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Judgment Title: Craig -v- An Bord Pleanála Neutral Citation: [2013] IEHC 402 High Court Record Number: 2011 947 JR Date of Delivery: 26/08/2013 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 402 THE HIGH COURT [2011 947/J.R.] BETWEEN Enda Craig Applicant v.
An Bord Pleanála Respondent -And-
Donegal County Council Notice Party Judgment of Mr. Justice Hedigan delivered on the 26th of August 2013. Application Factual background In September 2007 the Council sought an opinion from An Bord Pleanála under s.226 (7) of the Planning & Development Act 2000 (as amended) in relation to the proposed development, owing to the trans-boundary nature of the project (Lough Foyle borders both the Republic and Northern Ireland) and the potential environmental effects on the Lough. The proposed development and ancillary pipe work did not come above the threshold for a mandatory Environmental Impact Statement (hereinafter "EIS") - which is a population equivalent of 10,000 or more. However the Council requested An Bord Pleanála to treat it as a project requiring an EIS and on the 2nd January, 2008, owing to the sensitivity of the site An Bord Pleanála determined an Environmental Impact Assessment (hereinafter "EIA'') be prepared and submitted to it for approval. 2.2 On the 22nd August, 2008, Donegal County Council applied, pursuant to s.226 of the Planning & Development Acts 2000-2011 to An Bord Pleanáa for permission for the construction of the WWTP. The Board appointed Mr. Daniel O'Connor as inspector to advise on the application and he presided at an oral hearing on the 30th June and the 1st July, 2009.At the hearing a preliminary draft of the project was presented by the Council .On the 6th October, 2009, he reported on this hearing and his report recommended for a number of reasons that the proposed development be refused. On the 4th February, 2010, the Board met and requested further information in relation to the project from the Council. On the 8th April, 2010, the inspector reported on this further information and again recommended refusal. In all the inspector recommended refusal of the application three times. The Board disagreed with the inspector's opinion and planning permission for the project was granted subject to conditions in the Board's decision of the 12th August, 2011. On the 6th October, 2011, the applicant made an ex-parte application to Peart J. and obtained leave to apply for judicial review of the Board's decision. Environmental Assessment Applicant's Submissions The applicant had initially argued that the appointment of Mr. Conall Boland to the board of An Bord Pleanála raised an apprehension of subjective bias but he later amended this to allege an apprehension of objective bias. The applicant argues that the involvement of Mr. Boland in the determination of whether the project should be granted permission was inappropriate having regard to his past employment. Mr. Boland was previously a technical director of RPS Consultants (or its sister company) which carried out studies in respect of the development the subject matter of the application and produced what the applicant considers was a critical and contentious report entitled "Hydrodynamic and water quality modelling study" in the EIS. This report concerned an area of expertise with which Mr. Boland is familiar. The applicant argues that the apprehension of bias is heightened due to the fact that Mr. Boland was central to the processing of the application for the WWTP. He was the author of all of the Board's directions regarding the application for the WWTP and in particular the Board's directions which on three separate occasions (being the 4th February, 2010, the 8th April, 2010, and the 24th June, 2010) departed from its own inspector's recommendation to refuse consent for the proposed WWTP. The applicant submits that it is highly unusual if not unprecedented for an inspector to recommend refusal of consent three times and for the Board to ignore this recommendation. The applicant contends that because the inspector's recommendation did not accord with the views of Mr. Boland he effectively removed the inspector entirely from the process by way of his final direction of the 24th June, 2010, whereby the board sought information from the Environmental Protection Agency (hereinafter "EPA" )without any recourse to the inspector. The applicant argues that there were other board members having no conflict of interest who could have undertaken the role Mr. Boland performed and his involvement was therefore unnecessary. Also of note, the applicant argues, is the fact that the Board's code of conduct would have required Mr. Boland not to handle the application for the WWTP had it come before him two years earlier as this would have been within one year of his employment with the company that produced the study. The applicant contends that having regard to all of the above there was an understandable apprehension of objective bias on his part. The test for objective bias was alluded to by Fennelly J. in Kenny v Trinity College Dublin [2008] 2 IR 40. where he stated at paras.18-21:-
' .. .it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues....it is an objective test-it invokes the apprehension of the reasonable person." 4.2. Inadequacy of EIS/EIA The applicant contends that the EIS and EIA process carried out by the Board were deficient for the purposes of the Board's assessment of the likely impacts of the proposed development. His argument in this regard is premised on two points. Firstly, he argues that the Board contravened Directive 85/337 EEC (hereinafter the "EIA Directive") in carrying out an assessment without having sufficient information (such as regarding the design of the project) to enable it to be carried out correctly. Article 3 of the EIA Directive provides that:-
