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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Yellow Bins (Waste Disposal) Ltd. v. Environmental Protection Agency [2004] IEHC 136 (9 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/136.html Cite as: [2004] IEHC 136 |
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HC 281/04
[2002 No. 801 J.R.]
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTIES
Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 9th day of July, 2004.
This is an application for leave to challenge a decision of the respondent hereinafter referred to as the Agency, in circumstances where pursuant to s. 43 (5) (a) of the Waste Management Act, 1996 (hereinafter referred to as the Act of 1996), the application is required to be brought on notice to this Court insofar as it questions the validity of a decision of the Agency. The relief which is sought in these proceedings is stated to be:
1. A declaration, by way of judicial review, that Condition No. 3.1 of the waste licence granted by the respondent to the applicant on the 8th day of October, 2002, is null and void, being ultra vires the powers of the respondent, and/or irrational.
2. A declaration, by way of judicial review, that Condition No. 5.1.1 of the waste licence granted by the respondent to the applicant on the 8th day of October, 2002, is null and void, being ultra vires the powers of the respondent, and/or irrational.
3. An order of mandamus directing the respondent to grant a waste licence to the applicant within the terms of the respondent's decision of the 8th day of October, 2002, with the above ultra vires conditions deleted.
4. In the alternative, an order of certiorari quashing the respondent's decision of the 8th day of October, 2002, to grant a waste licence to the applicant.
The grounds upon which this relief are sought are set out at para. E of the statement of the statement grounding the application and read as follows:-
"(i) Declaratory Reliefs sought at (d) (i) and (ii)1. Condition No. 3.1 attached to the waste licence granted by the respondent to the applicant provides as follows:"The activity shall not be commenced until the infrastructure required under this licence is in place. Waste shall not be accepted at this facility without the written agreement of the Agency."(d) Condition No. 5.1.1 attached to the said waste licence states that:"All waste processing shall only be carried out in the waste transfer/recovery building as set out in Condition 3".3. The respondent acted in breach of the rules of natural and constitutional justice in imposing Conditions Nos. 3.1 and 5.1.1 in circumstances where the respondent knew, or should have known, that the applicant had applied for planning permission in respect of certain infrastructural works which application had been refused on appeal by An Bord Pleanála and therefore was no longer in existence.4. The respondent acted in breach of the rules of natural and constitutional justice and/or in breach of the provisions of the Waste Management Act, 1996 (in particular, section 54(4) thereof), in failing to consult with the planning authority in whose functional area the applicant's waste recovery and disposal activities would be carried out, namely Kildare County Council.5. In the circumstances, the respondent exceeded its powers in attaching Conditions 3.1 and 5.1.1 to the said waste licence, without having consulted with the said planning authority.6. In attaching Conditions Nos. 3.1 and 5.1.1 to the waste licence granted to the applicant, the decision of the respondent is, to that extent, ultra vires, irrational and void as ignoring proper matters that the respondent should have taken into account.7. In all the circumstances, the respondent acted unreasonably, irrationally and arbitrarily in attaching Conditions Nos. 3.1 and 5.1.1 in that the effects of the conditions are disproportionate to the benefit achieved; the cost of compliance is excessive; and the subject matter of the conditions are matters more properly regulated under Planning and Development Act, 2000.(ii) Reliefs of mandamus and certiorari sought at (d)(iii) and (iv).(d) The grounds relied upon in paragraph (e)(i) are repeated mutatis mutandis in respect of the application for relief herein.
An affidavit has been sworn by Patrick Kelly who is the Managing Director of the applicant which is a company carrying on the business as a waste collection, recovery and disposal operator, and he indicates that it has done so since 1982 at its current premises at Donore, Caragh, Naas, County Kildare. He indicates that the waste transfer station operated by the applicant company at those premises was in existence prior to the enactment of the Act of 1996 and regulations made thereunder. He says that the waste transfer station operated under the statutory permit scheme and pursuant to the provisions of certain planning permissions in respect of its waste activities.
Mr. Kelly outlines the planning history of the applicant as follows:-
"1. An application 'for retention of a workshop for use for truck repair, metal fabrication and waste disposal transfer area' was refused by the planning authority but was granted on appeal to An Bord Pleanála on 10th February, 1984.
