1. Dublin County Council (now sub-divided into several independent local authorities) applied in 1992 to Kildare County Council for planning permission relating to the creation of a huge municipal dump for baled waste of sixty-four hectares at Arthurstown, County Kildare which is 1.6 km from the village of Kill. If it comes into being, it will be by far the largest municipal dump in Ireland and will receive approximately five million tonnes of municipal refuse from the city and county of Dublin over a ten year period. Some idea of the size of the proposed project is derived from the fact that heavy vehicle movements to and from the site are likely to be in the order of one every three minutes for six days each week for not less than ten years from commencement. The lands comprise a former Roadstone sand and gravel quarry and an adjacent smaller quarry or dump formerly owned by Mr T Gavin. The site originally comprised a large hill which was excavated over many years together with other adjoining lands. Roadstone which worked fifty-two hectares estimate that six to seven million tonnes of sand and gravel were extracted from 1947 until they ceased operations in 1980 when their quarry was worked out. Sand and gravel in the Arthurstown area are classified as a Zone 3 acquifer and ground water is extracted for use in farms and residential properties in the area. Lands in the vicinity of the site comprise agricultural holdings and there are two stud farms on its border. Gavin's land was used for some time as an unauthorised dump for toxic waste which remains a source of contamination of some ground water. The Roadstone lands were the subject of a previous planning permission for a thirty-two acre baled waste landfill, granted by An Bord Pleanala in 1986 to Rent-a-Bin (Tullamore) Limited. However no development has taken place and the permission expired in 1991.

The application by Dublin County Council and an Environmental Impact Statement (EIS) relating to the proposed dump were lodged with Kildare County Council in July, 1992. Ultimately, the latter authority refused planning permission on 29 July, 1993 for twenty-nine stated reasons. The proposed developer brought an appeal to An Bord Pleanala (the Board) dated 27 August, 1993. An oral hearing was directed by the latter and was conducted by Mr Padraig Thornton, a senior planning inspector, on behalf of the Board. There was a lengthy hearing of twenty days from 18 January to 16 February, 1994. Sixty-eight witnesses gave evidence. Mr Thornton's report is dated 1 July, 1994. He recommended the Board to refuse permission for the proposed dump. However, it decided not to accept his advice and granted planning permission on 29 July, 1994, subject to twenty-six conditions. The applicant, on his own account and on behalf of Kill Residents Group, issued and served on all concerned a motion for judicial review dated 27 September 1994 together with a statement grounding the application and his verifying affidavit, all of that date. It is not in dispute that these documents were duly served within the statutory limitation period of two months from the date when planning permission was granted by the Board. However, further affidavits were filed and served in support of the applicant's motion, ie two were sworn by Ms Suzanne O'Sullivan, a consultant hydrogeologist, dated 7 December, 1994 and 24 June, 1995 respectively, together with a supplementary affidavit sworn by the applicant dated 8 December, 1994. It is submitted on behalf of the Board, inter alia, that the latter affidavits have introduced new grounds in support of the applicant's motion which were not referred to in the documentation served on his behalf within the statutory time limit and which could not reasonably be inferred or implied from any of the documentation originally filed in support of the motion.

The application for liberty to proceed for judicial review was made to Carroll J. She reserved her decision and delivered a formal judgment on 24 January, 1995. The learned judge has referred in her judgment to the relevant statutory provisions relating to an application for judicial review of a decision of the Board and I do not propose to set out all of them again herein.

Carroll J summarised the judicial function in adjudicating on such an application as follows:-

"What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the Board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are 'substantial' . . . I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or not. If I consider a ground as such, to be substantial, I do not also have to say that the applicant is confined in his arguments at the next stage to those which I believe may have some merit."

The grounds on which the applicant sought relief were stated by Carroll J to be:-

"(a) The EIS accompanying the application for planning permission is defective and fails to comply with the statutory requirements.

(b) The newspaper advertisement as published and on foot of which Dublin County Council advertised its intention to make application for planning permission, is defective and fails to comply with the statutory requirements.

(c) [This ground was not pursued.]

(d) The purported decision of the respondent under reference PL09.091910 Planning Register No 92/942 insofar as it purports to impose conditions inter alia conditions No 3, 13, 17, 18, 20 and 22 (9 and 19 having been dropped) and which are directed to be matters for agreement as between Dublin County Council, the applicant for planning permission and Kildare County Council as the planning authority are such as constitute an abdication of responsibility of the respondent, [in] consequence of which no valid or proper determination has been made by the respondent on foot of the Appeal and such decision as purports to have issued is null and void and of no effect.

(e) The respondent failed to determine all matters essential to the proper planning and development of the area and has abdicated such further responsibility as a consequence of which there has been no true or proper determination on foot of the application.

(f) The respondent acted ultra vires in reaching a conclusion that no reasonable planning authority applying appropriate standards of reason and common sense and having due regard for proper planning and development considerations [would reach] and insofar as the respondent has reached the decision to grant permission under reference No PL09.091910, the respondent has acted contrary to the weight of the evidence as adduced and such decision is manifestly unreasonable and without justification. (This ground is limited to the conditions relating to traffic only).