-human beings, fauna and flora, -soil, water, air, climate and the landscape, -the inter-action between the factors mentioned in the first and second indents, -material assets and the cultural heritage. Commission v Ireland (Case C- 50/09) dealt with the adequacy of Ireland's transposition of the EIA Directive .The ECJ ruled therein that the Planning & Development Act 2000 (as amended) and the Environmental Protection Agency Act 1992 (as amended) inadequately transposed the EIA Directive and was in breach of it. The ECJ made a distinction between the obligation at the end of the decision making process to take into consideration information gathered by the Board and the obligation of the Board to carry out an assessment of that information. At paras. 36-40 it held:-
2. The revised discharge standard for the plant by Donegal County Council during the course of the oral hearing; 3. The potential impacts on the quality of the receiving waters arising from the operation of the proposed WWTP at Camagave; 4. The potential impacts on the receiving waters from the proposed emergency outfalls at the pumping stations at Carrickarory, River Row (Moville) and Greencastle pier. The applicant argues that from the wording of the letter to the EPA it is clearly evident that the Board was requesting the EPA to provide it with an analysis of information as part of the EIA and it was not an idle request especially considering it enclosed almost the whole file on the matter with the letter. The applicant points to the fact that the letter refers to the oral hearing where the environmental impacts of the WWTP discharge to Lough Foyle and associated dispersion modelling were discussed. The respondent informs the EPA that at the hearing the applicant proposed a stricter treatment standard for effluent than that set out in the EIS and said that "....it is considered appropriate that the Board consults further with the Agency prior to completing the environmental impact assessment for the project and making its decision....the Agency is therefore invited to comment on the information contained in the EIS....." (being 1-4 above). Moreover, the applicant contends, the Board direction dated the 24th June, 2011, and signed by Mr. Boland expressly records that "the board decided to defer consideration of the application and to consult with the EPA having regard to the implications of the ECJ ruling 50/09". In its response to the Board's letter dated the 22nd July, 2011, the EPA declined the Board's invitation to comment on the above four matters and did not furnish any of the data sought. The applicant argues that if the Board deemed this information necessary but it was not furnished to it, the Board cannot have conducted an assessment of the information (let alone one in accordance with case C- 50/09). The respondent did not (and could not) undertake either an investigation or an analysis of the standard of treatment to be employed at the proposed WWTP based on 1-4 above to enable it to reach as complete an assessment as possible of the direct and indirect effects of the project concerned on the factors set out in the first three indents of Article 3 of the EPA Directive and the interaction between those factors. Moreover, the applicant argues, the Board was further impeded in carrying out an appropriate assessment since it had inadequate information before it in terms of the design of the proposed development. He points to the fact that only a preliminary model of the WWTP (the so called "design and build" project) was presented at the hearing. This type of project leaves the critical decision making to the construction contractor and the applicant queries how a meaningful assessment of it could be done as it had yet to be fully designed. He argues that the respondent erred in law by failing to consider whether and how the quality of treated effluent could be reduced from the proposed level of 50,000 coliform forming units (CFU) in the EIS to that proposed at the oral hearing of 2,000 CFU .It is obliged under Directive 85/337 EEC and the Planning & Development Act 2000 to show how such a change would be effected and its impacts. The applicant suggests the inspector also found the EIS inadequate. This is evident from p.137 of his report where at para. 6.1. (a) he states that the proposal for treatment should be refused having regard to:-
The applicant does not dispute the need for a WWTP and is not against the project per se. He argues that if the process is done correctly and according to legislation he would have no further complaint. However, he submits that in fact the process was not completed correctly and the Board is in clear breach of the EIA Directive and the judgment of the ECJ in case C- 50/09. The applicant therefore contends that the Board's decision must be quashed. He relies on Berkeley v Secretary of State (2003) 3 All ER 897 where Lord Hoffman stated at p.907:
