The High Court has quashed An Bord Pleanála’s 2018 permission for an incinerator at Ringaskiddy, County Cork, after finding that the decision was tainted by objective bias. It ordered the Board to reconsider Indaver’s planning application from a point immediately before 23 October 2017, with a direction to correct the name of the applicant.
In a judgment on relief delivered on 1 October 2021, Mr Justice David Barniville said the bias finding arose from the prior professional work of then deputy chairperson Conall Boland, who had worked as a consultant for Indaver in 2004 and later participated in the Board’s consideration of the application. The court had found in its earlier substantive judgment that a reasonable observer could reasonably apprehend that the Board might not consider the application impartially.
The judge rejected Cork Harbour Alliance for a Safe Environment’s request to quash the permission without remitting the application. He said the relief reflected the successful bias challenge, and Mr Boland would not take part in any reconsideration. He recommended, if practical, that Board members who participated in the 2018 decision also not take part. That was a recommendation, not a direction.
The chosen remittal point means the Board cannot rely on the inspector’s addendum or supplemental report dated 7 March 2018. The judge recommended that the Board consider using its statutory powers to seek further information or submissions, or to hold another oral hearing, in light of the time that had passed. He did not order it to use those powers.
The court also addressed a separate challenge to the identity of the applicant. The permission application had been made in the name of Indaver Ireland Ltd, while Indaver NV t/a Indaver Ireland had been the “prospective applicant” in the statutory pre-application process. The judge said the application had been filed under the wrong name because of a clerical error, and that the statutory scheme required the prospective applicant to apply. Since the permission was already being quashed on the bias ground, he said a separate order of certiorari on this issue was unnecessary; he proposed a declaration instead.
He directed the Board, when considering the remitted application, to change the applicant’s name to Indaver NV t/a Indaver Ireland and make consequential changes. The proposed declaration was left for the parties to consider, with further submissions due if they could not agree. The judgment set out the relief and remittal; it did not decide whether planning permission should ultimately be granted.