(g) The respondent, in purporting to refer conditions 3, 7, 13, 17, 18, 20 and 22 (9 and 19 having been dropped) for agreement as between the planning authority, Kildare County Council, and the applicant for planning permission. Dublin County Council, without the involvement of the respondent or an independent body nominated by the respondent has wrongfully delegated its powers in consequence of which the purported decision under reference No PL09.091910 is ultra vires the powers of the respondent."

Carroll J considered the arguments advanced on behalf of the applicant in support of his case that the grounds relied upon by him are of sufficient substance and weight to entitle him to an order giving liberty to proceed with his application for judicial review. The learned judge also reviewed relevant authorities and decided to grant leave to the applicant to proceed for judicial review on grounds (a), (b), (d), (e), (f) and (g) with the deletion of the reference to conditions 9 and 19 in grounds (d) and (g) and the confinement of ground (f) to the conditions relating to traffic. As to the objection taken on behalf of the Board and the developer to the introduction of alleged grounds not contained in or reasonably implied from the documentation served on behalf of the applicant within the statutory time limit; Carroll J concluded that that matter ought to be left over for decision at the substantive hearing.

THE ISSUES

1(a) The effect of the statutory time limited.

(b) Were additional grounds introduced by Ms O'Sullivan in her affidavits and/or by the applicant in his supplementary affidavit which were not stated in or reasonably derived or inferred from the documentation filed on behalf of the applicant within time?

The conditions imposed by the Board in its planning permission which were challenged by the applicant in the documentation served within the statutory time limit are conditions 3, 7, 9, 13, 17, 18, 19, 20 and 22 -- see paragraph 3(2) of the statement grounding the application for judicial review. (Conditions 9 and 19 were not proceeded with and were excluded by Carroll J). As already stated, it is submitted on behalf of the Board that further grounds are raised in Ms O'Sullivan's affidavits and in the supplementary affidavit sworn by the applicant -- all of which came into being long after the statutory time limit had expired. In Ms O'Sullivan affidavit of 7 December, 1994, she introduced a criticism of condition 10 attached to the Board's permission. She contended that it entailed the removal of approximately four million tonnes of sand and gravel which would deepen and enlarge the capacity of the proposed dump and would interfere with the acquifer which serves a number of third party properties in the vicinity of the site. She averred that this was not referred to in the original EIS and that a supplementary statement in that regard should have been furnished for consideration by the Board and interested parties before any such condition was introduced. In his supplementary affidavit the applicant dealt with that point and also a different aspect of the same problem. He attacked condition 22 on the basis that the Board had not taken into account substantial additional traffic movements relating to extra user which he submitted would be generated by the mandatory removal from the site of circa four million tonnes of sand and gravel pursuant to condition 10.

The applicant also introduced in his supplemental affidavit a criticism not previously made that condition 23 did not specifically specify that the sum of £800,000 to be paid by the developer to Kildare County Council should be spent on improving the Arthurstown/Turf Bog Lane road which in all probability would be the only service route for the dump; nor did it specify that such improvements were to be made as a condition precedent to the opening of the dump.

There is no doubt that the foregoing points raise substantial grounds touching upon the validity of the planning permission for the dump. However, it is not open to the court to consider them if the Board is correct in its submission that they were not notified to it and all other parties within the statutory time limit.

It is provided by Section 82(3B) of the Local Government (Planning and Development) Act, 1963 (as amended by Section 90(3) of the Local Government (Planning and Development) Act, 1992) that an application for leave to apply for judicial review under Order 84 of the RSC regarding a decision of the Board on an appeal shall "be made within the period of two months commencing on the date on which the decision is given" (see Section 82(3B)(a)(i) of The Local Government Planning and Development Act 1963). It is provided that any such application shall be made "by motion on notice (grounded in the manner specified in [Order 84] in respect of an ex parte motion for leave)". The relevant rule in the RSC is Order 84 Rule 20(2) under which the applicant's motion shall be grounded on a notice containing certain specified information which includes "the relief sought and the grounds upon which it is sought". It is also provided that there shall be an affidavit verifying the facts relied on.

The foregoing provisions were considered by the Supreme Court in Enterprises Limited v An Bord Pleanala and Others [1994] 2 ILRM 1. The judgment of Finlay CJ contains the following analysis of the statutory provisions:-

"The general scheme of the sub-section now inserted by the Local Government (Planning and Development) Act of 1992 is very firmly and strictly to confine the possibility of judicial review in challenging or impugning a planning decision either by a planning authority or by An Bord Pleanala. The time limit which has already been mentioned is indicated as being a very short time limit and it is an absolute prohibition against proceeding outside it with no discretion vested in the court to extend the time . . .

From these provisions, it is clear that the intention of the legislature was greatly to confine the opportunity of persons to impugn by way of judicial review decisions made by the planning authorities and in particular one must assume that it was intended that a person who has obtained a planning permission should at a very short interval after the date of such decision in the absence of a judicial review be entirely legally protected against subsequent challenge to the decision that was made and therefore presumably left in a position to act with safety upon the basis of that decision . . .