The second point on which the applicant argues that the EIA/EIS fell short of requirements is in relation to Northern Ireland. The applicant argues that there is no evidence that Donegal County Council assessed the trans-boundary effect of the project or considered what areas and territories the project would impact upon, given that Lough Foyle borders both the Republic and Northern Ireland. The applicant submits that the Board never appears to have directed its mind to the extent and status of that boundary in its assessment as posited by Mr. McCartney. The respondent may argue that it notified the Northern Irish authorities of the project however the applicant argues that merely notifying them is inadequate. He submits that the respondent should have considered from the outset where the outfall would be placed and this should have been properly assessed by the Council but this was not done. The applicant further notes that an issue has recently arisen regarding ownership of the seabed of the Lough being the seabed on which the project will impact. If the UK was to lay claim to this it means that the Council would be attempting the compulsory purchase of crown lands for the project to progress. 4.4 Habitats Directive The applicant submits that the respondent erred in law and acted ultra vires in the manner in which it assessed and approved the proposed project before it had ascertained that it would not adversely affect the integrity of European sites as required by the EC (Natural Habitats) Regulations 1997 (as amended) and Directive 92/43/EEC (as amended) on the conservation of natural habitats and of wild flora and fauna (hereinafter known as "the Habitats Directive") in circumstances where there would be direct discharge into a proposed site. Pursuant to the Habitats Directive certain sites may be designated as natural habitats and part of the Natura 2000 European Ecological Network. The sites so designated are subject to the provisions of the Directive. Article 6(3) thereof requires that:-
The applicant accepts that the entire Lough is not designated a natural habitat however portions of it are so designated. The applicant further accepts that the outfall pipe is not spilling into a designated site. However, he contends that it will be spilling into the Lough and argues that effluent could be carried to other parts of the Lough that are designated as a SAC. The applicant submits that following the Waddenzee case (Case C- 127/02), the respondent must satisfy itself to an extremely high standard that the proposed WWTP will not have an adverse effect on the integrity of the site. Waddenzee was a reference for a preliminary ruling concerning the interpretation of Article 6(3) and the extent of the obligation to ascertain that a project will not adversely affect a site's integrity. The applicant contends that from this ruling it is clear that where any doubt exists as to the effects of the project, the proposed development must be refused. The applicant also relies on Commission v Portugal (case C-239/04) where General Kokott found in a similar vein to Waddenzee at para. 31 of his opinion that:-
The applicant is concerned about the adverse effect of the project on the Lough and the beaches and coastline in the vicinity given that it is an important water body and a major amenity. He is also concerned that no consideration was given to the unique ecological situation of the Lough as the Foyle area is a narrow inlet and, while a marine area, it is almost completely enclosed and is unique in terms of its tidal conditions but also in terms of its ecological importance. It is evident from p.63 of the inspector's report that The Loughs Agency shared the applicants concerns that no proper evaluation had been undertaken, specifically regarding receptors such as eel, salmon and lamprey which are protected under the Habitats Directive in the designated areas. The applicant argues, as Mr Me Cartney of the Loughs Agency does at p.77 of the inspector's report, that an appropriate assessment was not carried out under the Habitats Directive in relation to those receptors downstream which while not in a protected area may be affected on the migratory routes to the designated areas. Respondent's Submissions The respondent refutes the unwarranted allegation that Mr. Boland acted inappropriately and that the Board's decision was motivated by bias. The respondent notes that the applicant in his pleadings complained of subjective bias but in his oral submissions attempts instead to raise an apprehension of objective bias. The legal principles regarding an evaluation of an allegation of bias were laid out in Usk & District Residents Association Ltd. V An Bord Pleanála & Ors. [2009] IEHC 346 where Me Menamin J. said at para. 22:-
The respondent submits that it is evident from the applicant's second affidavit dated the 8th January, 2013, at para. 59 (wherein he says "...it would be very difficult, no matter how objective Mr.Boland would try to be, to distance oneself from a firm that he was once employed by...when one has held such a senior position in that firm...it is difficult to reconcile this with a person who was disinterested in the outcome sufficient to allow an objective assessment ...")that bias is not being prosecuted from the viewpoint of someone who might have a reasonable apprehension of bias (objective bias) but is based on a claim of subjective bias. The applicant's allegation of bias is without foundation. Mr. Boland swore an affidavit setting out that he had no involvement with RPS. MCOS was one of the leading Consultancy firms in Ireland. Mr. Boland began working there at the beginning of his career and rose to the position of technical director. Kirk was similarly one of the leading firms in Northern Ireland. Both firms were acquired separately by an international company- RPS, between 2002 and 2004. The respondent submits that the applicant sought in his pleadings to impute an improper relationship from the sole fact that Mr. Boland worked for a company which carried out a particular study for the EIS and was related to one in Northern Ireland. He has now changed tack and characterises his claim in this regard under the heading of objective bias. The respondent argues that the applicant's concerns are baseless and relies on O'Neill v Irish Hereford Breed Society Limited [1992] 1 IR 431 where at p. 450 Murphy J. held:-
