The High Court has refused an application to quash An Bord Pleanála’s approval of a wastewater treatment plant near Moville, Co Donegal. Mr Justice Hedigan ruled on 26 August 2013 that the applicant had not established the grounds advanced for setting the decision aside.
Donegal County Council proposed a plant with capacity for a population equivalent of 8,800, with treated effluent discharged into Lough Foyle at Carnagave, about 1.5km north of Moville. The project also included pumping stations, pipelines and associated road works. Because of the site’s sensitivity and the Lough’s cross-border setting, the Board had required an environmental impact assessment, although the project was below the stated threshold for a mandatory environmental impact statement.
The Board approved the project on 12 August 2011, despite its inspector recommending refusal three times. The applicant obtained leave to seek judicial review in October 2011. The court considered claims concerning alleged bias, effects on the Northern Ireland side of Lough Foyle, and the adequacy of the environmental assessment.
On bias, the judge found no evidence to support the allegation against Board member Mr Boland. The court considered his former employment with a company in the RPS group, which had prepared a modelling study for the project, and his role in the Board’s handling of the application. It concluded that a reasonable observer aware of the relevant facts would not apprehend that the applicant would lack an impartial hearing. The judgment said the bias claim had not been substantiated.
The court also rejected the claim that cross-border effects had not been assessed. It pointed to consultation with Northern Ireland bodies, including the Loughs Agency and the Planning Service, and to the Board’s consideration of their suggestion that the discharge pipe be located outside the Lough.
On the environmental assessment, the court held that the Board’s 30 June 2011 letter to the Environmental Protection Agency was an invitation to comment, not a formal statutory demand for information. The EPA declined to comment, and the court found no obligation on the Board to insist on a response before proceeding. It also found evidence before the Board to support its assessment of the environmental impact statement and the likely effects of the discharge, including on nearby designated sites and species.
The court noted that the inspector had identified reservations, including about the Glen Burnie pumping station, but said the Board was entitled to reach a different conclusion and had given reasons for doing so. It refused the reliefs sought. The judgment therefore left the Board’s 2011 approval in place; it did not itself grant planning permission.