In the case of a motion on notice which is what is provided for in this sub-section, I am quite satisfied that it could not be said to have been made under any circumstances until notice of it had been given to the parties concerned. Such a construction of the phrase 'application made by motion on notice' seems to me entirely consistent with the plain objects of this sub-section and with its other provisions. The vital and important thing is that within the very sharply limited time scale the parties concerned, and it would seem to me very particularly the person who had received the decision permitting him to develop, must be made aware of the challenge which it is sought to bring by way of judicial review to the validity of that decision."

It is argued on behalf of the Board that one can only be aware of the challenge which it is sought to bring within the two month time limit if the challenge or challenges in question are notified to the relevant parties within that period. It was further submitted that the applicant cannot expand the grounds of challenge beyond the statutory time limit; that this is the logical consequence of the KSK decision and has been expressly so held in a subsequent judgment by Murphy J in Keane v An Bord Pleanala and the Commissioners of Irish Lights delivered ex-tempore on 4 October, 1995. Murphy J held:-

"It seems to me that the application cannot be allowed or admitted. In the first place, the legislation requires that an application for judicial review of what might loosely be termed planning matters must be brought within two months. This is an extraordinarily brief time limit within which to bring the proceeding but to permit an amendment at a later stage, however well founded the new ground might appear to be, seems to me to be impermissible. I think counsel for the applicants might concede that this is so although in certain circumstances might challenge the constitutionality of such a provision. But accept the argument made on behalf of the respondent that to add any new grounds after the two month time period is impermissible."

Neither of the foregoing challenges were made in the applicant's "within time" documentation. His argument that he is not precluded from relying on the points made by Ms O'Sullivan and by him out of time as to conditions 10, 22 and 23 is twofold. First, he relies on ground (e) in the Grounds of Objection served within time to cover the matters raised in the affidavits sworn and served after the time limit had expired and to a lesser extent on grounds (a) and (f). They are as follows:-

"(e) The respondent failed to determine all matters essential to the proper planning and development of the area and has abdicated such further responsibility as a consequence of which there has been no true or proper determination on foot of the application."

"(a) The EIS . . . is defective and fails to comply with the statutory requirements."

"(f) . . . the respondent acted contrary to the weight of the evidence as adduced and such decision [to grant permission for the dump] is manifestly unreasonable and without justification." [This ground was limited by Carroll J to conditions relating to the traffic only.]

Secondly, the applicant interprets the judgment of the Supreme Court in KSK as going no further than requiring that the beneficiary of a planning permission shall know within a short and strict time limit whether or not a legal challenge is being made to the proposed development. He contends that the Supreme Court did not lay down, nor is it contained in Section 82(3A) of the 1963 Planning Act as amended, that once the challenge has been initiated and communicated to all concerned within the required time limit, that the ordinary principles of processing the application do not apply. It was submitted that Section 82(3A) is concerned with ensuring that a legal challenge is initiated and communicated within a particular time and in a particular manner. It is not concerned with limiting the grounds of that challenge except only to require that they be substantial, and that additional grounds of challenge not previously notified may be introduced after the expiration of the statutory time limit, provided that the judicial review proceedings challenging the planning permission granted by the Board was duly initiated and served within time.

I do not think that these submissions are well-founded. Order 84, rule 20(2) requires that the Applicant must specify "the relief sought and the grounds on which it is sought". In conjunction with the statutory requirements regarding the time limit already referred to, this clearly means not only that he must initiate proceedings and specify the relief claimed within the two month time limit, but when so doing, he must also specify the grounds on which relief is sought. In short, the developer was entitled to know within the required period that its planning permission was being challenged and also the specific grounds on which the challenge was based. Ground (e) is a broad, general "catch-all" plea which tells the developer little or nothing as to the actual nature and basis for the challenge and what it should do to meet the case which will be presented against it on judicial review. Ground (a) is also too wide and ought to have specified in what respects the EIS was alleged to be defective and/or failed to comply with statutory requirements. The applicant is not entitled to rely on a general complaint about the EIS as an umbrella to justify subsequent specific allegations not notified as grounds within time. As to ground (f); this raises a fundamental argument that the Board's decision in granting permission was irrational and therefore void. However, the allegation of irrationality as formulated in ground (f), which is confined to traffic only, is in general terms and lacks specifics. In my view it does not comply with the statutory requirements as to notification of grounds of objection within time. The nature of the irrationality alleged ought to have been specified in the grounds of objection submitted by the applicant within the two month limitation period. As he did not do so, he cannot rely on that ground either to sustain grounds subsequently introduced out of time. In my opinion, the grounds of objection should also have drawn the developer's attention specifically to the alleged absence of an EIS in support of condition 10; alleged failure to consider the enlarged capacity of the dump occasioned by compliance with that provision; the effect on neighbouring property of removing the acquifer and the alleged effect of substantial additional traffic in consequence of that condition and also the absence of an EIS in that regard. At the judicial review hearing these matters formed the basis for far-reaching submissions made on behalf of the applicant of which the developer had no warning within time. The challenge to condition 23 and condition 22 (as to volume of traffic) was even more far-reaching as it involved a contention that it amounted to irrational crucial decisions by the Board (within the concept of the Stardust and O'Keeffe judgments of the Supreme Court) (State (Keegan) v Stardust Victims Compensation Tribunal [1986] IR 642 O'Keefe v An Bord Pleanala [1992] ILRM 237) the alleged effect of which was to render the purported planning permission null and void. The grounds of objection ought to have specifically referred to condition 23 and the allegations that the Board had failed to provide that the required payment of £800,000 by the developer to Kildare County Council was for the improvement of the Arthurstown/Turf Bog road and that such works should be completed as a condition precedent to the opening of the dump.