2. An Bord Pleanála granted retention permission in respect of a temporary office, toilet, sheds and tanks, and planning permission for a septic tank on 17th November, 1994. The planning authority had previously granted permission for this development, subject to conditions.
3. An application was submitted in relation to change of use of workshop to waste recycling plant and ancillary works. The application was granted by the planning authority but refused on appeal in 1995.
4. The planning authority granted permission for erection and use of a building for waste recycling and transfer. However, the development was again refused permission on appeal on 15th May, 2002.
5. An application for retention of a parking area and temporary portacabin office is currently pending before Kildare County Council."
Mr. Kelly acknowledges that the terms of the Act of 1996 and the regulations made thereunder require the applicant to make application to the Agency for a waste licence in respect of the disposal of waste at its existing waste transfer facility on or before 1st October, 1999. Accordingly, the applicant applied to the Agency for a waste licence on 30th September, 1999. The Agency indicated it proposed to grant a waste licence and provided a copy of the proposed licence by notification dated 13th May, 2002. An Bord Pleanála refused planning permission for erection and use of a building for waste recycling and transfer on 15th May, 2002, being two days after the issue of the proposed decision. In the circumstances, Mr. Kelly says that he is advised that there was no longer a planning application in existence after that date. On this basis he believes that the Agency was obliged to consult with Kildare County Council pursuant to the provisions of s. 54(4) of the Act of 1996.
Mr. Kelly indicates that Environmental and Resource Management Limited was instructed by the applicant to make written objection to aspects of the proposed decision, in particular, in respect of several conditions attached to the draft licence. He says that these objections were made to the Agency under cover of a letter dated 10th June, 2002. He indicates that the Agency granted a waste licence subject to conditions on 8th October, 2002. The contention of the applicant is that certain of the conditions attached to the said licence are invalid as being ultra vires the powers of the respondent under the Waste Management Act 1996. It is furthermore contended that certain of the conditions were attached to the decision in breach of the rules of constitutional and natural justice. He also contends that certain of the conditions are unnecessary and/or disproportionate to the benefits achieved.
Mr. Kelly outlines the subject conditions being conditions 3.1 and 5.1.1.
Condition 3.1 provides as follows:-
"The activity shall not be commenced until the infrastructure required under this licence is in place. Waste shall not be accepted at this facility without the written agreement of the Agency".
Condition 5.1.1 provides:-
"All waste processing shall only be carried out in the waste transfer/recovery building as set out in condition 3".
Mr. Kelly indicates that condition 3.1 replicates condition 3.1 which had been included in the proposed decision given by the respondent on 13th May, 2002. He indicates that the applicant made specific objection to this condition by way of a letter dated 10th June, 2002. He indicates that the applicant stated:
"The condition of greatest concern is condition 3.1 that requires that the infrastructure be in place before the waste activity commences. The condition could take up to twelve months to fulfil upon grant of licence. We also note that the original application made on 30th September, 1999, did not include a waste recycling and transfer building. It was the applicant that proposed a building to modernise the facility.
To be in compliance with the licence the applicant would have to cease operations. This facility is an existing facility under Irish law and the business has operated at these premises for nearly 20 years."
Mr. Kelly indicates his belief that the effect of the condition will be to jeopardise the commercial viability of the applicant's business. He expresses the view that the cumulative effect of conditions 3.1 and 5.1.1 is to prevent the acceptance of waste at the waste transfer station in the short to medium term. He indicates that condition 3.1 precludes waste disposal or recovery activities at the applicant's premises until the infrastructure (including the waste transfer/recover building) required by the waste licence is in place, while condition 5.1.1. prohibits waste processing other than in the waste transfer/recovery building. He indicates that as a consequence, the applicant would be forced to cease acceptance of waste as it would not be in a position to accept, handle or transfer waste at its Donore facility. He indicates that the applicant has no alternative sites (whether licensed under the Act of 1996, or at all) available for the acceptance, handling and transferring of waste. He indicates that these circumstances would seriously impinge upon the applicant's ability to raise revenue and would result in the failure of the applicant's business.
