Judicial review allowed where respondent lacked jurisdiction and failed to provide clear reasons for reviewing a waste permit.

[2019] IEHC 328

THE HIGH COURT

[2017/244 J.R.]

BETWEEN

ELAINE KELLY DUNNE, NOEL MOORE, ANN FLYNN, DAVID KELLY, ANNETTE MCGRATH, MARY LOUGHREY,

LOUISE O’SULLIVAN, CLAIR MOORE, MATT KELLY

AND MICHAEL KELLY

APPLICANTS

AND

OFFALY COUNTY COUNCIL

RESPONDENT

AND

GUESSFORD LIMITED TRADING AS OXIGEN

NOTICE PARTY

JUDGMENT of Ms. Justice O’Regan delivered on the 21st day of May, 2019

Issues

1. Leave was afforded to the applicants to maintain the within judicial review proceedings by order of Mr. Justice Noonan on the 20th

March, 2017. All of the applicants reside in Offaly and their application is for an order of certiorari quashing the decision of the

respondent of the 20th December, 2016 to review a waste permit for recycling and transfer facility operated by the notice party at

Barnam, Daingean, Co. Offaly. The notice party had made application to the respondent under the Waste Management Regulations

2007 for a review of the permit granted in 2011 for a five-year period.

2. Several grounds were canvassed by the applicants at the hearing before this Court although not all of same were incorporated

within the statement of grounds notwithstanding that at several stages throughout the hearing it was indicated that it was

inappropriate of the applicants to attempt to maintain such additional grounds. In this regard this Court is relying on the observations

made by Haughton J. in Alen-Buckley v. An Bord Pleanala [2017] IEHC 541 when at para. 15 he observed that new arguments were

raised but not pleaded sufficiently or at all in the applicant’s statement of ground. Judge Haughton was satisfied that the rules of

pleading governing judicial review are clear and require the applicants to state specifically each ground advanced and to particularise

matters as appropriate.

3. Linking new matters back to generally pleaded grounds is not permissible. In para. 16 Judge Haughton quoted from o.84, r.20 to the

effect that new arguments or evidence should be subject matter of an amendment of pleadings without which the court cannot have

regard to the submissions which fall outside those pleaded in the statement of grounds.

4. In the events the grounds are to the effect that the respondent granted the permit without carrying out a recording either an

environmental impact assessment (hereinafter “E.I.A.”) or a screening for same or an appropriate assessment (hereinafter “A.A.”) or

screening for same. It is further complained that the permit was granted notwithstanding that the notice party did not comply with

planning permission and that the respondent failed to provide reasons for its decision and failed to have regard to the applicants’

submissions. A further ground is to the effect that the council granted a permit for activities that were excluded from a permit which

issued on the 22nd January, 2016 and was subsequently quashed by consent in July, 2016, without explanation or reason.

5. Given that there was different personnel involved I am satisfied that there was no duty nor indeed jurisprudence identified by the

applicants, to suggest that the respondent had to engage with the decision of the 22nd of January, 2016 and explain any difference

in the permit granted.

6. During the course of the hearing it became apparent that two reports each dated the 8th of December, 2016, relied upon by the

respondent as part of an effective screening for an A.A. and an E.I.A. were purportedly furnished to the applicants. However, it

transpired that it was an incomplete copy of each report which was furnished and indeed the incomplete reports were exhibited in an

affidavit on behalf of the respondent suggesting that inter alia the incomplete reports were on the public file. In those circumstances

an application was made to amend the grounds relative to the complete reports and this application was successful resulting in a

further ground relevant to the A.A. screening to the effect that -

“reference in the report of the 8th of December, 2016 to control through the implementation of mitigation

measures/permit conditions is contrary to EU law.”

The claim of the applicants is fully contested.