The applicant's interpretation of the judgment of the Supreme Court in KSK is contrary to the dictum of Finlay CJ where he stated that:

"the vital and important thing is that within the very sharply limited time scale, the parties concerned . . . very particularly the person who had received the decision . . . must be made aware of the challenge which it is sought to bring by way of judicial review . . ."

This clearly implies that the obligation on the applicant includes not merely informing the developer within time that his planning permission is being challenged, but also within the requisite time scale making him aware of the specific grounds for the proposed challenge so that he may know the case he has to meet. The applicant is not precluded from introducing evidence after expiration of the two month limitation period in further support or amplification of the grounds of objection he relies on; provided that such grounds are specified in his original documentation which has been served on all relevant parties within time. It should be emphasised however, that the applicant's statutory obligation regarding appropriate notice to the developer within time, extends only to his grounds for challenging the planning permission. Apart from service of an affidavit verifying such grounds, he has no obligation to furnish any other information within the limitation period as to evidence or arguments in support of the case he proposes to make on judicial review.

In my opinion, the Board's submission is well founded that the applicant's grounds of objection relating to conditions 10, 22 (insofar as it relates to additional traffic allegedly generated by condition 10) and 23 were first introduced out of time and cannot reasonably be inferred from the applicant's "within time" documentation. It follows that these grounds cannot be relied on in support of his application for judicial review.

(c) Other grounds which the respondent alleges are out of time.

In addition to grounds relating to conditions 10, 22 and 23 to which I have referred, the respondent also contests the right of the applicant to proceed with his challenge to conditions 11, 12 and 14 in the planning permission on the basis that, as in the other cases, the applicant did not specify the grounds for his attack on these conditions in his "within time" documentation. They are as follows:-

Condition 11: "The ground water level beneath the landfill area shall be maintained below the base level of the clay soil layer of the lining system by the provision of a perimeter drainage system incorporating trenches and field drains. The facilities for regulating the ground water level shall be maintained on a permanent basis after cessation of landfilling operation and the rehabilitation of the lands.

Reason: to reduce the risk of water pollution."

Condition 12: "A drainage system shall be installed above the liner at the base of the waste. Leachate shall be collected from the cells and piped to a leachate storage lagoon. The leachate shall be transported from the storage lagoon in sealed tankers and shall be discharged to the public sewage system as proposed. The level of leachate (head) in the waste containment cells shall not exceed one meter above the lowest level of the flexible membrane liner. The maximum head referred to shall be permanently maintained after closure of the landfill. In the event of leachate being re-circulated through the waste, it shall be re-circulated only beneath the surface of the waste through an infiltration system.

Reason: to reduce the risk of water pollution and to protect the amenities of the area."

Condition 14: "The remediation of 'Gavin's Dump' (including the proposed capping) shall be completed prior to the completion of Phase 1 of the landfill development. The proposed "cut-off wall" containment shall be founded on low permeability competent bedrock below the weathered surface. The 'cut-off wall' shall consist of high density polyethylene (HDPE) sheathing and/or bentonite-cement slurry which shall have a maximum hydraulic conductivity of 1 x 10 to the power of minus 9 meters per second. The 'cut-off wall' shall also incorporate an inner layer of granular material in order to facilitate gas venting. Landfilling of baled waste shall not be carried out above the area enclosed by the 'cut-off wall'.

Reason: to protect the water resources in the area."

None of the foregoing conditions were referred to specifically in the applicant's original documentation and it appears that, again, he is obliged to rely on the "catch-all" ground (e). For the reasons already stated, I am compelled to hold that the applicant's challenges to conditions 11, 12 and 14 also cannot be relied upon as notification of them was out of time.

I should add that if each of these grounds of objection (ie as to conditions 11, 12 and 14) had been made by the applicant within the prescribed time limit, I would not have been disposed to accept his case on any of them. In the premises it is unnecessary to review the arguments which have been advanced on his behalf in that regard. Suffice it to say that I regard the contrary case submitted on behalf of the Board in its written submissions as being well-founded.

2 Alleged unlawful delegation of responsibility by the Board to the Planning Authority and the Developer.

The gravamen of the applicant's case in this regard is that the Board has failed to exercise and has abandoned its decision-making obligation regarding certain specific matters which the applicant contends are of major importance in the overall plan for the proposed development which must be decided by the Board and may not be delegated to anyone else. The Board has left it to the developer and Kildare County Council as the planning authority to agree upon the details relating to such matters. The applicant submits that the Board's statutory powers of delegation do not extend to major decision-making in areas such as those in question, in consequence of which the introduction by the Board of the conditions providing for delegation of decision-making to the planning authority in such matters in collaboration with the developer, being ultra vires the Board's power, vitiates the planning permission which it has purported to grant. It is also argued that a consequence of such unlawful delegation of authority was that the applicant and other interested parties were excluded from the decision-making process and had no opportunity of being heard before such decisions were made. The Board's conditions which are challenged on the ground of unlawful delegation of authority are Nos 3, 7, 13, 17, 18, 20 and 22.