Mr. Kelly indicates his belief that the Agency should have consulted with Kildare County Council as the relevant planning authority, in respect of the works required pursuant to condition 3.1 attached to the waste licence. He expresses his belief that no such consultation took place and that as a consequence conditions 3.1 and 5.1.1 were ultra vires the powers of the Agency in the absence of such consultation. He also indicates his belief that in attaching the impugned conditions, the Agency acted unreasonably, irrationally and arbitrarily in that the effect of the conditions insofar as it has a potential failure of the applicant's business, is clearly disproportionate to the benefit achieved which he indicates is believed to be a marginal improvement in respect of the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity.
An affidavit has been sworn by the first named notice party. He describes himself as member of the Inner Bar of Ireland. He indicates that he lives about a mile from the applicant's premises and has lived there since 1973. He indicates that this was long before the applicant set up its operations at the premises. He states that he is well aware of the activities of the applicant and has passed the spot practically daily for as long as the applicant has been there.
Mr. O'Connell indicates that the affidavit of Mr. Kelly paints a false and misleading picture of the actual planning permissions which are in existence in respect of the premises at Donore. He indicates that it has no planning permission for its actual activities at Donore. He indicates its activities as being the collection of waste at the premises. He refers to a letter dated 27th February, 2001, written by the applicant company to the Agency where it was stated that, "Enclosing operations in a purpose built building will result in positive impacts with regard to the environment".
Mr. O'Connell indicates that the assertion by Mr. Kelly that the waste transfer station operated under statutory permit scheme and pursuant to provisions of certain planning permissions in respect of its waste activities is grossly misleading. Mr. O'Connell indicates his belief that most of the current facility is operating without planning permission and he refers to the planning permission granted to the applicant company. Mr. O'Connell also indicates that the scale of the operation has significantly increased since 1984 from 5,000 tonnes per annum to 40,000 tonnes with the applicant contending for a potential capacity of 60,000 tonnes per annum. Mr. O'Connell refers to the terms of the planning decision of An Bord Pleanála of the 28th March, 2002, to refuse permission for the development sought by the applicant comprising so called modifications to an existing waste transfer facility including the erection of a building of approximately 24 metres by 40 metres long by 11 metres high for use for waste recycling and transfer; a one storey portacabin, canteen circa 3.7 wide by 12.2 metres long; a second weight bridge; a widened site entrance and new gate; a south bound acceleration lane; a 5 metres high litter fence; a paved parking area for fifteen cars; all ancillary services including a new sewage treatment system; also the retention of a temporary one storey portacabin office block circa 8.5 metres wide by 12 metres long. It is indicated that the development will be accessed by the regional road R409, and will be in the townland of Donore.
Mr. O'Connell refers to the views of the Inspector to the Board in his report of the 28th March, 2002 where he concluded that the proposal would be contrary to the proper planning and development of the area, and further to his views that no planning permission has ever been granted for the scale and type of operation that is currently taking place.
Mr. O'Connell points out that in 1995 and 2002, the applicant was refused planning permission by the Board for a waste recycling plant at the premises.
Mr. O'Connell refers to the other material indicating the manner in which the facility has been operated by the applicant in the past and suggests that undertakings given have not been honoured. It must be said, however, that much of his affidavit is argumentative in nature.
A supplemental affidavit has been sworn by Mr. Patrick Kelly addressing points raised in the affidavit of Thomas O'Connell. It must be stated that this affidavit is very largely argumentative in nature.
A further affidavit has been sworn by Mr. Thomas O'Connell who confirms that he observed with his own eyes in the year 2000 what is represented in photographs, that is to say, hundreds of tonnes of commercial rubbish kept in great mound at the applicant's facility.
SUBMISSIONS
On behalf of the applicant it is submitted by Mr. Michael Cush, S.C., that at the date of the proposed decision notified by the Agency in the instant case namely 13th May, 2002, the regulations in force made under ss. 45 and 50 the Act of 1996 were the Waste Management (Licensing) Regulations, 1997 (hereinafter referred to as the 1997 regulations). Counsel indicates that Article 43 of, and part 2 of the Third Schedule to, the 1997 regulations, provided for the payment of a fee for the making of objections. It is stated that as regards an objection made by a person other than the applicant for a licence or an authority enumerated in Article 43(3) 1997 regulations provided for the payment of a fee in the sum of £150.00. It is submitted that at all material times hereto, "A person who has made an objection in accordance with s. 42 (3) to the Agency in relation to the matter concerned", is a person who has, inter alia, paid the fee prescribed by the 1997 regulations. It is submitted that it appears from the affidavit evidence deposed in these proceedings that four objections were received by the Agency from or on behalf of the following parties:-
1. The applicant for the waste licence (the applicant herein),
2. Thomas O'Connell (the first named notice party),
3. Bernadette Crean (the second named notice party),
4. Edwina Murphy (the third named notice party), on behalf of Donore Residents Association.
It is submitted that, having served the within proceedings on the Agency and each of the notice parties named in these proceedings, the applicant has complied with the requirements of s. 43(5)(b)(i) and (ii) of the Act of 1996.