Background

7. Planning permission for a waste facility on the instant site was first afforded on the 18th of June, 2010. The site and waste licence

was transferred to the notice party on the 28th of March, 2011. The notice party subsequently made an application for an

enlargement of the activities on site and applied for planning permission, however, planning permission was refused in this regard on

the 13th of September, 2011. It was in the context of this enlarged planning application that a letter issued from the Department of

Arts, Heritage & the Gaeltacht on the 27th of July, 2011 wherein it was submitted that a full A.A. and E.I.A. be conducted.

Accordingly, that letter is not currently relevant.

8. Initially a waste facility permit issued on the 2nd of February 2007 and was subsequently renewed on the 28th of March 2011

which latter mentioned renewal was a permit for a five-year period expiring on the 14th of December 2015. In advance of the expiry

namely on the 18th of September, 2015 a review of the waste permit was sought by the notice party. It is common case that the

applicants objected to the review on a number of grounds mentioned in their submissions to the respondent in this regard.

9. The respondent conducted a site inspection on the 20th of September, 2016 and subsequently a screening for an A.A. and a

screening for an E.I.A. (asserted by the respondent) was the subject matter of reports of the 8th of December, 2016. A waste facility

permit application report issued on the 20th of December, 2016 and on page 2 of that report it is recorded that the respondent

carried out an A.A. screening in conjunction with the E.I.A. screening.

10. This suggests that the relevant screening was carried out in advance of the report of the 20th of December, 2016.

11. The respondent wrote to the notice party by letter of the 20th of December, 2016 and wrote to the applicants by letter of the

21st of December, 2016 which letters are identical save in the letter of the 21st of December, 2016 the letter concludes with the

statement to the effect that the relevant permit is available for viewing at Offaly County Council during hours therein specified.

12. The letter to the notice party from the respondent of the 20th of December, 2016 appears to comprise the decision of the

respondent in respect of the application and is brief in particular if one excludes the conditions attached to the permission. The letter

states as follows:-

“I refer to the application by Guessford Limited to review waste facility permit… Having reviewed the application, under

article 35 of the above regulations, Offaly County Council have decided to grant a review of permit… The attached

permit…with conditions refers.

In accordance with article 35(9) of the above reference regulations the council outline the following reasons for its

decision.”

Thereafter conditions 1-9 inclusive attached to the permit are discussed. The letter then concludes with a request to insure all

conditions of the permit are read.

13. In the full copy of the screening report for an A.A. of the 8th of December, 2016 page 12 is included (this page in fact was not

initially part of a copy report furnished to the applicants). This page incorporates s.G entitled “Finding of no Significant Impacts”. The

page appears to be set out as incorporating standard questions on the left-hand side with site specific answers on the right-hand

side.

14. Under the heading “The Assessment of Significance of Effects” a standard query on the left-hand side is to the effect “explain

why these effects are not considered significant” (although in the preceding paragraph it is suggested that the project is not likely to

affect the European site). The answer provided is as follows:-

“Due to current and proposed activities at the facility and the proximity to the designated areas the impacts are limited

and all can be controlled through the implementation of appropriate mitigations (sic) measures/permit conditions”.

15. On page 11 of the report of the 8th of December, 2016 it is stated:-

“Due to the current and proposed activities and proximity to designated areas it is determined that the waste facility

site would not have a negative impact on the surrounding protected areas. There are a number of permit conditions

which must be adhered to, this will mitigate against any potential negative impact”.

16. The Notice Party’s permit is limited to an annual disposal at the facility of 24,500 tonnes. It is common case that this is under the

25,000 tonne threshold which would under the regulations require a mandatory E.I.A. The respondents argue however that the

screening exercise was carried out to determine whether or not a full E.I.A. was required.

17. The respondent further acknowledged that under Article 6(3) of Council Directive 92/43/EEC (known as the Habitats Directive) the

carrying out of an A.A. assessment is required. In this regard, Article 6(3) envisages a two-stage process namely at stage one it is

necessary to screen the process to ascertain whether or not the development is likely to have a significant effect on a European site

and protected species. If at this stage of the process it is found that there is such a likelihood, then the matter proceeds to a stage

two full A.A. investigation whereas if at stage one it is found that there is no likelihood of an impact on a European site then the

stage two investigation is not required. In this regard the report of the 8th of December, 2016 concludes with page 12 section G

herein before referred.