It is denied that Mr. Boland took advantage of his role on the Board to ensure that the board's decision would be favourable to RPS or that he usurped the role of the inspector. It is submitted that the applicant misunderstands the inspector's role vis a vis An Bord Pleanála. Under s.146 of The Planning & Development Act 2000 the inspector's function is to consider an application by making a written report and recommendation. The Board is the ultimate assessor of a project not the inspector. The respondent argues that Kenny v. Trinity College Dublin on which the applicant relies is not in point herein. That case is distinguishable from this one, it is contended, since Kenny involved not merely a planning issue but an allegation of fraud against an architect, where the brother of the judge hearing the matter was a partner in the firm of architects implicated. No such relationship exists herein. In the circumstances the respondent contends there is no reason for a reasonable person to have any grounds for suspicion much less to conclude that Mr. Boland might have been actuated by bias or a desire to assist RPS. 5.2 Habitats The respondent contends that there is no legal or factual basis for the applicant's contention that it has breached the EC (Natural Habitats) Regulations 1997 or the EIS requirements. The respondent notes that Lough Foyle itself is not a designated site although there are two Natura 2000 designated sites within the Lough. Those sites are roughly 11.5km and 4.5 km away from the discharge point of the WWTP. Thus, the respondent argues it did not have to meet the requirements of Article 6(3) of the Habitats Directive as the discharge will not take place into a protected site. Similarly it is argued that the board is not bound to meet Article 6(3) on the basis that areas near the protected sites must not be harmed since the protected areas in question are far from the outfall. There is no basis for contending that the Council did not consider the impact on Northern Ireland as it is patently obvious from the EIS and the inspector's report that the entirety of the Lough was assessed. The assessment obligations which arise in relation to habitats were considered in Sweetman vAn Bard Pleanála [2010] IEHC 53 where it was held that such obligations only arise for projects which are likely to have a significant effect on SACs. As Sweetman makes clear the decision of which projects fall within this category is a decision for the board. The Board felt it had sufficient evidence before it to determine that the effect of the project on the receiving waters in Lough Foyle was unlikely to produce a significant effect on the relevant sites. Despite an assessment not being required the EIS did deal with these matters and the inspector in his report of the 6th October, 2009, in fact outlined how the EIS dealt with them under the heading "Flora and Fauna" at s. 3.4 of his report. On water quality the inspector expressly stated at s. 5.6 of his report that the EIS found that "the impact on water quality....is not considered to give rise to significant negative water quality impacts". Donegal County Council took the view that the overall impact of the scheme on water quality would be positive and the inspector agreed. The applicant appears to be relying on the expert report of Ms. Dubsky entitled "Considering Impacts on Sea Grass Zostera Marina" wherein she states that insufficient consideration was given to eelgrass. The respondent considers the manner in which the applicant characterises her report to be of concern. The report actually states that the main problem arises from the discharge of raw sewage which is what the WWTP seeks to eliminate. Ms. Dubsky correctly acknowledges that Lough Foyle is not as a whole a designated Nature 2000 site and there is no designation in the vicinity of the outfalls. Nonetheless the outfall location was considered in light of portions of the area being covered by nature conservation designations. She deals with the legal status of eelgrass at p.4 of the report. She explains that it is a qualifying species but is not designated in Lough Foyle. Thus, the respondent argues, while the grass is of significance it is not of legal significance in the context of the Habitats Directive. Nonetheless, the effect on marine habitats including eel grass was also considered, as is evident from the inspector's report and part 4 of the EIS, as were oysters, which are not a protected species under the Directive. The applicant is concerned about the effect on salmon, otters and rare birds. It is clear from the inspector's report that the impacts on otter, birds and salmon was considered. It is clear from part 4 of the EIS that Donegal County Council also addressed the impacts on potentially affected species. 5.3 Northern Ireland. The respondent argues that the applicant in his second affidavit has introduced a point on which leave was not sought, being the jurisdictional issue, where he maintains that the "extent of the national territory" was "the most fundamental consideration in the entire application" and that the respondent failed to take this into account when assessing the project. He further contends that the development for which permission has been granted lies in part outside the jurisdiction, to the extent of contending that it may require the compulsory acquisition of "crown lands". The respondent asserts that the only grounds the applicant may advance are those for which he was granted leave and the applicant's arguments are in any event completely without foundation and entirely misconceived. The respondent denies that it failed to consider its obligations vis- a- vis the status and extent of the adjoining territory or that it omitted to assess any trans-boundary effects the development may have had, and argues that any claim to the contrary is without merit and factually baseless. Trans-border effects were identified and engaged with. In fact Donegal County Council specifically asked the board to submit an EIA because of those potential effects. There were detailed consultations between Donegal County Council and the relevant Northern Irish authorities. The respondent submits that almost as many northern bodies as southern were consulted demonstrating that the Council was concerned with the cross- border effects of the project. Moreover, p.5 of the Board's decision expressly refers to its consideration of input from the Loughs Agency and the Planning Service of Northern Ireland. Although in the end the Board did not agree with the suggestion made by the Loughs Agency it cannot be presumed from this that it did not have any regard to the agency's suggestions. The entities who made submissions have not made any complaints and the respondent submits that the applicant does not have standing to now make a complaint on their behalf. 