Judicial review under way and will continue into next week.

Press Release - Cork Harbour Alliance for a Safe Environment -24th March 2019

CHASE’s legal challenge to the planning permission decision by An Bord Pleanála for an incinerator in Cork Harbour opened in the High Court in Dublin on Tuesday 19 March before Mr Justice David Barniville. Judge Barniville is in charge of the Strategic Infrastructure Development list of cases at the High Court.

CHASE’s legal challenge to the planning permission decision by An Bord Pleanála for an incinerator in Cork Harbour opened in the High Court in Dublin on Tuesday 19 March before Mr Justice David Barniville. Judge Barniville is in charge of the Strategic Infrastructure Development list of cases at the High Court.

The case is scheduled to continue throughout next week and finish on Friday afternoon, 29 March. The two week hearing is an exceptional length of time given by the Court to the hearing.

• Maurice Collins Senior Counsel for CHASE took the Court through the legal grounds for the challenge, beginning his presentation on Tuesday morning and closing shortly after 4.00on Friday, 22nd March.


• Counsel for An Bord Pleanála and for Indaver will respond on Tuesday, Wednesday and Thursday next.


• David Holland Senior Counsel for CHASE will then reply on and wrap up the CHASE case on Friday 29th March.

Members and supporters of CHASE have been in attendance at Court No 5 in the Four Courts on each day of the hearing.

The case resumes in the High Court at 11 0’clock on Tuesday.

When the case ends next Friday March 29, it is likely that Mr Justice Barniville will need a period to consider his decision. It is therefore probable that his judgement will not be delivered for some time.

The following is an outline of the grounds as presented to the court at the hearing:

- Objective Bias
The Deputy Chairperson of An Bord Pleanála at the time of the decision to grant permission to Indaver was made (May 2018) had previously worked for a consultancy firm, RPS, before joining the Board in 2007. In 2004 in his work with RPS he prepared written submissions to Cork County Council on behalf of Indaver recommending that the local authority change its waste management plan to incorporate incineration of municipal waste by Indaver at Ringaskiddy.

The Deputy Chair was a participant in the Board’s decision to give planning permission to Indaver on this occasion. Counsel for Chase submitted to the Court that the Deputy Chair should not have taken part. Mr Collins emphasised the importance the Courts attach to maintaining public confidence in decision making processes generally. He pointed to the high standards the Courts expect of themselves and other public bodies with decision making powers. He also made it clear that this ground of challenge was not in any sense a personal criticism of the Deputy Chair but rather a legal failure on the part of the Board.

Objective bias arises in circumstances where an independent observer knowing the relevant facts, might think that a decision making process would be unfair. In this way it is different from actual bias or what is legally called ‘subjective’ bias which only arises where the decision maker is shown to be actually biased. Unlike subjective bias, objective bias is not a criticism of the integrity of the decision maker. The process must look to an independent observer like a fair process form beginning to end. The well known rule that justice must not only be done, it must be seen to be done must be respected.

- False evidence.
Indaver’s planning application included information and predictions about dioxin emissions from the incinerator and their likely impacts on humans and the environment. Under cross examination at the oral hearing by physiologist Dr Gordon Reid and by solicitor Joe Noonan for Chase, Indaver’s consultant acknowledged that incorrect data sets had been given to the Board. In his first Report to the Board, the Inspector said issues arose about the veracity of the data and he noted that it was admitted by the applicant, that some data used in the EIS did not relate to the Ringaskiddy site, but was from another site (Nobber, Co Meath). The Inspector recommended refusal because of this deficiency in the EIS.

The Board invited Indaver to explain the ‘discrepancies’. Indaver then submitted new data sets and amended figures. Dr Reid critiqued the Indaver response which he found unsatisfactory. As a result the Board gave Indaver a further opportunity to deal with the issue. When Indaver did so, the Board declined to allow any further from the public including Dr Reid.

Counsel for Chase submitted to the Court that this was legally impermissible conduct by the Board as it amounted to a failure to analyse or investigate facts as required by the EIA and Habitats Directive.

- Unsuitability of Site.
Indaver bought the site in 2000 when Irish ISPAT the previous owner collapsed. They applied to Cork County Council for planning permission in 2001 and were refused. They appealed to An Bord Pleanála. A 13 day oral hearing took place in October 2003 after which Senior Board Inspector Philip Jones recommended refusal on fourteen grounds. One of these grounds was the complete unsuitability of the site. The Board allowed Indaver’s appeal and granted permission. This decision was immediately challenged by way of judicial review on behalf of Chase in the High Court. By the time the case came on for trial the five year planning permission was due to expire so it was unnecessary to hold a hearing.

Indaver applied again in 2008 this time directly to the Board bypassing Cork County Council using new laws favouring strategic infrastructure development.

After another lengthy oral hearing, Senior Inspector Yucel-Finn recommended refusal. One of her main grounds was the unsuitability of the site. The Board refused permission. Indaver launched a High Court challenge against the refusal. They were opposed by the Board and by Chase. Two days before the case was listed for hearing, Indaver said they were withdrawing the challenge. In view of their conduct the High Court found that they had abused the process of the Court and directed them to pay a contribution towards costs incurred by the Board and by the Chase.

Senior Inspector Daly conducted the 2016 oral hearing into the present application. Having heard all the evidence over 17 days, he reported that the site was completely unsuitable. He set out his reasons in his first Report. The Board declined to accept Mr Daly’s finding that the site was unsuitable. They declared that it was suitable. They gave no reasons for forming this opinion or for disagreeing with Mr Daly’s detailed analysis.

On Friday, Counsel for Chase took the Court carefully through this history including the relevant sections of the three Inspectors’ reports. Mr Collins submitted to the Court that the Board’s failure to give reasons amounted to a serious legal error under Irish and European law.

- Breach of EU LAW.
Solicitors for Chase had analysed the Board’s papers and records prior to the commencement of the legal challenge. They had found records indicating that the Board had made its decision to give planning permission before it had carried out the necessary environmental impact assessment and Habitats Directive assessment of the project. Under EU law those two important assessments must be completed before a decision is made on a planning application. It is important to understand environmental impacts before coming to a planning decision. Similarly it is necessary to know about impacts on protected habitats and species in advance of giving planning permission.

Mr Collins submitted that this was a breach of EU law and that the decision of the Board was therefore unlawful.

- AMONG Other issues raised on behalf of Chase were the way in which the Board dealt with contradictions concerning the identity of the company seeking permission; expert evidence on health impacts; geology, coastal erosion; flood risk; emission control weaknesses and limitations of emission monitoring technology