It is not in dispute that the Board has statutory power to delegate matters for decision by the planning authority in consultation with the developer -- see the Local Government (Planning and Development) Act, 1963, Section 26(1) and (2), and Section 14(4) of the amending Act of 1976. The question is what are the parameters of that power and its limitations in the circumstances of the particular case. There can be little doubt that in regard to a major development of a novel specialised nature such as that under review which, if allowed, will be evolving for at least ten years, it is impractical for the Board to concern itself directly in every aspect of the proposed development and it is reasonable to provide that certain details, which are not fundamental to the project per se, shall be delegated to the planning authority for ultimate decision as they arise. In Houlihan v An Bord Pleanala & Another, (unreported, 4 October, 1993), Murphy J in the High Court summarised the problem as follows:-

". . . Undoubtedly some degree of flexibility must be left to any developer who is hoping to engage in a complex enterprise. The issue then is whether the nature or quantity of the matters left undefined is such as to render the permission granted invalid. In my view -- and as I understand it neither party would disagree -- the extent to which flexibility or uncertainty is permissible in a planning permission is largely a matter of degree . . ."

In reviewing the exercise by the Board of its delegatory power, the court must decide whether or not in the circumstances of the given case, it has crossed the boundary between authorised delegation of responsibility to the planning authority and an unlawful delegation of or failure to exercise its powers as to the regulation of the proposed development in a major respect. If that line is crossed by the Board in a matter of substance, the effect is to render its planning permission invalid.

The delegation by the Board to a local authority of decision-making as to the regulation of traffic in connection with a major ro-ro development in Dun Laoghaire harbour was the subject-matter of judicial review by Keane J in the High Court in Boland v An Bord Pleanala, Respondent, and the Minister for the Marine and Others. Notice Parties, (judgment delivered on 20 December, 1994, unreported). He decided that the traffic conditions challenged by the applicant constituted a lawful delegation of responsibility by the Board. However, as the case raised an issue (regarding the parameters of the Board's power to delegate decision-making to a planning authority) which involved a point of law of exceptional public importance, Keane J referred the matter to the Supreme Court pursuant to Section 82 of the Local Government (Planning and Development) Act, 1963 as amended by Section 19(3) of the 1992 Act. The matter came before Hamilton CJ; Blayney and Barrington JJ. Reserved judgments were delivered on 21 March, 1996 (unreported).

In course of his judgment the Chief Justice reviewed the existing law, including the judgments of Murphy J, in Houlihan and Keane J, in Boland. He accepted the principles which they had laid down and he summarised the position of the Board as to the imposition of certain types of condition relating to planning permission, including factors which the Board is entitled to take into account in deciding whether or not any particular matter may be left over for subsequent agreement between the developer and the planning authority. The following passage commences at page 34 of the judgment of the Chief Justice following upon reiteration of the statements of principle made by Murphy J and Keane J in Houlihan and Boland respectively:-

"Accepting, as I do, these statements the position of the Board would appear to be as follows:-

1. The Board is entitled to grant a permission subject to conditions.

2. The Board is entitled, in certain circumstances, to impose a condition on the grant of a planning permission in regard to a contribution or other matter and to provide that such contribution or other matter be agreed between the planning authority and the person to whom the permission or approval is granted.

3. Whether or not the imposition of such a provision in a condition imposed by the Board is an abdication of the decision-making powers of the Board depends upon the nature of the 'other matter' which is to be the subject matter of agreement between the developer and the planning authority.

4. The 'matter' which is permitted to be the subject matter of agreement between the developer and the planning authority must be resolved having regard to the nature and the circumstances of each particular application and development.

5. In imposing a condition, that a matter be left to be agreed between the developer and the planning authority, the Board is entitled to have regard to:

(a) the desirability of leaving to a developer who is hoping to engage in a complex enterprise a certain limited degree of flexibility having regard to the nature of the enterprise;

(b) the desirability of leaving technical matters or matters of detail to be agreed between the developer and the planning authority, particularly when such matters or such details are within the responsibility of the planning authority and may require re-design in the light of practical experience;

(c) the impracticability of imposing detailed conditions having regard to the nature of the development;

(d) the functions and responsibilities of the planning authority;

(e) whether the matters essentially are concerned with off-site problems and do not affect the subject lands.

(f) whether the enforcement of such conditions require monitoring or supervision.

6. In imposing conditions of this nature, the Board is obliged to set forth the purpose of such details, the overall objective to be achieved by the matters which have been left for such agreement; to state clearly the reasons therefor and to lay down criteria by which the developer and the planning authority can reach agreement."

