The High Court has quashed An Bord Pleanála’s 2019 permission for the Greater Dublin Drainage Project and ordered the planning application returned to the Board for reconsideration from the point when the Inspector’s report was submitted.
In a judgment delivered on 27 April 2021, Mr Justice Allen said the Board had failed to meet its obligation under article 44 of the Waste Water Discharge (Authorisation) Regulations to seek the Environmental Protection Agency’s observations on the likely impact of the proposed development on wastewater discharges. The court had identified that legal flaw in a substantive judgment delivered in November 2020.
The remaining issue was whether the application should be remitted to the Board to address the flaw or simply quashed. Irish Water and the Board argued that the error could be corrected at a late stage, preserving the Inspector’s work and avoiding the expense and delay of restarting the process. The applicant opposed remittal, arguing in part that changes to the regulations and the project’s need for other consents made it inappropriate.
Justice Allen rejected the argument that the remittal hearing should revisit whether the regulations were deficient or whether the State had properly transposed the EIA Directive. He said that issue had been decided in the substantive proceedings, where the applicant had not established grounds for finding a failure to transpose the directive.
The judge found that the process went wrong when the Board should have made its assessment of the likely impact on wastewater discharges, after the Inspector’s report was finalised. The Board’s earlier letter to the EPA was based on a mistaken understanding of the consultation requirement, but was not the point at which the required assessment could have been made. The Inspector’s report had withstood scrutiny and was needed for the Board’s assessment.
Justice Allen accepted that the Board had powers to provide further public participation if necessary. He found no basis for the concern that reconsideration would be a “box ticking” exercise and did not direct that the Board use different members, though he said it might consider appointing a differently constituted division.
The court ordered certiorari, quashing the Board’s 11 November 2019 decision, and remitted Irish Water’s 20 June 2018 application for reconsideration from the point at which the Inspector’s report was submitted. The application against Ireland and the Attorney General was dismissed. The judgment directed that submissions on costs be exchanged unless the parties agreed the issue.