It is contended by counsel on behalf of the applicant that the Agency acted in breach of the provisions of the Act of 1996 in failing to consult with the relevant planning authority, as required by s. 54(4) of the Act, before imposing certain of the conditions attached to the waste licence granted to the applicant. On this basis it is submitted that the decision of the Agency is susceptible to judicial review under the heading of procedural impropriety.
Counsel refers to s. 54 of the Act of 1996. Counsel refers to subs. 4 as originally enacted which provides:-
"(4) Where a permission under Part IV of the Act of 1963 has been granted or an application has been made for such permission in relation to any development comprising or for the purposes of a waste recovery or disposal activity, the carrying on of which requires the grant of a waste licence, the Agency
( a ) shall consult with the planning authority in whose functional area the activity is or will be carried on in relation to any development which—
(d) is necessary to give effect to any conditions to be attached to a waste licence in respect of the activity, and
(ii) the Agency considers is not the subject of a permission or an application for a permission under Part IV of the Act of 1963, and
( b ) may attach to the waste licence such conditions related to the development aforesaid as may be specified by the said planning authority for the purposes of the proper planning and development of its functional area, or more stringent conditions as the Agency may consider necessary for the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity."
Counsel contends that the literal approach to the construction of this provision should apply. Counsel submits that no absurdity results from applying a literal interpretation to this subsection of the Act of 1996 whether as originally enacted or as amended (by s. 257 of the Planning and Development Act, 2000).
It is submitted that insofar as it is possible to divine the intention of the Oireachtas in enacting (and subsequently amending) subs. 4 of s. 54 of the Act of 1996, the application of the literal interpretation does not lead to an absurd result, in the sense that such an interpretation does not lead to a conclusion which could not have been intended by the Oireachtas. It is submitted that on the contrary the application of the literal approach to the interpretation of s. 54(4) leads to a conclusion that could clearly have been intended by the Oireachtas. It is therefore, submitted that the type of development referred to in s. 54(4)(a) of the Act of 1996 is a development which satisfies two conditions. First, pursuant to subparagraph (a) (i), the development must necessarily give effect to any of the conditions attached to a waste licence, in respect of an activity which is going to be carried on in the development. In this regard, and by way of example, reference is made to condition 3.1 (facility infrastructure) attached to the waste licence granted to the applicant. The condition in question requires the provision of a "waste transfer/recovery building". The second condition which it is submitted appears to be required in order to impose a duty on the Agency is contained in subparagraph (a)(ii), namely the development must be of the type which the Agency considers is not the subject of a permission or an application under s. 34 of the Act of 2000 (formerly Part IV of the Act of 1963).
As regards the application of subparagraph (a)(ii) to the instant case, it is submitted firstly that it is clear that the development of the applicant's facility is not the subject of a planning permission (whether under the Act of 1963 or the Act of 2000), because the application for planning permission made by the applicant to Kildare County Council was ultimately refused by the Board on 15th May, 2002. Secondly, the development is the subject of an application for planning permission because, at the time when the Agency made its decision on the applicant's waste licence application (8th October, 2002), the application for planning permission (received by the planning authority on 21st December, 2000) had been ultimately refused by the board on 15th May, 2002 and was, accordingly, spent. Therefore it is submitted that at the time when the Agency was considering its decision in respect of the applicant's waste licence application, the material development was not "the subject of a permission or an application for a permission".
In such circumstances, it is submitted that there is a duty on the Agency to "consult with the planning authority in whose functional area the activity is or will be carried out", which in this case is Kildare County Council, which had granted planning permission to the applicant herein in respect of the said planning application received by the planning authority on 21st December, 2000.
