPC Licence.
In such case, the risk of environmental pollution from the activity will be considered by the Agency in the course of the decision making process leading to the grant or refusal of an IPC Licence. If the matter were approached as contended for by the Applicant (and ignoring the plain language of the statute), the somewhat absurd result would be that activity which might have potential for environmental pollution, which did not require an IPC Licence, should be permitted without any restraints whatsoever. There is a clear division of competence between the Board and the Agency, and as there cannot be an estoppel in the face of the statute, the Board is, and was, in the instant case acting intra vires when imposing the conditions it did in the decision challenged in these proceedings. In O'Connell -v Environmental Protection Agency & Ors [2003] 1 IR 530, the Supreme Court considered the correct interpretation of Section 98. I am satisfied that the instant case is wholly distinguishable from O'Connell, which was a case where the Agency had decided that an IPC Licence was required and that there was no Environmental Impact Statement and thus no environmental assessment in the context of the planning process. The Applicant in the instant case expressly stated that the decision of the Agency was not being challenged, but she was challenging the failure of the Board to oblige the Agency to require it to decide that an IPC Licence was required. In my judgment, no such obligation exists on the Board. It has no jurisdiction over the Agency. Each body has its own rights, duties and responsibilities under different statutes for different purposes and the line of demarcation is clearly seen in Section 98 of the Environmental Protection Agency Act 1992. The Agency were joined as a Notice Party to these proceedings by order made on 28th April 2004, at 'the leave stage' and filed an affidavit which, in my judgment, clearly set out satisfactorily the actions it took and the reasoning of its determination, and I am satisfied that its interpretation of the terms of the First Schedule of the Environmental Protection Agency Act 1992 is correct.
I refuse the relief sought in this regard.
II Section 9 of the Local Government (Planning & Development Act 1992
This statutory provision enables the Board, where it is of opinion that it is in the interests of justice to request any party to an appeal or any other person who has made a submission to the Board concerning an appeal, to make submissions or observations on any matter which has arisen in relation to the appeal. In the event of the Board exercising its discretion, it may ...
"...serve on any such person a notice under this section:-
(a) requesting that person, within a period specified in the notice (not being less than fourteen or more than twenty-eight days beginning on the date of service of the notice) to submit to the Board submissions or observations in relation to the matter in question, and
(b) stating that, if submissions or observations are not received before the expiration of the period specified in the notice, the Board will, after the expiration of that period and, without further notice to the person, pursuant to Section 11, determine the appeal."
Before considering the discretionary nature of the power conferred by the section and the distinction between what the Board may or will do, it is appropriate that the factual background to the issue be noted.
The first appeal in respect of the decision of LCC was received on 3rd December 2001. The Board is set a statutory time objective contained in Section 2 of the Act of 1992, which provides as follows:-
"2(1) It shall be the duty of the Board to ensure that appeals and other matters with which it is concerned are disposed of as expeditiously as may be and, for that purpose, to take all such steps as are open to it to ensure that, insofar as it is practicable, there are no avoidable delays at any stage in the determination of appeals and other matters."
Accordingly, the Board were required to attempt to determine the appeal before 3rd April 2002. The Board issued a notice as required by Section 2 when it became apparent that it could not determine the case prior to 3rd April 2002, and stated it intended to determine the case before 2nd July 2002. The Board issued a further letter on 1st July 2002, indicating that it intended to determine the appeal before 19th September 2002.
The bulk of the documentation and information relating to the application by Galen had already been in the public domain for a considerable time (eg, the original application of 18th January 2001, the EIS of 18th July 2001, and the "further information" which was provided on 3rd October 2001). The Board requested from Galen certain points of detail in respect of the application -- this was not fundamental to an understanding of the proposal, but to ascertain some refinements to the information which had been in the public domain for a considerable length of time. The Board received, on 14th October 2002, the response of Galen, which was notified to the Applicant by letter dated 16th October 2002, and received the following day by the Applicant's solicitors. The reply dated 29th October 2002 complains that the time within which the Board had requested a reply was thirteen days and requested a period of six to eight weeks in which to consider matters and make a response. In anticipation of a positive response to this request, the solicitors (inter alia) stated:-
"... we have referred the matter to our experts for their analysis and we will submit a detailed response when you confirm the period within which such response would have to be made ..."
In the light of Section 9(b) of the Local Government (Planning & Development) Act 1992, the Board did not respond to this application for an extension of time but considered the Applicant's solicitor's letter and proceeded to make the decision of 18th November 2002, impugned in these proceedings. Neither in the interval between 29th October 2002 and 18th November 2002, nor since the latter date, or in these proceedings, is it revealed to what expert(s) the Board's letter of 16th October 2002 (with enclosure) had been referred to or what it is that might have been put before the Board to influence its decision.
Notwithstanding the discretionary terms of Section 9 as cited, the fact is admitted that the Applicant was only given thirteen days, rather than fourteen days, within which to respond to the Board's letter of 16th October 2002. A reply was made within time and it was not stated then or in the course of the hearing that one further day would have made any difference to the Applicant's response (the public health concern or issue was clearly live from 27th March 2002 onwards). However, Mr. C. Fitzgerald SC urged the court to apply the time limit provision of the statute in absolute terms. In this regard, I believe guidance is to be had in the judgment of Henchy J in Monaghan UDC -v- Alf-a-Bet Promotions Ltd [1980] ILRM 64 at p.69:-
"I do, however, feel it pertinent to express the opinion that when the 1963 Act prescribed certain procedures as necessary to be observed for the purpose of getting a development permission, which may affect radically the rights or amenities of others and may substantially benefit or enrich the grantee of the permission, compliance with the prescribed procedures should be treated as a condition precedent to the issue of the permission. In such circumstances, what the Legislature has, either immediately in the Act or immediately in the Regulations, nominated as obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with."
In the instant case, on its own facts, I am satisfied and find as a fact that there has been substantial compliance by the Board under Section 9.
Furthermore, other than is stated in the letter of 29th October 2002, of the Applicant to the Board, no prejudice has been sustained by any evidence put before the court. In Ryanair Ltd -v- An Bord Pleanala (unreported the High Court 27th February 2004), 0 Caoimh J considered the provisions of Section 131 of the Planning and Development Act 2000, which is in like terms to Section 9 of the Local Government (Planning and Development) Act 1992. At p.37 of the transcript of the judgment, 0 Caoimh J stated:-
"...with regard to the notice sent to the Applicant pursuant to Section 131 of the Act of 2000, I am satisfied as a matter of fact that even if it purported to restrict the time within which a submission might be made at the time, this in fact did not preclude the making of any submission by the Applicant as it did in fact make its submission within the period allowed. Once the submission has been made within the statutory period, the letter inviting same could not act in a manner to defeat the legal rights of the Applicant. I am satisfied that on the facts of this case the issue raised is essentially a moot and the Applicant has failed to advance substantial grounds for contending that the impugned decision is in any way invalidated or ought to be quashed by reason of the terms of the notice in question."
With unfeigned respect, I adopt and apply his decision to the instant case. I refuse relief on this ground.
Much interesting and learned argument was addressed to me, with supporting authorities, as to what the law understood by the expression "manufacturing". While commending the industry of counsel in this regard, I believe it to be outside the scope of judicial review of administrative action and, accordingly, do not feel called upon to make any decision in that regard. Accordingly, I refuse the reliefs sought on the grounds upon which leave was granted.
END OF JUDGMENT