18. Under article 18(4)(d) of the Waste Management Facility Permit Regulations of 2007 it is provided that a local authority shall not

grant a waste facility permit unless it is satisfied that the facility is compliant with planning or is exempt from planning permission

under s.5 of the P&E Act 2000.

19. The relevant planning permission for the facility is dated the 18th of June, 2010.

20. At para.10 of the affidavit of Mr. Glover on behalf of the respondent of the 16th of October, 2017 it is recorded that on the 11th

of April, 2017 the planning department of the respondent conducted and unannounced inspection of the facility following which the

planning department of the respondent concluded the facility was compliant with its planning permission.

21. Following the institution of the within judicial review proceedings, further proceedings under s.160 of the P&D Act 2000 have been

maintained by the within applicants asserting non-compliance with the planning permission which application has not yet been heard

by the court.

Screening for A.A. and User of Mitigation Measures

22. There is some controversy in the within proceedings as to what documents in particular comprise the screening for an A.A. (it is

asserted in the affidavit of Mary Hussey of the 30th of January, 2019 on behalf of the respondent that the report of the 8th of

December, 2016 was only a part of the screening process and this assertion is also comprised in written submissions to the court and

initial oral submissions to the court. On the other hand, the waste facility application permit report at page 2, as aforesaid, suggests

that the appropriate assessment screening was already conducted by the respondent. On the assumption that this report was

prepared in advance of the decision of the respondent it is hard to understand how the report of the 20th of December, 2016 or

indeed the decision of the respondent of the 20th of December, 2016 comprised part of the assessment process). It is nevertheless

clear that the report of the 8th of December, 2016 was either pivotal in or about the screening process or indeed comprised the

screening process in conjunction with the prior site inspection.

23. Domestic and EU case law are relevant in determining the test to be applied at the screening portion of the A.A. process in

particular where such screening process determines that a full A.A. is not required. In the instant circumstances the Habitats

Directive (92/43/EEC) of the 21st of May, 1992 is the starting point. Thereafter cases such as Waddenzee (case 127/020),

Sweetman and Others v. An Bord Plenála (case C258/11) and People over Wind and Peter Sweetman v. Coillte Teoranta (case

C323/2017) provide guidance from the CJEU as to the threshold requirement in the screening process and the incorporation of

mitigation measures. In this jurisdiction cases such as Kelly v. An Bord Pleanála [2014] IEHC 400 and Connolly v. An Bord Pleanála

[2018] (a judgment of the Supreme Court of the 17th of July, 2018) are also relevant.

24. Helpfully the issues now under consideration were the subject matter of a portion of a judgment of Mr. Justice Barniville of the 8th

of February, 2019 of Kelly v. An Bord Pleanala and Aldi Stores Ireland Limited (2019 IEHC 84) in which case the applicants challenged

the screening for appropriate assessment carried out by the respondent pursuant to Article 6(3) of the Habitats Directive and the

relevant provision of the planning legislation. The applicants claimed that the Board took into account mitigation measures at the

screening stage for appropriate assessment which is impermissible under Article 6(3) as interpreted by the CJEU in People over Wind

and Sweetman v. Coillte Teoranta case C-323/17 (para. 36 of the judgment). The asserted mitigation measure in that matter was the

sustainable urban drainage systems (SUDS) methods incorporated into the project design.