5.4 EIA/EIS It is the statutory function of An Bord Pleanála to assess the adequacy of the EIS as part of the EIA process. In this process the planning authority, and on appeal the Board, must be appraised of the likely significant effects on the receiving environment of a proposed development. The Board in its decision (at p.2 "Reasons and Considerations") indicated that it completed its assessment on the basis of the EIS furnished by the Council and the modelling exercise as presented at the oral hearing and was satisfied that the proposed discharge would be compatible with protecting water quality in Lough Foyle. The Board clearly felt that the EIS contained a sufficient and appropriate level of information to assist it in assessing the main effects of the proposed development and to enable it to carry out the EIA having regard to the requirements under the Planning Act 2001 and Planning & Development Regulations 2001. The inspector expressly stated at s. 5.1 of his report on the 6th October, 2009, that "The EIS submitted is considered to comply with legislative requirements." It is argued that the applicant's contentions in relation to the inadequacy of the EIS are misconceived, having regard to the requirements of the discretionary provisions of Article 94 of the 2001 Regulations which states:-
(a) the information specified in paragraph 1 of Schedule 6, (b) the information specified in paragraph 2 of Schedule 6 to the extent that- (i) such information is relevant to a given stage of the consent procedure and to the specific characteristics of the development or type of development concerned and of the environmental features likely to be affected, and (ii) the person or persons preparing the EIS may reasonably be required to compile such information having regard, among other things, to current knowledge and methods of assessment, and (c) a summary in non-technical language of the information required under paragraphs (a) and (b)." The applicant maintains that the EPA was not consulted until 2011, some weeks before the application was determined. This is incorrect. From a memo dated the 25th May, 2010, it is clear that the board received submissions from the Agency in relation to both sets of additional information submitted by the Council. Moreover, the respondent denies that a letter to the EPA of the 30th June, 2011, was a request for further information. It submits that the language used in that letter can be contrasted with a letter dated the 10th February, 2010, to Donegal County Council where the respondent clearly states that it is looking for further information. It says "....hereby requires you to furnish the following further information...". whereas the letter sent to the EPA states that the EPA "...is invited to comment on the information contained in the EIS....". The board argues that the letter of the 30th June, 2011, is no more than an invitation to comment and nothing arises from the EPAs failure to do so.
The respondent argues that the applicant errs in its reliance on case C-50/09 and argues that the split decision process in that case is irrelevant to this case. In that case the European Court of Justice accepted that the Supreme Court interpretation of the EIA complied with the Directive, but found that there were shortfalls in the legislation therefore clarity was needed as it was not evident in the transposing measures. The respondent submits that the requirement of the EIA process is to assess the likely environmental effects of a proposed development for which the EIS merely sets the agenda for further discussion and deliberation. It relies on the dicta of Mac Mahon J. in Klohn v. An Bord Pleanála 1 I.R. 59 who noted at p.63:-
It is well established that assessment of the adequacy of an EIS is a factual matter requiring a particular planning expertise and is a matter for the decision maker (An Bord Pleanála). In Klohn v An Bard Pleanála Me Mahon J. at p.64 held:-
In Klohn at 73 Mac Mahon J. also held:-
In its decision the board explains in detail its main reasons and considerations in granting planning permission. It also explains it reasoning for deciding not to accept the inspector's recommendation. The Board's obligation to recite its main reasons is contained in s.34 (10) of the Planning and Development Act 2000. This provides that :-
(b) Where a decision by a planning authority under this section or by the Board under section 37 to grant or to refuse permission is different, in relation to the granting or refusal of permission, from the recommendation in- (i) the reports on a planning application to the manager (or such other person delegated to make the decision) in the case of a planning authority, or (ii) a report of a person assigned to report on an appeal on behalf of the Board, a statement under paragraph (a) shall indicate the main reasons for not accepting the recommendation in the report or reports to grant or refuse permission."