Blayney J in his judgment agreed with the foregoing criteria laid down by the Chief Justice but added a further criterion which was accepted by the Chief Justice. It is as follows:-

7. "Could any member of the public have reasonable grounds for objecting to the work to be carried out pursuant to the condition, having regard to the precise nature of the instructions in regard to it laid down by the Board, and having regard to the fact that the details of the work have to be agreed by the planning authority?"

The foregoing criteria laid down by Hamilton CJ and Blayney J in Boland comprise the parameters within which the Board may lawfully provide by way of condition attaching to a planning permission that a specified matter may be left over for subsequent agreement between the developer and the planning authority. Reviewing the applicant's challenges to conditions 3, 7, 13, 17, 18, 20 and 22 in the light of these requirements, the following emerges:-

Condition 3:

In essence this condition prohibits the deposit of waste within 30 meters of certain defined reference points and the developer is obliged to submit to the planning authority for agreement revised plans dealing with such matters as the required set-back and plans for landscaping and ground contouring in the buffer zone land. This condition deals with peripheral details which are not fundamental to the development per se. It seems to me that it is clearly within the criterion laid down by Hamilton CJ at 5(b) at pp 35-6 of his judgment in Boland. It is also of interest that the first condition imposed by the Board in Houlihan's case required revision of the lay out plan to accommodate the re-siting of the northern boundary of the property in question. That condition, among others, was challenged. It was upheld by Murphy J, who stated:-

"I should say, however, that I do not doubt their right [ie the Board's right] to delegate to the planning authority power to agree with the developer the revisions of the lay out which would be consequent upon the re-siting of the boundary."

That particular condition is similar in nature to condition 3. It is clearly one where delegation of authority by the Board is permissible.

Condition 7:

"Details of a bird and vermin control scheme shall be submitted to and agreed with the planning authority prior to any waste being deposited on the site. The scheme shall be implemented on an on-going basis during the operational phase of the development and for as long as is agreed with the planning authority after the closure of the land filling facility".

This condition is within the ambit of 5(b) and (f) at page 36 in the judgment of the Chief Justice in Boland. A scheme for the control of birds and vermin would require monitoring by the local authority and this appears to be envisaged in Condition 7. It is also a technical provision involving a peripheral detail which is suitable to be agreed between the developer and the planning authority.

Conditions 10, 11 and 12:

As already held, the challenges to these conditions are all out of time.

Condition 13:

"Details of the area and size of the cells to be constructed in each phase of the land filling operation shall be submitted to and agreed with the planning authority prior to any cell being constructed in that phase. The details to be submitted shall include detailed calculations of the water balance and projected maximum leachate production arising from a two and five day design rainfall during each phase having regard, inter alia, to the size of the cells. The leachate storage lagoon shall have a minimum capacity of 2,500 cubic meters and additional storage capacity shall be provided if required by the planning authority subsequent to the submission of the detailed calculations referred to above. Provision shall be made for the aeration of the leachate storage lagoon. Details of aeration facilities shall be agreed with the planning authority or, in default of agreement shall be as determined by An Bord Pleanala."

The proposed plan for the dump envisages that it shall be divided into a series of cells to be constructed in each phase of the development as it evolves. The area and size of the cells are to be agreed with the planning authority. Specific technical requirements are laid down in the condition as to what the details to be submitted by the developer shall cover. It seems to me that this accords with 5(a), (b) and (c) in the criteria laid down by the Chief Justice in Boland. The details in question do not affect the overall size or extent of the project and are within what Keane J called the "ring fence" of the overall development. In my opinion they are in the nature of technical details which may properly be left for agreement between the developer and the planning authority.

Condition 14:

The challenge to this provision is also out of time.

Condition 17:

"The surface water drainage system shall be revised to cater for a minimum return period of ten years rather than five years as proposed. Revised plans indicating compliance with this requirement shall be submitted to and agreed with the planning authority prior to works being commenced on the proposed development or, in default of agreement shall be as determined by An Bord Pleanala."

This condition imposes a more stringent requirement than that proposed by the developer. It entails the re-design of the surface water drainage system to provide for "a minimum return period often years rather than five years as proposed". The obligation on the developer created by this condition to submit a revised plan to the local authority is a detail arising out of the change made by the Board in stipulating a period of ten rather than five years as originally intended. This is also within the ambit of 5(b) at page 36 in the judgment of the Chief Justice in Boland. It will be observed that the condition contains a provision for the matter to be decided by the Board in default of agreement as envisaged in the Local Government Planning and Development (Amendment) Act 1976 at Section 14(4).

The applicant also raises an alternative challenge to this condition, ie, that the amended period of ten years is itself inadequate having regard to the level of sand and gravel extraction. However, it is not contended that the Board in devising and imposing Condition 17, acted unfairly or irrationally. The applicant's criticism goes to the merits of the Board's decision and as such is not reviewable by the court.

Condition 18:

"The surface water drainage system shall discharge to the Hartwell River (by pumping if necessary) at a rate to be agreed with the planning authority following the submission of revised surface water proposals incorporating the requirement set out in Condition No 17 and providing for the provision of detention storage (ponds or lagoons). The detention storage facility shall be designed to control the quantity and quality of the surface water to be discharged and it shall be indicated on the revised plans to be submitted for the agreement of the planning authority in accordance with Condition No 17."