25. In Waddenzee (case C-127/04) the CJEU considered the meaning of the test of “likely to have a significant effect” and was

satisfied that the necessity to move to the stage two process (that is a full appropriate assessment) arises “following from the mere

possibility that such an effect attaches to that plan or project” (see para. 41 of the CJEU judgment). The court relied on the

precautionary principles to guide the test so that -

“such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have

significant effects on the site concerned… in case of doubt as to the absence of significant effects such an assessment

must be carried out.” (para.44)

26. In Advocate General Sharpston’s opinion on the 22nd of November, 2012 in the case of Sweetman v. An Bord Pleanála (case C-

258/11) notwithstanding that the case refers to the 2nd stage of the A.A. test (the carrying out of an A.A. was necessary and could

not be screened out) the Advocate General did at para. 46 consider further the concept of “likely to have an effect” and equated

same to capable of having an effect. Furthermore, the Advocate General at para. 48 of the opinion of the 22nd of November, 2012

indicated that the concept of “significant” was such that projects that had no appreciable effect are excluded. At para. 49 it is

indicated that the threshold was very low with a requirement of an assessment on the basis of best scientific knowledge in the field.

It is acknowledged at para. 50 that a higher threshold subsists at the stage two process. At para. 51 the necessity to apply the

precautionary principle is again stated where there is uncertainty as to a risk. The stage two element of the process can only be

ruled out if convinced that the plan will not adversely affect the integrity of the site.

27. At para. 44 of the ultimate judgment which is dated the 11th of April, 2013 it is stated that screening must contain complete

precise and definite findings and conclusions capable of removing all scientific doubt. It is for the court to determine if the assessment

meets these requirements.

28. In People over Wind (case C-323/17 a judgment of the 12th of April, 2018) the CJEU was satisfied that in the screening stage

there is a probability of a risk if it cannot be excluded on the basis of objective evidence (see para. 34) and measures to avoid or

reduce the relevant effect is more appropriate at the stage two portion of the process rather than at the screening portion.

29. In this jurisdiction in the case of Kelly v. An Bord Pleanala and Others, a judgment of Ms. Justice Finlay Geoghegan of the 25th of

July, 2014 the opinion of Advocate General Sharpston in Sweetman v. An Bord Pleanála, of the 22nd of November, 2012, was quoted

with approval and applied in relation to the low threshold involved in stage one - the screening process (see para. 30 of that

judgment). At para. 39 the court indicated that in order to comply with CJEU criteria assessment must include an examination,

analysis, evaluation, findings, conclusions and a final determination. The applicants argue that so too must the screening process. At

para. 48 it is indicated that failure to carry out a proper or lawful A.A. under Article 6(3) deprives the authority of jurisdiction.

30. Insofar as the formulation of the test to be applied by Ms. Justice Finlay Geoghegan is concerned this test was cited with

approval by Clarke C.J. in Connelly v. An Bord Pleanála and Others at para. 8.14.

31. In the judgment of Mr. Justice Barniville in Kelly of the 8th of February, 2019 aforesaid the court at para. 68 identified the

principles to be applied in the screening stage for an A.A. (stage one screening) including that there is a necessity to move on to

stage two with the existence of a mere probability that such an effect exists and in line with the precautionary principle a risk will be

found to exist if it cannot be excluded on the basis of objective information. At bullet point 7 the court indicated that the possibility

of there being a significant effect triggers the stage two process and it is only necessary to determine that there “may be” such an

effect. Bullet point 8 indicates that it merely has to be shown that there is a possibility that such a significant effect is likely. At

bullet point 9 the court indicated that the significant effect is made in the light of the characteristic and specific environmental

conditions of the site concerned, that is, that the significant effect is essentially case specific. The court indicated that although the

test was very low nevertheless a threshold must be met before one moves to the stage two A.A. phase.

32. At para. 99 Mr. Justice Barniville suggests that the correct approach for the court to take is to consider the substance of the

reports and not to approach what is said in the reports with an excessive degree of formulism – the assessment is not to be overly

pedantic. It is required that the court must examine the substance of what is said in the report rather than focus on the use and

non-use of particularly statutory words. The screening obligation will be complied with where it is clear from the substance of the

reports that the risk of the development having a significant effect on the European site concerned can be excluded on the basis of

objective information.