On the particular standards required of reasons in such a case in O'Neill v An Bord Pleanála [2009] IEHC 202 at paragraphs 34-37 Hedigan J. held with specific regard to the s.34(10)(b) situation that :-
Notice party Submissions The notice party adopts the respondent's submissions. It notes that the WWTP itself was sub-threshold the requirements for a mandatory EIS as was the associated pipe work. Nonetheless, an EIS and EIA were conducted and the overall proposal was assessed therein. As part of this assessment it was noted in the EIS that the proposed project would have an overall positive environmental effect, however the notice party submits, the applicant has attempted to argue the matter in such a way as to make it appear that the statement concluded that a negative environmental impact would ensue. The matters of which the applicant complains such as flora & fauna, water quality and soils were considered in the EIS and by the inspector in his report and it was found that there was no significant impact on any of them. The Loughs Agency did not raise any concerns in respect of the Northern Irish side of the Lough. It is accepted that it did raise concerns regarding salmon, eel and lamprey which would travel throughout the Lough however the notice party submits that this concern was adequately addressed by the County Council. The notice party asserts that the preliminary design of the project upon which the EIS was based was conclusive in a number of respects e.g. the hydraulic design, as is evident from the affidavit of Ms. Conibear. Therefore it is argued that the respondent did have enough information to conduct a thorough assessment of the project. The applicant has not raised any precedent in support of his argument that final design is a requirement of the EIS process. In Klohn v An Bord Pleanála & Ors. [2009]1 IR 59 Me Mahon J. explained the role of the EIS at p.63 finding that:-
The difference between the EIA and EIS and their relationship was set out by Clarke J. in Arklow Holidays Ltd. v. An Bord Pleanála & Ors. [2006] IEHC 15 where he stated at para. 6.2:-
Decision
(b) failure to assess the impact on the Northern Ireland side of Lough Foyle; (c) inadequacy of the EIS/EIA. 7.3 In his replying affidavit herein sworn on the 29th May, 2012, Mr. Boland deals comprehensively with the relationship between his former employer, RPS Consulting Engineers Limited, located in Ireland and RPS Consulting Engineers Limited, located in Northern Ireland. He explains how those two companies were originally completely independent from each other. The company in Ireland being originally M. C. O'Sullivan & Co. Ltd., the one in Northern Ireland being originally, Kirk McClure Morton. This company was the largest consulting engineering firm in Northern Ireland and did some work in Ireland. Both these companies were acquired in or about 2002 by RPS Group plc., a U.K. company. RPS group acquired a number of other companies in Ireland and Northern Ireland providing planning and environmental services in both jurisdictions. These companies were re-branded as RPS- MCOS (the Ireland Company) and RPS Consulting Engineers Ltd. (the Northern Ireland Company). RPS- MCOS subsequently re-branded again as RPS Consulting Engineers. Both, he avers, are different corporate entities and each company in the RPS Group in Ireland and in Northern Ireland acted independently. Mr. Boland also states that although as an engineer he can understand such reports, he has no specific expertise in hydrodynamic and water quality modelling which is a highly specialised area of environmental engineering. He further explains that he was a technical director with his former company employer and not, as the applicant thought, a company director. He swears further that during his employment he was unaware that Donegal County Council had engaged RPS in Belfast or that they were seeking to build a waste water treatment plant near Moville. He states he does not know the staff of RPS Northern Ireland other than through corporate social events nor did he know in what projects they were involved. He himself was not involved in any way with the preparation of the report nor was he in any way involved with the Moville project. He notes lastly that he was first involved with the Board's file in this project in November 2009, almost three years after he left RPS and the Board's decision was made over four and a half years after he left RPS. The Court must also bear in mind that persons such as Mr. Boland are chosen to sit on the Board precisely because of their professional background and experience. See s. 106 of the Planning and Development 2000, as amended. As is clear from this provision, those appointed to the Board will first be nominated by representative associations prescribed for that purpose and appointed by reason of their expertise. In relation to this case, appointments must be made of two members from nominations of bodies representative of persons whose professions or occupations relate to physical planning, engineering and architecture as may be prescribed. Consequently, the apprehension that a reasonable person may have must accommodate the fact that such persons (including engineers) are appointed precisely by reason of their experience and background. By definition they must have a very considerable engineering background. Ideally they should be persons of considerable experience and be leaders in their field. 7.4 The test of objective bias is as set out by Fennelly J. in Kenny v. TCD (cited above). In that case the apprehension raised involved one of the Judges of the Supreme Court who was the brother of an architect who was one of the partners of a firm, Murray O'Laoire Architects. It was alleged this firm had deliberately misled the High Court in its reports. The apprehension alleged was that the Judge in question might find difficulty in adjudicating on such a serious charge against his brother's architectural practice. Fennelly J. cited the test set out by Denham J. in Bula Ltd. v. Tara Mining Ltd. (No. 6) [2000] 4 I.R. 412 at p. 441;