Counsel contends that the duty in question to consult the relevant planning authority is a mandatory duty and in this regard refers to the judgment of Henchy J. in The State (Elm Developments Limited) v. An Bord Pleanála [1981] I.L.R.M. 108. Counsel submits that the obligation is truly mandatory for the following reasons:-
The requirement to so consult may fairly be said to be an "integral and indispensable part of the statutory intendment" underpinning s. 54 of the Act of 1996. Section 54 governs the interaction of planning and waste management codes in a number of specific circumstances. For example, subs. (1) provides for the effect of a waste licence on environmental pollution conditions previously attached to a planning permission. Sub-section (3) as amended, prevents a planning authority or the Board from attaching conditions relating to the control of emissions where a waste licence has been granted or is required. In these circumstances, it is submitted that the requirement placed on the Agency by subs. 4, to consult with the relevant planning authority in the circumstances laid down in that section, is an "integral and indispensable" part of s. 54 and is, accordingly, obligatory.
In these circumstances it is contended that the decision of the Agency dated 8th
October, 2002, is susceptible to judicial review under the heading of procedural impropriety as the agent in making the said decision failed to observe a mandatory procedural rule expressly laid down in s. 54(4) of the Act 1996.
It is further submitted that the decision of the Agency to attach the impugned conditions to the waste licence was irrational. Counsel refers to s. 54(4)(a)(ii) of the Act of 1996 which requires that the Agency must, in certain circumstances, consider whether "development comprising of or for the purposes of waste recovery or disposal activity" is a subject of a permission or application for permission. It is submitted that the purported consideration given by the Agency to the issue as to whether there was a "permission or application for a permission" pursuant to the provisions of s. 54(4)(a) is void for irrationality as there was no relevant material before the respondent to allow it to properly consider the issues.
On behalf of the Agency it is submitted by Mr. Brian Murray, S.C., that the grounds now relied upon by the applicant could have been raised before the Authority.
Counsel addresses the two substantive points made on behalf of the applicant. Firstly, that the respondent ought to have consulted the planning authority under s. 54(4) when imposing conditions 3.1 and 5.1.1. Secondly, that the conditions in question are disproportionate to the benefit achieved and that therefore the respondent has acted irrationally in imposing them. It is submitted with regard to the first of these matters that the proposition is to be merely stated to demonstrate that it is neither substantial nor for that matter stateable. Counsel submits that s. 54(4) requires the Agency to consult with the planning authority where a waste licence application is pending before the Agency in a very limited circumstance. It is submitted that the purpose of this consultation is that in that very limited circumstance the effect of the granting of a waste licence is to render very particular types of works exempted development for the purposes of the planning code. It is submitted that it makes sense that the Agency must consult with the planning authority and indeed comply with its specifications before it makes a decision having this effect. The limited circumstance arises where a developer has been granted or is seeking land use permission for the general works required in connection with the activity requiring the waste licence, but has not been granted nor sought permission for particular works necessary to give effect to the conditions which the Agency believes are appropriate before the licence is granted. It is submitted that in that particular circumstance, it makes sense that rather than force the developer to return to the planning authority to modify the permission granted, or to alter the application which is pending so as to accommodate the requirements of the condition, the Agency itself will, in effect, grant the necessary permission. It is also submitted that it makes sense that before this is done the planning authority is consulted. It is submitted that this exigency does not apply where the general development is not within the planning process at all; the developer can absorb the requirements of any licence granted by the Agency within his eventual application to the planning authority.
Counsel indicated that the applicant wishes to contend that where permission for the general development has been refused by the planning authority the mere fact that the Agency believes that the licensed activity requires to be carried on within his structure which itself requires planning permission means that it must consult with the planning authority and then (effectively) grant an exemption from the planning code in respect of the entire developments. On this basis the applicants argument is that where, as here the application is made for a waste licence in respect of an activity to be conducted in a building, where the agency decided that the activity must be carried on in that building and where there is neither a planning permission nor an application for such permission in respect of that building in place at the time the application for such licence is decided, the Agency must not merely consult with the relevant planning authority in respect of that development and not merely comply with the conditions in relation thereto directed by the planning authority, but that the development then becomes an exempted development. Counsel submits that it would require the clearest words before such an intention could be ascribed to the Oireachtas. Counsel submits that the words in the provision are entirely inconsistent with such a contention. The Agency believes that the contention advanced by the applicant is so untenable as to be susceptible to simple analysis.
