The High Court has dismissed a judicial review brought by Cleary Compost and Shredding Limited over An Bord Pleanála’s decision not to further consider its appeal for permission to expand a composting facility at Larchill Farm, Monasterevin, Co Kildare.
The Board dismissed the planning appeal on 8 June 2015 under section 138(1)(b)(i) of the Planning and Development Act 2000. It said the existing facility had previously been found to be development without planning permission or an applicable exemption, and that environmental impact and appropriate assessments were required. It considered it inappropriate to consider an extension until the facility’s planning status was regularised. It also said the law prevented it from considering retention permission where those assessments were required.
The company sought to have the Board’s decision quashed, arguing that it was unreasonable, unsupported by evidence and reached without fair procedures. It relied on three earlier declarations by Kildare County Council, issued between 2009 and 2011, which had found aspects of the activity not to be development or to be exempt. The Board relied on later determinations of its own, made in 2013 and 2014, which found that the scale and nature of the activities had changed and that the facility’s waste processing was development requiring permission and environmental assessment.
Ms Justice Baker said the Board had considered the earlier council declarations alongside its own later decisions and the planning history. The later Board decisions had not been challenged and were no longer open to challenge. The judge found that the Board had a sufficient evidential basis to conclude that the existing activity was not exempt and had no planning permission.
The company also argued it should have had a fresh opportunity to make submissions before the appeal was dismissed. The judge found that the Board had no new factual matters before it, and that the company had made submissions on the planning appeal and earlier section 5 referrals. A further opportunity to respond was not required in the circumstances.
The court held that the Board had given adequate reasons and had not acted irrationally or unfairly. It dismissed the judicial review. The ruling concerns the lawfulness of the Board’s decision to dismiss the appeal; it does not grant or refuse planning permission for the proposed expansion.