33. At para. 132 Mr. Justice Barniville clarified that the CJEU in the case law aforesaid was considering cases where the relevant

measures were intended to avoid or reduce the harmful effects of a particular development on a European site or sites which are

potentially significantly affected by the development at issue therefore measures which are so intended are ruled out from

consideration at the stage one screening stage.

34. Applying such tests, the court in that Kelly decision was satisfied that the SUDS measures were not mitigation measures as

defined by the CJEU in People over Wind as they were not intended to avoid or reduce the harmful effect of the proposed

development on any European site rather are required in all new developments in the greater Dublin area to mitigate the impact of the

development on the aquatic environment.

35. Turning specifically therefore to the A.A. screening report of the 8th of December, 2016, it is noted that it is a 12-page

document. There is a description of the waste facility and associated activities together with an identification of the relevant Natura

2000 site or sites. Of the eight sites identified at page 6, page 7 goes on to provide that due to the scale of the project and distance

to the designated site such site is not relevant for assessment. At page 10 it is indicated that there are no potential cumulative

impacts arising from the proposed waste authorisation. At page 11 it is indicated that the waste facility site will not have a negative

impact on the surrounding protected areas and that there are a number of permit conditions which must be adhered to which will

mitigate against any potential negative impact. The report concludes with section G which incorporates the aforesaid statement to

the effect:-

“Due to current and proposed activities at the facility and the proximity to the designated areas the impacts are limited

and all can be controlled through the implementation of appropriate mitigation measures/permit conditions.”

36. Having regard to all of the foregoing in my view it cannot be said that the screening report confirms that there are no doubts as

to the absence of significant effects (see Waddenzee at para. 44). Nor can it be said that the substance of the Report is such that

significant effect has been excluded (para. 99 of Kelly, 2019).

37. Although in portions of the report it is indicated that there are no significant effects nevertheless section G of the report at the

very least is equivocal as to significant effect and suggests that there are limited impacts on designated areas which can be

controlled through the implementation of mitigation measures or permit conditions. It appears to me inappropriate that mitigation

measures would be availed of in the screening report to avoid a full stage two A.A.

38. Furthermore, as to whether or not the mitigation measures mentioned in section G of the report could properly be said to be

mitigation measures not connected to the European site or sites is far from clear given that:-

a) this statement is made in the context of proximity to Raheenmore bog SAC

and

b) the author’s decision not to enumerate either the impacts, although limited, on the site or indeed the mitigation

measures or permit conditions contemplated to deal with such impact.

39. It appears to me having regard to the totality of the screening report of the 8th of December, 2016 that same has not in fact

without the aid of mitigation measures ruled out the possibility of a significant effect on the adjacent Raheenmore bog SAC.

Reasons

40. As aforesaid the applicants have complained that the decision of the respondent lacks reasoning insofar as the decision

incorporates a determination to review the relevant waste permit.

41. The respondent argues that the starting point to determine whether or not the decision lacks reason is the fact that the

statutory framework under which the decision is made requires reasons to be given in respect of any conditions to be attached to the

permit and reasons to be given where the authority determines not to renew the permit. However, the legislation is entirely silent on

any necessity to afford reason for the granting of a permit.

42. Added to the foregoing statutory background however is the fact that the application for the permit was clearly contested by the

applicants therefore the respondent had before it, prior to making a decision, an application by the notice party in support of the

renewal of the permit together with submissions by the applicant seeking a decision by the respondent to refuse a renewal of the

permit.