Counsel submits that the alleged failure to apply s. 54(4) must be seen in the context that on the date of the licence namely, 8th October, 2002, there was neither planning permission in respect of the infrastructural works, i.e. the waste transfer building, nor any application in respect of same since the permission had been refused and that therefore s. 54(4) applies. Counsel submits that this provision was to ensure consultation between the planning authority and the Agency where appropriate and that it expressly applies only where both bodies are involved in the decision making process. Thus the wording of it specifically provides that it applies where permission under Part IV of the Act of 1963 has been granted or an application has been made for such permission in relation to any development comprising or for the purposes of a waste recovery or disposal activity, the carrying on of which requires the grant of a waste licence. Counsel submits that if this condition is met the Agency may have an obligation to consult with the planning authority. In order for that obligation to arise there must be either permission granted or an application made.
It is the applicant's case that on the date of the grant of the licence there was no permission granted or application for permission made. On this basis it is submitted that one of the pre-conditions necessary under s. 54(4) in order for the obligation to consult to arise does not exist on the applicant's own case. It is submitted that on this basis alone, the applicant has failed to establish any substantial grounds.
Without prejudice to this submission, it submitted that even if this Court were to find that at the relevant time (and the applicant does not identify the relevant time) there was an obligation for permission or permission in being (for example if the relevant time was the date of the application for a licence (30th September, 1999) or the date of the proposed decision (13th May, 2002)) the conditions leading to an obligation to consult did not exist in the instant case.
Assuming that the condition referred to above was met and there was an application for permission or permission, it is submitted that that the Agency is then only obliged to consult with the planning authority in relation to the development which meets two cumulative conditions, (a) it is necessary to give effect to any conditions to be attached to a waste licence in respect of the activity and (b) the Agency considers that it is not the subject of a permission or application for permission under Part IV of the Act of 1963. It is only if these two conditions are met that what might be described as the liaison procedure with the planning authority arises. If that is the case, then the consequences are as follows:-
Firstly, the Agency has an obligation to consult the planning authority about the condition it proposes to impose (s. 54(4)(a)). Secondly, having consulted, it may impose in relation to that condition requirements that are specified by the planning authority (s. 54(4)(b)). Thirdly, that development is then an exempted development (s. 54(5)).
Counsel submits that these consequences arise only in respect of development that meets the cumulative requirements of s. 54(4)(a). If the development that the Agency considers necessary is already the subject of a permission or application for permission under Part IV of the Act of 1963, then the procedure established by s. 54(4) and the resulting exempted development under s. 54(5) does not apply.
In the instant case, if there was no application for permission or permission in relation to the waste transfer works as the applicant contends, then s. 54(4) does not apply at all. If, on the other hand, there was an application for permission, then as a matter of fact that application for permission included an application for permission in respect of the waste transfer works. The condition laid down in s. 54(4)(a)(ii) – that the development necessary to give effect to conditions to be attached to a waste licence not be the subject of an application for permission – had clearly not been made. The developments in question – the waste transfer works – were the subject of an application for permission to the planning authority. Therefore, it could not be subject to what has been described as the 'liaison procedure.'
The type of situation that this 'liaison procedure' is intended to catch is where there is an application for permission, for example, in relation to a building but there is no application in relation to the type of yard surrounding that building. The Agency might impose a requirement in relation to the yard, specifying for example that the yard must be concrete. That requirement would meet the cumulative conditions as it would (a) be necessary to give effect to conditions to the waste licence and (b) would not be the subject of a permission or application for permission under Part IV of the Act of 1963. The fact that one of the cumulative conditions had been met in that the existence of a waste transfer works is required in order to give effect to the conditions in the licence is not sufficient. It is submitted that both requirements must be meet.
It is submitted that in those circumstances, either on the facts as pleaded by the applicant or on the alternative view of the facts, the necessary pre-conditions that would give rise to an obligation of consultation with the planning authority did not exist. In those circumstances, it is submitted that the Agency had no duty to consult with the planning authority (and indeed no entitlement to do so) and therefore the applicant's allegation that the respondent breached s. 54(4) by failing to consult is manifestly not a substantial ground. It is submitted that to interpret the provisions in any other way would effect an absurdity and would undermine the clear and evident intent of the Oireachtas. In this regard counsel refers to Nestor v. Murphy [1979] I.R. 326 and The Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98.