21. The test of objective bias is expressed in general terms. Its application demands an appreciation of all the circumstances of the individual case, followed by a particularly careful exercise of the faculty of judgement. In his judgment in O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419, where the allegation was one of pre-judgment bias, Finlay C.J. expressed the view, at p. 439, that, in analysing the facts, he should 'take the interpretation more favourable where there is ambiguity to the plaintiff than to the defendant.' Whether or not that is a principle of general application, it applies in a special way in the present case, where this court is asked, in a very real way, to adjudicate on whether one of its own judgments was tainted by objective bias. That fact obliges it, in order to ensure respect for the principle that justice must not only be done but be seen to be done, to act with great care and circumspection. It should err on the side of caution. 22. An important aspect of this case is the substance and character of the allegations being made by the plaintiff in these proceedings. He alleges that the first defendant engaged in deliberate misleading of the High Court with the result that the court made an incorrect decision. The affidavits exchanged in the High Court show that the plaintiff alleges that the firm of architects were implicated in this action by the first defendant. 23. In his judgment in Orange Ltd v. Director of Telecoms (No. 2) [2000] 4 IR 159, Barron J. approved a lengthy passage from the judgment of the Court of Appeal in England (consisting of Lord Bingham C.J., Lord Woolf M.R. and Sir Richard Scott V.C.) in Locabail (UK.) Ltd v. Bayfield Properties Ltd [2000] 1 QB 451, which contains the following relevant statement at p. 480:- ,... a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the case .. .' A witness will suffice. The question is whether a reasonable observer might have a reasonable apprehension that a Judge, hearing such allegations being made against the firm of architects in which his brother was a member, although that brother was not in any way directly involved in the subject matter of the litigation, might find it difficult to maintain complete objectivity and impartiality. Could such an observer be concerned that the allegations were of a nature to cast doubt on the integrity of at least one member of the firm and that a Judge should not adjudicate in such a dispute. Applying the most favourable interpretation of the facts from the plaintiff’s point of view, and bearing in mind that the Court should be especially careful where it is considering one of its own judgments, I believe that the test of objective bias should be held in all the circumstances to be satisfied." Alleged failure to assess the impact on the Northern Ireland side of Lough Foyle This claim appears entirely at variance with the evidence. The reason that Donegal County Council decided to submit the application to An Bord Pleanála was because there was a trans-border aspect to it. Further, the EIS report at 1.4.3 notes that there had been consultation with the Londonderry Port Authority and the Loughs Agency, which is a trans-border body established under the 1998 Good Friday Agreement. The following page of the EIS lists thirteen Northern Ireland bodies that were consulted. At 4.1.3.2 it notes the partial jurisdiction of the Environment and Heritage Service of Northern Ireland and in the context of designated areas it refers again to this Northern Ireland body at 4.3.3.2. Finally, in its decision at page 5, An Bord Pleanáa considered but did not accept a suggestion made by the Planning Service of Northern Ireland and the Loughs Agency to locate the discharge pipe outside of Lough Foyle due to the limited scale of discharge and the EIA assessment that impacts on water quality would be acceptable and would be a substantial improvement on the current situation. In the light of the above, it is clear that there was, in fact, a trans-border assessment made based on submissions made by the Northern Ireland authorities. This in fact was done at the request of Donegal County Council in choosing to make the application to An Bord Pleanála. This part of the applicant's case is entirely without foundation. No adequate EIS/EIA carried out By contrast, in its letter to the EPA dated 30th June, 2011 which the applicant considers to be in the nature of a request for information pursuant to s. 175(5)(a) as applied to s. 226 of the Planning and Development Act 2000 and as made above to Donegal County Council, the Board invites the EPA to comment. The Board states that it would greatly appreciate a response by