The High Court proposed setting aside planning permission for an anaerobic digester plant in Meath after finding that An Bord Pleanála had no material to support its conclusion that biogas at the facility would not exceed the threshold under major-accident rules.
Mr Justice Garrett Simons delivered judgment on 24 May 2019 in a judicial review brought by Niall Halpin, who was represented by his mother and next friend, Eileen Halpin. The judgment says the proposed plant would use agricultural materials including cow slurry, hen manure and silage to produce biogas and digestate.
The court found that the board’s assessment under the Seveso III Directive and the Control of Major Accident Regulations 2015 was unreasonable on the unusual facts of the case. An expert report commissioned by the board said the available information did not establish the plant’s maximum biogas capacity or whether it could exceed 10 tonnes at one time. The board nevertheless concluded there was no likelihood of that threshold being exceeded, relying on general information supplied by the developer.
The judge also found that the permission’s condition limiting biogas on site to 10 tonnes did not match the controls recommended in the expert report. The condition stated the limit but did not require the developer to demonstrate how it would be met or prescribe operational controls to ensure compliance. The board had said it included a condition as recommended by the report; the court found that statement was a material error of fact.
The board had not circulated the expert report to the parties for comment. The judge said it would have been preferable to do so, and that circulation would have allowed the board to decide with submissions from the parties and any competing expert evidence.
The court rejected the other principal challenges. It found the board had lawfully treated the plant as a waste-disposal installation for environmental impact assessment screening; the applicant had not provided evidence that it should instead be classified as an integrated chemical installation. It also found no error in the board’s understanding of the distances to a proposed dwelling on land owned by the applicant’s parents. The different distances in the planning materials measured different points.
The judgment did not make a final order or decide what should happen next to the planning appeal. Justice Simons proposed an order of certiorari quashing the permission and said he would hear the parties on whether to remit the matter to the board or have any further consideration take place through a fresh planning application.