Dealing with the applicant's case of irrationality and the breach of the requirements of proportionality it is submitted that in order to establish irrationality of this kind the applicant must meet the very high test set down in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642. In the instant case, in circumstances where the Act specifically empowered the Agency to impose conditions in relation to the specification of the facility where waste may be recovered or disposed of under the licence (see s. 41(2)(a)(ii)) where the Agency set out in detail both in the proposed decision, the decision granting the licence and in particular in the report of the inspector of 15th April, 2002, the reasons for the necessity of an enclosed building, the Agency's decision in this respect manifestly does not meet the requisite test of irrationality. It is further submitted that the applicant, who bears the burden of proof of establishing substantial grounds, has failed to put forward any reasons or evidence as to why the conditions were supposedly irrational and disproportionate. It is submitted that in these circumstances the applicant has failed to meet the substantial grounds test in relation to the second ground also. Accordingly, it is submitted that the application for leave to apply for judicial review should be refused.
Counsel presents a more detailed analysis of s. 54(4) as follows:-
1. "Section 54 reflects a familiar practical issue that arises in respect of developments that require both land use permission from a planning authority, and licences from the Agency. The planning authority is an expert body in the consideration of issues of planning and development. The Agency has expertise in matters relating to environmental pollution. In a situation such as the present, a person wishing to carry on a waste collection and disposal business requires the input of both bodies. The planning authority must grant planning permission for any development occasioned by the business, and the Agency must grant a waste licence for the activity. However, some mechanism must be put in place to address the issues that present themselves where the respective jurisdictions overlap. This is now achieved through mutual consultation, the impetus to commence that process of consultation depending upon which body first becomes seised of the relevant application.2. The way this is achieved within section 54 facilitates the various situations that can arise. Thus, if a permission has already been granted in relation to a development comprising or for the purpose of an activity in relation to which a waste licence is subsequently granted, conditions within that permission for the purposes of the elimination, abatement, or reduction of environmental pollution cease to have effect. This is provided for in s. 54(1), a provision which is addressed to permissions extant at the time the Act of 1996 took effect. Thus, it makes sense that where planning permission is granted in respect of such a development (one comprising or for the purpose of such an activity) that there should be in certain circumstances a requirement that the Agency consult the planning authority. The granting of the waste license will have the effect of ceasing the effect of the conditions within the planning permission to which reference has been made.
3. Thus, section 54(1) addresses the position where the waste licence is granted after the permission. Section 54(3) addresses the situation where the permission is sought and a waste licence has been either granted or is required. Thus, it provides that where a waste licence has been granted in relation to an activity, or such a licence is required, and where a planning authority grants permission in respect of "any development comprising that activity or for the purpose of the activity," then the powers of the planning authority are circumscribed. The planning authority may not include in its permission conditions for the purposes of the "elimination, abatement, or reduction of or reduction of environmental pollution." This formulation as it is employed within s. 54(3) is (broadly) similar to the conditions that are negated in respect of an extant permission by s. 54(1).
4. Sections 54(3A)-(3F) deal with the process to be observed by a planning authority where it is faced with an application for planning permission in respect of a development "comprising the activity or for the purposes of the activity" in circumstances where a waste licence has been granted, and is or will be required in relation to an activity, and where the planning authority determines that notwithstanding the licensing of the activity, the development is unacceptable on environmental grounds. In those circumstances, the planning authority enjoys a discretion to consult with the Agency.
5. Section 54(3) addresses the position where the Agency is considering an application for a waste licence. The consultation obligation imposed by this provision is triggered where three cumulative conditions are met.