This condition is intimately bound up with Condition 17 and they should be read together. It appears that both are subject to the default provision in the latter condition. Plans for the revised surface water drainage system provided for in Condition 17 are required to deal with, inter alia, the rate of discharge of the water and the provision of detention storage ponds or lagoons. The Board has specifically reserved to itself the power to decide these matters in default of agreement between the developer and the planning authority. I am satisfied that Condition 18 also deals with technical matters which the Board is entitled to delegate to the planning authority. It was also argued on behalf of the applicant that Conditions 17 and 18 do not deal adequately with the risk of water contamination from Gavin's dump. This criticism also goes to the merits of the planning decision and as such is not reviewable by the Court.

Condition 20:

"A detailed monitoring scheme incorporating sampling and testing from a minimum of 12 additional ground water boreholes and additional monitoring points for gas analysis shall be submitted to the planning authority for agreement. Monitoring shall be carried out in accordance with the agreed scheme at a frequency to be agreed with the planning authority. The results of the monitoring shall be submitted to the planning authority on an agreed regular timescale. The monitoring shall continue for a minimum period of 30 years following the closure of the landfill facility."

This provision is a technical requirement which entails, inter alia, long term monitoring. The Board does not have facilities for discharging that role. The obvious body to do so is the local authority. It is also reasonable that the latter should have the function of approving the proposed scheme which is a matter of technical detail subsidiary to the development per se. It is clearly within 5(b) in the criteria laid down by the Chief Justice at 34 of his judgment in Boland.

Condition 22:

"Heavy commercial vehicular traffic travelling to and from the landfill facility shall not use the existing roads through Kill village or turn right at the junction of Turf Bog Lane and the N7. An agreement shall be entered into between the developer and Kildare County Council to regulate the route to be used by traffic associated with the development. This agreement shall be entered into prior to any work being carried out on the proposed development."

This condition prohibits heavy waste transport vehicles from travelling to and from the dump via Kill village and from turning right at the junction of Turf Bog Lane and the N7, a dual carriageway from Dublin to the South, when returning to the city. These provisions are challenged on two grounds. First, that the Board has no power to regulate traffic on public roads. Secondly, that the proposed agreement between Kildare County Council and the developer regulating the route to be used by the dump traffic is an unlawful delegation of the Board's obligations.

As to the first point: I accept that the Board has no power to regulate the generality of traffic using the public highway for a particular purpose (eg all motor vehicles travelling on public roads to or from a local authority refuse dump). However, that is not what the Board has sought to do in the instant case. Its planning permission excludes direct dumping of waste at the site by the public. Only the developer and its agents may do so. The Board is not seeking to impose route restrictions on the public at large in relation to the dump, but only restrictions on the developer and its agents as to routes which heavy vehicles must avoid or adopt in connection with user of the dump. In my view, this is within the powers of the Board. The requirements which it has specified in Condition 22 appear to be eminently sensible. It is proper for the Board to protect the small village of Kill from a flow of heavy vehicles every three minutes, six days a week for ten years. Likewise, it is probable that very serious interference with the main arterial highway from the city of Dublin to the South would ensue if heavy vehicles returning to the city from the dump were permitted to turn right at the junction in question. This would hold up traffic on both sides of the dual carriageway. The alternative route entails a substantial detour of several miles to a roundabout near Naas. It is submitted on behalf of the applicant that in practice at least some lorry drivers will ignore the latter stipulation and will turn right for Dublin at the Turf Bog Lane intersection with the N7. If that happens and on complaint from Kildare County Council the developer does not remedy the situation, the planning authority has adequate statutory powers under Section 27 of the Local Government (Planning & Development) Act 1976 to restrain breach of the traffic condition imposed by the Board. If the developer failed to comply with a court order under Section 27, the entire project could be put in jeopardy. I apprehend that Dublin County Council and its agents will be at all times concerned to ensure due compliance with the traffic regulations comprised in Condition 22.

The applicant's second argument as to improper delegation of responsibility by the Board. As already stated, the latter has no statutory function in the matter of regulating the public at large as to traffic on public roads relating to use of the dump, but it may regulate the developers' heavy vehicle traffic in that regard. However, the most appropriate course for the Board is to delegate its function to Kildare County Council, as the traffic authority concerned, and provide that it shall regulate the route to be taken by the developers' heavy vehicles serving the dump. Such regulation was specifically contemplated by 5(e) in the criteria laid down by the Chief Justice in Boland which relate to off site problems. In my opinion both arguments advanced on behalf of the applicant in attacking Condition 22 are unfounded. It is not ultra vires the powers of the Board as it does not interfere with the rights of the public at large as to user of the roads in question.

