The High Court refused Margaret Power leave to seek judicial review of An Bord Pleanála’s approval for a waste management facility at Garrynagree, near Dungarvan, Co Waterford. In a judgment delivered on 17 January 2006, Mr Justice Quirke held that none of her four proposed grounds amounted to “substantial grounds” for challenging the decision.
The application concerned the Board’s 15 December 2004 approval of Waterford County Council’s proposed landfill. The site is near the River Lickey, which the judgment says contains endangered freshwater pearl mussels and had been proposed as a candidate Special Area of Conservation. Power, secretary of the Lickey Concern Group, sought leave to pursue an order quashing the approval.
She argued that the decision breached the EU Habitats Directive, that the environmental impact assessment was inadequate, that the approval contravened waste and landfill directives, and that the Board had failed to meet obligations under Article 10 of the Treaty establishing the European Community.
The court applied the statutory test for leave: the grounds had to be reasonable, arguable and weighty, rather than trivial or tenuous. It did not decide the proposed judicial review on its merits. The judgment repeatedly distinguished the court’s role in reviewing legality from deciding whether the Board had reached the correct planning outcome.
On the habitats ground, the judge said the Board had considered inspectors’ concerns about possible effects on the river, including silt-laden water, and had imposed conditions intended to address them. He was not satisfied that the claim established substantial grounds for leave.
On the environmental assessment ground, the court noted that the public had access to the environmental statement, a later ecology report and a revised summary, and could participate in the process, including an oral hearing. The judge said the Board was entitled to decide whether the information was adequate. A European Commission letter expressing concerns about the material did not, by itself, establish substantial grounds; the Commission had invited the Government to respond, and the judgment recorded no evidence that the Commission had taken further action on the matters raised.
The court also rejected the proposed challenge based on waste and landfill directives. It said the Environmental Protection Agency, rather than the Board, was designated to grant and regulate the waste licence, and the legislation assigning it that role had not been challenged in these proceedings.
Finally, the judge found that the general Article 10 claim depended on the earlier directive arguments, which had not met the threshold. The application for leave was refused on all four grounds. The judgment did not quash the Board’s approval or determine a later waste-licensing decision.