a particular date. These two requests are clearly entirely different from each other in nature. Whilst the first is mandatory in nature, the second is no more than an invitation to an interested party to comment on the information contained in the EIS and the mitigation measures proposed therein. The EPA, for their own reasons, declined to provide this information. The applicant mischaracterises this invitation to the EPA when he equates it with the requests made pursuant to s. 175(5) (a) of the Planning and Development Act 2000. The invitation to comment is not made pursuant to the statute and there is no obligation upon the Board to insist upon an answer nor any bar on their proceeding without one. Thus, the ground upon which the applicant relies in order to argue that the Board did not examine the substance of the EIS is not supported by the evidence upon which it sought to base that argument. 7.8 The second ground was that there was not an adequate EIS. The adequacy of an EIS is dealt with in Article 111 of the 2001 Regulations;
Examining this question, the following must be noted; the inspector stated in his report that "the EIS submitted is considered to comply with legislative requirements". See s. 5.1 of the Inspector's report of the 6th October, 2009 (at p. 96). In Kenny v. An Bord Pleanála cited above, McKechnie J. held;
7.9 The applicant alleges that there is a direct discharge into a "proposed site". He accepts that the entire Lough is not designated a natural habitat, but states that certain portions are. It is accepted that the outfall pipe is not filling into a designated site, but is into Lough Foyle and it is claimed that the effluent could be carried into other parts of the Lough that are designated. He argues that where there is any doubt, planning permission should be refused, see Waddenzee v. SLNV ECR 2004 1-07405. He finally notes that s. 63 of the Inspectors' Report shows that the Loughs Agency shares its concerns specifically in relation to eel, salmon and lamprey. The respondent argues that the Lough is not designated although there are two Natura 2000 designated sites within it. These are 11.5km and 4.5km respectively from the discharge point. The only two designated areas are on the Northern Ireland side. Therefore, the respondent argues that they do not have to meet the requirements of Article 6(3) of the Habitats Directive, because there is no discharge into a protected site. It seems to me that there is no evidence, only an assertion, that the discharge might affect these designated areas above. It should be noted that the evidence is that approximately twenty times the effluent flows into the Lough from the Northern Ireland side than from the Ireland side. In any event the Inspector agreed with Donegal County Council that the overall impact of the scheme on water quality would be positive, although barely noticeable. Moreover Part 4 of the EIS did in fact address the impact on species it considered likely to be affected. See the report at 4.3.3.4, 4.3.3.5 and 4.3.4.2. The Habitats Directive envisages projects that are likely to have a significant effect on special areas of conservation and it is only those that require an assessment. The Board's decision on such matters is an exercise by it of its planning expertise and challengeable only on O'Keeffe grounds. See Sweetman v. An Bard Pleanála [2010] IEHC 53. As noted above, the Board did have evidence before it as to the possible effects of the proposed outfall pipe. Thus, even were it a designated area, the effects were considered and found not significant. 7.10 More generally on this aspect of the applicant's case, it seems to me that the evidence does not support a case of an inadequate EIA by the Board herein. The Board had a very substantial volume of evidence before it enabling a thorough assessment of the likely impact of the discharge from the proposed outfall pipe on Lough Foyle. There was sufficient evidence to assess this whole project so as to decide upon any significant effects thereof on the immediate environment. It is quite clear that the Board, whilst accepting some of the reservations of the inspector, notably, with regard to the Glen Burnie pumping station, did not share all and ultimately disagreed with his recommendation. That is its role. The inspector recommends but the Board decides. The decision is given by the Oireachtas to the Board and not to the inspector. That such a scenario is contemplated by the planning infrastructure provided by law is demonstrated by the provision requiring the Board to state its reasons when it does not follow the inspector's recommendation. This the Board did fully in this case. 7.11 The purpose of the project dealt with herein is the improvement of the water quality in Lough Foyle. All of the evidence is that the present situation is untenable. Ms. Dubsky's report, produced by the applicant, shows that raw sewage is being discharged into Lough Foyle at the moment. The evidence establishes that this project will greatly enhance the water of this beautiful Lough to the great benefit of all. The evidence as opened to the Court in this case overwhelmingly demonstrates that the sooner this project commences, the better. It is a great pity it has been delayed so long. 7.12 For all the above reasons the reliefs sought are refused.
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