Notwithstanding that the applicant's challenge to Condition 23 (being out of time) cannot be entertained by the Court, it is appropriate to add that in my view conditions 22 and 23 should be read as one. A reasonable interpretation of their combined effect is that an agreement shall be entered into between the developer and Kildare County Council to regulate the route to be used by heavy vehicles associated with the intended dump and that agreement shall be a condition precedent to the performance of any work relating to the proposed development. Secondly, the developer shall pay to Kildare County Council £800,000 (up dated as to inflation) as "a contribution towards expenditure on roadworks which are required to facilitate the proposed development". These conditions clearly envisage that Kildare County Council shall decide upon the appropriate route for heavy traffic serving the proposed dump and shall receive from the developer a specific financial contribution towards the cost of necessary road building or improvement. In short, it is a matter for Kildare County Council to decide the route and to build it (if a new road is preferred) or up-grade an existing route to serve the purpose, having been put in funds by the developer so to do. I do not accept the argument advanced on behalf of the applicant that such a scheme is unreal or irrational in the O'Keeffe/Stardust sense because the Board did not indicate more specific details and strict time limits. In my view, it was proper that it should be left to Kildare County Council, as the road authority in question, to decide finally whether there should be a new road serving the dump as originalLy proposed or an up-grading of the Arthurstown/Turf Bog lane route which in the end appears to have been the preferred option. Although Kildare County Council opposed the creation of the Arthurstown dump, there is no evidence to suggest that, the Board having granted planning permission, the local authority would act unreasonably or drag its feet as to the implementation of the foregoing pre-conditions relating to service routes. Conduct of that sort, if it arose, could well lead to judicial review proceedings which would be likely to ensure a realistic implementation of these conditions within a fair and reasonable time scale.

There is one other general point which has been raised on behalf of the applicant as to the delegation of authority by the Board and to which I have already made brief reference. It is submitted that the effect of delegating authority is to prevent or inhibit the applicant and other interested parties from contributing to decision-making in regard to delegated matter. I do not think that that is so. There is no reason to believe that Kildare County Council, as the planning authority concerned, will not co-operate with the applicant or any other interested party in the matter of submissions they may wish to make on functions delegated to the planning authority by the Board and, if asked, will inform them of developments in that regard before decisions are taken. In short, delegation of authority by the Board to the planning authority within the confines of the criteria laid down by the Supreme Court in Boland does not shut out interested parties from contributing to the decision-making process.

The Advertisement

It was published in the Irish Press and is as follows:-

"Co Kildare. Dublin County Council intends to apply for planning permission for the development of a sanitary landfill for baled municipal waste including ancillary building (137 meters square) on a site of 64 hectares at Arthurstown and Hartwell Lower, Kill, Co Kildare with a new access on to Arthurstown Road. The application will provide for phasing, for landscaping and for the restoration of the site. Proposals will be made to deal with the existing situation arising from the former landfill operations on part of the site. The application will be accompanied by an Environmental Impact Statement."

Ground (b) relates to the advertisement in support of the developers application for planning permission which, it is submitted, "is defective and fails to comply with the statutory requirements". This general contention is amplified in paragraphs 56 to 59 of the applicant's affidavit of 27 September, 1994. Four specific points are made therein, but they were not relied on at the judicial review hearing. A different argument was advanced then ie, that the Local Government (Planning and Development) Regulations, 1977, Article 15(c) specifies that the advertisement shall state "the nature and extent of the development". It was submitted that the extent of the development was misstated in two respects:-

(i) It was not stated that the Arthurstown Road/Turf Bog Lane route probably would be the only one to serve the dump during all or most of its life and was not merely a short-term expedient.

(ii) There was no reference to an effect on the acquifer beneath the dump.

The Board's primary argument in response was that these grounds were new and were not based on or reasonably inferred from the case made by the applicant within time. It is evident from the relevant documentation that that is so. It follows, therefore, that the applicant's case as to the adequacy of the advertisement fails, as the grounds on which it is based were not notified to the Board within the statutory time limit.

It was also argued on behalf of the Board that the advertisement did adequately state "the nature and extent of the development" as required by Article 15(c). As will be seen from the advertisement, it does refer to "a new access on to Arthurstown Road" thus implying that that road would be used. The development plans and the EIS referred to in the advertisement, which were available to interested parties, indicated that a proposed new distributor road was (at that time) the preferred option, but that the Arthurstown Road route would be used for an undetermined time pending the building of the new road. The EIS contained a full evaluation of both alternate routes. I accepted the Board's submission that the advertisement adequately alerted the public to the possibility that the Arthurstown Road route would be used.

The second point made on behalf of the applicant that there was no reference to the effect of the development on the underlying acquifer introduces an element which in my opinion goes far beyond a description of "the nature and extent of the development" as required by Article 15(c).

Finally, on this topic, it is pertinent to point out that the relief which the applicant seeks (an order of certiorari quashing the Board's planning permission) is a discretionary remedy. Even if the advertisement was defective as alleged and the grounds for criticising it had been notified within time, I would not be prepared to strike down the Board's planning permission by reason only of the alleged defects in the advertisement. There was a very full appeal hearing conducted by Mr Thornton at which the points in question were fully debated. I am not aware of anyone who contends that he/she was misled by the advertisement or was inhibited from making his/her case at the appeal on that account.

Having considered all of the grounds of criticism argued on behalf of the applicant, I am not satisfied that a sufficient case has been made out to vitiate the planning permission granted by the Board for the developers' proposed refuse dump at Arthurstown and I refuse the application.