(a) The planning permission "has been granted or an application has been made for such permission" in relation to a development "comprising or for the purposes of" a waste recovery or a disposal activity. This trigger is activated only if a permission is granted or pending. There is no reason why an obligation to consult should be imposed where permission is sought and refused; there is no extant permission in those circumstances that will be affected by the licence application and no issue before the planning authority which requires that its views be shared with the Agency. If the Agency grants the waste licence application with conditions that are necessary in respect of the activity, the works to achieve that are exempt development (s. 54(5)). If there is neither a permission granted nor an application pending, the developer will have to seek permission at a later date. At that stage the planning authority will be conscious of the licence granted, and will have a power of consultation with the Agency if it decides to refuse the application (s. 54(2)).(b) The second condition is that the Agency considers that there be "development which ... is necessary to give effect to any conditions to be attached to a waste licence in respect of the activity." The language used here is significant; in the preceding subsections in s. 54 (including the initial clause of section 54(3) itself) the phrase which is repeatedly used to define the obligations imposed upon the Agency and planning authority is "development comprising or for the purposes of the activity." This second condition focuses upon a different development – that specifically required to give effect to the conditions. There is thus an important distinction drawn between the development comprising or for the purposes of the activity (a general concept, defined in land use terms), and a development which is necessary to give effect to a condition (a specific aspect of the activity, necessarily environmental in nature).(c) The third condition is that there be no permission or application for permission in relation to the development required to give effect to that condition. If there is such a permission, there is no need for any consideration of the planning authority's position within the Agency process. The land use permission required to undertake the development is in place. Similarly, if there is an application for such a permission, the planning authority will in due course consider whether to grant permission for it. However, if neither of these situations prevails, it is necessary for the Agency itself (effectively) to grant planning permission, and it must thus consult the planning authority.(d) These considerations then come together within s. 54(5). It provides that any works required to carry out the development referred to in s. 54(4)(a) are exempt."
In conclusion it is submitted that s. 54(4) provides a mechanism whereby specific responsibility for the effective granting of underlying permission for a very particular type of development shifts from the planning authority to the Agency. This only arises where the general development required to carry out the activity is within the planning system but there is no permission granted or application pending for the specific requirement arising from the proposed condition. If the development generally is not within the system, the Agency ought not to embark upon any consideration of development issues; the developer will have to address them in any event when permission is sought for the overall works. If the development generally is within the system, and the developer has sought permission for the specific development envisaged by the Agency as necessary to give effect for the conditions, it is appropriate that the matter be dealt with by the planning authority.
If, however, the general development is within the planning system, and no permission has been granted or sought for the particular works required by the Agency, there is a clear logic to avoiding the necessity for resubmitting planning applications to take account of such works by the planning authority. It makes sense in that very particular circumstance for the Agency to effectively discharge the planning function; it is only where that exigency arises that the necessity for consultation presents itself.
CONCLUSIONS
I accept the submissions made on behalf of the Agency that the purpose of s. 54(4) is to ensure consultations between the planning authority and the Agency in circumstances where both bodies are involved in the decision making process. It is conceded that in the instant case no grant of permission for the development in question comprising a waste recovery or disposal facility had been granted and none was then pending before the planning authority.
I also accept the submissions made by counsel on behalf of the Agency that where circumstances exist showing that was an application for permission or permission had been granted the Agency is only obliged to consult with the planning authority in relation to the development which meets the two cumulative conditions (a) that it is necessary to give effect to any conditions to be attached to a waste licence in respect of the activity and (b) the Agency considers that the development is not the subject of a permission or an application for permission under Part (IV) of the Act of 1963.
I further accept the submission made on behalf of the Agency that, in the circumstances where no planning permission had been granted and no application for planning permission was pending, there was no reason why the Agency should consult with the planning authority. In those circumstances, it is clear that there had been no permission granted nor application pending, the developer will have an obligation to seek permission at a later date. At that stage, the planning authority will be conscious of the licence granted and will have the power of consultation with the Agency. I also accept the submission made by counsel on behalf of the Agency that an important distinction has to be drawn between the development comprising or for the purposes of the activity (a general concept, defined in land use terms), and the development which is necessary to give effect to a condition (a specific aspect of the activity, necessarily environmental in nature). I do not accept that the applicant has demonstrated substantial grounds as required by s. 43(5)(b) of the Act of 1996 in support of his contention that the decision of the Agency is invalid or ought to be quashed. I believe at best the applicant's case has a superficial air to it which is devoid of reality. I believe that any other construction than that contended for would give rise to an absurdity. It is not in dispute that the term 'substantial grounds' must be construed in the context of the Act of 1996 in a similar manner to that pertaining to the Planning Acts and the decision of this Court in McNamara v. An Bord Pleanála [1998] 3 I.R. 453. In all the circumstances I refuse to the applicant the leave which it seeks.