43. In Malek v. Minister for Justice, Equality and Law Reform [2012] IESC 59 the Supreme Court set out the current requirements or

duty to give reasons in respect of an administrative decision. Reasons are necessary in order to identify to the relevant party why a

particular decision has been made so that the party can understand the decision made against him so as to enable him to consider

judicial review or future reshaping of an application. The need to give reasons is based upon the principle that all decision makers

must act fairly and rationally. Fennelly J. at para. 74 of his judgment stated that:-

“The developing jurisprudence of our own courts provides compelling evidence that, at this point, it must be unusual for

a decision maker to be permitted to refuse to give reasons. The reason is obvious. In the absence of any reason, it is

simply not possible for the applicant to make a judgment as to whether he has a ground for applying for a judicial review

of the substance of the decision and, for the same reason, for the court to exercise its power. At the very least, the

decision maker must be able to justify the refusal”.

44. In Connolly aforesaid, Clarke C.J. at para. 13.5 stated that a decision will not be invalid provided that the reasonable observer

would be able to understand with reasonable clarity what the Board was deciding and why. The reason for the decision can be

comprised within the decision itself or in other materials which clearly must be taken by express reference or by necessary inference

to identify the reasons.

45. The content of the decision of the 20th of December, 2016 has already been highlighted. The letter refers to the application of

the notice party and goes on to state that having reviewed the application the respondent has decided to grant a review and the

relevant permit with relevant conditions is attached. It is then stated that pursuant to Article 35(9) (which requires reasons for the

imposition of conditions) the council outlined the reasons which followed for its decision. The balance of the decision referred to

conditions 1-9 inclusive and the reasons therein mentioned. There are no reasons whatsoever as to why the application of Guessford

was preferred over the counter submissions on behalf of the applicants but in the absence of such reasons either within the decision

itself or the only other document referred to within the decision namely the application of Guessford or the permit which issued or

indeed any other document identified by the Respondent, then, as per the judgment of Fennelly J. in Malek aforesaid it is impossible

for the applicants to make a judgment as to whether or not they have grounds for applying for judicial review on the substance of the

decision being the determination to grant a review of the permit.

46. In Connolly aforesaid para. 9.2 of the judgment of Clark C.J. has indicated that the reasons can be found in the decision or in

other documents expressly referred to the decision or indeed anywhere provided that it is sufficiently clear to a reasonable observer

carrying out a reasonable enquiry that the matters contended actually form part of the reasoning. If the search required where to be

excessive then the reasons could not be said to be reasonably clear. The respondent effectively suggests that having regard to the

totality of the documents which were before the respondent namely the application of the notice party, the submissions of the

applicant, the screening assessment of the 8th of December, 2016, the report of the 20th of December, 2016 it is clear that the

respondent preferred the arguments of notice party over that of the applicants. That is certainly clear however as to why those

arguments were preferred and the applicants’ submissions rejected is not in my view reasonably clear.

Outstanding Grounds

47. Given the site inspection (unannounced) and finding of the Respondent’s planning section to the effect that there are no

breaches of planning by Guessford, together with the fact that the s.160 proceedings were initiated after, and not before, the

impugned Decision, there is in my view insufficient evidence before the Court to demonstrate a breach of Art.18 of the 2007

Regulations in respect of Planning Compliance.

48. The lack of reference to the Applicant’s submissions in the body of the Decision does not support the Applicants’ contention that

the Respondent did not have regard to such submissions (see para. 207 of Kelly, 2019 IEHC 84).

49. In the circumstances the Applicants have not discharged the necessary burden of proof to secure the requested relief based on

either of the foregoing grounds.

Conclusion

50. I am satisfied that the screening assessment undertaken which appears to comprise the site inspection and the report of the 8th

of December, 2016 involved mitigation measures which possibly effect reducing the impact on a European site and therefore a full A.A.

assessment (stage two phase) was required to be undertaken prior to any decision being made. Further, in the circumstances, such

screening did not in my view confirm that there are no doubts as to the absence of significant effects on the Raheenmore Bog SAC.

In the events therefore the respondent lacked the relevant jurisdiction to review the relevant permit. In addition the reasons for the

grant of the review of the permit are not reasonably clear.

51. On the basis of the foregoing I am satisfied that the applicants are entitled to an order quashing the decision of the 20th of

December, 2016 so that the matter should be remitted to the respondent.