The High Court has quashed An Bord Pleanála’s permission for a proposed landfill at Usk, Kilcullen, Co. Kildare, and remitted the planning matter to the Board for reconsideration.
In a judgment delivered on 14 March 2007, Mr Justice Kelly granted certiorari after the Board conceded the judicial review. The sole basis for quashing the permission was the Board’s failure to record adequately, or at all, its decision approving the conditions attached to the permission. The Board said it could not establish that the conditions had been approved in accordance with law.
The Board had granted Greenstar Recycling Holdings Limited permission on 24 July 2006 for a landfill capable of accepting 200,000 tons of non-hazardous waste a year. The permission was for ten years. The Board’s Inspector had recommended refusal, first in a report dated 19 July 2005 and again in a later assessment. The Board decided instead to grant conditional permission.
The evidence before the court described how the Inspector drafted conditions after the Board’s decision. Board member Brian Swift said he could not recall whether the drafted conditions were considered at a further formal meeting. Board chairman John O’Connor said he believed the conditions were discussed by Board members on 22 June 2006, but no record of such a meeting could be found. The final direction and order were signed on 24 July.
The Board also acknowledged that its file had been unavailable to the public for a period. The court recorded that the Board apologised for this, but held that the permission was being quashed solely because the Board could not adequately record or establish its decision on the conditions. The judge did not determine the applicant’s other complaints about how the planning appeal was handled.
The residents’ association asked the court not to send the matter back to the Board. The Board and Greenstar opposed that position. The judge held that remittal was appropriate, citing the limited basis for quashing the permission, the complaints’ scope, and the expense and delay that would follow if Greenstar had to restart the planning process.
The court ordered the matter remitted to the Board. It strongly recommended that the Board use its discretion to reopen the oral hearing so current information and other relevant matters could be considered. It also recommended that the reconsideration be handled by Board members who had not previously been involved. The court said it could not itself direct the hearing to be reopened and made no finding on the association’s allegations about the Board’s impartiality or conduct.